Case BriefsSupreme Court

Supreme Court: A Division Bench of Sanjay Kishan Kaul and Hemant Gupta, JJ. upheld Rajasthan High Court’s order whereby it had directed that criminal proceedings against the accused−Lower Division Clerk be quashed, for want of requisite sanction under Section 197 CrPC.

The Court held that in cases where a question of requirement of sanction under Section 197 arises, the real test is to check whether the act committed by the public servant was directly concerned with the official duty.

Factual Matrix

The appellant−complainant had filed an FIR wherein she made allegations of cheating, forgery and criminal conspiracy against the accused. The accused was a Lower Division Clerk in the Municipality concerned.

It was the complainant’s case that she and her husband purchased two plots in District Barmer. Out of these, one plot was sold to one Meghram. Further, in the plot purchased in her husband’s name, a residential house and shops were constructed. It was alleged that Meghram tempered with and fabricated the agreement with intention to defraud. Dimensions of the plot which was sold to Meghram were enlarged with intention to grab the land and house occupied by the complainant and her husband. The khasra number was also changed. This was alleged to have been done in collusion with the Executive Officer of the Municipality, a Junior Engineer, and the accused−Lower Division Clerk. The police made investigation made into the FIR and charge sheet was filed.

 Appeal

Before the trial court, the accused stated that he was a public servant and what he did in respect of allotment of lease that was executed in favour of Megharam, was done during the course of his official duty. He assailed the charge sheet as the same was filed without obtaining sanction of the competent authority under Section 197 CrPC. This application was dismissed by the trial court. The accused assailed this order before Rajasthan High Court by filing a petition under Section 482 CrPC, which was allowed. Aggrieved, the complainant approached the Supreme Court.

Contentions

The complainant contended that the accused conspired with his superior officers in dishonestly concealing the forgery, and intentionally omitting mentioning the date of the proceedings on the order sheet. Such action of forging documents would not be considered as an act conducted in the course of his official duties and, thus, Section 197 CrPC would not give protection to the accused.

Per contra, the accused submitted that the co-accused officials had already been granted protection, petition filed by them under Section 482 CrPC have been allowed by the High Court and those orders have not been challenged by the complainant or the State. It was argued that two key people involved in entire process have already been granted protection and, thus, the accused who was merely a Lower Division Clerk could not be denied similar relief.

Analysis and Observations

At the outset, the Court noted that Section 197 CrPC seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the court from taking cognizance of such offence except with the previous sanction of the competent authority.

Relying on Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64, the Court observed that:

Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. At the same time, the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty, justice and good governance.

The Court recorded that the alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. However, such sanction is necessary if the offence alleged against the public servant is committed by him “while acting or purporting to act in the discharge of his official duty”.  Placing reliance on State of Maharashtra v. Budhikota Subbarao, (1993) 3 SCC 339, the Court stated that:

In order to find out whether the alleged offence is committed ‘while acting or purporting to act in the discharge of his official duty’, the yardstick to be followed is to form a prima facie view whether the act of omission for which the accused was charged had a reasonable connection with the discharge of his duties.

The real question therefore was whether the act committed was directly concerned with the official duty. Applying this test, the Court considered the role assigned to the accused in the alleged conspiracy with his superiors. It was noted that the work assigned to the accused pertained to subject matter of allotment, regularisation, conversion of agricultural land, which fell within his domain of work. In the processing of application of Megharam, the file was initially put up to the Executive Officer who directed inspection which was carried out by the Junior Engineer and only thereafter the Municipal Commissioner signed the file.

The Court also noted that the co-accused Executive Officer and Junior Engineer had already been granted protection. The result was that the superior officers, who have dealt with the file, have been granted protection while the clerk, who did the paper work, was denied similar protection by the trial court even though the allegation is of really conspiring with his superior officers.

Decision

The Court found itself unable to appreciate why a similar protection ought not to be granted to the accused as was done in the case of other two officials. The sanction from competent authority would be required to take cognizance and no sanction had been obtained in respect of any of the officers.

In such a view of the matter, the Supreme Court upheld the order of the High Court quashing proceedings against the accused. The appeal was dismissed. [Indra Devi v. State of Rajasthan, 2021 SCC OnLine SC 487, decided on 23-7-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsDistrict Court

Tis Hazari Courts, Delhi: Ankur Jain, ASJ (SFTC-01), addressed a regular bail application filed under Section 439 of the Criminal Procedure Code.

In the present bail application, it was stated that the accused was in Judicial Custody since 3-07-2021.

It was submitted that the accused and complainant were in a live-in relationship. Complainant being a lady of about 47 years divorced for 17 years could not be fallen prey to the false promise of marriage.

Subhash Chouhan, Addl. PP for the State, objected to the bail application on the ground that allegations against the accused were serious in nature, accused absconded, hence process under Section 82 CrPC was issued against the accused.

Bench noted that the last incident of sexual intercourse between the complainant and the accused was on 6-12-2020, admittedly as per the complainant, they were in a live-in relationship.

FIR was lodged on 17-02-2021, hence there was a delay in the registration of the FIR.

Court granted bail to accused/applicant without commenting anything further, on a personal bond of Rs 50,000 with one surety like amount on the following terms and conditions:

i) Accused shall not contact or threaten the complainant or any other witness in any manner.

ii) The accused shall mark his presence on every second Saturday, of the first month, of every quarter, before IO/SHO concerned either physically or through any other mode which shall be the sole discretion of the IO / SHO.

iii) Accused shall provide his mobile number to the IO/SHO and shall remain present on the date fixed for trial.

[State v. Jagjit Singh, Bail Application No.: 2795, decided on 13-7-2021]


Advocates before the Court:

Sh. Subhash Chouhan, Ld. Addl. PP for the State.

Sh.G.S. Sachdeva, Ld. counsel for the accused/applicant (through VC).

Ms. Aarti Pandey, Ld. DCW counsel (through VC).

Complainant is present (through VC).

Naib Court HC Ankit Dahiya.

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Anjani Kumar Mishra and Shekhar Kumar Yadav, JJ., expressed on what constitutes as ‘Gang’ under Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986

Petitioner sought to quash an FIR that gave rise to a case under Section 3(1) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.

Order passed by District Magistrate granting approval to the Gang Chart – Annexure 5 to the writ petition was also sought to be quashed.

The submission was made that the facts alleged in the FIR do not make out any violence, threat or show of violence intimidation, coercion etc. which would amount to disturbing public order. No temporal, pecuniary, material or other advantage having been procured by the petitioner, was alleged in the criminal cases lodged against him. Therefore, the requirements of Section 2(b) & 2(b) (viii) of the Act were not made out.

From the allegations made in the FIR, it appears that the petitioner was intervening in a dispute between the first informant and the other accused, pertaining to an electricity connection.

Senior Advocate, V.P. Srivastava was on the words “with object of disturbing public order” used in Section 2(b) of the Act, which defines a Gang.

(b) “Gang” means a group of persons, who acting either singly or collectively, by violence or threat or show of violence, or intimidation, or coercion, or otherwise, with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage of himself of any other person, indulge in anti-social activities”.

 Bench dismissed the petitioner’s contention that to constitute a Gang, the member of the Gang should be operating only with the object of disturbing public order.

To the above, Court added that the definition of “Gang” no doubt includes within its ambit acts of violence or threat, or show of violence, carried out with the object of disturbing public order. However, this is just the first part of the definition. The second part, which starts with the word ‘or of gaining any as of undue temporal, pecuniary, material or other advantage of himself of any other person, indulge in anti-social activities.

High Court opined that the definition of a Gang is in two parts, and both are mutually exclusive. Each one of the two parts by itself would be enough to bring a case within the ambit of the term Gang.

Further, the Court added that,

Section 2(b) provides that a group of person, singly or collectively would constitute a gang in either of the two conditions below-

(i) by violence, or thereat or show of violence or intimidation or coercion, or otherwise try to disturb public order,

OR

(ii) by violence or threat or show of violence or intimidation or coercion or otherwise try to obtain undue temporal, pecuniary, material or other advantages for himself or any other person.

Hence, in the present matter, the contention that the impugned FIR deserves to be quashed as it does not fall within the purview of the definition of a ‘Gang’ in Section 2(b) of the Act cannot be accepted.

Adding to the above, Court stated that the allegations were that the petitioner interfered in a private dispute between the two parties, with which, he prima facie had no connection. It is, therefore, clearly a case of coercion, intimidation and use of force against a person, who is alleged to have refused to provide electricity to his neighbour, who is stated to be a friend of the petitioner.

Concluding the matter, Court held that no ground for quashing of impugned FIR existed.

In view of the above petition was dismissed. [Pramod Singh v. State of U.P., 2021 SCC OnLine All 480, decided on 16-7-2021]


Advocates before the Court:

Counsel for Petitioner:- Ashish Mishra, Arun Kumar Mishra

Counsel for Respondent:- G.A.

