Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a petition filed by Jaideep Singh (’Petitioner’) for quashing of FIR registered by Shaildendra Singh (‘Respondent 2’) with Economic Offences Wing, New Delhi under Sections 120-B r/w 406 and 420 Penal Code, 1860 (’IPC’), Anu Malhotra, J. quashed FIR filed by, EOW under Sections 406/420/120-B of IPC and all consequential proceedings emanating therefrom against the Petitioner , in view of the deposition of the respondent 2 that settlement has been arrived and the terms of the settlement dated 10-02-2022 have been adhered to by the parties.

The Petitioner is one of the directors of Global Mega Ventures Private Limited, a construction company located in Bhopal and entered into Builder-builder agreement with Respondent 2 for purchase of 4 flats under a subvention scheme in Bhopal at a consideration of INR 2.30 crores, out of which 1.53 crores was paid by bank and rest by respondent 2.

The projects were scheduled for completion by 29-04-2022, however, respondent 2 approached Madhya Pradesh RERA by pleading non-payment of EMI and refund of money against the petitioner, wherein vide order dated 15-07-2019, RERA directed the petitioner to pay the outstanding EMI within a period of 3 months. It is interesting to note that RERA remarked “as per trimester report the development of tower A is 90%. Hence, this work can be completed in the near future as the agreement date is 29-04-2022”. Also “there is much time in completion of the scheduled period and hence, this complaint for refund is pre-matured”

Thereafter, respondent 2 lodged a complaint with Economic Offences Wing, Delhi on 19-06-2019 when the reply was directed to be filed, which was duly complied with, by the petitioner. Then, in December 2019, a notice was issued under Section 41-A Criminal Procedure Code against the petitioner, but the petitioner sought anticipatory bail, which was thereby granted by Additional Sessions Judge, Tis Hazari Court. The summon notices were sent, documents were demanded by the IO which was duly complied with, by the petitioner.

However, during the proceedings, a settlement was entered between the parties vide agreement dated 10-02-2022. Hence, the present petition was filed seeking quashing of the said FIR.

Justice Subramonium Prasad vide order dated 11-02-2019 noted that the petitioner is seeking quashing based on settlement stating that “the petitioner will pay a sum of Rs. 10,28,000/- to the complainant. The last instalment of Rs. 2,78,000/- to be paid on 15-06-2022.”

Further, placing reliance on Gian Singh v. State of Punjab, (2012) 10 SCC 303, the Court directed that if the entire payment is made before 15-06-2022, the parties and the investigating officer have to be present in Court to record implementation of the settlement and FIR can thus be quashed.

Thus, vide the latest order dated 12-09-2022, Anu Malhotra J. noted that the proceedings dated 11-02-2022 indicate that it has already been submitted by the counsel for the State that the State would not be filing the charge sheet if the parties have already entered into a settlement and if the entire amount is paid by the due date fixed.

It was also noted that respondent 2 affirms having signed the settlement document dated 10-02-2022 voluntarily of his own accord without any duress, coercion or pressure from any quarter and affirms the factum that in terms of the said settlement document dated 10-02-2022, the total sum of Rs. 1.53 Crores has since been paid by the petitioner to the financial institutions involved and a sum of Rs. 10.28 lakhs has been received by the respondent 2 from the petitioner as compensation in terms of the said settlement document.

The State reiterated that in view of the terms of the settlement document dated 10-02-2022 having been adhered to by the parties to the petition, the State does not oppose the prayer made by the petitioner seeking the quashing of the FIR in question.

The Court, thus, found it appropriate to put a quietus to the litigation between the parties qua the FIR in question as the offences punishable under Sections 406/420 of IPC are per se compoundable in terms of Section 320 CrPC, with the deposition of the respondent 2 that apart from the petitioner arrayed to the present petition, the other persons mentioned in the FIR were not in any manner connected with the alleged commission of the offences along with the deposition regarding settlement having been adhered to by the parties.

[Jaideep Singh v. The State of NCT of Delhi, WP (Crl) 446 of 2020, decided on 11-02-2022 and 12-09-2022]


Advocates who appeared in this case:

For petitioner- Ms. Sonia Mathur, Senior Advocate with Mr. Swarnendu Chatterjee AOR, Advocate with Ms. Vatsala Bhatt, Advocate

For respondent- Mr. Saransh, Advocate on behalf of Ms. Nandita Rao, ASC for State with Insp. Satish Kumar, EOW, Mandir Marg. R-2 in person with Mr. Prashant Kanha & Mr. Arnav Kumar, Advocates for R-2.


*Arunima Bose, Editorial Assistant has put this report together.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: While deliberating upon the instant writ petitions for quashment of FIR registered in connection with the suicide of prominent tribal leader Mohanbhai Sanjibhai Delkar,(MP, Dadra and Nagar Haveli), the Division Bench of Prasanna B. Varale and Shrikant D. Kulkarni, JJ., exercised their powers under Section 482 of CrPC and quashed the FIR filed against Praful K. Patel (Administrator, Dadra and Nagar Haveli) and others by Mohan Delkar’s son Abhinav Delkar.

Background

Mohanbhai Sanjibhai Delkar (the deceased) was a prominent tribal leader and was representing Dadra and Nagar Haveli since 1989 as Member of Parliament. On 21-02-2021, Mohan Delkar along with driver Ashok Patel and private bodyguard Nandu Wankhede reached Mumbai for attending some Court matter. The deceased was staying at Sea Green South Hotel, Marine Drive. On 22-02-2021 the deceased committed suicide by hanging in his hotel room. The deceased’s son, Abhinav Delkar was intimated of the turn of events through driver Ashok Patel. A suicide note and minutes of Parliamentary Privilege Committee were recovered from the scene. Abhinav Delkar recorded his statement with the police and the same statement was treated as First Information Report.

In the FIR it was stated that the deceased was subjected to ill-treatment, harassment and defamation at the instance of certain persons. It was also stated that this ill-treatment and harassments were done under the orders of Praful Khoda Patel, Administrator, Dadra and Nagar Haveli. Since the deceased was unable to bear this harassment, he committed suicide. It was stated in the FIR that the petitioners by hatching a conspiracy created such an atmosphere of pressure and depression which led the deceased to end his life.

The FIR against 9 persons was registered for offences punishable under Sections 306 (Abetment to suicide), 506, 389, 120-B of Penal Code, 1860 read with relevant provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The FIR further stated that the deceased was representing Dadra and Nagar Haveli since 2019 as an independent Member of Parliament (MP) and he belonged to a scheduled tribe community (Dhodia Patel). It was further stated that the deceased was continuously taking steps for the development of the area and in the past 1 year he was under tremendous pressure as the administration of Dadra and Nagar Haveli was continuously harassing and ill-treating him. The motive behind this harassment and ill-treatment was to take control over the college being run by the deceased and to prevent him from contesting the next elections.

Contentions of the Petitioners

The counsel of each petitioner made detailed submissions before the Court, the crux of which was-

  • It was contended that taking the FIR as it stands would only reflect that deceased himself admitted that he was active in social and political life for a considerably long period; had faced many adversities, and, was bold enough to face these difficulties and proceed further in his active political career.
  • It was submitted the deceased only made assumption and presumption that officers in the administration were acting under the orders of the Administrator and that the private individuals were hand in glove with the Administrator and were acting vindictively against the deceased.
  • It was also contended that the copy of the suicide note was not made available to the Petitioners and it is only referred to in the FIR. Since this material itself is undisclosed and withheld, therefore the petitioners are left only to guess work.
  • It was submitted that as far as the incidents quoted in the FIR are concerned, there is no proximity of these incidents and the act of committing suicide by deceased. Mere assumption and presumption are not sufficient enough to attract the provisions of the IPC. The FIR is silent on the aspect of the enmity or grudge being carried by the petitioners against the deceased; general and baseless statement that the petitioners joined together and hatched conspiracy under the direction of the Administrator is wholly unsustainable.

Contentions of the Respondent

Meanwhile the respondents contended that-

  • Conspiracy was hatched under the directions of the Administrator and pursuant to the conspiracy the petitioners harassed the deceased. Submitting details about the various incidents as referred to in the FIR, the counsels stated that though they are different incidents, however, a common thread in all these incidents is that they lead to the humiliation and harassment of the deceased.
  • It was submitted that FIR is not an encyclopedia as such, the investigating agency, upon lodging of FIR conducts the investigation and further material is collected or unearthed in the investigation.
  • It was submitted that though commission of suicide is a final act, the process of abetment to suicide is a complex one. There are certain causes for commission of suicide and consideration of these causes can be set as dynamics of suicide. It was stated that broadly there are two reasons for commission of suicide i.e., internal or personal reason and secondly, external factors. The effect of these two factors depends upon the sensitivity of a person.
  • It was contended that the investigation is still in progress, therefore, this is not a fit case for exercising powers under Section 482, CrPC.

