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, Criminal Appeal No. 593 of 2021, decided on 23-7-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Punjab and Haryana High Court: Avneesh Jhingan, J., while answering the question as to whether compelling an accused to give voice samples would amount to self-incrimination and hence, is violative of Article 20(3), stated,

“The infringement of Fundamental Right to Privacy cannot be raised to create a bubble to scuttle the investigation nullifying the evidence collected by merely denying that the voice of the tapped phone calls is not of the petitioners and there being no comparables.”

The instant revision petition had been filed to assail the order of Additional Sessions Judge, allowing the application of the Vigilance Bureau for taking voice samples of the petitioners.

The allegation was that the petitioners (both typist at Tehsil Banga Complex) were collecting money for getting the sale deeds registered from the Tehsildar and other revenue officials of the revenue department. After taking approval, the mobile used by the petitioners were tapped and after obtaining sufficient evidence from the transcripts the FIR was registered. During the proceedings, an application was filed by the Vigilance Bureau for permission to take voice samples of the petitioners and the same was allowed.

The petitioners argued that the impugned order was in violation of Article 20(3) of the Constitution as it would violate the right to privacy. The contention was that in Section 53 of the CrPC, 1973 there is no power to order taking of voice samples as the same is self incriminatory.

Analysis by the Court

  1. Would a judicial order compelling a person to give a sample of his voice violate the fundamental right to privacy under Article 20 (3)?

The Supreme Court while dealing with the question “Whether Article 20(3) of the Constitution of India, which protects a person accused of an offence from being compelled to be a witness against himself, extends to protecting such an accused from being compelled to give his voice sample during the course of investigation into an offence” in Ritesh Sinha v. State of U. P., 2019 (8) SCC 1, held that the directions to take voice sample does not infringe Article 20(3) of the Constitution of India. Similarly, in State of Bombay vs. Kathi Kalu Oghad; (1962) 3 SCR 10, the Supreme Court while addressing the issue with regard to specimen writings taken from the accused for comparison with other writings in order to determine the culpability of the accused and whether such a course of action was prohibited under Article 20(3) of the Constitution, held that,

the prohibition contemplated by the constitutional provision contained in Article 20(3) would come in only in cases of testimony of an accused which are self-incriminatory or of a character which has the tendency of incriminating the accused himself…A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous, because they are unchangeable; except, in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of ‘testimony’.”

The nine Judges Bench of the Supreme Court in K.S. Puttaswamy v. Union of India; 2017 (10) SCC 1, held that right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21. However, holding that this right is not an absolute right, the Bench stated,

“In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable…An invasion of life or personal liberty must meet the threefold requirement of

  1. legality, which postulates the existence of law;
  2. need, defined in terms of a legitimate State aim; and
  3. proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.”

Considering the above mentioned, the Bench held that voice sample in a sense resemble finger prints and hand writing, each person has a distinctive voice with characteristic features dictated by vocal cavities and articulates. Hence, the samples collected after having permission in accordance with law would not be a evidence, rather a mean to compare evidence already collected. The Bench clarified,

“To keep pace with the change, new technology is required to be used for collecting and comparing evidence. One method being tapping of communication devices but after compliance of the procedure laid down. It is in that context that taking of voice samples are necessitated. The samples collected are not evidence in itself, rather are tools to identify the voice recording collected as evidence.”

  1. Whether in absence of any provision in CrPC, can a Magistrate authorize the investigating agency to record voice sample of the accused?

The next question before the Bench was “Assuming that there is no violation of Article 20(3) of the, whether in the absence of any provision in the Code, can a Magistrate authorize the investigating agency to record the voice sample of the person accused of an offence?” Reliance was placed by the Court on Ritesh Sinha’s case, 2019 (8) SCC 1, wherein the Supreme Court had stated,

 “We unhesitatingly take the view that until explicit provisions are engrafted in CrPC by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India. We order accordingly and consequently dispose the appeals in terms of the above.”

In view of the above discussion, the contentions raised by the petitioners were rejected and the impugned order was upheld.

[Kamal Pal v. State of Punjab, Crr-677-2021, decided on 09-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Counsel for the Petitioners: Manbir Singh Batth. Advocate

Counsel for the State: Monika Jalota, DAG, Punjab

Case BriefsCOVID 19High Courts

Chhattisgarh High Court: Narendra Kumar Vyas, J., rejected bail and dismissed the petition being devoid of merits.

The facts of the case are such that the petitioners are engaged in trading of gold and silver ornaments in shop owned by petitioner 1 situated at Rajnandgaon where search and seizure was conducted upon receiving an intelligence output. The petitioners were thereby arrested by respondent authorities for alleged commission of offence under Section 135 of the Customs Act, 1962 (for short “the Act, 1962”) and was also held to be an offence under provision of the Money Laundering Act, 2002 (for short “the Act, 2002”) by Enforcement Directorate (ED). The petitioners moved an application for grant of interim bail for 90 days before Chief Judicial Magistrate, Raipur as per direction of Supreme Court in the matter of Suo Motu Petition (C) No. 01/2020 in Contagion of Covid 19 Virus in prisons for releasing them for 90 days looking to the present scenario of pandemic Corona (Covid-19) which was rejected. Assailing this, instant writ petition under Article 226 of the Constitution of India for grant of interim bail was filed.

Relevant recommendation made by the High Power Committee on 12.05.2021 reads as under:

“Criteria for release of Under trial prisoners:

“…… The under trial prisoners, who are satisfying the following criteria shall be released:

  1. Under Trial prisoners (UTPs)/ Remand Prisoners (with respect to whom, charge sheet are yet to be filed), who are in custody for 15 days or more, facing trial in a case which prescribes a maximum sentence of 07 years or less;
  2. Under trial prisoners (UTPs), who are senior citizens of 60 or more than 60 years of age and are in custody for three months or more, facing trial in a case which prescribes a maximum sentence of 10 years or less”

“It has further been resolved that following category of UTPs, even if falling in the above criterion should not be considers:-

  1. Those under trial prisoners who are facing trial under Prevention of Corruption Act (PC Act)/ PMLA; and
  2. Case investigated by CBI/ED/NIA/Special Cell, Crime Branch, SFIO, Terror related Cases, Riot cases, cases under Anti-National Activities and Unlawful Activities (Prevention) Act etc.”

The Court observed that as per the submission of the petitioners it is clear that that as per Section 135 (1)(b) of the Act, 1962, the case of the petitioners is squarely covered in clause 3 of recommendation issued by the High Power Committee, which provides that the under trial prisoners (UTPs)/ Remand Prisoners (with respect to whom, charge sheet are yet to be filed), who are in custody for 15 days or more, facing trial in a case which prescribes a maximum sentence of 7 years or less shall be released, whereas it reflects from clause 5 & 6 of the recommendation as mentioned above that person belong to the under trial prisoners category even if following in the above criterion should not be considered for release. The under trial prisoners, who are facing trial under Prevention of Corruption Act/ Prevention of Money Laundering Act, 2002 and cases investigate by CBI/ED/NIA/ Special Cell, Crime Branch, SFIO, Terror related cases, Riot cases, under Anti-National Activities and Unlawful Activities (Prevention) Act etc., are not entitled to be released.

The Court observed that prima facie it is established that the petitioners are habitual offenders and are very much involved in smuggling of gold and silver, which is injurious to economic growth of the nation. Further, the investigation is in a primary stage and may take some time, and since they are big financial resource persons, possibility of influencing the witnesses, cannot be ruled out.

The Court relied on judgment State of Kerala v. Mahesh, Criminal Appeal No. 343 of 2021 wherein it was held:

“37. In Suo Motu Writ Petition (Civil) No.1 of 2020 In Re: Contagion of Covid 19 Virus In Prisons, this Court expressed concern over the possibility of spread of COVID-19 amongst prisoners lodged in overcrowded correctional homes and accordingly issued directions from time to time, directing the authorities concerned to inter alia take steps as directed by this Court, to minimize the risk of spread of COVID amongst the inmates of correctional homes. This Court also directed that a High Powered Committee be constituted by the States and Union Territories to consider release of some prisoners on interim bail or parole during the Pandemic, to prevent overcrowding of prisons.