Case BriefsHigh Courts

Punjab and Haryana High Court: Arvind Singh Sangwan, J., stayed the proceedings against former Chief Minister of Haryana–Bhupinder Singh Hooda with regard to Panchkula Land Allotment case.

The instant petition had been file to assail the impugned order passed by the Special Court, CBI, Panchkula registered under Sections 120-B and 420 of IPC, 1860, Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, vide which while dismissing the application for discharge, charges had been framed against the petitioners.

Factual Fulcrum of the Case

Cancellation of Initial Allotment of the Land

Brief facts of the case were that the petitioner–M/s. Associate Journals Ltd. (AJL) sent a request letter to Sh. Bhajan Lal, the then Chief Minister of Haryana for allotting land to the company for the establishment of an office of National Heralds and Publication of Hindi Newspaper Navjivan. A plot measuring 3360 sq. mts. was allotted to AJL, on the basis of ‘No Profit No Loss’ @ Rs.91 per sq. mts. Later, on 30.10.1992, the plot was resumed by the Estate Officer, HUDA (Haryana Urban Development Authority) , in exercise of powers under Section 17(4) of the HUDA Act, 1977 on the ground that AJL had failed to carry out the construction within the stipulated time as per the terms and conditions of the letter of allotment and an amount of Rs.27300/- was forfeited whereas the balance amount of Rs.1,55,662/- was refunded to AJL through a cheque, which was never encashed by the petitioner – AJL and therefore, the entire allotment amount of the plot remain deposited with HUDA.

Subsequent Allotment made by Former CM-Bhupinder Singh Hooda

Later on, when the Chairman of AJL made few representations to Sh. Bansi Lal, the then Chief Minister for restoration of the plot a noting was recorded to seek opinion of L.R., HUDA which, having been considered as appeal was forwarded to the Town and Country Planning Department and but the same was rejected. In the meantime, the HUDA Act, 1977 was amended on 17-03-2004 and Sub-section (8) to Section 17 was inserted, which provided that an aggrieved person can prefer a revision to the Secretary to Government of Haryana, Town and Country Planning Department. Proviso to Sub-section (8) empowered the Revisional Authority to entertain the revision petition even after expiry of period of limitation if the Revisional Authority would satisfy that aggrieved person was prevented by sufficient cause from filing the revision petition in time. Pursuant to which, AJL again wrote a letter to the petitioner – Bhupinder Singh Hooda, who was the then Chief Minister of Haryana with a request to restore the plot. A recommendation was made by the petitioner – Bhupinder Singh Hooda that the plot be restored to AJL at original price along with interest due upto the date of restoration of allotment and a condition was put that the same should be subject to the condition that the AJL will start the construction in 06 months and complete the same within 02 years, thereafter.

HUDA Authority

The recommendation of the petitioner–Bhupinder Singh Hooda, was placed before HUDA Authority i.e. the competent authority. Though, there were certain objections raised by some of the functionaries to the effect that the plot may be re-allotted either on the market price or by way of advertising and allowing AJL to participate in the same; the petitioner – AJL remained in continuous possession of this plot since 1981 and at no point of time, even during the period of 10 years when the plot was cancelled by the Estate Officer, no action was taken by HUDA for re-possessing the plot and as such, till 2016, the possession was 35 years old. After the revival of the allotment, the petitioner – AJL completed the construction and started its business.

Alleged Act of Corruption

In the backdrop of the above, the State of Haryana registered an FIR dated 05-05-2016 under Sections 409, 420, 120-B IPC and Section 13 of the Prevention of Corruption Act, 1988, alleging illegality and irregularity in the re-allotment of the institutional plot to AJL. Later on, the Government transferred the investigation to CBI and the present FIR No. RC CHG 2017 A0008 was registered. It was stated in the FIR that in view of the opinion of the Town & Country Planning Department the plot could not be re-allotted as the appellate/revisional order had attained finality and it should be allotted at the current market rates as well as in view of the fact that the HUDA and the Financial Commissioner, Town and Country Planning Department, had proposed that an advertisement be floated for re-allotment of the plot by inviting applications wherein the petitioner – AJL can also apply, the action of the Chairman, HUDA in re-allotting the plot to AJL at old rates applicable in the year 1982 was in conspiracy with each other as the period of construction as per the terms and conditions of the letter of allotment has already lapsed.

It is also concluded in the investigation that the accused i.e. the petitioner – Bhupinder Singh Hooda and the petitioner – AJL, in conspiracy with each other had misused the official position in re-allotment of the plot and thereby causing wrongful loss to State Exchequer and wrongful gain to the petitioner – AJL.

Arguments on Behalf of the Petitioner-accused

It was the case of the petitioner–AJL that since 1981, neither any proceedings for taking the possession were initiated by HUDA nor at any subsequent stage, the order of restoration was challenged before the competent Court of law and therefore, the liability, if any, was purely of civil nature as it is a case of allotment/cancellation of allotment and then restoration of allotment. In addition to that following submissions were made by the petitioners in their defence:

  1. That the Trial Court had brushed aside all the arguments raised by the petitioners on the ground that at the stage of framing of charges, only prima facie allegation is to be seen and not the documentary evidence; therefore, the impugned order was based on non-application of judicial mind.
  2. The recommendation for restoration was made in an open and transparent manner as the comments of all the concerned department were sought on the representation made by the petitioner – AJL and the recommendations were placed before the HUDA for approval and consideration. The authority by a full majority as per Section 7 of the Act has taken a decision in its meeting to approve the recommendation dated 28.08.2005.
  3. The objections were raised by the Chief Administrator, HUDA or the Financial Commissioner, Town and Country Planning Department, who were also signatory to the meeting.
  4. That the initial allotment was made on the basis of ‘No Profit No Loss’ and the entire price of the plot was deposited by AJL and despite the fact that while the allotment was cancelled by the Estate Officer, HUDA, the cheque of Rs.1,55,662/- was never encashed by AJL and therefore, the total price of the plot throughout remained with HUDA and thus, no loss was caused to HUDA.
  5. Since AJL throughout remained in possession of the plot for 35 years till registration of FIR and no effort was made by HUDA at any level either to seek the possession of the plot back or subsequent to restoration of allotment, the order was never challenged for a considerable period of 10 years before any competent Court of law.
  6. The AJL in compliance of the restoration of the allotment of plot had also paid interest to the HUDA and the same was accepted without raising any objection much less challenging this restoration order before any Court. Moreover, it was argued that no offence under Section 120-B IPC was made out as there was no allegation of conspiracy prima facie as per the FIR or the charge-sheet.

Stand taken by the Petitioners regarding Corruption Charge

Regarding the allegation of corruption, the petitioners contended that the offence under Section 13(1)(d) stands deleted in view of the amendment in the Prevention of Corruption Act, 1998 through the Prevention of Corruption (Amendment) Act, 2018, and therefore, the charge-sheet prepared on 30-11-2018, could not be filed under Section 13(1)(d) of the Act. It was further submitted that,

“Objection that the restoration of the allotment of plot was made by not adhering to the market price did not prove any ‘mens rea’ on the petitioner as the market price as assessed at the time of allotment of plot throughout remained with HUDA and was never returned back in pursuance to the cancellation of allotment.”

Relying on the decision in C.K. Jaffar Sharief vs State (through CBI)”, (2013) 1 SCC 205, wherein the Supreme Court had held that, “mere error of judgment or transgression of departmental norms, would not ‘ipso facto’ establish dishonest intention.”; the petitioners argued that even the charge under Section 13(1)(d)(ii) read with Section 13(1)(2)(iii) of the Prevention of Corruption Act, was not made out. It was further pointed out before the Court that in order to frame the charge under Sections 13(1)(d)(ii) and 13(1)(d), the Court had to assign specific reason as to how the offence is made out and the same was missing in the order of the Trial Court. Lastly, it was submitted that it was not the case of CBI that either bribe or gratification was paid, therefore, in the absence of any prima facie evidence that the petitioner – Bhupinder Singh Hooda had acted in a manner that he obtained a valuable thing or pecuniary advantage from AJL, the charge under Section 13(1)(d)(ii) and (iii) was not at all made out.

Considering the abovementioned, the Bench stayed the proceedings before the Trial Court and issued a notice to CBI in that regard. The matter is lighted for 11-08-2021 for further hearing.[Bhupinder Singh Hooda v. CBI, CRR-650-649-2021, order dated 01-02-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For Bhupinder Singh Hooda: Sr.  Advocate Kapil Sibal with Advocate Pradeep Poonia, Advocate Adit Pujari and Advocate A.S. Cheema

For AJL: Sr. Advocate R.S. Cheema with Advocate Tarannum Cheema and Advocate Sumanjit Kaur

For CBI: Sr. Advocate Sumeet Goel assisted by Advocate Sameer Rathore and Advocate A.K. Ranolia

Case BriefsHigh Courts

Jharkhand High Court: Sanjay Kumar Dwivedi, J. dismissed the petition being devoid of merits.