Findings

Upon perusal of the contents of the FIR and noting the contentions raised by all the petitioners, the Court was of the opinion that that there are considerable merits in the submissions raised by the counsels appearing for Petitioners.

The Court agreed with the petitioners that the deceased was active in social and political life for a long period and faced many difficulties in life boldly and the alleged incidents of ill-treatment stated in the FIR were mere impressions carried out by the deceased. The Court noted that the petitioners presented sufficient material to show that the deceased was never disrespected in any of the public functions and proper protocols were followed considering the deceased’s stature.

Concerning the powers of the Court under Section 482, CrPC, it was observed by the Bench that while exercising powers under Section 482, the Court is not expected to undertake the exercise of detailed scrutiny or assessment of the material collected in the investigation, and it is expected from the Court to go through the contents of the FIR and material along with it.

The Court also agreed with the petitioners that the contents of the FIR fall short in order to attract Section 120-B of IPC. In order to attract Section 120 (B), there must be positive material to show that the petitioners came together to hatch a conspiracy and effect was given to that conspiracy. In the present case, except bare words that the petitioners were acting under the directions of Administrator, there is not a single incident to show that these petitioners came together and acted under the dictates of the Administrator.

Concerning offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the Court pointed out that the FIR also falls short in attracting the charges under the 1989 Act.

Regarding Section 306 of IPC, the Court noted that there must be material of a positive act, as a pre-requisite for satisfying the word ‘abetment’, the contents of FIR and reference made to incidents falls too short to show any positive act committed by the petitioners so as to satisfy the term ‘abetment’.

[Sharad Darade v. State of Maharashtra, WP No. 1806/2021, decided on 08-09-2022]


Appearances

For State: AS Pai, PP


*Sucheta Sarkar Editorial Assistant has prepared this brief

 

 

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: Sanjay Dhar, J. dismissed a petition which was filed challenging FIR registered under Sections 153, 353 Ranbir Penal Code, 1989 and 13 of Unlawful Activities (Prevention) Act, 1967 (ULA(P) Act).

Petitioner was working as Assistant Professor, Geography, at Government Degree College and it was averred that the petitioner is an RTI activist and has filed many RTI applications for advancing the interests of the society so that public funds are utilized in a better manner. In January, 2017 he had filed a writ petition before the High Court calling into question the illegal extraction of minerals wherein an interim direction was passed by this Court and as a consequence of this, District Magistrate, Kulgam, asked Principal, Government Degree College, Kulgam, to enquire into the activities of the petitioner and in the report nothing adverse was found against the him. It was further averred that the petitioner filed an RTI application seeking information regarding recruitment of Rahbar-e-Khel in the year 2018. According to the petitioner, all the aforesaid activities irked the respondents, as a consequence whereof, the impugned FIR came to be lodged against him.

Respondents, on the other hand, submitted that the petitioner was indulging in criminal activities and he has been misusing and abusing the freedom of expression by taking aid of social media. According to respondents, the activities of the petitioner have the effect of motivating the students of the college to disrupt peace and tranquility in the area as he is provoking them to indulge in violence against the State Administration.

The Court, after perusing the case diary, noted that the respondents recorded statements of the witnesses under Section 161 of the Criminal Procedure Code, 1973 (CrPC) and they have also seized the video clips which are alleged to have been uploaded by the petitioner on YouTube where he was trying to motivate the common people towards separatism and was provoking them against the police and security forces as also against district administration. Upon watching the video clips the Court found that in one video petitioner was seen conveying to his audience that the children of Kashmir are being oppressed by the security forces and the army. In yet another video clip, the petitioner was conveying that the army is hampering the movement of the people and it is obstructing the children from going to schools which has led to closure of schools. In yet another video clip, the petitioner was seen pleading cause relating to release of a person who was in custody for indulging in stone pelting and terrorist activities.

Consequently, keeping in mind the material collected by the investigating agency during the investigation of the case, the Court, prima facie, found that the petitioner was provoking or at least intending to provoke his audience to use force or violence against the institutions like the army, the police and the civil administration. promoting enmity between the people living in Kashmir and those living in other parts of the country.

The Court was of the opinion that what offences are exactly established or made out against the petitioner would be known only after the investigation is completed by the respondents and final report is laid before the competent court but at this stage of the investigation, it can safely be stated that the material collected by the investigating agency so far, does disclose commission of cognizable offences against the petitioner.

The Court, relying on Neeharika Infrastructure (P) Ltd. v. State of Maharashtra, 2021 SCC Online SC 315, reiterated that the Supreme Court had clearly stated in this case that High Court should exercise its powers under Section 482 of the CrPC to quash the investigation in an FIR in exceptional circumstances because it is the statutory duty of an investigating agency to take the investigation into an FIR to its logical conclusion.

Thus, the Court dismissed the petition holding that instant case does not fall into the category of cases in which this Court would exercise its powers under Section 482 of the CrPC to quash the proceedings in the impugned FIR.

[Abdul Bari Naik v. State of J&K, 2022 SCC OnLine J&K 666, decided on 29-08-2022]


Advocates who appeared in this case :

P.S. Ahmad, Advocate, for the Petitioner;

Usman Gani, Advocate, for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In an application filed by the applicant who is a UP Police official, charged under Section 302, 120-B and 34 Penal Code, 1860 (‘IPC') seeking regular bail on the ground that the applicant was granted interim bail and never misused his liberty, Rajnish Bhatnagar J. denied bail clarifying that grant of interim bail and grant of regular bail on merits are two different aspects and simply because the petitioner was on interim bail for a certain period of time does not entitle him to grant of regular bail when the facts of the case speak otherwise. The Court also remarked “at the time of grant of interim bail to the petitioner, the merits of the case were not considered.”

The complainant, Ramesh Chand who is father of the deceased alleged that his son aged 25 years who was working as an LIC agent went to the house of Ajay Singh and his friend Sarvesh (‘bail applicant’) regarding policy on 19-07-2018 and went missing. An FIR was registered under Sections 364 and 34 Penal Code, 1860 (‘IPC'). The investigation was conducted and two were arrested, out of which the petitioner is employed in U.P. Police and his co-accused is employed in Reserve Police Forces (‘RPF'). The charges framed in the charge sheet were under Sections 302, 120-B and 34 IPC.

Thus, instant bail application was filed by the petitioner under Section 439 read with section 482 Criminal Procedure Code (‘CrPC').

Counsel for petitioner contended that the petitioner/accused who is on interim bail can be granted regular bail. The State, however, opposed the application by contending that the petitioner, despite being the member of a disciplined force, he, along with the co-accused have committed a heinous offence.

The Court, on perusing the evidence placed on record and examining the witnesses and their statements, noted that the allegations against the petitioner are grave and serious in nature and according to the prosecution, the petitioner who is employed in UP Police has killed and disposed of the body of deceased Prem Kumar aged around 25 years along with his co-accused one of whom namely Ajay Singh is also a constable in RPF.

The Court further noted that that grant of interim bail and grant of regular bail on merits are two different aspects and simply because the petitioner was on interim bail for a certain period of time does not entitle him to grant of regular bail when the facts of the case speak otherwise.

Placing reliance on Satish Jaggi v. State of Chhattisgarh, (2007) 11 SCC 195, the Court dismissed the bail application in view of the nature and gravity of the offence, its impact on society and severity of the punishment of the offence.

[Sarvesh Singh v. State NCT of Delhi, 2022 SCC OnLine Del 2651, decided on 31-08-2022]


Advocates who appeared in this case :

Mr. Gopal Jha and Mr. Umesh Kumar Yadav, Advocates, for the Petitioner;

Mr. Raghuvinder Varma, APP for the State with Inspector Rahul Raushan, Advocates, for the Respondent.


*Arunima Bose, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case of allegations of rape and sexual assault leveled against the BJP leader Syed Shehanawaz Hussain (‘petitioner’), Asha Menon, J. upheld decisions of Metropolitan Magistrate and Special Judge further directing registration of FIR immediately and to submit the final report under Section 173 Criminal Procedure Code (‘CrPC’) and conduct the investigation accordingly, on finding glaring irregularities in the conduct of the police to register FIR.