  1. It appears that the High Court has completely mis- appreciated the object, scope and ambit of the directions issued by this Court from time to time in In Re : Contagion of Covid 19 Virus In Prisons. This Court did not direct release of all under-trial prisoners, irrespective of the severity of the offence. By way of example, this Court directed the States/Union Territories to consider release of prisoners convicted of minor offences with prescribed punishment of seven years or less. The orders of this Court are not to be construed as any direction, or even observation, requiring release of under-trial prisoners charged with murder, and that too, even before investigation is completed and the chargesheet is filed. The Respondent Accused, it is reiterated, is charged with murder in the presence of an eye witness, and the impugned order granting bail was filed even before the chargesheet was filed. The Chargesheet appears to have been filed on 01.01.2021. Moreover, the Respondent Accused had been absconding after the incident.”

The Court thus held “The possibility of the accused /petitioners absconding or otherwise defeating or delaying the course of justice, reasonable apprehension of witnesses being threatened or influenced or of evidence being tempered, therefore, the petitioners are not entitled to get benefit from order of the Supreme Court and the recommendation of the High Power Committee.” [Vijay Baid v, Assistant Director, Director of Revenue Intelligence, 2021 SCC OnLine Chh 1952, decided on 07-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For Petitioners: Mr. Shashank Thakur

For Respondent: Mr. Ramakant Mishra

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): Coram comprising Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members) took suo motu cognizance of the matter regarding alleged prevention of entry of app-based taxi aggregator companies in the State of Goa.

Based on newspaper reports regarding alleged concerted action to prevent entry app-based taxi aggregator companies in the State of Goa, Commission took up the present matter suo motu against tourist taxi unions operating in the State of Goa.

Another significant issue in the matter was that the constant strikes by various taxi unions, tourists were getting affected in Goa.

What were the demands of the above-stated Unions?

  • Crackdown on Illegal Taxi
  • Cancellation of installation of speed governors.

Prima Facie Observation of the Commission

Taxi Unions conduct in not allowing any app-based service providers in the State of Goa was putting a restrain on services based on technology and limiting the competition, technical development as well as investment in provision of relevant services.

Another observation was that the reforms by the State Government in terms of bringing transparency and improvement in the delivery of services was also being prevented.

The above resulted in restriction to the choice of consumers which was in contravention of Section 3(3)(b) read with Section 3(1) of the Competition Act.

In view of the above observations, DG was directed to conduct an investigation and submit a report.

What was in the DG’s report?

DG found the conduct of taxi unions to be in violation of Sections 3(1) and 3(3)(b) of the Competition Act.

DG noted that there are no fare meters and organised groups of taxi operators in Goa control the rates as well as the routes. Further, it was observed that the taxi operators in North and South Goa use different rate charts and tourists in Goa have to pay more than thousands of rupees even for short distance travel.

During investigation, certain violent incidents were reported alleging manhandling of Zoomcar users and their vehicles damaged by local taxi union operators.

Commission’s Observation on perusing DG Report

Coram noted that no material was placed in regard to conduct of OPs indulging in strikes except few YouTube videos, Facebook Blogs and news clippings and such material remained uncorroborated and unauthenticated.

DG failed to examine the reasons mentioned by the OPs for resorting to strikes, which included increase in fees for permits, backdoor entry of app-based taxi aggregators and installation of speed governors in taxis. OP-4 had pointed out certain other issues such as:

proposed Mopa Airport, Speed Governors, Harassment of taxi drivers at the airport, frequent requests to the Government of Goa for putting up taxi fare rates at all tourist destinations, to stop private cars operating as illegal taxies, and to stop private cars being given on rent for self-driving’

Restriction on entry of OLA and UBER

Authorised representative of Uber stated that Uber did not even apply for any license for starting app-based taxi services in the State of Goa.

With regard to OLA, DG failed to examine the reasons behind its exit from the State of Goa, though it was noted that Shekhar Dutta, Senior Director, ANI Technologies (OLA), had stated that they had received threats from Taxi Owners Associations (without naming any specific OPs) and the association members vandalized the assets and did gherao of their office premises without elaborating any details of such incident in precise manner.

“…meeting with head of political executive in a joint representation, raising grievances cannot be said to violate the provisions of Competition Act.”

Though nothing on record was placed to show that the OPs gave any joint representation to the State Government.

Concluding the matter, Coram observed that State of Goa took a policy decision and issued guidelines titled as “Guidelines for Taxi Operator/ Radio Taxis/ Rent A Car and Taxi App Aggregators in the State of Goa” as per which app-based taxi aggregators were permitted to operate and were allowed to have range bound dynamic pricing which was on lines of the business model of OLA & Uber.

“despite the opposition of OPs, the State of Goa does not appear to have acceded to or conceded to the demands of the OPs and the policy allowing entry of app based taxi aggregators was eventually notified.”

Hence no case of contravention of Sections 3(1) read with 3(3) of the Competition Act was made out. [Alleged anti-competitive conduct of taxi unions in the State of Goa, In re., Suo Motu Case No. 2 of 2018, decided on 22-06-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members) ordered an investigation by the Director-General against Google in view of prima facie contravention of provisions of Competition Act.

Informants filed the instant case under Section 19(1)(a) of the Competition Act against Google LLC, Google India Private Limited, Xiaomi Technology India Pvt. Ltd. & TCL India Holdings Pvt. Ltd. alleging contravention of various provisions of Sections 3 and 4 of the Act. OPs to be referred to as ‘Google’.

Informants stated that they were the consumers of Android-based smartphones, television devices and alleged that Google was guilty of anti-competitive practices which violate Section 4 with Section 32 of the Act.

It was alleged that Google imposed several restrictions, as summarized below, upon smart TV and smart mobile device OEMs by virtue of the agreements entered into with them which tantamount to abuse of its dominant position by Google, in terms of various provisions of Section 4 of the Act.

Analysis

It was noted that Google enters into two agreements with Android TV licensees i.e. Television App Distribution Agreement (TADA) and Android Compatibility Commitment (ACC).

Google makes AOSP available to any third parties under an open-source license, however, the Android Open Source Project license does not grant OEMs, the right to distribute Google’s proprietary apps such as Play Store, YouTube, etc. referred to as Google Applications in TADA. The AOSP license further does not grant Original Equipment Manufacturers (OEMs), the right to use the Android logo and other Android-related trademarks. In order to obtain those rights, Google requires OEMs to sign an optional, non-exclusive agreement, i.e. TADA. Further, TADA requires the OEMs to be in compliance with a valid and effective ACC.

Commission prima facie opined that by making pre-installation of Google’s proprietary apps conditional upon signing of ACC for all android devices manufactured/distributed/marketed by device manufacturers, Google has reduced the ability and incentive of device manufacturers to develop and sell devices operating on alternative versions of Android and thereby limited technical or scientific development relating to goods or services to the prejudice of consumers in contravention of Section 4(2)(b) of the Act.

ACC prevents OEMs from manufacturing/ distributing/ selling any other device which operates on a competing forked Android operating system.

Therefore, the dominance of Google in the relevant markets and pronounced network effects, by virtue of the stated restriction, developers of such forked Android operating system are denied market access resulting in violation of Section 4(2)(c) of the Act.

Further, Commission prima facie opined that obligations which appear to be applicable across all the devices manufactured by OEMs are akin to making a conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts and thus, violative of provisions of Section 4(2)(d) of the Act.

In relation to the mandatory preinstallation of all the Google Applications under TADA, it is observed that the device manufacturers who sign this agreement cannot pick and choose from the Google Applications for preinstallation. In essence, this entails compulsory tying of ‘must have’ Google apps, which is in contravention of Section 4(2)(a)(i) of the Act.

Elaborating more on the above aspect, Commission stated that Google prima facie leveraged dominance in Play Store in contravention of Section 4(2)(e) of the Act.

Commission directed the Director-General (‘DG’) to cause an investigation to be made into the matter under the provisions of Section 26(1) of the Act and the same to be completed within a period of 60 days.

As per the Coram, a case was made out for directing an investigation by the DG.[Kshitiz Arya v. Google LLC, 2021 SCC OnLine CCI 33, decided on 22-06-2021]

Case BriefsHigh Courts

Punjab and Haryana High Court: The Division Bench of Rajan Gupta and Karamjit Singh, JJ., had slammed the State for inordinate delay in investigating the cases related to Ex-MLAs and Ex. CM, Bhupinder Singh Hooda. The Bench said,

Undue delay in concluding an investigation is infringement to right to fair and expeditious investigation and trial which flows from Article 21 of the Constitution.