The instant writ petition under Article 226 of the Constitution of India was filed for direction upon the respondents to lodge F.I.R. on the basis of written complaint made by the petitioner.

Counsel for the petitioner Mr. Afaque Rashidi submitted that submits that it is right of the petitioner to lodge F.I.R. and the respondents are liable to lodge F.I.R, which has not been done in the hand in hand.

Counsel for respondents Ms. Shivani Kapoor submitted that filing application under Article 226 of the Constitution is not an appropriate remedy. She submits that a proceeding under Section 107 CrPC has already been initiated. He submits that in this type of cases there is remedy under Code of Criminal Procedure. He submits that if an FIR has not been registered, proposed informant should approach before the Magistrate in terms of the Code of Criminal Procedure.

 The Court relied on judgment Sakiri Vasu v. State of Uttar Pradesh, (2008) 2 SCC 409 wherein it was held “the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police”

The Court further observed that if police is not registering the FIR, the remedy lies with the complainant to approach the Magistrate in terms of Code of Criminal Procedure. This alternative remedy is available to the complainant.

The Court held “since an alternative remedy is available to the petitioner, the Court is not inclined to exercise its power under Article 226 of the Constitution of India.”

[Agha Sahnawaz v. State of Jharkhand, 2021 SCC OnLine Jhar 330, decided on 08-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Kerala High Court: V.G. Arun, J., held that a complaint cannot be entertained in corruption cases when the FIR based on the same facts had already been quashed on merits.

The instant application had challenged the order of the Special Judge dismissing the complaint filed by the petitioner against respondents 2 to 9. The petitioner, a former Chief Minister of the State, had raised the allegations that one Avruthi Mall Management Co. Ltd. (the Company) was in possession of one acre of land and a shopping mall was being constructed in that property by respondent 8. The sewerage pumping the main line of the Kerala Water Authority had been laid diagonally through the company’s property while respondent 2 was the Chief Minister and respondents 3 to 5 were high ranking officials in the Government, the sewerage line was shifted to one side of the company’s property, thereby effectuating construction over a larger area. The land over which the sewerage line was drawn was actually Government land, which had vested with the Water Authority under Section 16 of the Kerala Water Supply and Sewerage Act, 1986.

It was alleged that the Company along with its managing director had reduced the property into their possession by creating false documents. While respondents 2 to 5 had aided respondents 6 to 9 by shifting the sewerage line, in gaining an undue pecuniary advantage. And that the order authorizing shifting of the pipeline was issued by suppressing adverse reports and in violation of the prescribed procedure. Therefore, an FIR was filed for offences punishable under Section 120B Penal Code, 1860 read with Section 13(1) (d) of the Prevention of Corruption Act, 1988. Prior to the filing of the said FIR, another public-spirited citizen had filed a complaint before the Lok Ayukta.

After elaborate consideration of the allegations, the Bench found the claim of title by the Water Authority over the company’s land to be unsustainable. It was also held that, even if the allegation that the property in dispute belongs to the Water Authority was accepted, the action of the accused would not attract the provisions of the Prevention of Corruption Act since the respondent Company had not gained any pecuniary advantage by the shifting of the sewerage line from one part of its property to another. Based on the findings, it was held that the FIR did not disclose commission of the offences under the Prevention of Corruption Act. Accordingly, FIR and further proceedings were quashed.

According to the petitioner, the allegations in complaint and FIR were different and in any event, the complaint should not have been rejected without conducting preliminary enquiry. The decision of the Supreme Court in Lalita Kumari v State of U.P., (2014) 2 SCC 1, was pressed into service in support of this proposition.

A comparison of the averments in FIR and complaint revealed that the allegations were substantially the same. The Bench opined that the only difference that the complaint contained more details was immaterial as FIR need not be a compendium of all facts. Therefore, the Bench held that allowing the petitioner’s prayer would result in the registration of a second FIR on the very same set of facts. Reliance was placed by the Court on T.T. Antony v State of Kerala, (2001) 6 SCC 181, wherein the Supreme Court had considered the validity of second FIR on the same facts:

“…the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences.

xxxxxx

 A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court…the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case.

Going by the principle enunciated above, the Bench held that the Special Judge was fully justified in rejecting the complaint, since a second FIR based on the very same allegations cannot be registered, more so when the first FIR had been quashed on merits. Differentiating the Lalita Kumari case, the Bench stated that the legality or otherwise of registering a second FIR based on the same set of facts had not arisen for consideration therein. On the question of preliminary enquiry, the conclusion in Lalita Kumari was as under;

As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

  1. Matrimonial disputes/family disputes
  2. Commercial offences
  3. Medical negligence cases
  4. Corruption cases
  5. Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months’ delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

In the light of the above the Bench opined that the decision in Lalitha Kumari case could not be understood to be a declaration that even in cases where FIR is already registered, preliminary enquiry is bound to be held on a subsequent complaint, containing the very same allegations, being filed. Accordingly, the instant application was dismissed.[V.S.Achuthanandan v. State of Kerala, CRL.MC NO. 4692 of 2019, decided on 08-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For The Applicant: Adv. S.Chandrasekharan Nair, Adv. Raju George And Adv. S.Gokul Babu

For Vigilance Commission: Adv. K.B.Sony,

Case BriefsHigh Courts

Karnataka High Court: K. Natarajan, J., allowed the petition and quashed the impugned order.

The facts of the case are such that accused 1 i.e. Greenbuds Agro Farms Limited Company and accused 2 to 5 are the Managing Directors and Directors of the said Company who are alleged to have collected investments from the general public and cheated the public. The individual investors have filed complaints before different Police Stations consequent to which jurisdictional Assistant Commissioner was appointed as Competent Authority for the purpose of taking action against the accused under Section 5 of the Karnataka Protection of Interest of Depositors in Financial Establishments Act, 2004 (hereinafter referred to as ‘Act’). Accordingly, investigation was done and a common charge-sheet was filed by the Police Inspector, Financial and Vigilance Unit, C.I.D., before the Trial Court. The Trial Court, by its impugned order, rejected the charge-sheet filed under the Act on the ground that the Police Inspector is not the Competent Officer to file the report, and the accused were discharged for the offence punishable under Section 9 of the Act.  Aggrieved by this, the State by C.I.D. filed the instant petition under Section 482 of the Code of Criminal Procedure Code, 1973 (for short, ‘Cr.P.C.’).

Counsel for the State submitted that as per Section 4 of the CrPC, the Special Court established under the Act is having power to try the offences punishable under the IPC as well as the offences punishable under the Special Law, but the Trial Court misread Section 5 of the Act and committed error in discharging the accused which is illegal.

The Court relied on judgment State v. Khimji Bhai Jadeja (Crl. Ref. No.1 of 2014 dated 8-7-2019) wherein it was held that

…“76. From Chapter XII of the Cr.P.C., it is evident that upon disclosure of information in relation to commission of a cognizable offence, the police is bound to register the FIR. The registration of FIR sets into motion the process of investigation. The same culminates into the filing of the final report by the police officer before the Magistrate. Thus, in respect of every FIR, there would be a separate final report and, there could be, further report(s) in terms of Section 173(8)…

The Court observed that the offences which are similar in nature committed by the same accused within twelve months can be tried together by framing a common charge as per Section 219 of the CrPC, but the question of filing common charge-sheet in multiple crimes or complaints is impermissible.

The Court also observed that though the Trial Court rightly refused to accept the charge-sheet, but committed error in discharging the accused. As per Section 4 of Criminal Procedure Code i.e. CrPC, once the Special Court is established, the question of discharging the accused of the reasons that the charge-sheet is filed by incompetent Investigating Officer does not arise.

The Court further observed that the State-C.I.D. Police have no authority to file common charge-sheet in different complaints. However, the Investigating Officer has to file separate chargesheet against each crime registered by the Police on individual complaint. Thereafter, the Special Court shall take cognizance of the offences both punishable under the IPC and the Special Act by following the Cr.P.C. and dispose of the matter in accordance with law.

The Court thus held “the Trial Court committed error in rejecting the charge-sheet on the ground that the Investigating Officer is not the Competent Authority to file the charge-sheet and wrongly discharged the accused for the offence punishable under Section 9 of the Act.”[State of Karnataka v. Greenbuds Agro Form Limited Company, 2021 SCC OnLine Kar 12475, decided on 31-05-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

Counsel for Petitioner: Mr. Sheelavanth V.M.

Counsel for Respondents: Mr. B.L. Ravidnranath and Mr. Raghavendra N.