Respondent 2 filed a complaint under Section 200 CrPC read with Section 190 CrPC alleging commission of offences under Section 376/328/120-B/206 Penal Code, 1860 (‘IPC’) by the petitioner. The complainant however filed an application under Section 156 (3) CrPC seeking directions to the police for registration of the FIR which was thereby granted. The grievance of the petitioner is that the Court directed for registration of the FIR inspite of the police filing an Action Taken Report (‘ATR’) before Metropolitan Magistrate (‘MM’) which concluded that as per the inquiry the allegations were found to be unsubstantiated.

Two applications were also disposed of grieving the petitioner as one sought for recording of the statement of complainant under Section 164 CrPC and other, for carrying out medical examination of the prosecutrix and the alleged accused. Assailing these orders, a revision petition was filed before Special Judge CBI by the petitioner, which was thereby dismissed. Aggrieved by these, present petition under Section 482 CrPC was filed.

The dismissal order which is impugned in the present petition is on the grounds that that the Criminal Amendment Act of 2013 had made it mandatory for the Police to record the statement of the victim under Section 164 CrPC in cases punishable under Section 376 IPC. Moreover, with regard to the registration of the FIR, the inquiry which had been made was only a preliminary inquiry and the MM had rightly not treated the ATR as a cancellation report. As registration of an FIR is only for a proper investigation of the matter and after detailed investigation, if the police still came to the conclusion that no offence was made out, it was not precluded from filing a cancellation report.

Counsel for petitioner Senior Advocate Mr Sidharth Luthra submitted that there is no complaint on record addressed to the SHO as the complaint was an undated complaint made directly to the Commissioner of Police and therefore, the complaint to the DCP did not meet the requirements under Section 154 CrPC and thus no order under Section 156 CrPC could have been issued.

The Court, however, noted that a person giving information to the officer in charge of the Police Station may do so orally or in writing and would obviously do so in their own words. It is only when the officer in charge decides to record the information that the police officer is to follow a format. In case the police officer declines to register the complaint, the complainant can send the substance of the information to a superior police officer under Section 154(3) CrPC. The law thus gives the complainant the right to approach a superior officer in case of the commission of a cognizable offence. Thus, the contention is absolutely untenable.

Senior Advocate Siddhartha Luthra further submitted that that MM as also the Special Judge had erred in not factoring in the ATR report while passing the impugned orders. The Court noted that the record discloses that the police did not file the ATR in terms of the directions of the MM but was titled as the ‘reply of complaint under Section 156(3) CrPC. However, it recorded that the allegations raised in the complaint have been found to be not substantiated but the directions of the court would be abided with.

The Court further noted that the recording of the statement of the prosecutrix on four occasions is referred to in the Status Report, but there is no explanation as to why the FIR was not lodged. The FIR only puts the machinery into operation. It is a foundation for investigation of the offence complained of. It is only after investigations that the police can come to the conclusion whether or not an offence had been committed and if so by whom.

The Court observed that in the present case, there seems to be a complete reluctance on the part of the police to even register an FIR. In the absence of the FIR, at best, the police could have, as correctly observed by the Special Judge, conducted only what is a preliminary inquiry. The very fact that it was only a reply that was filed by the police before the MM, sufficiently establishes that it was not a final report that was submitted by the police. The final report is required to be forwarded to the Magistrate empowered to take cognizance of the offence in a prescribed format under Section 173 (2) CrPC. There was no reason for the MM to have treated that reply as if it was a report under Section 173 CrPC, when the FIR itself was not registered.

Thus, the Court held that there is no perversity in the orders of the learned MM directing the registration of the FIR. There is also no error in the judgment of the learned Special Judge holding that the inquiry report being preliminary in nature cannot be considered as a cancellation report.

The Court further directed the police to conduct a complete investigation after registration of an FIR and submit a report under Section 173 CrPC in the prescribed format. It also directed the MM to proceed in accordance with law.

[Syed Shahnawaz Hussain v. State, 2022 SCC OnLine Del 2428, decided on 17-08-2022]


Advocates who appeared in this case :

For Petitioner- Mr. Siddharth Luthra and Ms. Geeta Luthra, Senior Advocates with Mr. Vineet Malhotra, Mr. Vikas Arora, Ms. Shivani Luthra Lohiya, Ms. Asmita, Ms. Apoorva Maheshwari and Mr. Vishal Gohsi, Advocates;

For respondent- Mr. Ritesh Kumar Bahri, APP for the State with Inspector Manoj Kumar and SI Eshter Dazi Duo Mr. Sanjiv Kumar Singh, Advocate, for the R-2.


*Arunima Bose, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case where FIR was registered by Managing Director of Sanash Impex Pvt. Ltd. (‘respondent’) against Flipkart (‘petitioner’) for allegedly selling fake products of DC Dermacol cosmetics, Asha Menon J. quashed the FIR stating that this is one such case where the registration of an FIR against an intermediary would lead to miscarriage of justice considering the basic ingredients being met to avail protection under Section 79 of Information Technology Act, 2000.

Flipkart is an e-commerce entity that provides its portal for the sale of products to other sellers. Respondent 2, being MD of Sanash Impex Pvt. Ltd. has been authorized with absolute and exclusive right to sell DC DERMACOL cosmetic products in India, both online and offline. DC DERMACOL is a product of an international brand (Czech Brand) and gained high repute as a brand all over the world in respect of skin makeup.

The allegations are such that it is in connivance with the fake/unauthorized re-sellers. Thus, the respondent 2, on behalf of its company, accused the petitioner of cheating and illegal selling of DC DERMACOL cosmetics products. On the basis of this complaint, FIR was registered for the commission of offences under Sections 103/104 of the Trademark Act, 1999 and Section 63 of the Copyright Act, 1957.

Thus, instant petition was filed under Articles 226 and 227 of the Constitution of India read with Section 482 of Criminal Procedure Code praying for quashing of the said FIR.

Counsel for Petitioner Mr. Siddharth Luthra submitted that the petitioner was an intermediary as defined under Section 2(1) (w) of Information Technology Act, 2000 and was thus protected under Section 79 of Information Technology Act, 2000. It was further submitted that until and unless a court order was served upon the petitioner, there was no obligation on the petitioner, as an intermediary, to remove any material from its portal. It was submitted that in the present case, respondent 2 has not initiated any civil proceedings and no court order had been served upon the petitioner. As such, the FIR against the petitioner was mis-placed and mala fide.

“Intermediary” is defined under Section 2(1)(w) Information Technology Act, 2000 as follows:

Section 2(1)(w) —intermediary, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes.

Placing reliance on Google India Private Limited v. Visaka Industries, (2020) 4 SCC 162, the Court noted that the e-market portals, like the petitioner, are intermediaries.

The Court further noted that IT Act does not provide for infringement of trademark or copyright as an offence thereunder and the only obligation of an intermediary is provided under Section 79 of IT Act which incidentally falls under Chapter XII under the title —Intermediaries Not to Be Liable in Certain Cases.

It was stated that the obligation of the intermediary is to observe due diligence and follow the guidelines that may be prescribed by the Government in this regard. Therefore, reference will have to be made to the Information Technology (Intermediary Guidelines) Rules, 2011 (‘IT Guidelines’). Rule 3(1) of IT Guidelines provides for due diligence to be observed by the intermediary, however, the non-compliance of these Guidelines/Rules have not been declared to be an “offence” under the IT Act.

The Court remarked the present matter relates to criminal liability. The simple question is whether compliance with the “due diligence” requirement under Rule 3 of IT Guidelines would render the intermediary eligible for exemption from criminal liability also.

The Court opined that the standard for fixing criminal liability is far higher than that under civil law, one requiring proof ‘beyond reasonable doubt’ and not just a ‘balance of probabilities. Thus, unless an active role is disclosed in the commission of the offences complained of, the intermediary, such as the present petitioner, would be entitled to claim protection under Section 79 of the IT Act. Thus, when compliance with the “due diligence” requirement under Rule 3 of IT Guidelines is evident, ex facie, the exclusion of liability under Section 79 of IT Act would include exclusion from criminal prosecution.