The Court was informed by the ASGI that in two cases against two Ex-MLAs i.e. Avinash Chander and Sarwan Singh Phillaur, charges had already been framed and out of 68, 63 Pws had been examined. Further, in two separate cases registered against Bhupinder Singh Hooda, Ex-CM, State of Haryana, charge sheet was filed before Special Judge, CBI-cum-Special Court, PMLA at Panchkula by ED in land cases i.e. COMA-/03/2021 and COMA/42/2019. In both the cases, cognizance had been taken.

Similarly, the CBI submitted that the relevant information pertaining to Anti Corruption Bureau and Special Crime Branch, Chandigarh is available with CBI. However, certain data needs to be collected from Central units in Delhi hence, CBI would need 10 days time to file affidavit on the same.

At this stage, the Amicus Curiae, Mr. Khosla had submitted before the Court the judgment rendered by the Supreme Court in Ashwani Kumar Upadhyay v. Union of India, 2020 SCC OnLine SC 1043. In the Said judgment the Supreme Court had dealt with the matter of inordinate delay in disposing off of the cases against MPs and MLAs.  The Supreme Court said that, “At present, there are around 4442 cases, which are currently pending against the MPs and MLAs (sitting and former). Nearly 413 of the above cases pertain to offences punishable with life imprisonment, out of which 174 cases are against sitting MPs and MLAs…Shockingly, in the States of West Bengal and Punjab, there are pending cases pertaining to the years 1981 and 1983 respectively.

Suggestions as Given in Ashwani Kumars Case

In the aforesaid circumstances, the following submissions are made for ensuring expeditious trial of cases where MPs/MLAs are accused:

(i) Special Courts in every district for MPs/MLAs:

 Each High Court may be directed to assign/allocate criminal cases involving former and sitting legislators to as many Sessions Courts and Magisterial Courts as the respective High Courts may consider proper having regard to the number and nature of pending cases.

(ii) Practice Directions:

Special Courts will give priority to the trial of cases in the following order: i. Offences punishable with death/life imprisonment; ii. Offences punishable with imprisonment for 7 years or more; and iii. Other offences.  Cases involving sitting legislators to be given priority over former legislators.

 (iii) Cases under stay:

 The Supreme Court in Asian Resurfacing of Road Agency Pvt. Ltd. v. CBI, (2018) 16 SCC 299, held as under: If stay is granted, it should not normally be unconditional or of indefinite duration. Where the matter remains pending for longer period, the order of stay will stand vacated on expiry of six months, unless extension is granted by a speaking order showing extraordinary situation where continuing stay was to be preferred to the final disposal of trial by the trial Court. This timeline is being fixed in view of the fact that such trials are expected to be concluded normally in one to two years.

 (iv) Witness Protection:

 Witness protection in all such cases is essential having regard to vulnerability of the witnesses and the influence exercised by the legislators facing criminal trials. This Supreme Court in the case of Mahender Chawla v. Union of India, , (2019) 14 SCC 615, has framed Witness Protection Scheme, 2018 and made it applicable to all the States till the enactment of suitable legislation by the Parliament or State legislatures. Trial courts shall consider granting of protection under the aforesaid scheme to all the witnesses, without any application by the respective witnesses.

(v) Monitoring by High Courts

 Each High Court shall register a Suo Moto case with the title In Re: Special Courts for MPs/MLAs to monitor the progress of cases pending in the State.  A Senior Advocate shall be appointed as Amicus Curie and a senior Police officer of the rank not below Inspector General of Police shall be present in the Court in each hearing to furnish requisite information, as and when required. The case shall be heard by the High Court at such interval as may be necessary; however, at least once three months.

In the light of the above, the Bench directed that States as well as Central agency should ensure that the aforesaid order of the Supreme Court is examined by all the respective investigating officers to ensure due compliance. Opining that undue delay in concluding an investigation is infringement to right to fair and expeditious investigation and trial which flows from Article 21 of the Constitution, the Court sought reply from CBI as well as other investigating agencies to explain inordinate delay in investigation.

[Suo Motu v. State of Punjab, 2021 SCC OnLine P&H 1034, decided on 27-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Amicus Curiae: Sr. Adv. Rupinder S. Khosla with Adv. Sarvesh Malik
For the State of Punjab: S.P.S. Tinna, Addl. AG
For the State of Haryana: Ankur Mittal, Addl. AG
For CBI: Sumeet Goel, Advocate
For UT of Chandigarh: Pankaj Jain, Sr. Standing Counsel with Mr. Jaivir Chandail, Advocate
For Union of India: Satya Pal Jain, Additional Solicitor General of India with
Mr. Dheeraj Jain, Senior Counsel

Case BriefsHigh Courts

Punjab and Haryana High Court: The Bench of Arun Monga, J., expressed disbelief on how an all men SIT could be deployed to investigate into sensitive offences like rape contrary to legal provisions. The Bench constituted another SIT to be headed by a female officer. The expressed,

The allegations and factual averments contained in the petition are so grisly and frightful, one can only hope, that the same are fictitious.”

On the argument of the defendant that a honey trap was laid by the petitioner, which later boomeranged on her, the Bench said, if that be not so, then it was a case which reflected the sordid state of affairs in Punjab Police. The Bench remarked,

The very protectors/enforcers of law and order have turned into predators, making a young 38 years old widow mother victim of their lust.

To maintain and respect the privacy of the petitioner the Court refrained to give the narrative of the incident. The facts of the petitioner was that when she declined to succumb to the sexual favor sought from her by the police officials her 19-20 year old son was picked up by CIA police officials in broad day light while he was suffering/convalescing from Covid-19 infection at his residence. The petitioner contended that an FIR, allegedly a fake one, was registered against her son under NDPS Act by planting contraband on him so as to arm twist the petitioner. Eventually, under duress to get her son released, she yielded to the sexual demands of the CIA staff. To substantiate her allegations, petitioner had also appended a pen drive which contains the recorded conversations between her and respondent 5 as well as certain live video clippings in support of her rape allegations, a heinous crime otherwise, but was being termed as honey trap by the defense.

Opining that truth will only unfold in time once it is properly investigated; the Bench replaced an all men SIT with another SIT with female members and head. The Bench said,

It is rather intriguing, given the nature of sensitive investigation, that no lady police official has been involved, which is even otherwise the requirement of law in cases of this kind. To say the least, it is highly deplorable to see the insensitiveness with which the district police officials have acted, in constituting the SIT having all male members.

Hence, constituting an all women SIT the Bench directed that the investigation shall also be carried out by the lady IO/police officer in both the cases registered under Section 376 IPC and registered under Section 18(b) of the NDPS Act, 1985. Additionally, the Bench asked the State what steps had been taken under the “Witness Protection Scheme, 2018” as per judgment rendered by the Supreme Court in Mahender Chawla v. Union of India, (2019) 14 SCC 615, as the petitioner was fearful that the police officials who were involved in the case, may try to bodily harm her and tamper with the evidence and/or destroy the same. Lastly, the Bench sought reply from the State as to the steps taken so far to proceed against the accused, in criminal proceedings arising out of both the FIRs, as well as departmental action taken, if any.

[Veerpal Kaur v. State of Punjab, 2021 SCC OnLine P&H 1033, decided on 25-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For the Petitioner: Adv. Gurpreet Singh Bhasin
For the State of Punjab: DAG Sandeep Singh Deol

Case BriefsSupreme Court

Supreme Court: Dealing with a case where Bombay High Court had granted interim protection from arrest to an accused facing serious charges for the offences under Sections 406, 420, 465, 468, 471 and 120B of the Penal Code and had ordered “no coercive measures to be adopted/taken”, the 3-judge bench of Dr. DY Chandrachud, MR Shah* and Sanjiv Khanna, JJ deprecated the order of the High Court and held that such a blanket interim order passed by the High Court affects the powers of the investigating agency to investigate into the cognizable offences, which otherwise is a statutory right/duty of the police under the relevant provisions of the Cr.P.C.