Case BriefsHigh Courts

Telangana High Court: K. Lakshman, J., allowed a criminal petition and quashed a criminal case filed against the petitioner-accused as the ingredients of the alleged offence were lacking in the contents of the charge sheet.

Present criminal petition was filed under Section 482 of the Code of Criminal Procedure, 1973. Petitioner was accused of offences under Section 498-A Penal Code, 1860 and Sections 4 and 6 of the Dowry Prohibition Act, 1961.

The only allegation against accused 4 was that he stayed with the daughter of respondent 1/victim along with accused 1, cousin of the petitioner and during that period, accused 4 supported and instigated the accused and abused daughter of respondent 1, though he was in no way concerned.

It was submitted that petitioner/accused 4 was unnecessarily implicated as he had nothing to do with the matrimonial life of the victim and accused 1.

Supreme Court in the decision of Preeti Gupta v. State of Jharkhand, (2010) 7 SCC 667, dealt with Section 498-A IPC as to social responsibility and obligations to maintain social fibre of family life.

In another decision, Supreme Court in Geeta Mehrotra v. State of U.P., (2012) 10 SCC 741, it was held that mere casual reference of names of family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specifically if it happens soon after the wedding. It is further held that even if there are allegations of overt act indicating the complicity of the members of the family named in the First Information Report in a given case, cognizance would be unjustified but if the First Information Report does not disclose specific allegation against the accused more so, against the co-accused specifically in a matter arising out of matrimonial bickering, it would be a clear abuse of the legal and judicial process to mechanically send the named accused in the First Information Report to undergo the trial unless of course, the First Information Report discloses specific allegations which would persuade the Court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant wife.

In Rajesh Sharma v. State of Uttar Pradesh, (2018) 10 SCC 472, the Supreme Court, considering the misuse of Section 498-A IPC and remedial measures etc., gave certain directions.

Bench stated that in view of the above-stated law laid down by the Supreme Court, the name of the petitioner/A4 was not there in the complaint. In the Charge Sheet, there was no mention of the basis on which the name of the petitioner was shown.

Court stated that the only allegation against the petitioner was that he stayed with accused 1 and victim in a flat and had supported and instigated accused and also abused victim, even though he was in no way concerned.

Hence, there was no mention of the alleged harassment of the victim by the petitioner/accused 4.

Petitioner/A.4 stayed for about 1 ½ year and during that period he used to support and instigate A.1 to abuse the victim. Thus, even in the statement of victim, there was no mention of the alleged harassment of the victim by the petitioner/A.4.

In view of the above discussion, ingredients of Section 498-A IPC and Sections 4 and 6 of the DP Act were lacking in the contents of the charge sheet. Therefore, Court opined that proceedings against petitioner/A4 cannot be continued and were liable to be quashed. [Gundapaneni Rakesh v. Thatiparthi Jithender, 2021 SCC OnLine TS 677, decided on 01-06-2021]


Advocates before the Court:

For Petitioner: K. Venu Madhav

For Respondent 1: A. Prabhakar Rao

For Respondent 2: Assistant Public Prosecutor

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and Abhay Ahuja, JJ., reiterated the observation of Supreme Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303, while quashing an FIR registered for offences under Sections 498(A), 406, 504, 323, 34 of the Penal Code and Sections 3, 4 of the Dowry Prohibition Act, on the ground of matter being resolved amicably.

Factual Matrix

Due to differences between the husband and wife, they sought a divorce and a petition was filed before the Family Court, Bandra which was later converted into mutual consent divorce petition under Section 13-B of the Hindu Marriage Act, 1955.

High Court stated that considering the fact that a matrimonial dispute which sought to be amicably resolved, the Court deemed it appropriate to seek guidance from the Supreme Court decision in Gian Singh v. State of Punjab, (2012) 10 SCC 303, wherein it was observed that:

“…the criminal cases having overwhelmingly and pre-dominatingly civil favour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affrmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”

Bench added that the present matter involved offences arising out of matrimony and was basically private in nature and the parties sought to resolve their entire dispute and due to the compromise between them, the possibility of conviction would be remote and bleak and continuation of criminal case would lead to great prejudice or injustice.

Therefore, in view of the above discussion, petition was allowed while allowing the below prayer clause:

“a. That this Hon’ble Court be pleased to quash and set aside the FIR No.256 of 2019, registered by Vikhroli Police Station at Mumbai, under Sections 498(A), 406, 504, 323, 34 of Indian Penal Code, and 3, 4 of Dowry Prohibition Act dated 19.06.2019 and Criminal Case No.959/PW/2020 and pending before Ld. 31st Metropolitan Magistrate’s Court at Vikhroli, Mumbai, and further be pleased to discharge the Petitioners from C.C. No.256 of 2019 under Sections 498(A), 406, 504, 323, 34 of Indian Penal Code, and 3, 4 of Dowry Prohibition Act.” 

Petition was disposed of in the above terms. [Yuvraj Raman Jadhav v. State of Maharashtra, 2021 SCC OnLine Bom 780, decided on 1-06-2021]


Advocates before the Court:

Ms. Anushka Shreshtha for the Petitioners.

Mr.J.P. Yagnik, APP for the Respondent-State.

Mr. Jayesh Bhosle for Respondent No.2.

Mr. Yuvraj R. Jadhav – Petitioner No.1 present through V.C.

Mrs. Madhuri Jadhav (maiden name–Madhuri Sawant)-Respondent No.2 present through V.C.

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., addresses a matter revolving around the possession of ammunition by a person which he/she is unconscious of.

Instant matter was filed with regard to the quashing of an FIR registered at the police station – I.G.I Airport for the offences punishable under Section 25 of Arms Act, 1959.

Petitioner submitted that while waiting for his flight from Delhi to Lucknow, his baggage was put for screening wherein one live cartridge of .32bore with S&WL (KF) live ammunition was detected. It was added that he was not in conscious possession of the live bullet detected, since the petitioner could not produce any valid license for the ammunition, FIR was registered.

Though, during the investigation petitioner produced a valid arms license issued by the State of Uttar Pradesh and the same was found to be genuine, therefore the FIR deserved to be quashed.

“It is well settled that where a person is not conscious of the ammunition in his possession, an offence of under Section 25 of the Arms Act, 1959 would not be made out.”

The above-settled position was drawn in view of the following decisions:

  • Surender Kumar v. State (GNCT of Delhi), WP (Crl.) 2143 of 2019, decided on 27-09-2019
  • Aruna Chaudhary v. State, WP (Crl.) 1975 of 2019, decided on 25-09-2019
  • Paramdeep Singh Sran v. State (NCT of Delhi), WP (Crl.) 152 of 2019, decided on 29-08-2019.

In view of the above decisions, Section 25 of the Arms Act was converted into Section 30 of the Arms Act in light of the petitioner holding a valid Arms License.

In the present matter, the prosecution’s case was not that there was a firearm recovered from the petitioner or there was any threat to anyone at the airport, hence the possession of the ammunition was unconscious and there was no threat to anyone.

Therefore, FIR registered at Police Station – IGI Airport were quashed. [Narendra Kumar Gupta v. State of NCT of Delhi, 2021 SCC OnLine Del 2335, decided on 18-05-2021]


Advocates before the Court:

For the Petitioner: Ajay P. Tushir, Adv. with Varun Malik, Adv.

For the Respondent: Kamna Vohra, ASC for the State

Case BriefsSupreme Court

Supreme Court: The Division Bench of Dr. Dhananjaya Y. Chandrachud* and M. R. Shah, JJ., pronounced an important judgment which came out to be a significant development regarding law relating to bail. The Bench not only criticized the practice of lower Courts of attaching caveat for not treating the decision as precedent, but also emphasized on need for reasoned disposal of bail matters. The Bench expressed,

“Whether an order granting a bail is a precedent on grounds of parity is a matter for future adjudication if and when an application for bail is moved on the grounds of parity on behalf of another accused…it is for that court before whom parity is claimed to determine whether a case for the grant of bail on reasons of parity is made out.”

Factual Matrix of the Case

The High Court of Gujarat had granted bail to six persons who had been implicated in five homicidal deaths.  The genesis of the incident was that the accused had all come to the scene of offence with pistols, dhariyas and knives and that initially Vishan (A-6) and two others had fired from their rifles as a result of which five persons fell to the ground. Some of these accused were alleged to have assaulted with dhariyas and lathis over the head and body of deceased. The incident resulted in the death of five persons. Among the twenty-two accused were Vishan Heera Koli (A-6), Pravin Heera Koli (A-10), Sidhdhrajsinh Bhagubha Vaghela (A-13), Kheta Parbat Koli (A-15), Vanraj Karshan Koli (A-16) and Dinesh Karshan Akhiyani (Koli) (A-17).