The Court observed that the petitioner has complied with the Guidelines by putting it on their Terms of Use, that the users cannot display what belongs to another person and over which they have no right or which infringes upon or violates any third party’s rights, including but not limited to intellectual property rights, rights of privacy or rights of publicity; or promotes an illegal or unauthorized copy of another person’s copyrighted work or infringes any patent, trademark, copyright, proprietary rights, third-party’s trade secrets, rights of publicity or privacy, or is fraudulent or involves the sale of counterfeit or stolen items or which violates any law for the time being in force. Thus, due diligence under Rule 3 of IT Guidelines has been complied with.

The Court also considered a moot question whether the information provided by the complainant would suffice to obligate the petitioner to take down the allegedly offending information/sites/products. It noted that the intermediaries are certainly not situated to determine the correctness of a claim by a complainant to a trademark or copyright.

The court remarked that the present case goes a step ahead as the FIR has been lodged only against the petitioner and another platform, as none of the other sites or entities, allegedly selling the products which are either fake or unauthorized, are even named.

Thus, placing reliance on State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, the Court quashed the FIR qua the petitioner holding that this is one such case where the registration of an FIR against an intermediary would lead to miscarriage of justice not barring investigations in order to ascertain the identity of those who are infringers and/or unauthorized sellers of the products of the Czech company.

[Flipkart Internet Pvt Ltd v. State of NCT of Delhi, 2022 SCC OnLine Del 2439, decided on 17-08-2022]


Advocates who appeared in this case :

For Petitioners- Mr. Siddharth Luthra, Senior Advocate with Mr. Dheeraj Nair, Mr. Manish K. Jha, Ms. Shruti Dass and Mr. Ayush Kaushik, Advocates;

For Respondents- Mr. Amol Sinha, ASC for R-1/ State with Mr. Anshum Jain and Mr. Rahul Kochar, Advocates and Insp. B.M. Bahuguna Mr. Vivek Raja, Advocate for R-2.


*Arunima Bose, Editorial Assistant has put this report together.

Andhra Pradesh High Court
Case BriefsHigh Courts

   

Andhra Pradesh High Court: In a case where the complainant alleged offence under Section 376 Penal Code, 1860 (‘IPC') and bail is sought in the instant petition, Ravi Cheemalapatti, J. granted bail to the petitioner accused as alleged sexual relationship was consensual in nature and perusal of records showed that when the relationship eventually did not work out, complaint was filed alleging serious offences.

The complainant alleged that the petitioner, on the pretext of love and marrying the de facto complainant, took her to his residence at Gollapudi, Krishna District with the consent of his parents and exploited her sexually. She was also threatened and abused by the friends of the petitioner as alleged in the complaint. The accused was thereby arrested and has been languishing in jail since 15-06-2022.

Thus, instant criminal petition was filed under Sections 437 & 439, Criminal Procedure Code (‘CrPC'), seeking regular bail, by the petitioner/ Accused 1 in crime No. 340 of 2022 of Bhavanipuram Police Station, Vijayawada City, registered for the offences punishable under Sections 376 (2)(n), 417, 420, 323, 384, 506 read with 109 IPC.

The Court observed that on perusal of the record it is clear that there was consent between the de facto complainant and the petitioner and it is also prima facie evident that when the de facto complainant felt that the relationship between her and the petitioner is not going to work out, she filed the present complaint.

Placing reliance on Ansaar Mohammad v. State of Rajasthan, 2022 SCC OnLine 886, the Court noted that when the complainant is willingly stayed and had relationship, if the relationship is not working out, the same cannot be a ground for lodging an FIR for the offence under Section 376(2)(n) of IPC. Thus, the Court categorically remarked this complaint was lodged when the relationship between the de facto complainant and the petitioner is not working out.

Thus, the Court granted bail subject to the following conditions:

(i) The petitioner shall be released on bail on his executing self-bond for Rs.25,000/- (Rupees twenty-five thousand only) with two sureties for a like sum each to the satisfaction of the learned Chief Metropolitan Magistrate, Vijayawada, NTR District;

(ii) The petitioner shall appear before the Station House Officer, Bhavanipuram Police Station, Vijayawada City, once a week i.e., every Sunday between 10.00 a.m. and 02.00 p.m. till filing of the charge sheet; and

(iii) The petitioner shall not directly or indirectly contact the complainant or any other witnesses under any circumstances and any such attempt shall be construed as an attempt to influence the witnesses and shall not tamper the evidence and shall co-operate with the investigation.

[Jatoth Aditya Rathod v. State of Andhra Pradesh, Criminal Petition No. 5704 of 2022, decided on 12-08-2022]


Advocates who appeared in this case :

Arun Kumar R, Advocate, for the Petitioner.


*Arunima Bose, Editorial Assistant has reported this brief.

Saket Court
Case BriefsDistrict Court

Saket Court (South), Delhi: In a case of alleged leak of details of FIR containing sensitive information, Shilpi Singh J., issued notice to Station House Officer ‘SHO’ to explain how Hindustan Times came in the knowledge of the present FIR, the kinds of complaint in which the complaint is treated as sensitive information.

An FIR was directed to be registered on the orders of the Sessions Court dated 19-04-2022, after an application was moved by the complainant. The complainant states that he has still not received any information regarding registration of FIR but on 29-07-2022 an article was published in Hindustan Times, Hindi Editorial on the first page about the allegations of the complainant in the FIR.

Counsel for complainant submitted that once the FIR is registered it is uploaded on CCTNS which takes some time and to access the FIR, a person requires the name of the complainant, FIR No. and date of registration. He further submitted that the only person in knowledge of such details would be either DO or IO.

Thus, it was alleged that FIR has been deliberately leaked to the media as the complainant is a high-profile person and the said facts would result in tarnishing his image.

The Court noting that FIR was registered on 22-07-2022 and perusing the facts and allegations levelled, issued notice to concerned SHO with direction to explain how Hindustan Times came in the knowledge of the present FIR, the kinds of complaint in which the complaint is treated as sensitive information and discretion be exercised by the SHO to not share the same.

The Court further directed the counsel for complainant to show why such case fall under the sensitive information category.

The matter is next listed for further proceedings on 30-08-2022.

[Ashok Kumar Choudhary v. Jeena Joseph, 2022 SCC OnLine Dis Crt (Del) 30, decided on 03-08-2022]


Advocates who appeared in this case :

Sanjay Vashisht, Advocate, Advocate for the Complainant.


*Arunima Bose, Editorial Assistant has reported this brief.

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: While deciding the instant petition wherein the Single Judge Bench of Justice Sanjay Dhar deliberated upon 2 important issues— firstly, approach of the Courts while examining allegations against relatives of a husband accused of matrimonial crimes; secondly, approach of investigating agencies while undertaking investigation of the offences stated to have taken place about few years prior to the lodging of the FIR. The Court held that, in matters of matrimonial crimes, allegations against a husband’s relatives must be carefully scrutinized by the Courts. Sanjay Dhar, J., also observed that Section 473, CrPC gives jurisdiction to a Court to take cognizance of an offence beyond the prescribed period of limitation in certain cases like cruelty to women etc.

Facts of the case: On 18-10-2021, an FIR was lodged with the Women’s Police Station, Rambagh, Srinagar, against the petitioners by the complainant-wife. In the report it was alleged that about seven years back, she had married the petitioner Azhar Hassan Masoodi out of which, a son was born. It was further alleged that she was being subjected to mental and physical torture after her marriage in connection with demands of dowry. The wife also levied allegations of harassment and stated that she was being threatened with divorce. In the report it was also alleged that on 29-09-2015 she was thrown out of her matrimonial house along with her minor child. As regards the delay in lodging FIR, the wife stated that there were talks of compromise going on between the parties, which is why she was unable to lodge FIR in the time.

The FIR was lodged against the husband and his brother, sister and brother-in-law.

Contentions: The petitioners contended that the impugned FIR was filed six years after the complainant-wife was thrown out of her matrimonial home, therefore, the instant prosecution is barred under the provisions in Section 468 CrPC. The counsels also contended that impugned FIR and the material collected by the investigating agency does not disclose commission of any offence against the petitioners.

It was further submitted that the complainant has roped in all the relatives of her husband without there being any specific allegations against them.

Per contra, the respondents argued that the impugned FIR and the material collected by the investigating agency clearly discloses commission of cognizable offences against the petitioners. It was also submitted that offences alleged to have been committed by the petitioners are continuing in nature; therefore, the bar contained in Section 468, CrPC is not applicable to the instant case. It was further contended that the bar contained in Section 468 is regarding taking of cognizance and not about undertaking of investigation of an offence.