“We are at pains to note that despite the law laid down by this Court in the case of Habib Abdullah Jeelani[1] (…), deprecating such orders passed by the High Courts of not to arrest during the pendency of the investigation, even when the quashing petitions under Section 482 Cr.P.C. or Article 226 of the Constitution of India are dismissed, even thereafter also, many High Courts are passing such orders. The law declared/laid down by this Court is binding on all the High Courts and not following the law laid down by this Court would have a very serious implications in the administration of justice.”

Background

The accused were charged for forgery and fabrication of Board Resolution and the fraudulent sale of a valuable property belonging to the appellant company to one M/s Irish Hospitality Pvt. Ltd.

Apprehending their arrest in connection with the aforesaid FIR, the original accused filed anticipatory bail application before the learned trial Court under Section 438 Cr.P.C.

Sessions Court, Mumbai granted interim protection from arrest to the alleged accused. This interim protection was further extended from time to time and continued nearly for a year thereafter.

The High Court passed the impugned interim order directing that “no coercive measures shall be adopted against the petitioners in respect of the said FIR.

The said order was challenged before the Supreme Court on the ground that no reasons whatsoever were assigned by the High Court while passing such an interim order of “no coercive measures to be adopted/taken” against the original accused.

“…the High Court ought to have appreciated that the original accused – respondent nos. 2 to 4 herein are facing very serious charges for the offences under Sections 406, 420, 465, 468, 471 and 120B of the Indian Penal Code and, in fact, the FIR was transferred to the Economic Offences Wing and the investigation was being conducted by the Economic Offences Wing. It is submitted that, as such, the original accused were not co-operating with the investigation after having obtained the interim protection from arrest.”

It was argued before the Court that while enjoying the interim protection from arrest, to file an application for quashing after a period of almost one year and obtain such an order is nothing but an abuse of process.

Analysis

Practice and procedure in case of cognizable offences – Summary of catena of Supreme Court decicions

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, in the ‘rarest of rare cases’. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, has the jurisdiction to quash the FIR/complaint; and

xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR.

What must be kept in mind before passing an interim order of staying further investigation pending the quashing petition?

Before passing an interim order of staying further investigation pending the quashing petition under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India, the High Court has to apply the very parameters which are required to be considered while quashing the proceedings in exercise of powers under Section 482 Cr.P.C. in exercise of its inherent jurisdiction.

“In a given case, there may be allegations of abuse of process of law by converting a civil dispute into a criminal dispute, only with a view to pressurise the accused. Similarly, in a given case the complaint itself on the face of it can be said to be barred by law. The allegations in the FIR/complaint may not at all disclose the commission of a cognizable offence. In such cases and in exceptional cases with circumspection, the High Court may stay the further investigation.”

However, at the same time, there may be genuine complaints/FIRs and the police/investigating agency has a statutory obligation/right/duty to enquire into the cognizable offences.

“Therefore, a balance has to be struck between the rights of the genuine complainants and the FIRs disclosing commission of a cognizable offence and the statutory obligation/duty of the investigating agency to investigate into the cognizable offences on the one hand and those innocent persons against whom the criminal proceedings are initiated which may be in a given case abuse of process of law and the process.”

However, if the facts are hazy and the investigation has just begun, the High Court would be circumspect in exercising such powers and the High Court must permit the investigating agency to proceed further with the investigation in exercise of its statutory duty under the provisions of the Code. Even in such a case the High Court has to give/assign brief reasons why at this stage the further investigation is required to be stayed. The High Court must appreciate that speedy investigation is the requirement in the criminal administration of justice.

What happens in a case where the initiation of criminal proceedings may be an abuse of process of law?

In such cases, and only in exceptional cases and where it is found that non-interference would result into miscarriage of justice, the High Court, in exercise of its inherent powers under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India, may quash the FIR/complaint/criminal proceedings and even may stay the further investigation.

“However, the High Court should be slow in interfering the criminal proceedings at the initial stage, i.e., quashing petition filed immediately after lodging the FIR/complaint and no sufficient time is given to the police to investigate into the allegations of the FIR/complaint, which is the statutory right/duty of the police under the provisions of the Code of Criminal Procedure.”

Hence, in exceptional cases, when the High Court deems it fit, regard being had to the parameters of quashing and the self-restraint imposed by law, may pass appropriate interim orders, as thought apposite in law, however, the High Court has to give brief reasons which will reflect the application of mind by the court to the relevant facts.

Why passing blanket order as passed in the present case is not the way forward?

“Granting of such blanket order would not only adversely affect the investigation but would have far reaching implications for maintaining the Rule of Law. Where the investigation is stayed for a long time, even if the stay is ultimately vacated, the subsequent investigation may not be very fruitful for the simple reason that the evidence may no longer be available.”

In case, the accused named in the FIR/complaint apprehends his arrest, he has a remedy to apply for anticipatory bail under Section 438 Cr.P.C. and on the conditions of grant of anticipatory bail under Section 438 Cr.P.C being satisfied, he may be released on anticipatory bail by the competent court.

It cannot be disputed that the anticipatory bail under Section 438 Cr.P.C. can be granted on the conditions prescribed under Section 438 Cr.P.C. are satisfied. At the same time, it is to be noted that arrest is not a must whenever an FIR of a cognizable offence is lodged.

However,

“So far as the order of not to arrest and/or “no coercive steps” till the final report/chargesheet is filed and/or during the course of investigation or not to arrest till the investigation is completed, passed while dismissing the quashing petitions under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India and having opined that no case is made out to quash the FIR/complaint is concerned, the same is wholly impermissible.”

Conclusion

i) Such a blanket interim order passed by the High Court affects the powers of the investigating agency to investigate into the cognizable offences, which otherwise is a statutory right/duty of the police under the relevant provisions of the Cr.P.C.;

ii) The interim order is a cryptic order;

iii) No reasons whatsoever have been assigned by the High Court, while passing such a blanket order of “no coercive steps to be adopted” by the police;

iv) It is not clear what the High Court meant by passing the order of “not to adopt any coercive steps”, as it is clear from the impugned interim order that it was brought to the notice of the High Court that so far as the accused are concerned, they are already protected by the interim protection granted by the learned Sessions Court, and therefore there was no further reason and/or justification for the High Court to pass such an interim order of “no coercive steps to be adopted”.

“If the High Court meant by passing such an interim order of “no coercive steps” directing the investigating agency/police not to further investigate, in that case, such a blanket order without assigning any reasons whatsoever and without even permitting the investigating agency to further investigate into the allegations of the cognizable offence is otherwise unsustainable. It has affected the right of the investigating agency to investigate into the cognizable offences.”

[Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra, 2021 SCC OnLine SC 315, decided on 13.04.2021]


[1] State of Telangana v. Habib Abdullah Jeelani, (2017) 2 SCC 779

High Court cannot issue a blanket order restraining arrest while refusing to quash the investigation


Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Appearances before the Court

Senior Advocate K.V. Vishwanathan, Advocates Diljeet Ahluwalia, Malak Manish Bhatt, Sachin Patil and Rahul Chitnis

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 BriefsHigh Courts

Punjab and Haryana High Court: Rajbir Serawat, J., addressed the controversial case of     regarding three incidents of alleged sacrilege qua Guru Granth Sahib-the Holy Book of Sikhs. The Court was dealing with the incident of Kotkapura firing, wherein the petitioner had sought for quashing of the reports of the Commissions of Inquiry asserting that they have been named in the report without having been granting any opportunity of hearing. The Bench, which while going hard on the manner of investigation, stated,

“What could have been a simple investigation of a crime committed either by the protestors or by the police or by both, have been made to fester and convert itself to a quagmire wherein every concerned person finds himself entrapped.”

Kotkapura Firing

The case relates back to the protest held against the incident of alleged sacrilege; wherein some Saroops (Books) of Guru Granth Sahib went missing from a Gurudwara and two hand written posters containing some sacrilegious contents qua Guru Granth Sahib were found pasted near a Gurudwara. During the process of maintaining the law and order some police persons were seriously injured and one protestor was alleged to have received grievous gunshot injury on thigh and some other persons are alleged to have received minor injuries.

Total 47 police persons got injured at the hands of protestors. The public sentiments got aroused and the issue was further aggravated by the religious leaders. Meanwhile, keeping in view the public outcry for justice and to ensure a fair investigation, the then State Government had referred the all the FIRs related to sacrilege to CBI.