On 22-10-2020, the High Court had granted bail to A-13 on the primary basis that he was armed with wooden stick and no substantial role was assigned to him. Also, there had been substantial changes in the genesis of the incident including the nature of the weapons in statement of the informant. And the allegation in the FIR was that A-6 had fired several rounds from a rifle together with other persons, the subsequent statement would indicate that the injuries had been caused not as a result of the use of firearms but by a sharp weapon. The reliance was placed by the Court on Sanjay Chandra v. CBI, 2012 (1) SCC 40, for granting bail. Later on, other accused were granted bail based on parity.

Observation and Analysis by the Court

The singular absence in the judgment of the High Court was consideration regarding nature and gravity of the crime. The incident which took place on 09-05-2020 resulted in five homicidal deaths. The orders of the High Court were conspicuous in the absence of any awareness or elaboration of the serious nature of the offence. The Bench stated, “The perversity lies in the failure of the High Court to consider an important circumstance which has a bearing on whether bail should be granted.”

In Ram Govind Upadhyay v. Sudharshan Singh, the nature of the crime was recorded as “one of the basic considerations” which has a bearing on the grant or denial of bail. The Court, in that case had held that, “grant of bail though being a discretionary order — but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained.”

We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction.

The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance.”

In granting bail to the six accused, the High Court has committed a serious mistake by failing to recognize material aspects of the case, rendering the orders of the High Court vulnerable to assail on the ground of perversity. The first circumstance which should have weighed with the High Court but which has been glossed over is the seriousness and gravity of the offences. Post Mortem reports had indicated extensive nature of the bodily injuries. The Bench expressed, “whether the deaths occurred as a result of bullet wounds or otherwise can make no difference on whether a case for the grant of bail was made out once a plain reading of the cross FIR indicates both the presence of the accused and the execution of their plan to assault the side of the informant with the weapons which were in the possession of the accused.”

On Caveat regarding not to the Order as Precedent

The Bench disapproved the practice of attaching caveat not be treat the order as a precedent to claim bail on the basis of parity. It stated that whether parity could be claimed by on the basis of the order granting bail to A-13 ought not to have been pre-judged by the Single Judge who was dealing only with the application for the grant of bail to A-13. The observation that the grant of bail to A-13 shall not be considered as a precedent did not constitute judicially appropriate reasoning. The Bench opined, “Whether an order granting a bail is a precedent on grounds of parity is a matter for future adjudication if and when an application for bail is moved on the grounds of parity on behalf of another accused. In the event that parity is claimed in such a case thereafter, it is for that court before whom parity is claimed to determine whether a case for the grant of bail on reasons of parity is made out.”

Does consent of parties obviate the duty of Courts to Give Reasoned Orders?

The High Court, while granting bail to Vishan (A-6) added that that the Counsel for the parties “do not press for a further reasoned order”. The grant of bail is a matter which implicates the liberty of the accused, the interest of the State and the victims of crime in the proper administration of criminal justice. It is a well-settled principle that the Court granting bail cannot obviate its duty to apply a judicial mind and to record reasons, brief as they may be, for the purpose of deciding whether or not to grant bail. The consent of parties cannot obviate the duty of the High Court to indicate its reasons why it has either granted or refused bail. This is for the reason that the outcome of the application has a significant bearing on the liberty of the accused on one hand as well as the public interest in the due enforcement of criminal justice on the other.

Lastly, the Bench added that the recording of reasons in a judicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice. The impugned orders were held to be tainted with perversity and hence, were set aside. The appeal was allowed and the all the accused were to surrender forthwith.

[Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana Makwana, 2021 SCC OnLine SC 335, decided on 20-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice Dr Dhananjaya Y. Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Appearance before the Court by:

For the Appellant: Sr. Adv. Vinay Navare, Adv. Jaikriti S Jadeja,

For the Accused: Adv. Purvish Malkan, Adv. Nikhil Goel, Adv. J S Atri and Adv. Haresh Raichura

For the State: Adv. Aniruddha P Mayee

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Z.A. Haq and Amit B. Borkar, JJ., while addressing the matter, observed that:

In the absence of a specific penal provision creating vicarious liability, an administrator of a WhatsApp group cannot be held liable for objectionable content posted by a member of a group.

Common intention cannot be established in the case of WhatsApp service user merely acting as a group administrator.

By the present application under Section 482 of the Code of Criminal Procedure, the applicant laid challenge to charge-sheet filed in the Court of Judicial Magistrate in pursuance of FIR registered with non-applicant 1 for offences punishable under Sections 354-A(1)(iv), 509 and 107 of the Penal Code, 1860 and Section 67 of the Information Technology Act, 2000.

As per the FIR, applicant was an administrator of a WhatsApp group, that accused 1 used filthy language against non-applicant 2 on a WhatsApp group of which applicant was an administrator, that despite accused 1 using filthy language against the non-applicant 2, applicant had not taken any action against accused 1.

Further, it was alleged that the applicant being the administrator had not removed nor deleted accused 1 from the WhatsApp Group.

In view of the above, non-applicant 2 lodged the FIR against the applicant and accused 1.

Hence, the applicant has, therefore, filed a present application challenging filing of charge-sheet and continuation of proceedings against the applicant.

Crux of the Issue

Whether an administrator of a WhatsApp group can be held criminally liable for the objectionable post of its member for committing offences punishable under Sections 354-A(i)(iv), 509 and 107 of the Penal Code, 1860 and Section 67 of the Information Technology Act, 2000?

Powers of the WhatsApp Group Administrator:

A group administrator has limited power of removing a member of the group or adding other members of the group. Once the group is created, the functioning of the administrator and that of the members is at par with each other, except for the power of adding or deleting members to the group.

The administrator does not have the power to regulate, moderate or censor the content before it is posted on the group. But, if a member of the WhatsApp group posts any content, which is actionable under law, such person can be held liable under relevant provisions of law.

Further, it was expressed that, a group administrator cannot be held vicariously liable for an act of a member of the group, who posts objectionable content, unless it is shown that there was a common intention or pre-arranged plan acting in concert pursuant to such plan by such member of a Whatsapp group and the administrator.

In the FIR it was stated that sexually coloured remarks were made by accused 1 and applicant being administrator of the WhatsApp group had not taken action of deleting the accused 1 from the group, nor had sought an apology from accused 1.

Decision

In Court’s opinion, non-removal of a member by the administrator of a WhatsApp group or failure to seek apology from a member, who had posted the objectionable remark, would not amount to making sexually coloured remarks by the administrator.

Court found that essential ingredients of Section 107 of IPC that the applicant had instigated or intentionally aided by his act or illegal omission to accused 1 to make sexually coloured remarks against non-applicant 2 were conspicuously absent. Hence the said Section will not be attracted in the present case.

Section 509 of the IPC criminalizes word, gesture, or act ‘intended’ to insult the modesty of a woman. In order to establish this offence, it is necessary to show that modesty of a particular woman has been insulted by a spoken word, gesture or physical act.

In the present matter, the above-stated offence cannot be made out against applicant, when the grievance of non-applicant 2 was that accused 1 had used filthy language against the non-applicant 2.

To constitute an offence under Section 67 of the Information Technology Act, 2000, a person must publish or transmit an obscene material in electronic form.

High Court in view of the above discussion, found no allegation or material that the applicant had either published, transmitted or caused to be published or transmitted in electronic form any material, which was lascivious or appealed to prurient interest or its effect was such to tend to deprave and corrupt persons who were likely to read, see or hear the matter contained.

Bench added that the applicant had neither published nor transmitted or caused to be published or transmitted any electronic form, any material which was obscene in nature.

Lastly while concluding, the High Court held that parameters of exercise of the powers conferred on this Court under Section 482 CrPC being settled, that in order to prevent the abuse of process of any Court and to secure the ends of justice, this power can be exercised.

Bench stated that the present case is the one where power needs to be exercised.

Taking the overall view of the matter, Court was satisfied that even if allegations in the FIR were accepted as correct and considering the material in charge sheet on its face value it does not disclose essential ingredients of offences alleged against the applicant under Sections 354-A(1)(iv), 509 and 107 of the Indian Penal Code and section 67 of the Information Technology Act, 2000.

Hence the continuation of present proceedings against the applicant would amount to an abuse of process of Court. [Kishor v. State of Maharashtra, 2021 SCC OnLine Bom 654, decided on 01-03-2021]


Advocates before the Court:

Mr R.M.Daga, Advocate for the applicant. Mr T.A.Mirza, A.P. P. for the non-applicant No.1.

Mr Sanjay A. Bramhe, Advocate for the non-applicant No.2.

Case BriefsHigh Courts

Sikkim High Court: Meenakshi Madan Rai, J., rejected a bail application wherein the Petitioner, Principal of a School, aged about 58  years, was accused of the offence under Section 354 of the Indian Penal Code, 1860, Section 8 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. He was arrested on 03-03-2021.