Observations and Decision: Perusing the facts and contentions, the Court observed that the impugned FIR contains very specific allegations against the husband; however, the allegations against relatives are very general in nature.

  • The High Court relied on K. Subba Rao v. State of Telangana, (2018) 14 SCC 452; Rajesh Sharma v. State of U.P., (2018) 10 SCC 472 and other related cases wherein it was observed that, “Courts should be careful in proceeding against the relatives in crimes pertaining to matrimonial disputes and dowry deaths (…) the relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out”.

  • It was thus held that allegations against husband’s relatives require careful scrutiny by the Courts. Since the impugned FIR does not mention any specific instances of cruelty alleged to have been committed by the relatives in the instant case, thus, the prosecution against them cannot be sustained.

  • Vis-a-vis the delay in lodging of FIR by the complainant-wife, the Court observed that Section 468, CrPC creates a bar to taking of cognizance after a lapse of period of limitation. Cognizance of an offence is taken only after final report of investigation of the FIR is laid before the Court. Registration of an FIR does not amount to taking of cognizance, therefore, the bar contained in Section 468 cannot be made applicable to the registration of FIR and undertaking investigation into an offence. The Court also noted the fact that there were talks of compromise going on between the parties, hence the delay.

  • The Court further stated under Section 473, CrPC, Courts can take cognizance of an offence beyond the prescribed period of limitation and mere delay on the part of the complainant in lodging the complaint, cannot by itself be a ground to quash the FIR [Skoda Auto Volkswagen (India) (P) Ltd. v. State of U.P., (2021) 5 SCC 795]

[Junaid Hassan Masoodi v. UT of J&K, 2022 SCC OnLine J&K 606, decided on 01-08-2022]


Advocates who appeared in this case :

Z. A. Qureshi, Sr. Advocate, with Ms. Farhana, Advocates, for the Petitioners;

Usman Gani, GA and Wajid Haseeb, Advocates, for the Respondents.


*Sucheta Sarkar, Editorial Assistant has prepared this brief

Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: M Nagaprasanna, J. quashed the proceedings initiated against a public servant working as an Executive Engineer in the Karnataka Power Transmission Corporation Limited, (‘the petitioner') as the entire process initiated by the Anti-Corruption Bureau (‘ACB') is contrary to the law. This is due to no preliminary inquiry being conducted as was necessary, moreover, source information report was prepared in haste without following necessary steps and disproportionate assets being alleged are displayed on the source report as zero. The dates in the present case are of significance.

A crime was registered against one J. Jnanendra Kumar on 15-03-2022 in connection with which the house of one Munavar Pasha was searched as preliminary enquiry conducted by the ACB. While searching the house of Munavar Pasha two travel bags and one carton box, neither belonging to Munavar Pasha nor J. Jnanendra Kumar were found. They allegedly belonged to the petitioner. The ACB immediately prepared a source report, registered an FIR and conducted searches in the house and office of the petitioner on 17-03-2022. The house of the petitioner was searched on the basis of FIR registered on 16-03-2022 for offences punishable under Section 13(1)(b) and 13(2) of the Prevention of Corruption Act, 1988 Act (‘PCA, 1988') after drawing up a source information report which also was prepared on 16-03-2022. The proceedings emanating from this FIR form the subject matter of the instant petition.

What is a Source Information Report (‘S.I.R')?

A source information report is a report which forms the basis to charge a public servant with Section 13(1) PCA, 1988 which deals with criminal misconduct, and being in possession of assets disproportionate to his known source of income. Thus, the report in corruption parlance is a source information report. The preparation of S.I.R is the responsible work of a responsible officer i.e., Inspector of Police, under the guidance and supervision of a superior police officer, a Deputy Superintendent of Police and it has to be drawn up after calculating entire period of service of a public servant and arrive at a conclusion albeit, prima facie, that he has amassed wealth disproportionate to his known source of income.

The Court noted that on perusal of the SIR, the column total years of service of the petitioner reads ‘not yet ascertained’. Therefore, the ACB did not even know how many years of service a public servant has put in. The check period which is the most important ingredient of a source information report is left vague by stating ‘from the date of joining service to till date'. Wife's designation, salary particulars, Annual Property Returns (‘APR') etc. are not even looked into. The official income that is petitioner's salary and petitioner's wife's salary read as ‘yet to be ascertained’. The value of total property is mentioned, and the percentage of disproportionate income is zero as it is left completely blank. It is this source information report that becomes a FIR under Section 13(1)(b) and 13(2) PCA, 1988. Section 13(1)(b) PCA, 1988 deals with criminal misconduct against a public servant. The basis being the source information report, it is trite that the report assumes a great significance while imputing allegations of criminal misconduct.

Thus, placing reliance on P. Sirajuddin v. State of Madras, (1970) 1 SCC 595, Lalita Kumari v. Government of UP, (2014) 2 SCC 1 and Charansingh v. State of Maharashtra, (2021) 5 SCC 469, the Court observed that the Anti-Corruption Bureau which performs a very significant role in checking corruption amongst public servants cannot indulge itself in such casual act of drawing up the source information report on the instant, registering the FIR and conducting the search. The entire narration of the allegation which would become criminal misconduct against the petitioner is on the basis of the records found in somebody else's house in connection with someone else's crime. Such a source information report against the petitioner is no report in the eye of law.

The Court concluded that there was no preliminary inquiry worth the name that was even conducted by the ACB in the case of the petitioner as every act of the ACB i.e., preparation of the source information report, registration of FIR and conduct of search on the house of the petitioner have all happened on one single day — 24 hours.

The Court thus held it was a fit case, where “the Court cannot turn a blind eye to the plea of petitioner for exercise of jurisdiction of this Court under Section 482 Criminal Procedure Code and obliterate registration of crime against the petitioner.”

[K R Kumar Naik v. State, WP No. 7911 of 2022, decided on 26-06-2022]


Advocates who appeared in this case :

Satish K, Advocate, for the Petitioner;

Manmohan PN SPl. PP, Advocate, for State.


*Arunima Bose, Editorial Assistant has reported this brief.

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: V Sivagnanam J. directed the State police to add the offences under Sections 417 and 420 Penal Code, 1860 (‘IPC') on allegations that the accused husband has deceived the complainant- ex-wife and made her to marry him, wrongfully displaying that he is competent to consummate marriage.

The petitioner is the complainant whose marriage took place with the first accused took and after the marriage, the complainant found that he is not interested with his wife in the marriage life due to his impotency. Thereafter, the complainant came to know that due to his impotency, he got divorced from his first wife. Pursuant to this, the accused husband left the home on 04-01-2022 and the petitioner made a complaint on 15-02-2022 that got registered on 18-05-2022.

A perusal of the complaint given by the complainant clearly states about the non-disclosure of the impotency of the husband at the time of marriage and he made the complainant to believe that he is a competent person to live ordinary life as husband and wife without disclosing his incapacity and thereby, the accused-husband deceived the complainant and made her to marry him, claiming that he is competent to consummate the marriage. After the alleged deceit came to light, the accused-husband granted divorce to the wife by saying ‘talaq' and went to United States of America.

The case was registered under Sections 498-A and 406 IPC without including Sections 420, 417 and 379 IPC even though the allegation disclosed the fact of cheating committed by the accused persons. Thus, the instant criminal original petition was filed to direct the respondent police to alter the FIR by including Sections 420, 417 and 379 Penal Code, 1860 therein.

Relevant provisions of Penal Code, 1860

Section 417 Punishment for cheating —Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Section 420 Cheating and dishonestly inducing delivery of property. —Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Counsel for State submitted that the matter has been referred to the Social Welfare Department, Madurai, for the purpose of conducting a preliminary enquiry. After receiving the report from the Social Welfare Department, Madurai, they are ready to consider the alteration of F.I.R.

Thus, the Court directed the respondent Police to add the offences under Sections 417 and 420 IPC in the case and investigate and file the final report within four months, after receiving the report from the Social Welfare Department, Madurai.

[Irfana Nasreen v. The State, Crl. O P (MD) No. 11840 of 2020, decided on 20-07-2022]


Advocates who appeared in this case :

M. Radhakrishnan, Advocate, for the Petitioner;

R. Suresh Kumar, Government Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Rouse Avenue
Case BriefsDistrict Court

Rouse Avenue Court, New Delhi: While granting bail to the applicant Pramond Kumar Bhasin, Ajay Gulati, J. observed that the charge sheet has not even mentioned the role of the applicant in demanding the alleged bribe from NGO GOREF even though the employee of an NGO Ganga Orthopedic Research and Educational Foundation ‘GOREF’ who is said to have paid the bribe to the applicant through a Hawala operator, was arrested and subjected to custodial interrogation.