Later on asserting that the earlier report of Justice (Retired) Zora Singh Commission was inconclusive, the incoming State Government set-up another Commission of Inquiry into the incidents of sacrilege, as well as, into the police firing at Kotkapura, by appointing Justice (Retired) Ranjit Singh to head the Commission, which recommended registration of criminal cases against the police persons and some political functionaries.

Withdrawal of Investigation from CBI

Since there was resentment in political circles against handing over the investigation to the CBI, the State Government had put up the matter before the State Legislative Assembly, which passed a resolution calling upon the government to take back the investigation from the CBI. Consequently, the matter was withdrawn from the CBI and the same was handed over to the Punjab Police. A Special Investigation Team (SIT) was constituted for this comprising of 5 officers including Senior IPS Officers. However, allegedly, Sh. Kunwar Vijay Pratap Singh  (respondent 3) tried to exclusively take over the investigation by excluding the other members of the SIT. Hence, allegedly, they wrote letter to DGP raising their protest expressing their dissent qua the investigation being conducted by the respondent 3.

It had been alleged by the petitioner, that the respondent 3 had tried to bulldoze the SIT and be a de-facto boss, despite two IPS officers senior to him being there in the SIT. Allegedly, since the respondent 3 was acting as per the preplanned agenda to further the political plans of the current political dispensation, therefore; subsequently, he was made de-jure head of the SIT by the DGP, Punjab. Reportedly, the respondent 3 did not carry investigation qua FIR No. 192 dated 14-10-2015 which contained the first version of the incident recorded by the police. On the contrary; he exclusively conducted the investigation in FIR No. 129 dated 07-08-2018, which dealt with protestor’s version of the incident.

A Dangerous Mixing of Religion, Politics and Police Administration

Evidently, the respondent 3 had a tendency of misusing his official position and authority in performance of his duties, i.e. to bulldoze and deviate the process, as well as, to make an attempt to over awe the judicial process. Reportedly, when he could not get remand of the petitioner for desired period he went to the extent of alleging that the reason that the CJM granted only two days remand was CJM’s close family linkage with Prakash Singh Badal, the outgoing CM of Punjab while no details of such family linkage was given on record. This mischief was done by the respondent 3 only to pressurize the Courts at Faridkot and to overawe the judicial process. The Bench expressed,

“The respondent 3 is a person who indulges in misuse of his official position to further his designs; makes attempt to over-awe the processes and the authority and who indulges in theatrics and political maneuvering to draw mileage out of it.”

In April 2019 when the Parliamentary Elections were taking place, the respondent 3 gave interview to a TV Channel and named certain political leaders of the party rival to the political dispensation heading the current government; knowing that such an interview at such a juncture would enhance the political prospects for one political party and would damage the political prospects of another political party. For which the Election Commission had debarred him from election duty during that election. Political patronage of the respondent 3 is evident from the fact that the government did not remove him from the investigation despite the orders of the Election Commission (ECI). The political backing of the respondent 3 further becomes clear as the top functionaries of the political party heading the present government, as well as, the CM itself wrote to the ECI for revoking the order passed against the respondent 3.

Investigation Tainted by Political Maneuvering

While recording the selective statements of alleged witnesses, the respondent 3 was conducting only manipulative exercise in the name of investigation; to declare some persons as innocent and to make some persons accused at his whims.

The apprehension of the petitioner(s) that the respondent 3 could not be expected to act fairly and impartially in the conduct of investigation; was found to be reasonable one even as per the standards of an ordinary person of ordinary prudence. Through the misadventures of respondent 3, the SIT already constituted was reduced to one man show, although the respondent 3 was a de-facto sole controller of the investigation even earlier. In any case, no law required the respondent 3 to go to media and to give such interview which had political overtones; qua the investigation and during the election time. The Bench expressed,

All these incidents lend credence to the submission of the petitioner that the respondent 3 was pressurizing him to withdraw the writ petition and to become a witness to implicate the other senior officers of the Police Department and some top political functionaries of the rival political party.”

Was the Firing a Result of Conspiracy Backed by the then CM, Prakash Singh Badal?

During investigation, the respondent 3 had not examined any one of the injured police persons so as to assess the respective assertions of the parties in the FIRs. He had examined only the alleged injured protestors and filed a report; wherein he had declared the firing by the police to be totally ‘unprovoked’ and the protestors to be totally ‘peaceful’.

An allegation was raised by the respondent 3 claiming a conspiracy between the then CM, the then Deputy CM, the then senior police officers and the petitioners on the basis of the call record showing the CM talking to the DGP and the District Administration, as well as, to his political representative in the area. The Court stated that, mere factum of a Chief Minister talking to the District Administration or to the DGP of the State in the times of a situation where the law and order is disturbed, in itself, would not be sufficient to infer his conspiracy to kill or injure anybody through firing by the police upon the protestors, unless there is some other material collected by the investigating officer to establish prior meeting of minds for conspiracy and then directly linking the Chief Minister to such conspiracy.

The Court opined that it rather suggest that the CM was alive to the situation and to his responsibility even in the odd hours. Also, none of the other witnesses was stated to have even remotely suggested that the then CM conspired to kill the protestors by police firing. The Bench further stated that, mustering of police force from various sources of state to control the law and order situation is nothing uncommon. Rather, sensing ill intentions on the part of respondent 3, the Bench said that despite mentioning their names in the charge sheet and recording therein that their conspiracy was established, the respondent 3 did not array the then CM as accused by filing any charge sheet against them which suggest he was waiting for a political horse to be flogged only at an opportune time, whenever the elections are around the corner or when it otherwise suits him.

The integrity of the investigation totally stands demolished because of this manipulation on the part of the respondent 3, as he repeatedly pressed that the police resorted to ‘unprovoked firing’ on ‘peaceful protestors’; despite the fact that the magistrate present on the spot had assessed the situation that had arisen on the spot and had granted permission to use tear gas in the first instance, lathi charge thereafter, and the gun firing at the third stage. As per record, this permission was granted on the basis that the protestors were resorting to large scale violence and destruction of property; and that because of this the situation had gone out of control. Description of Second Inquiry Commission also recorded the protestors to have chased and attacked the police, including with the swords.

Directions by the Court

In view of the above, the fairness of investigation stands vitiated since the investigation conducted by the respondent 3 suffers from malice, irrationality and absurdity. The Bench expressed that in such case the Court is duty bound to step-in to prevent miscarriage of justice, instill confidence in the investigation and also to pre-empt the misuse of the process of the court; by quashing the investigation and the consequent report under section 173 CrPC.

Hence, it was held that the investigation deserves to be conducted by an independent team of senior police officers; by being totally free from all kinds of internal or external extraneous pressures and interference. The matter was disposed of with the following directions:

  • State shall constitute a SIT of three senior IPS officers which shall not include the respondent 3. There shall be no interference from any quarter; internal or external; with this SIT qua the investigation.
  • The SIT shall not report to any State executive or police authority qua the investigation in question but to the Magistrate concerned.
  • The SIT so constituted shall work jointly. All the members of the SIT shall put their signatures on all the proceedings of the investigation as a mark of the fact that they have agreed to the said investigation;
  • Once constituted, that SIT shall not be changed by State except in case of retirement, incapacity or death of the officer concerned;
  • The members of SIT shall not leak any part of the investigation, before filing the final report and shall not interact with media qua any aspect of investigation.

[Gurdeep Singh v. State of Punjab, CWP No. 17459 of 2019, decided on 09-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Counsel for the Petitioner: R. S. Cheema, Senior Advocate, with K. S. Nalwa, A. S. Cheema and Chakitan V. S. Papta

Counsel for the State: Pankaj Singhal
Counsel for CBI: Sumeet Goel

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Panda and S. K. Panigrahi, JJ. set aside the impugned conviction order and allowed the appeal.