The counsel for the petitioner, Mr B. Sharma, Senior Advocate with Mr B.N. Sharma, Mr Bhupendra Giri and Mr Charles L. Lucksom submitted that the petitioner was been falsely implicated in the instant case and that he was a responsible person running a well established Private School and was also a Politician having been elected as a Councillor and given the responsibility of Vice Chairman of the Gorkha Territorial Administration. That, he was a well reputed Social Worker and owned large property in South Sikkim. That, the investigation in the matter had been completed and he was no longer required in custody. It was further urged that he was suffering from Diabetes Mellitus, Heart disease, Dyslipidemia, Hypertension, Hyperuricemia and Renal Calculus, and the Doctor has observed that a Hypoglycemic attack may occur at any time of the night and has to be tackled urgently, this ground alone sufficed for grant of bail.

Opposing the bail application, counsel for the respondent Mr Yadev Sharma, submitted that the victim was the child of 17 years and was studying in the School run by the Petitioner as the Principal and in lieu of paying personal attention to the victim he touched her inappropriately and gave indirect hints seeking sexual favours from her. He also verbally abused her, made her do household chores and give him massages. That, since the date of his arrest, the Petitioner has remained in the Hospital with the purpose of defeating the law. That, Charge-Sheet is yet to be submitted and further investigation in the matter is being continued during the course of which, it has come to light that the mother of the victim who was the Complainant, was being pressurized to change her Statements against the Petitioner and also that he had perpetrated the same acts on other girl Students as he did on the victim.

The Court considered several factors before deciding on this matter of bail which were:

  • existence of prima facie case against the accused,
  • the nature and gravity of the accusations,
  • the penalty likely to be imposed,
  • chances of the accused absconding on being enlarged on bail,
  • the antecedents and standing of the accused in society;
  • likelihood of repetition of the offence,
  • reasonable apprehension of evidence being tampered with and witnesses being influenced; and
  • the course of justice being defeated by grant of bail.

The Court considered the FIR and the medical documents on record and observed that there was no imminent threat to the life of the petitioner. The Court further held that the gravity of the offence was necessary to be taken into consideration and the acts of the Petitioner were indeed heinous having been perpetrated on a minor under his care and guidance.

The Court while rejecting the plea for bail held that there is a prima facie case against the Petitioner although elaborate examination of evidence has not been embarked upon nor were the merits of the case being touched upon, to avoid any prejudice to the petitioner.[Lopsong Lama Yolmo v. State of Sikkim, Bail Appln. No.06 of 2021, decided on 16-04-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., expressed that:

“Courts must not close its eyes to the fact that it is the victim who knocks the doors of the Court and seeks justice must not left high and dry with the feeling that the accused have escaped due to the perfunctory/faulty/defective investigation.”

Instant petition as directed against the decision of Additional Sessions Judge that discharged the respondent 4 and 5 for the offences under Sections 306/34 of the Penal Code, 1860.

Petitioners are the parents of the deceased who was married to respondent 3. The deceased was found hanging by the neck from the ceiling fan in her matrimonial house within two and a half years of her marriage.

Statements before the SDM

Petitioner 1 i.e. the mother of the deceased stated that the deceased was not happy in her marriage and her mother-in-law and sister-in-law were responsible for the suicide. Though the deceased’s father said that he did not have any grievances or any complaints against any persons and that no one was responsible for the death of the deceased.

No FIR was registered against respondent 4 and 5.

After about 10 months of the death of the deceased, an FIR was registered under Sections 306/34 IPC.

Additional Sessions Judge found that the statements of parents before the SDM did not bear any stamp and that they were also not signed by the petitioners. Prima Facie no material was found to proceed against the accused persons for charges under Sections 306/34 IPC, hence the accused were discharged.

Though the Additional Sessions Judge found investigational lapses that required due probe and further directed for a copy of the order to be sent to the Screening Committee for appropriate action.

The above-said order has been challenged in the present petition.

Analysis, Law and Decision

“…charge-sheet in the instant case bleeds of wounds inflicted by the Police.”

No explanation on why FIR was registered after 10 months of the death

Bench noted that the investigation was oriented in order to give a closure report. And filing of FIR after ten months of the incident was contrary to law.

Petitioner 1 stated that the respondent 4 and 5 demanded dowry, hence there was no reason, whatsoever, not to lodge an FIR for an offence under Section 304B IPC.

It was also stated that IO told the petitioners to give statements as per his will and suggestions and threatened her. Petitioner 1’s letter to the Commissioner of police revealed that IO was forcing the parents of the deceased to enter into a compromise with the respondents.

To construe an offence under Section 304 B i.e. dowry death, the death of the women could have been caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with, any demand for dowry.

 Ingredients for constituting Section 304 B were made out but surprisingly no FIR was registered.

In the instant matter, the death occurred within 7 years of marriage and allegations of dowry death were also present against the respondent 4 and 5. Deceased died by committing suicide.

Bench expressed that unfortunately neither the Magistrate nor the ASJ orders a further investigation after commenting on glaring loopholes with the investigation.

Sufficient material on record was placed stating that the deceased was subjected to cruelty/harassment with the demand of dowry by respondent 4 and 5 and hence presumption under Section 113(b) of the Indian Evidence Act will apply.

Defective Investigation

 It is well settled that where there has been negligence on the part of the investigating agencies or omissions either negligently or with a design to favour the accused, then it becomes the obligation of the Court to ensure that proper investigation is carried out.

Supreme Court’s decision in Vinubhai Haribhai Malaviya v. State of Gujarat, (2019) 17 SCC 1, Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762 were relied upon by the Court.

In the present matter, investigation was conducted in an extremely shoddy manner. 

High Court elaborating more on the present matter stated that the ASJ while passing the impugned judgment on noticing the glaring inconsistencies should have ordered for further investigation.

Hence, impugned Judgment was set aside. High Court directed police to conduct an investigation on the basis of petitioners’ statements and the same to be conducted by a different investigation officer. [Saroj Bhola v. State of NCT of Delhi, 2021 SCC OnLine Del 1497, decided on 05-04-2021]


Advocates before the Court:

For the Petitioners: Chanan Parwani, Advocate

For the Respondents: Kusum Dhalla, APP for the State and respondent 2

Charanjeet Singh, Advocate for respondents 3 to 6

Case BriefsSupreme Court

Supreme Court of India: The Division Bench comprising of Dhananjaya Y. Chandrachud and M.R. Shah*, JJ., addressed the instant appeal challenging the validity of notice send to the appellant by Anti-corruption Bureau regarding pre-FIR open enquiry against him. The Bench stated,

“…(If) an enquiry is held and/or conducted after following the procedure as per Maharashtra State Anti-corruption & Prohibition Intelligence Bureau Manual, it cannot be said that the same is illegal and/or the police officer, Anti-corruption Bureau has no jurisdiction and/or authority and/or power at all to conduct such an enquiry at pre-registration of FIR stage.”

Background

The background of the instant case relates to various allegations made against the appellant and his brothers with regard to accumulating the assets disproportionate to his known sources of income. Noticeably, the appellant was a Member and President of Municipal Council, Katol, Nagpur. In connection with the said complaint, the Police Inspector, Anti-corruption Bureau, had issued a notice, calling upon the appellant to personally remain present before the investigating officer of the Anti-corruption Bureau to give his statement in an ‘open enquiry’ in respect of the property owned by him along with the information on the points stated in the said notice and further, asking him to provide documents relating to his property, assets, bank statements, income tax returns.

The grievance of the petitioner was that the Police Inspector, Anti-Corruption Bureau, had no power to issue the said notice. It was also submitted that there is no statutory provision which would compel any body to give statement to the police. It was also submitted that there was no FIR against the appellant. Per contra, the respondent authority submitted that the said ‘open enquiry’ was ordered to find out if an offence under Section 13(e) of the Prevention of Corruption Act was disclosed.

Whether such an enquiry at pre-FIR stage would be legal and to what extent such an enquiry is permissible?

In Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1, this Court had observed that it is mandatory to register an FIR on receipt of information disclosing a cognizable offence. However, this Court had also considered the situations/cases in which preliminary enquiry is permissible/desirable and certain illustrations were also  carved out in which the preliminary enquiry was held to be permissible/desirable before registering/lodging of an FIR. It was further observed that if the information received did not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary enquiry may be conducted to ascertain whether cognizable offence is disclosed or not. It had been clarified that the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. Similarly, in P. Sirajuddin v. State of Madras, (1970) 1 SCC 595, this Court expressed the need for a preliminary enquiry before proceeding against public servants.

When a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of indulging into corrupt practice, it does incalculable harm not only to the officer in particular but to the department he belonged to in general. Thus, before lodging FIR against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer to ascertain whether cognizable offence is disclosed or not.