Ajay Gulati J granted bail to Pramod Kumar Bhasin who is a public servant accused and arrested for allegedly extracting bribe from NGO’s / institutions/ missionaries whose applications for renewal of eligibility to receive foreign grants and funds were pending in the FCRA Division, Ministry of Home Affairs. The bail was granted observing various irregularities in the investigation and in light of other accused(s) been granted bail subject to certain conditions.

Facts and legal trajectory:

The applicant is a public servant who was arrested for demanding and accepting bribes from NGOs. Allegedly, as per the FIR, the applicant demanded a bribe of Rs. 2 lakhs for processing the file of an NGO named GOREF, and received Rs. 1.5 lakhs from GOREF via its employee Mr. E. Vageesh, through a Hawala Operator. Additionally, it was also alleged in the FIR that the applicant used to handle all of his ill-gotten money through Hawala operators. In fact, during the alleged handing over of an instalment of a bribe of Rs. 4 lakhs from an alleged Hawala operator named Gajanand Sharma., one of his henchmen, Robin Devdass, was arrested red-handed by the CBI. Further, as alleged in the FIR, the applicant is said to have demanded bribes from several other NGOs as well.

It was detailed in the charge-sheet that an investigation has been conducted regarding the role of the applicant in contacting alleged Hawala operators for the handling of his ill-gotten money and also in accepting an alleged bribe of Rs. 1 lakh from a representative of Srijan Foundation- Swapan Manna, which was delivered to another Hawala operator named Vimal Tawaniya. The alleged Hawala operator Pawan Kumar Sharma was in turn handed over the said bribe by Vimal Tawaniya who is also a listed accused in the FIR

Analysis and findings:

In the Court, the Public Prosecutor for CBI strongly opposed the bail application on the ground that the role of the applicant is very serious in nature, and he is suspected to be the king-pin of the entire conspiracy involving illegal renewals of various NGOs/missionaries to receive foreign funding, for illegal monetary gains under Foreign Contribution (Regulation) Act, 2010 ‘FCRA’

The Court noted that neither the alleged hawala operators, Gajanand Sharma and Vimal Tawaniya nor the representative of Srijan Foundation, Swapan Manna have been arrested although they have been mentioned in the charge sheet along with the present applicant. Further investigation has been kept pending, as per the charge sheet.

The Court observed that although in the FIR, the role of the applicant has been highlighted for demanding bribes from various NGOs and routing the alleged bribe received through Hawala operators, the charge sheet mentions only one such foundation which is Srijan Foundation. Additionally, the charge sheet has not even mentioned the role of the applicant in demanding the alleged bribe from NGO GOREF even though Mr. E. Vageesh, an employee of GOREF who is said to have paid the bribe to the applicant through a Hawala operator, was arrested and subjected to custodial interrogation. The court noted that the role of the applicant regarding the case of NGO GOREF seems to have been completely forgotten by the investigating officer. The court also noted that the applicant has been in custody for a period of over two months as of the day of this hearing.

On a specific query by the Court, the Public Prosecutor for the CBI submitted that he has seized the FCRA files of NGO GOREF and Srijan Foundation. However, the Court observed that there was no explanation provided as to why was the representative of Srijan Foundation and the alleged Hawala operator who was asked to handle the alleged bribe paid by Srijan Foundation, have not even been arrested despite being mentioned in the charge sheet. The Court reiterated the observation that was made while granting bail to E. Vageesh who allegedly paid the bribe to the applicant on behalf of NGO GOREF that the CBI has been adopting double standards in regard to the accused persons having same set of allegations appearing against them.

Thus, the Court concluded that the alleged Hawala operators Pawan Kumar Sharma and Ramanand Pareek who have handled the ill-gotten money of the applicant, and Mr. Anish Selvaraj (private person) who was allegedly working in close conspiracy with the applicant to contact the NGOs who were ready to pay bribes for getting their pending FCRA files expedited, have already been granted bail. Consequently, the bail application was allowed subject to some conditions.

[Pramod Kumar Bhasin v. CBI, 2022 SCC OnLine Dis Crt (Del) 28, decided on 21-07-2022]


Appearance by:  

For Accused: Sumer Singh Boparai, Abhishek Pati, Nikhil Pahwa & Sidhant Saraswat

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Yashwant Varma J. categorically held that an allocation of coal cannot possibly be viewed as amounting to ‘proceeds of crime’ per se but the gains that may be obtained from criminal activity which are concealed or projected to be untainted that can form the subject matter of the offense under the Prevention of Money Laundering Act, 2002 (‘PMLA’/ ‘Act’).

Prakash Industries Limited (PIL -petitioners) installed a Sponge Iron Plant at Chotia in the State of Chhattisgarh which was apprised by the Ministry of Coal and permitted it to explore the Hasdeo-Arand coal block for captive development. Pursuant to this, the application for allocation of the Chotia coal block was allocated to PIL. On 07-04-2010, the first FIR was registered alleging misrepresentation with respect to its captive activity, submission of false and incorrect information in order to obtain allotment of the coal block and diversion of coal extracted from that block in the open market forming subject matter of the first charge sheet. Further allegations are based on the revenues generated as a result of the said criminal activity; various properties were purchased by PIL acting through its related and sister concerns. However, the impugned proceedings rest upon the allegations which form part of the second charge sheet. The second charge sheet restricts itself to events which occurred up to 4-09-2003 only, the provisional order of attachment takes cognizance of acquisition of properties which occurred prior to as well as after the allocation of the coal block itself. It is in the aforesaid backdrop that petitioners have laid a challenge to the initiation of proceedings by the instant petition.

As per the objective of PMLA, the entire edifice of a charge of money laundering is raised on an allegation of a predicate offense having been committed, proceeds of crime generated from such activity and a projection of the tainted property as having been legitimately acquired. However, once it is found on merits that the accused had not indulged in any criminal activity, the property cannot legally be treated as proceeds of crime or be viewed as property derived or obtained from criminal activity.

Issue 1: Whether allocation of coal is ‘proceeds of crime’ under Section 2 (1)(u) of Prevention of Money Laundering Act, 2002?

Placing reliance on Rajiv Chanana v. Dy. Director, Directorate of Enforcement, 2014 SCC OnLine Del 4889 and Directorate of Enforcement v. Gagandeep Singh, 2022 SCC OnLine Del 514, the Court observed that the expression ‘proceeds of crime’ creates an inextricable link between criminal activity and the acquisition of property and assets as a result thereof. If the charge of criminal activity ceases to exist in law, a charge of money laundering would neither sustain nor survive. Thus, once it is found by a competent court, authority or tribunal that a predicate offence is either not evidenced or on facts it is held that no offence at all was committed, proceedings under the Act would necessarily have to fall or be brought to a close.

Reliance was placed on Manohar Lal Sharma v. Principal Secretary, (2014) 9 SCC 614 wherein the Supreme Court has extensively reviewed the system of coal allocation of coal blocks by the Union Government and on perusal of the same it is manifest that the allocation of a coal block cannot stricto sensu be construed either as property or conferment of a right in property.

Thus, the allocation at best represents a right conferred by the Union enabling the holder thereof to apply to the concerned State Government for a grant of a mining lease. The allocation cannot per se be recognised as representing ‘proceeds of crime’. It would be the subsequent and consequential utilization of that allocation, the working of the lease that may be granted, the generation of revenues from such operations and the investment of those wrongfully obtained monetary gains that can possibly give rise to an allegation of money laundering falling within the net of Section 2(1)(u) of Act.

Issue 2: Whether Article 20 (1) has been violated?

The allocation of the coal block was made in favour of the petitioners on 04-09-2003 and at that time the PML Act was not in force and came to be promulgated much later on 01-07-2005. Further, Sections 420 and 120-B Penal Code, 1860 i.e., IPC came to be included as scheduled offenses only on 01-05-2009. Thus, Mr. Sibal contended that since at the time of allocation neither the Act was in existence nor Sections 420 or 120-B IPC included as scheduled offenses, the impugned action must be held to be in violation of Article 20(1) of the Constitution.