The facts of the case are such that one Rama Dharua’s (informant) niece Ghulikhai @ Nidra Majhi was missing and on searching the village and inquiring he failed to trace the whereabouts of their niece. The informant then reported the same to the police and an FIR was registered. On one night his son-in-law one Dullabha Majhi confided him that one Dama Pradhani (appellant) of his village had confessed before him that he had committed the murder of the deceased and concealed the dead body. During the course of investigation, the Investigating Officer proceeded to the village and took the appellant into his custody who allegedly confessed to have committed the crime by strangulating the deceased and having concealed the dead body in Gadiajore Nala. Upon arrival at the Gadiajore Nala, the body was immediately recovered. Inquest was conducted. The body of the deceased along with a lungi that was found tied around her neck was sent for post mortem examination. The appellant was also sent for medical examination where a sample of his semen was seized. The appellant was then arrested and forwarded to the court. Based on various witnesses presented before Trial Court the appellant was convicted for commission of offences punishable under Sections 302/201 of Penal Code, 1860 i.e. IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs 2, 000/-and in default further to undergo R.I. for a period of six months under Section 302 of IPC and to undergo R.I. for two years and to pay a fine of Rs 1, 000. Upon further default, to undergo R.I. for three months under Section 201 of the IPC Aggrieved by the said order, present appeal was filed.

Counsel for the appellants Mr B.S. Das, D. Marandi, L.C. Behera and S. Sahoo submitted that there is no eye witness to the occurrence and the case of prosecution is solely based on circumstantial evidence. It was further submitted that although the extra-judicial confession has led to the discovery of the dead body, however, the prosecution has failed to adduce cogent and trustworthy evidence to prove the circumstances beyond a reasonable doubt.

Counsel for the respondents Mr S. K. Zafarulla submitted that the report of the Medical Officer reveals that the deceased suffered homicidal death due to strangulation by means of lungi. It was further submitted that the witnesses and evidence presented clearly states culpability of the accused.

The Court summarized four circumstances indicating the culpability of the appellant, namely

  1. Extra judicial confession made by the accused
  2. Recovery of dead body of deceased
  3. Evidence and statements of various witnesses
  4. Motive

The Court relied on judgment Sahadevan v. State of Tamil Nadu, (2012) 6 SCC 403 wherein it was held that

“14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.”

 The Court further relied on judgment Jaffar Hussain Dastagir v. State of Maharashtra (1969) 2 SCC 872 and observed that even if it can be accepted that the statement of the appellant led to the discovery of the body of the deceased and hence might be admissible, it is important to note that only that part of the statement which led to the discovery of the body of the deceased can be admitted. Every other information presented in the statement which are inculpatory and confessional including the confession of allegedly committing the offence, the alleged usage of the lungi to commit said offence, the existence of the love affair have to be completely barred and cannot be relied upon under any circumstances.

The Court observed that In the instant case there are no eye-witness to the occurrence and prosecution case solely rests on the circumstantial evidence. The Court relied on judgment Ramreddy Rajesh Khanna Reddy v. State of Andhra Pradesh (2006) 10 SCC 172 wherein it was held that:

“26. It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well-settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence.”

The Court held “in the absence of eye-witnesses and the weak chain of circumstantial evidence, the order of conviction and sentence impugned herein are liable to be set aside.”

In view of the above, appeal was allowed.[Dama Pradhani v. State of Orissa, 2021 SCC OnLine Ori 309, decided on 12-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Himachal Pradesh High Court: Vivek Singh Thakur, J., dismissed the petition and approved the prayer for custodial interrogation.

The facts of the case are such that the daughter of the petitioner i.e. the victim left home for school and did not return. On him contacting school authorities he got to know that school was not open that day. He went to register a complaint at the police station under Section 363 Penal Code, 1860 i.e. IPC and investigation started. On investigation, it was found that her phone was being used on various locations and two numbers were contacted most frequently. The last location of the victim was Panipat after which the phone was switched off. The main fact that points to Nazim i.e the petitioner in the instant case being of significance is the fact that he spoke to Ibrahim who kept the victim with him as the petitioner was in Kerala. The victim was recovered and her statement was recorded after which a lot of additional facts and names came to the fore and thus Sections 366A, 370(4), 506 and 120B IPC were added. The Petitioner has approached this Court under Section 438 Criminal Procedure Code (i.e. Cr.P.C.), seeking anticipatory bail apprehending his arrest.

Counsel for the petitioners Mr Rajesh Kumar Parmar submitted that there is no overt act on the part of the petitioner in leaving the house by the victim, rather victim had voluntarily left her house and when she reached Ambala, the petitioner had only helped her by providing shelter to her and victim was not sexually abused. It is also submitted that there is no past history of petitioner involving in the commission of the same nature or any other offence.

Counsel for the State Mr Raju Ram Rahi and Mr Nasib Singh submitted that petitioner is a part of racket involved in fishing adolescent girls for throwing them in international flesh trade by trafficking. It was further submitted that accused are absconding and investigation is at the initial stage and non-cooperation of the accused persons, including petitioner, is hampering the investigation.

The Court observed that Police Officer/Investigating Officer is empowered to arrest the offender or the suspect for proper investigation of the offence as provided under Section 41 read with Section 157 CrPC. Arrest of an offender during investigation is duly prescribed in CrPC. Section 438 CrPC is an exception to general principle and at the time of exercising power under Section 438 CrPC, balance between right of Investigating Agency and life and liberty of a person has to be maintained by the Courts, in the light of Fundamental Rights guaranteed under Articles 21 and 22 of the Constitution of India, but also keeping in mind interference by the Court directing the Investigating Officer not to arrest accused amounts to interference in the investigation. It was also observed that nature, gravity and seriousness of offence, are also amongst those several relevant factors which may compel the Court to reject or accept the bail application under Section 438 CrPC.

The Court thus held “Considering entire facts and circumstances of the case and nature, gravity and seriousness of offence for the manner in which girl has been managed to be transported/travelled from Shimla to a remote village of Uttar Pradesh in an organized manner, and also for finding or ruling out possibility of amplitude and magnitude of the conspiracy, I find that prayer for custodial interrogation of the petitioner is justified and thus acceptable.” 

In view of the above, petition was dismissed.[Mohammad Nazim v. State of Himachal Pradesh, 2021 SCC OnLine HP 606, decided on 06-04-2021]


Arunima Bose, 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 BriefsHigh Courts

Meghalaya High Court: W. Diengdoh, J., allowed a petition which was filed against the rejection order of the Chief Judicial Magistrate about the compromise in a case of a non-compoundable offence.

A Motor Vehicle Accident took place which involved the vehicle driven by the petitioner herein who was proceeding from Guwahati to Shillong on the National Highway, and on reaching near Nongpoh Police Station, Ri-Bhoi District, he saw one vehicle parked on the road and on crossing that vehicle, all of a sudden one pedestrian, the victim H.N. Sangma (since deceased) crossed from the front side of the vehicle and in the process was dashed by the vehicle driven by the petitioner. The petitioner immediately had taken the victim to the Bethany Hospital, Nongpoh for treatment where the victim had succumbed to his injuries. Respondent 2 had filed an FIR in relation to the said incident, after which petitioner was arrested and was released on bail on the same day. However, in course of the investigation, the I/O submitted the charge sheet and came to the conclusion that a prima facie case under Sections 279/304A IPC was found well established against the accused/petitioner.

In the meantime petitioner and the complainant/respondent 2 had arrived at a compromise and had decided to bring to a closure all matters relating to the said incident. Chief Judicial Magistrate, Ri-Bhoi District, Nongpoh had rejected the prayer of the parties solely on the ground that the offences involved are non-compoundable not coming within the purview of Section 320 CrPC and as such, the said compromise between the parties was not allowed. Thus, the instant appeal was filed.

The Court had to consider whether a criminal proceeding involving non-compoundable offence can be set aside and quashed, all parties having reached a compromise.

The Court relied on the judgment mentioned by the counsel of the petitioner Narinder Singh v. State of Punjab, (2014) 6 SCC 499 wherein it was held,

            “29.1. Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.”

The Court held that the High Court, therefore, has the inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, caution is given to the High Court to sparingly exercise this power by looking into the facts and circumstances of the case.

The Court allowing the petition and not going into merits of the case decided that since evidence had to be led, what is prima facie apparent is the conduct of the petitioner/accused who had on his own taken the victim to the hospital for treatment, conclusively no mens rea was present and for meeting ends of justice, the petitioner should not be unnecessarily embroiled in the said criminal proceeding.[Issac Lalsiemthar v. State of Meghalaya, Crl.Petn. No. 9 of 2021, decided on 01-04-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Kerala High Court: V.G. Arun, J., dismissed the instant petition filed for seeking direction to the Police to conduct an investigation into the role of respondents 2 to 7 in the suspicious death of one Bhargavi, paternal aunt of the petitioner. The Bench stated,

“…motive behind filing the writ petition is the petitioner’s ouster from his house and vesting of the properties of his deceased aunt with respondents 2 to 5.”