Observing that a fool proof safeguard and procedure is provided under the Maharashtra State Anti-corruption & Prohibition Intelligence Bureau Manual of Instructions 1968, before lodging an FIR/complaint before the Court against the public servant, the Bench disregarded any doubt of irregularity regarding the issuance of impugned notice. Further, the Bench observed that the information sought on the aforesaid points was having a direct connection with the allegations made against the appellant, namely, accumulating assets disproportionate to his known sources of income. Clarifying that such an ‘open enquiry’, should be restricted to facilitate the appellant to clarify regarding his assets and known sources of income, the Bench said the same could not be said to be a fishing or roving enquiry.

Conclusion

Clarifying that the statement of the appellant and the information so received during the course of discrete enquiry should be only for the purpose to satisfy and find out whether an offence under Section 13(1)(e) of the PC Act, 1988 was disclosed. Such a statement cannot be said to be confessional in character, and would be restricted only to ascertain whether a cognizable offence is disclosed or not. The Bench held that such an enquiry would be to safeguard the interest of appellant which may avoid further harassment to him. Hence, the Bench refused to interfere with the impugned judgment and order passed by the High Court of Bombay and dismissed the appeal with the above observations.

[Charansingh v. State of Maharashtra, 2021 SCC OnLine SC 251, decided on 24-03-2021]


Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice M.R. Shah

Appearance before the Court by:

For the Appellant: Sr. Adv. Subodh Dharmadhikari,

For the Respondent/s: Sr. Adv. Raja Thakare

Case BriefsSupreme Court

Supreme Court: Appalled with the arrest of Anuj Jain, the Interim Resolution Professional of the company managing the Yamuna Expressway, in connection with an accident that happened on the expressway that killed seven members of a family, the bench of AM Khanwilkar and Dinesh Maheshwari, JJ has directed his immediate release and has also issued a show cause notice to the Investigating Officer, Bijender Singh, Sub-Inspector, as to why appropriate action is not taken against him for taking such drastic action against Jain.

Jain was arrested in connection with an FIR that was filed after seven members of a family had died in an accident that happened on the highway. The victims were travelling towards Delhi when an overspeeding oil tanker jumped the divider and rammed into the victims’ vehicle The collision led to the spilling of oil from the tanker, resulting in a massive fire that engulfed both the vehicles.[1]

Shocked to the see the extreme step taken by UP Police to arrest the Interim Resolution Professional, Anuj Jain, working in that capacity pursuant to the order passed by the Court and entrusted with the functioning of the Company, the Court said,

“It is seen that the police official dealing with the case is not familiar with the provision of privilege of interim resolution appointed by the Court, in terms of Section 233 of the Insolvency and Bankruptcy Code.”

State of Uttar Pradesh had submitted before the Court that the Investigating Officer, Bijendra Singh, was of the view that the applicant may leave India at any time to avoid the prosecution and for securing his presence thought it necessary to arrest him from Mumbai.

Taking note of this submission, the Court said that it

“… will examine this aspect of the matter elaborately at appropriate time by treating this application as substantive writ petition filed by the applicant under Article 32 of the Constitution of India and to be numbered accordingly.”

In the meantime, the Court directed the release of Jain and further directed the Investigating Officer not to take any coercive action against him in connection with the subject F.I.R. until further orders.

The Court asked the Registrar(Judl.) to personally intimate the office of the concerned Judge and Police Station Beta-II, District Greater Noida, Uttar Pradesh on telephone “to ensure immediate release of the applicant, Mr. Anuj Jain, without imposing any conditions”.

[Jaypee Kensington Boulevard Apartments Welfare Association v. NBCC (India) Ltd, 2021 SCC OnLine SC 160, order dated 02.03.2021]


Appearances before the Court by:

For applicant: Senior Advocates Parag Tripathi and Sidharth Luthra

For State: Senior Advocate R.K. Raizada

[1] Yamuna Expressway management firm’s officer held after FIR following fatal accident by Abhishek Anand, India Today, Last Updated: March 2, 2021 13:06 IST

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and MR Shah, JJ has held that merely because on the same set of facts with the same allegations and averments earlier the complaint is filed, there is no bar to lodge the FIR with the police station with the same allegations and averments. However, when the impugned FIR is nothing but an abuse of process of law and to harass the accused, the High Courts must quash the FIR by exercising the powers under Article 226 of the Constitution of India and 482 Cr.P.C., to secure the ends of justice.

As per Section 210 Cr.P.C., when in a case instituted otherwise than on a police report, i.e., in a complaint case, during the course of the inquiry or trial held by the Magistrate, it appears to the Magistrate that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.

It also provides that if a report is made by the investigating police officer under Section 173 Cr.P.C. and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.

It also further provides that if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of Cr.P.C.

Hence, the Code of Criminal Procedure permits such an eventuality of a complaint case and enquiry or trial by the Magistrate in a complaint case and an investigation by the police pursuant to the FIR. However, at the same time, if it is found that the subsequent FIR is an abuse of process of law and/or the same has been lodged only to harass the accused, the same can be quashed in exercise of powers under Article 226 of the Constitution or in exercise of powers under Section 482 Cr.P.C. In that case, the complaint case will proceed further in accordance with the provisions of the Cr.P.C.

“As observed and held by this Court in catena of decisions, inherent jurisdiction under Section 482 Cr.P.C. and/or under Article 226 of the Constitution is designed to achieve salutary purpose that criminal proceedings ought not to be permitted to degenerate into weapon of harassment.”

The statute saves the inherent power of the High Court, as a superior court, to make such orders as are necessary

(i) to prevent an abuse of the process of any Court; or

(ii) otherwise to secure the ends of justice.

Same are the powers with the High Court, when it exercises the powers under Article 226 of the Constitution. When the Court is satisfied that criminal proceedings amount to an abuse of process of law or that it amounts to bringing pressure upon accused, in exercise of inherent powers, such proceedings can be quashed.

[Kapil Agarwal v. Sanjay Sharma, 2021 SCC OnLine SC 154, decided on 01.03.2021]


*Judgment by: Justice MR Shah

Appearances before the Court by:

For appellants: Senior Advocate K.V. Vishwanathan

For Respondent: Advocate M.C. Dhingra

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and M.S. Karnik, JJ., found prima facie case against Late actor Sushant Singh Rajput’s sister Priyanka Singh.

It may be that the relations between the petitioner and the respondent 2 are strained, but we cannot overlook the serious allegations made in the complaint and materials on record and the fact that the investigation is in progress and same is not yet concluded.

In the present matter, it was stated that the petitioners suffered the untimely and unfortunate demise of their brother Sushant Singh Rajput on 14-06-2020.

Petitioners stated that they find themselves in the midst of controversy as a result of the registration of an impugned FIR based on unfounded allegations, unsubstantiated facts and a misleading complaint filed as a counterblast FIR filed by petitioner’s father against respondent 2.

Petitioners case was that the FIR was registered by respondent 1 on the complaint of Rhea Indrajit Chakraborty (Respondent 2) in a most illegal and arbitrary manner without following the due process of law.

Analysis and Decision

While perusing the facts and circumstances of the case, Bench notes that the present matter relates to the tragic incident in which the Bollywood actor Sushant Singh Rajput was found dead at his residence.

Respondent 2 filed a complaint contending that the accused persons conspired with each other and illegally procured false prescription on the letterhead of Government hospital which contained psychotropic substances that are listed in the Schedule of NDPS Act and administered the same to the late actor.

Whether filing of the second FIR or counter-complaint permissible as done by the Respondent 2?

Bench referring to the decision of Supreme Court in Upkar Singh v. Ved Prakash, (2004) 13 SCC 292, found that the filing of the counter-complaint is permissible.

Elaborating the above point in terms of the present matter, Court expressed that:

Supreme Court has laid down that any further complaint by the same complainant against the same accused, subsequent to the registration of a case, is prohibited under the Criminal Procedure Code. because an investigation in this regard would have already started and further the complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence, will be prohibited under Section 162 CrPC.

Present Petitioners are not accused in the first FIR.  2nd respondent has filed the 2nd FIR in the nature of counter-complaint in respect of the same incident having different versions of the events which are legally permissible.

Further, the Bench stated that the allegations made in the complaint revealed the exchange of messages between petitioner 1 and late actor regarding the list of medicines. The FIR consisted of the allegations pertaining to the prescription with regard to the various medications controlled under the NDPS Act. Dr Tarun Kumar prescribed medicines which were prohibited from being prescribed electronically for the purpose of anxiety.

The allegation was that the accused prescribed psychotropic substances without any consultation or examination in violation of provisions of the NDPS Act and the Telemedicine Practice Guidelines, 2020.

Bench expressed that the allegations along with other material enclosed prima facie disclose the alleged offences as against the petitioner 1.