Placing reliance on Mahanivesh Oils & Foods Pvt. Ltd. v Directorate of Enforcement, 2016 SCC OnLine Del 475 , the Court noted that the predicate offense which gave rise to proceeds of crime was committed prior to 01-07-2005 or that it came to be included in the Schedule on 01-06-2009 would clearly not be determinative and in any case an action under the Act founded on the commission of that offense provided the act of money laundering is alleged to have been committed after the coming into force of the Act cannot be held or understood to be a violation of Article 20(1) of the Constitution. As long as the act of money laundering is alleged to have been committed post the enforcement of the Act, proceedings initiated in respect thereof would clearly be sustainable.

The Court further observed that the Act is aimed at the offense of money laundering. While the commission of a predicate offense may be a condition precedent for an allegation of money laundering being laid, it is the activities of money laundering alone which would determine the validity of proceedings initiated under the Act. Consequently, it must be held that the mere fact that the offenses of Sections 420 and 120-B of the Penal Code came to be included in the Schedule on 01-06- 2009, that factor would not detract from the jurisdiction of the respondents to initiate action in respect of acts of money laundering that may have taken place or continue post the enforcement of the Act itself.

Thus, the Court allowed the petition and quashed the impugned proceedings arising out of the order of attachment and show cause notice dated 13-01-2022 holding that the allocation of a coal block in itself will not give rise to any monetary gains. It was only when the same was utilized that the question of illegal gains would arise.

[Prakash Industries v. Directorate of Enforcement, 2022 SCC OnLine Del 2087, decided on 19-07-2022]


Advocates who appeared in this case :

Mr. Kapil Sibal, Senior Advocate with Mr.Ankur Chawla, Mr.Vijay Aggarwal, Mr. Gurpreet Singh, Mr. C.B. Bansal, Mr. Aamir Khan, Ms. Aparajita Jamwal and Mr. Bakul Jain, Advocates, for the Petitioners.

Mr. S.V. Raju, ASG with Mr. Zoheb Hossain, Mr. Anshuman Singh, Mr.Ankit Bhatia and Mr. Harsh Paul Singh, Advocates, for the Respondents.


*Arunima Bose, Editorial Assistant has reported this brief

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: Siddharth, J. allowed an application for anticipatory bail filed on behalf of applicants in relation to an FIR registered under Sections- 504, 506, 384, 467, 468, 120-B Penal Code, 1860.

Applicant 1 (58 years), the applicants 2 and 3 are the sons and the applicant 4 is the daughter of applicant 1 and the applicant no 2 and 4 are the directors of several companies situated at Agra. The applicants 5 and 7 are the employees of said company and applicant 6 was earlier director of complainant’s company. Huge amount has been paid to the opposite party 3, who is director of Vastu Colonisers (P) Ltd., having its office at Jaipur through the Pink City Infrastructure (P) Ltd., for providing the land of 380 bighas at Jaipur for the development of Township and the colonies. However, till date only 80 bighas of land has been provided and the money has not been returned to the applicant’s company through the Pink City Infrastructure (P) Ltd.

Pink City Infrastructure (P) Ltd., thus lodged an FIR against the opposite party 4 and other persons at Agra which had been registered as FIR 0508 of 2021 on 11-12-2021 at Police Station in Agra, under Sections- 120-B, 406, 420, 467, 468, 471 IPC as they had cheated the applicant’s company and not provided the land as agreed therefore, as a counter blast FIR 444 of 2022 has been lodged by the opposite party 3 against the applicants and several other persons only to create pressure upon them to appear the court at Jaipur.

Counsel for the applicants has submitted that the FIR has been lodged at the Police Station- Mansarovar, Jaipur City (South), Rajasthan and the applicants are the residents of District — Agra in the State of U.P. They are willing to appear before the court concerned at Jaipur, Rajasthan for the purpose of getting bail. However, they may be granted transit anticipatory bail for short time so that they may appear before the competent court at Jaipur under limited protection granted by this court by way of time bound transit anticipatory bail.

Additional Government Advocate has opposed the prayer made on behalf of the counsels for the applicants and has submitted that this Court has no jurisdiction to grant any protection to the applicants. The offence has taken place outside the state.

The Court after listening to the parties found that there is no legislation or law which defines ‘transit or anticipatory bail’ in definitive or specific terms. The term ‘transit’ means the act of being moved from one place to another while the word ‘anticipatory bail’ means a temporary release of any accused person who is anticipating arrest, therefore, transit anticipatory bail refers to bail granted to any person who is apprehending arrest by police of a State other than the State he is presently located in.

The Court further explained that transit anticipatory bail is different from ordinary bail. Ordinary bail is granted after arrest, releasing the accused from custody while anticipatory bail is granted in the anticipation of arrest i.e., it precedes detention of the accused and is effective immediately at the time of the arrest. The Court further emphasized on the fact that transit bail is protection from arrest for a certain definite period as granted by the Court granting such transit bail. The mere fact that an accused has been granted transit bail, does not means that the regular court, under whose jurisdiction the case would fall, would extend such transit bail and would convert such transit bail into anticipatory bail. Upon the grant of transit bail, the accused person, who has been granted such transit bail, has to apply for anticipatory bail before the regular court.

The Court further relied on the decision of the Bombay High Court in Teesta Atul Setalvad v. State of Maharashtra, 2014 SCC OnLine Bom 4819 where it was held that the High Court of one State can grant transit bail in respect of a case registered within the jurisdiction of another High Court in exercise of power under Section 438 of the Criminal Procedure Code. In appeal the Supreme Court had declined to interfere with the said order (Teesta Atul Setalvad v. State of Maharashtra, 2014 SCC OnLine Bom 4819).

The Court consequently held that there is no fetter on the part of the High Court in granting a transit anticipatory bail to enable the applicants to approach the Courts including High Courts where the offence is alleged to have been committed and the case is registered. The Court allowed the application finding that there are commercial transaction ensued between the applicants and the complainant and there are criminal cases lodged by the parties against each other and that it is a fit case where the applicants should get the privilege of transit pre-arrest bail.

[Amita Garg v. State of U.P., 2022 SCC OnLine All 463, decided on 06-07-2022]


Advocates who appeared in this case :

Ram Kishore Pandey, Ajay Kumar Bashist Singh, Advocates, Counsel for the Applicant;

G.A., Advocate, Counsel for the Opposite Party.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Stating that, cases under Section 376 of Penal Code, 1860 should not be quashed and should not be taken as a crime against the society at large, Swarana Kanta Sharma, J., expressed that, in peculiar circumstances, where the complainant states that her future depends on quashing of the FIR and adding that the rape was not committed upon her, it would be in the interest of justice to quash the FIR.

The instant petition was filed for quashing of an FIR registered for offences punishable under Sections 376/377/498-A of Penal Code, 1860 read with Section 34 IPC.

In the present matrimonial dispute, it was noted that a charge sheet had been filed under Section 376 of the Penal Code, 1860, however, in her statement under Section 164 CrPC, the complainant had stated that only an attempt to rape had been made by her father-in-law and the charges were not yet framed by the trial Court.

The complainant gave her statement which she had given under Section 164 CrPC and on a query made by this Court, the complainant who was present in person stated that she has entered into a compromise out of her own free will and without any pressure, coercion or threat. Further, she stated that she had no objection if the FIR was quashed.

High Court expressed that,

“…any case coming to an end is a welcome step at it decreases the pendency of the Courts, more so, in matrimonial offences quashing is welcome as it shows that parties have decided to put an end to the lis as well as to the misery they undergo due to a matrimonial case pending between them.”

Further, the Bench added that, the fact that now-as-days Sections 376 and 354 of the Penal Code, 1860 are being used along with Section 498-A IPC, which later are compromised and are brought to this Court for quashing, needs to be curbed.

The Court appreciated the stand taken by the complainant and her wish to move in life as her future depended on the settlement of the matrimonial dispute and quashing of the present FIR. In case the FIR is not quashed in this case, the entire settlement between the parties will come to an end.

Lastly, the High Court held that “Court wishes that the compromise would have taken place much earlier, however, through this order let a message be sent to the society at large that compromise is the best way possible to settle disputes and the sooner the better.”

Therefore, the FIR was quashed. [Arshad Ahmad v. State NCT of Delhi, 2022 SCC OnLine Del 1736, decided on 2-6-2022]


Advocates before the Court:

For the petitioners:

Mr Arun Bhardwaj, Senior Advocate with Mr Abhishek Sharma and Mr Rahul Sharma, Advocates.