The petitioner’s paternal aunt Bhargavi died on 15-11-2019. Suspecting foul play behind Bhargavi’s death, the petitioner requested the police to conduct investigation which yielded no positive result. Therefore the petitioner had approached this Court praying for a direction to the police officials to conduct investigation into the role of respondents 2 to 7 in the suspicious death of Bhargavi.

Noticeably, Bhargavi was a spinster and had assets in the form of immovable properties and cash deposits.  She had executed a Will bequeathing all her properties in the petitioner’s name. However, by a subsequent will the properties were bequeathed in the name of respondents 2 to 5. By this time, there was rivalry in the family and the petitioner was driven out of the house and a partition deed was executed on 22-10-2003 between the petitioner’s father and Bhargavi.

Aggrieved by his ouster from the parental house, the petitioner filed a partition suit arraying his parents, aunt Bhargavi and siblings as defendants. Later, another will was executed by Bhargavi on 01-12-2011, bequeathing all the amounts in her bank accounts to the petitioner’s sisters. According to the petitioner, Bhargavi had executed the last two wills succumbing to the pressures exerted by his sisters and was actually contemplating the execution of a new and final Will, making the petitioner the sole legatee. While so, Bhargavi died on 15-11-2011 at 7.30 am, which according to the petitioner, was under mysterious circumstances. The petitioner alleged that the body of Bhargavi was cremated hurriedly at 12.55 pm on the same day at the Shanthikavadam Gas Crematorium so as to defeat investigation into the death.

Considering the above mentioned, the Bench was of the view that the motive behind filing the writ petition was the petitioner’s ouster from his house and vesting of the properties of his deceased aunt with respondents 2 to 5. As Bhargavi was aged 81 years, as on the date of execution of Will, she would have been 90 by the time she died. Hence, in the absence of clear and cogent evidence to the contrary, the Bench relied on the presumption that Bhargavi had died of natural causes. Since,

“Other than the allegation of Bhargavi having been cremated at the Santhikavadam Gas Crematorium which is 30 Kms from the place of demise, no other suspicious circumstances have been stated in the writ petition.”

Lastly, that petitioner claimed to be a teacher, the Bench vehemently remarked, observing that the conduct of the petitioner was, to say the least, reprehensible and a teacher is not expected to file frivolous writ petition of this nature, motivated by personal animosity.[Vivekanandan K. S. v. Circle Inspector of Police, 2021 SCC OnLine Ker 1614, decided on 30-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the petitioner: Adv. C. Manoj Kumar (Kakkanad) and Adv. P.T. Sebastian Tomy

For the Respondent: Adv. C. A. Anoop

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): The coram comprising of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members) while addressing a very interesting matter with respect to WhatsApp’s updated policy, expressed that:

“…in a data driven ecosystem, the competition law needs to examine whether the excessive data collection and the extent to which such collected data is subsequently put to use or otherwise shared, have anti-competitive implications, which require anti-trust scrutiny.”

As per several media reports, WhatsApp updated its privacy policy and terms of service for WhatsApp users.

It was reported that the new policy made it mandatory for the users to accept the terms and conditions in order to retain their WhatsApp account information and provides as to how it will share personalized user information with Facebook and its subsidiaries.

In the present matter, both Facebook and WhatsApp will together be referred to as ‘Opposite Parties’.

Commission on noting the impact of policy and terms for WhatsApp users decided to take suo motu cognizance of the matter.

WhatsApp submitted that its current Terms and Service and Privacy Policy, as well as the proposed update in the same fall within the purview of the information and technology law framework and these issues, are currently sub judice before various courts and other fora in India.

Further, it was added that the examination of the 2021 Update by Courts and the Government of India is not merely limited to data protection/ privacy laws but extends to assessing more broadly whether the 2021 Update is in conformity with principles of fairness, public policy and national security considerations.

WhatsApp relied on the Supreme Court decision in Competition Commission of India v. Bharti Airtel Limited, (2019) 2 SCC 521, and stated that the said decision emphasized the need to maintain comity between decisions of different authorities on the same issues and held that the Commission should only exercise jurisdiction after the proceedings before the sectoral regulator had concluded and attained finality.

Bench noted that WhatsApp failed to point out any proceedings on the subject matter which a sectoral regulator is seized of.

“…Commission is examining the policy update from the perspective of competition lens in ascertaining as to whether such policy updates have any competition concerns which are in violation of the provisions of Section 4 of the Act.”

 Further, the Commission added that, it is obligated to ‘prevent’ practices having adverse effect on competition.

Whether the Ops have violated provisions of Section 4 of the Act?

 On what points has the Commission sought clarification?

  • The primary aim of the 2021 Update is twofold: (i) to provide users with further transparency about how WhatsApp collects, uses and shares data; and (ii) to inform users about how optional business messaging features work when certain business messaging features become available to them.
  • 2016 Update allowed existing users the option to opt-out of sharing their WhatsApp account information with Facebook Companies for ads and product experiences purposes. WhatsApp is continuing to honour the 2016 opt-out for anyone who had chosen it, and the most recent updates do not change that. If anyone who has previously opted out agrees to the 2021 Update, WhatsApp will acknowledge their agreement to the 2021 Update and also continue to honour the 2016 opt-out.
  • Privacy of personal messaging is integral to the growth and vision of WhatsApp. This commitment to keeping WhatsApp a safe and protected place where people can connect privately has not changed. WhatsApp cannot see users’ personal conversations with friends and family because they are protected by end-to-end encryption.
  • 2021 Update does not expand WhatsApp’s ability to share data with Facebook and does not impact the privacy of personal messages of WhatsApp users with their friends and family.
  • The 2021 Update provides more specifics on how WhatsApp works with businesses that use Facebook or third parties to manage their communications with users on WhatsApp. Even for users who choose to interact with a business on WhatsApp, the implications of such data sharing are minimal.

WhatsApp submitted that the 2021 Update raised no concerns from a competition perspective and the said Update aimed to provide greater transparency, hence no investigation shall be initiated.

Commission took note of the recent developments wherein the competing apps, i.e. Signal and Telecom witnessed a surge in downloads after the policy announcement by WhatsApp. However, apparently, it did not result in any significant loss of users for WhatsApp.

Comparison with Previous Policy| No opt-out option?

As per the previous policy, existing users were provided with an option to choose not to have their WhatsApp account information shared with Facebook. However, it was evident from the latest policy statement on the WhatsApp website and the media reports that the said choice as was available under the previous policy is not available now.

“…consent to sharing and integration of user data with other Facebook Companies for a range of purposes including marketing and advertising, has been made a precondition for availing WhatsApp service.”

Moving ahead, Bench noted that the data collected by WhatsApp would be shared with Facebook Companies for various usages envisaged in the policy. The Commission also took note of the submission of WhatsApp that it would continue to honour the ‘opt-out’ option exercised by users during the 2016 Update; however, the 2021 Update do not create any carveout for such users who opted for not sharing their information with Facebook.

On considering the overarching terms and conditions of the new policy, the Commission prima facie opined that the ‘take-it-or-leave-it nature of privacy policy and terms of service of WhatsApp and the information sharing stipulations mentioned therein merit a detailed investigation in view of the market position and market power enjoyed by WhatsApp.

The conduct of WhatsApp/ Facebook under consideration merits detailed scrutiny.

Bench opined that the users are entitled to be informed about the extent, scope and precise purpose of sharing of such data by WhatsApp with other Facebook Companies.

“… opacity, vagueness, open-endedness and incomplete disclosures hide the actual data cost that a user incurs for availing WhatsApp services. “

Commission also observed that it is also not clear from the policy whether the historical data of users would also be shared with Facebook Companies and whether data would be shared in respect of those WhatsApp users also who are not present on other apps of Facebook i.e., Facebook, Instagram, etc.

There appeared to be no justifiable reason as to why users should not have any control or say over such cross-product processing of their data by way of voluntary consent, and not as a precondition for availing WhatsApp’s services.