It is a well-settled principle of law that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

 Supreme Court in the State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728, settled the legal position stating that the High Court ought not to interfere with and quash the entire proceedings in exercise of power conferred by Section 482 CrPC when the matter was still at the investigation stage.

In the case of State of Telangana v. Habib Abdullah Jeelani, (2017) 2 SCC 779, it was held that there is no denial of the fact that the power under Section 482 Cr.P.C. is of very wide amplitude but it needs no special emphasis to state that conferment of wide power requires the Court to be more cautious. It casts an onerous and more diligent duty on the Court.

Hence, Court opined that the allegations made in the complaint do constitute a cognizable offence against the petitioner – Priyanka Singh justifying the registration of a case and an investigation thereon.

With regard to petitioner 2, the allegation has been made against her based only on suspicion that the medicine might have been procured by her.

However, the complaint primarily proceeded on the allegation that the banned medicines prescribed by Dr Tarun Kumar were at the behest of petitioner No.1 who was having knowledge that the said banned medicine and heavy doses of medicine may result in a chronic anxiety attack which may damage the health of Sushant Singh Rajput.

While concluding, the Court added that:

FIR registered at the instance of the late actor’s father has already been transferred to the CBI for investigation in the light of the directions of the Supreme Court, and even Senior Advocate for the respondent 3 submitted that so far as FIR lodged by late actor’s father is concerned, the CBI is conducting investigation meticulously and professionally without being hindered by any external factor and would thoroughly look into each and every aspect relating to the death of the late actor in a fair and impartial manner.

Decision

From the reading of the complaint and materials on record, it was seen that the allegations were primarily against petitioner 1 and Dr Tarun Kumar. The FIR appeared to have been registered against the petitioner 2 only on suspicion without attributing specific overt acts qua petitioner 2 that she aided or abetted the alleged act of suicide by the late actor Sushant Singh Rajput.

Hence, on overall consideration, allegations against petitioner 2 were vague and general and the counter-complaint filed by the respondent 2 qua second petitioner is to be set aside and quashed and so far as petitioner 1 – Priyanka Singh was concerned, no merit was found in the present petition, therefore deserves to be dismissed.

Rejection of this Petition qua petitioner No.1 – Priyanka Singh shall not be construed as an impediment to petitioner No.1 to avail of an appropriate remedy in case Investigating Officer decides to file the chargesheet.[Priyanka Singh v. State of Maharashtra,  2021 SCC OnLine Bom 207, decided on 15-02-2021]


Advocates who appeared in the matter:

Mr. Vikas Singh, Sr. Advocate a/w Mr. M.V. Thorat i/b Mr. M.V. Thorat, for the Petitioners

Mr. Satish Maneshinde a/w Ms. Namita Maneshinde, for Respondent No.2.

Mr. Devdatta Kamat, Sr. Advocate a/w Mr. Deepak Thakre, PP, Mr. S.R.Shinde, APP a/w Mr. J.P. Yagnik, APP, Mr. Rajesh Inamdar and Mr. Hemant Shah, for Respondent No.1 – State.
Mr. Anil C.Singh, ASG a/w Mr. Sandesh Patil a/w Mr. D.P. Singh, for Respondent No. 3 – CBI.


Also Read:

Unmasking the Narcotics Drugs and Psychotropic Substances Act, 1985 [Explainer on certain provisions]

Case BriefsSupreme Court

Supreme Court: In a case where two educated consenting adults had got married to each other without the consent of their parents, the bench of Sanjay Kishan Kaul* and Hrishikesh Roy, JJ held that

“… the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock and that their consent has to be piously given primacy.”

Background

Santosh is an M.Tech from NIT, Tiruchirapalli and is working as a Lecturer in KLES (Karnataka Lingayat Education Society) Pre-University College, Bailhongal, while Laxmi, is an M.A.B.Ed., working as an Assistant Professor in Jain College of Engineering, Belagavi, Karnataka. They developed liking for each other during these assignments. However, there was resistance from the parents of Laxmi, though the parents of Santosh were willing for the matrimony of both the well qualified petitioners who are majors and Hindu by religion.

After Laxmi had, without informing her parents, travelled from Hubli to Bangalore and thereafter to Delhi in order to get married to Santosh, her parents had filed a complaint of a missing person. Laxmi, however, sent her marriage certificate to her parents through whatsapp on 15.10.2020 in which she revealed the factum of marriage to Santosh. She also spoke to the investigating officer and informed that she had already married Santosh and was residing with him. But the IO instead insisted that she should appear before the Murgod police station to record a statement so that the case can be closed. She then sent a letter to the IO stating that she was married to Santosh and there was threat from her parents and thus, was unable to visit the police station.

Thereafter, the IO stated that they would like to close the case, but they wanted her to get her statement recorded at the police station. The IO also stated that the family members may file a case against her that she has stolen things from the home and if an FIR is filed, there would be a negative mark against Santosh and they would have to arrest him which would be problematic for his job also.

What the Court said

The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. Such a right or choice is not is not expected to succumb to the concept of “class honour” or “group thinking.”

The Court said that the case was handled does not reflect very well on the police authorities or the IO, the marriage certificate having been received by him and the conversation already been held with Laxmi where she clearly stated that she was married to Santosh and that she was feeling threatened and apprehensive of coming to the police station.

If the IO could have visited the residence of Santosh, he could very well have recorded the statement of Laxmi rather than insisting and calling upon the petitioners to come to the local police station at Karnataka. Not only that, he undoubtedly sought to compel Laxmi to come and record the statement at police station on the threat of possibility of a false case being registered by her parents against her husband and the consequent action of the police which would result in the arrest of her husband.

“We strongly deprecate the conduct of the IO in adopting these tactics and the officer must be sent for counseling as to how to manage such cases.”

The Court also noticed that both the parties are well educated.

“Educated younger boys and girls are choosing their life partners which, in turn is a departure from the earlier norms of society where caste and community play a major role. Possibly, this is the way forward where caste and community tensions will reduce by such inter marriage but in the meantime these youngsters face threats from the elders and the Courts have been coming to the aid of these youngsters.”

[Laxmibai Chandaragi v. State of Karnataka, 2021 SCC OnLine SC 85, decided on 08.02.2021]


*Judgment by: Justice Sanjay Kishan Kaul 

Know Thy Judge| Justice Sanjay Kishan Kaul

Case BriefsHigh Courts

Jharkhand High Court: Ananda Sen, J., while addressing the instant matter with regard to the application of Section 228A of Penal Code, 1860 and subsequently the provision of defamation expressed that:

“…publishing of newspaper report of facts of lodging of an FIR cannot be said to be defamatory, especially when the FIR has been lodged by the victim herself.”

Through this interlocutory application it was submitted that during the pendency of the case, lower court cancelled the bail bonds of the petitioners, which necessitated the filing of the instant interlocutory application.

The criminal miscellaneous petition under Section 482 of the Code of Criminal Procedure was filed by the petitioners to quash the order taking cognizance by which cognizance of offence under Sections 228 (A)/500/501/34 of the Penal Code, 1860 was been taken by the Judicial Magistrate.

OP 2 had filed a complaint against the petitioners who happen to be the Publisher, Chief Editor, Senior Editor and Resident Editor of a local newspaper and also against the newspaper itself and its publisher alleging therein that a newspaper report was published in the said newspaper with the following heading:

The said report contained that the victim was married and there was some dispute in relation to their residential house. She was subjected to sexual assault.

Complainant lodged a criminal complaint against the petitioners who happen to be the Editor and other officials of the newspaper alleging therein that as a result of the reporting of the FIR and incident, the victim was being harassed daily and sustained mental torture hence the said report amounts to be defamatory in nature.

Lower court on taking cognizance of the above incident issued summons to the petitioners.

Analysis and Decision

Bench noted that the said newspaper as stated above published a report about a lady, who had filed an FIR alleging that she was sexually assaulted after being administered with some narcotics. Though the sum and substance of the FIR was mentioned in the report no identity disclosure of the victim was reported.

Further, the Court added that only because the petitioners were Publisher, Chief Editor, Senior Editor and Resident Editor of the newspaper, they were named as accused.

In the complaint submitted it was nowhere mentioned that the fact reported was false, rather it was admitted that the fact, which was reported was true and the FIR had already been lodged by the victim under Sections 376/328 of the IPC.

In view of the above, Court stated that on perusal of the newspaper report it was found that name of the victim was not disclosed and since nothing was found in the newspaper report, which could suggest that the identity was made known, no application of Section 228 A IPC was made out.

Hence the Court held that in the present case it was a news which was admitted to be not false, thus not amounting to the application of Section 500 or 501 of the Penal Code, 1860.

High Court allowed the present criminal miscellaneous petition in view of the above discussion. [Ashutosh Choubey v. State of Jharkhand, 2019 SCC OnLine Jhar 2484, decided on 24-10-2019]