For the respondents:

Mr Ranbir S. Kundu, ASC for State with Mr Mukul Dagar, Ms Pooja and Mr Agniwesh Singh, Advocates along with SI Jyoti Phogal, PS Mehrauli.

Mr Hilal Haider and Mr Butul Khan, Advocates for R-2 with complainant in person.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: M Nagaprasanna, J., quashed the proceedings against the petitioners in Crime No.87 of 2022 of Byadarahalli Police Station pending before the Chief Judicial Magistrate, Bangalore Rural District, Bangalore.

The facts are that the respondent 2 is the complainant who filed made an FIR for the offence punishable under Section 376 of Penal Code, 1860 i.e. IPC against the petitioner 1/accused 1 and other offences. During the pendency of these proceedings, the parties to the lis entered into a settlement and have produced such settlement by way of an affidavit before the Court. A joint memo and an application under Section 483 read with Section 320 of Criminal Procedure Code i.e. CrPC were also filed before the Court seeking to compound the offences alleged.

Counsel for petitioners Mr Mohan Kumar D submitted that due to settlement arrived at between the parties, even in case of offence punishable under Section 376 IPC, the proceedings can be terminated.

Counsel for respondents Mr K S Abhijith and Raghavendra Gowda K. objects to quashing of proceedings against the petitioners on the ground of settlement arrived at between the parties since the offence punishable is one under Section 376 of IPC.

The Court relied on judgments as follows:

  1. The Karnataka High Court in V Prabhu v. State of Karnataka, Crl. P. No. 8754 of 2021 decided on 19-01-2022 it was observed “The allegation against the petitioner is that he had sexual intercourse with the respondent No.2 under the pretext of marrying her, therefore the complaint came to be filed. Subsequently, both decided to resile from each other and compounded the offence, therefore both of them filed joint application for closing the matter. In view of the submission of both the parties having compounded the offence and in view of the judgment of the Supreme Court in the case of Gian Singh Vs. State of Punjab , (2012) 10 SCC 303 wherein it is laid down where the parties have settled the dispute between them and the same is not affected to the public, the Court can quash the proceedings.”
  2. The Karnataka High Court in H S Chandan v State of Karnataka, Criminal Petition No. 1111 of 2022 c/w Criminal Petition 1116 of 2022 decided on 15-02-2022 it was observed “9. Therefore, in view of the settlement between the parties, the compromise filed by both the parties in both the case are accepted and permitted to compound their offences.”
  3. The Delhi High Court in Lalit Kumar Vats v. State of NCT of Delhi, 2020 SCC OnLine Del 1956 of Delhi quashed the proceedings in an allegation pertaining to Section 376 of IPC.

The Court noted that in the light of facts of the case, judgments rendered by the Supreme Court, this Court and that of Delhi High Court the complainant is said to have married and is leading her life with another man within the family itself and the accused being members of the same family, thus the Court held “I deem it appropriate to accept the application seeking compounding of offences aforesaid and terminate the proceedings against the petitioners.” [Sathish K v. State of Karnataka, 2022 SCC OnLine Kar 899, decided on 23-05-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: Rahul Chaturvedi, J., noted that a lady soon after coming to know that her husband got married in clandestine way with some other lady, committed suicide.

The deceased during her lifetime, lodged an FIR against the husband and all his family members under Sections 323, 494, 504, 506, 379 of the Penal Code, 1860 with the allegation that her husband was already married with some other lady and having two children from her and without divorcing her, rather without disclosing the said fact, he got married with the deceased.

Further, after enticing the informant, who was married lady again solemnized marriage with the consent of both.

The family members after getting to know the above-stated started misbehaving, torturing and abusing her and made her life miserable, the atrocities crossed all the limits when her husband under the pressure of his family members virtually deserted her and kept a new lady.

After lodging the FIR, the deceased consumed some poisonous substance on the same day.

In view of the above circumstances, the deceased took the extreme step by consuming some poisonous substance and committed suicide.

Analysis and Decision

In the present matter, the husband of the deceased was going to marry third time.

High Court opined that the FIR for all the practical purposes could be considered as her dying declaration as the deceased herself was the author of the FIR. After lodging the FIR, she committed suicide just the next day after its lodging.

“No Indian lady is ready to share her husband at any cost. They are literally possessive about their husband.” 

“It would be biggest jolt for any married woman that her husband is being shared by some other lady or he is going to marry some other lady.”

In view of the above, Bench stated that it would be impossible to expect any sanity from them.

High Court found the husband to be the main culprit, and to be tried for the offence under Section 306 IPC.

Bench directed the trial Court to frame the charge as early as possible and initiate the trial of the accused persons. [Sushil Kumar v. State of U.P., 2022 SCC OnLine All 279, decided on 7-4-2022]


Advocates before the Court:

Counsel for Revisionist :- Shailesh Kumar Tripathi

Counsel for Opposite Party :- G.A.

Hot Off The PressNews

The National Human Rights Commission, NHRC, India has taken suo motu cognizance of a media report that a 13 years old girl was raped by the in-charge of police station in the Lalitpur district of Uttar Pradesh when she went to register an FIR about her gang rape.

The Commission has observed that the contents of the media report, if true, amount to human rights violations of the victim. Accordingly, it has issued notices to the Chief Secretary and the Director-General of Police, Government of Uttar Pradesh calling for a report within four weeks.

According to the media report, the officer concerned has been placed under suspension and an FIR has been registered against him. The relevant sections of the POCSO Act have been applied. Other police officers posted at the police station have also been removed from the duty and a DIG level officer will be investigating the case.


National Human Rights Commission

[Press Release dt. 4-5-2022]

Case Briefs

The National Human Rights Commission, India has taken a suo-motu cognizance of a media report of the incident where a dalit man was allegedly forced to rub his nose in his own spit in front of a village Sarpanch and locals in Kendrapada district of Odisha.

The Commission has issued notice to the Odisha Chief Secretary calling for a report within six weeks including status of investigation of the case, which has been reportedly registered by the police, as well as the status of statutory relief paid to the victims.

Examining the contents of the news report, the Commission has observed that the issues raised are of a very serious nature and the right to dignity of the victims have been grossly violated.

As per the media report, the incident occurred when the Sarpanch of Tikhiri village in Bhubaneswar visited the victim’s house seeking donations for a temple. The man reportedly said that he had already donated an amount, which made the Sarpanch angry. He further allegedly abused him and his wife in front of locals. An FIR has been reportedly registered under various sections of the IPC and under relevant provisions of the Protection of the Scheduled Castes & the Scheduled Tribes Act, 1989.


National Human Rights Commission

[Press Release dt. 22-4-2022]

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., expressed that Child marriages are hazardous to the social fabric of this Country.

The applicant was apprehending his arrest for the offence punishable under Sections 376 of the Penal Code, 1860 read with Sections 9, 10, 11 of Prohibition of Child Marriage Act and Sections 3 and 4 of the Protection of Children from the Sexual Offences Act (POCSO).

Analysis and Decision

High Court observed that the informant was 17 years old at the time of lodging the FIR.

According to the informant, at the time of settlement of marriage, her paternal uncle, mother-in-law, father-in-law and brother-in-law were present. Except for brother-in-law, all the persons referred to above are accused persons in this case.

The applicant appeared to be aged 27 years at that time whereas the informant would be aged around 16 years at the time of marriage. Though the applicant stated that at the time of the marriage, it was posed to him that the informant was 18 years of age.

The Bench stated that since the applicant was married to the informant, and she had not resisted or whatever sexual intercourse between them was with consent or voluntary.

Child marriages will have to be stopped and no person can be allowed to take advantage of any such situation.

Court added that the persons cannot be allowed to go away by putting a defence that they had taken the precaution and in fact what was represented, was different at the time of settlement of marriage.

Lastly, the Bench held that when the offences alleged against the applicant involves a social problem, this Court was not inclined to use the extraordinary discretionary relief under Section 438 of the Code of Criminal Procedure in favour of the applicant. [Trimbak v. State of Maharashtra, Anticipatory Bail Application No. 203 of 2022, decided on 12-4-2022]


Advocates before the Court:

Mr. Rahul R. Karpe, Advocate for the applicant

Mr.A.M. Phule, A.P.P. for Respondent No.1 – State. Mr.S.S. Gangakhedkar Advocate h/f. Mr. S.D. Munde Advocate for Respondent No.2