No Voluntary Agreement

Users are required to accept the unilaterally dictated ‘take-it-or-leave-it’ terms by a dominant messaging platform in their entirety, including the data sharing provisions therein, if they wish to avail their service. Such “consent” cannot signify voluntary agreement to all the specific processing or use of personalised data, as provided in the present policy.

Unfair

On a careful and thoughtful consideration of the matter, the conduct of WhatsApp in sharing of users’ personalised data with other Facebook Companies, in a manner that is neither fully transparent nor based on voluntary and specific user consent, appears prima facie unfair to users.

Data Sharing with Facebook

The impugned conduct of data-sharing by WhatsApp with Facebook apparently amounts to degradation of non-price parameters of competition

The impugned data-sharing provision may have exclusionary effects also in the display advertising market which has the potential to undermine the competitive process and creates further barriers to market entry besides leveraging, in violation of the provisions of Section 4(2)(c) and (e) of the Act.

While stating that a thorough and detailed investigation is required in the matter, and DG to complete the same within a period of 60 days, held that WhatsApp has prima facie contravened the provisions of Section 4 of the Act through its exploitative and exclusionary conduct, as detailed in this order, in the garb of policy update.[Updated Terms of Service and Privacy Policy for WhatsApp Users, In Re., 2021 SCC OnLine CCI 19, decided on 24-03-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

Special Court, CBI, Ghaziabad: Shivank Singh, Special Judicial Magistrate (CBI), rejected the closure report filed by the CBI, stating that the Court was of the view that a prima facie case was made out. And resultantly, took cognizance under Section  120B r/w 302, 201 as well as substantive offences under Sections 302, 201 of the Penal Code, 1860.

In the present case, a first year MBBS student, Neeraj Bhadana, allegedly committed suicide by jumping from the 5th floor of the hostel building on 6-7-2013, in the college premises of Teerthankar Mahaveer University, Moradabad. Subsequently, on 7-7-2013, an FIR was lodged with the local police against unknown persons. On 10-07-2013, a further complaint was lodged by the complainant (father) with the allegations against the administration (with specific names) including the Vice-Chancellor, students/hostel-mates for subjecting the deceased to sexual exploitation. The investigation was initiated by the local police, later it went to the CB CID and thereafter was transferred to CBI on 25-07-2013.

Now the question was on the dubious and mysterious circumstances in which the victim died and the different factual matrix that ensued further.

During investigation some startling revelations were made which not only outright contradicted the different versions but also the narration of the cause.  Thereby, raising questions on the veracity of the doctor who treated the deceased in the emergency ward and had seen the deceased ‘gasping’, alongwith the authorities while the medical evidence and the treatment papers spoke differently.  Notably, the doctors who conducted the post mortem made observations of Ante-mortem injuries, torn hymen, ‘asphyxia as a result of smothering’. The Court took note of the many fallacies, on the basis of which the CBI wanted the closure report be treated as “untraced”. The logic of being “untraced” was also dealt at length in the detailed order.

The findings were made differently for incriminating the students involved and the College authorities. After a conjunctive reading of the material and documents so placed, the Court observed that the “…victim was killed by the way of smothering and was thrown from the building…”. Moreover, the Brain Electrical Oscillation Signature Test (BEOS), and the inconsistent versions of the students were taken note of, contending that they had seen her either falling or heard her voice. While there were enough witnesses recorded by the CBI stating that the deceased was “cold and numb when it fell”. The Court then made pertinent observations based on the witnesses, stating, “Such natural witnesses have no motive to state falsely. The only witness who have said that the victim was gasping was the staff/officials of Teerthankar Mahaveer University”. Further in regards with the College authorities, it was concluded that they “prepared false records under some pressure” and held that “the officials have participated in destruction of evidence. Had it been the involvement of only students in the alleged murder, then in that case, the officials (wardens etc.) would not have participated…”.

The present case was dealt by the Court in profundity, from an abyss to a sky scrapping detail. The Court while perusing the documents and appreciating the evidences, considered the case to be a classic example of “people may lie, but circumstances cannot”. The Court also made a remark on the investigation officer for not recording the legitimate findings in the closure report, “for the reasons, best known to IO” and found it hard to believe why no investigation was done on crucial points, which the Court later enumerated in the detailed summon order. The Court exclaimed, “this Court is constrained to say that the investigation in the present case is bereft of any logic, rationale and bonafide approach”.

The Court thus summoned the students/hostel-mates under Section 120B r/w 302, 201 along with the substantive offences under Sections 302, 201 of the Penal Code, 1860. Accused Vice-Chancellor was summoned under Section 120B r/w 302, 201 of the Penal Code, 1860. And the college authorities were issued summons under Section 120B r/w 302, 201 and the substantive offence under Section 201 of the Penal Code, 1860.[CBI v. Closure report, 6 (S)/2013 SCU. V SC-II CBI, dated 15-02-2021]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Manmohan and Sanjeev Narula, JJ., upheld the validity of Sections 132 and 69 of the Central Goods and Services Tax Act, 2017, and refused any interim relief to the petitioner.

Petitioners submitted that Sections 69 and 132 of the Central Goods and Services Tax Act, 2017 are unconstitutional as being provisions of criminal nature, they could have been enacted under Article 246A of the Constitution of India, 1950.

Further, the petitioners emphasized that the power to arrest and prosecute are not ancillary and/or incidental to the power to levy and collect goods and services tax.

Adding to the above submissions, it was further stated that since the power to levy Goods and Services Tax is provided under Article 246A, power in relation thereto could not be traced to Article 246 or any of entries in 7th Schedule.

In the alternative, they submitted that Entry 93 of List 1 confers jurisdiction upon the Parliament to make criminal laws only with respect to matters in List I and CGST. Therefore, according to them, Sections 69 and 132 are beyond the legislative competence of the Parliament.

In the past, many cases occurred wherein an assessee had been arrested at the initial stage of the investigation but the department had subsequently failed to establish its case in adjudication proceedings and in the process, the assessee suffered an irreparable loss on account of the arrest.

In the present cases, no Show Cause Notice had been issued to the Petitioners either under Section 73 or Section 74 of the CGST Act by the Respondents for any unpaid tax, short paid tax, or erroneous refunds or where input tax credit had been wrongly availed or utilized.

Court’s Reasoning

  • There is always a presumption in favour of the constitutionality of an enactment or any part thereof and the burden to show that there has been a clear transgression of constitutional principles is upon the person who impugns such an enactment. Further, Laws are not to be declared unconstitutional on the fanciful theory that power would be exercised in an unrealistic fashion or in a vacuum or on the ground that there is a remote possibility of abuse of power.

Bench while analyzing several aspects of the matter stated that whenever constitutionality of a provision is challenged on the ground that it infringes a fundamental right, the direct and inevitable effect/consequence of the legislation has to be taken into account.

Court referred to the decision of Supreme Court in Namit Sharma v. Union of India, (2013) 1 SCC 745.

In the decision of the Court in Maganlal Chhanganlal (P) Ltd. v. Municipal Corporation of Great Bombay, (1974) 2 SCC 402, it was held that :

“Administrative officers, no less than the courts, do not function in a vacuum. It would be extremely unreal to hold that an administrative officer would in taking proceedings for eviction of unauthorised occupants of Government property or Municipal property resort to the procedure prescribed by the two Acts in one case and to the ordinary civil court in the other. The provisions of these two Acts cannot be struck down on the fanciful theory that power would be exercised in such an unrealistic fashion. In considering whether the officers would be discriminating between one set of persons and another, one has got to take into account normal human behaviour and not behaviour which is abnormal. It is not every fancied possibility of discrimination but the real risk of discrimination that we must take into account. This is not one of those cases where discrimination is writ large on the face of the statute. Discrimination may be possible but is very improbable.”

  • Goods and Service Tax is a Unique Tax, inasmuch as the power as well as field of legislation are to be found in a Single Article, i.e. Article 246-A. Scope of Article 246-A is significantly wide as it grants the power to make all laws ‘with respect to’ Goods and Service Tax.

Unless the Constitution itself expressly prohibits legislation on the subject either absolutely or conditionally, the power of a Legislature to enact legislation within its legislative competence is plenary.

Further, Court added that there is also no conflict between the operation of Article 246A and Article 246 as a non-obstante clause has been added to Article 246A to clarify that both Parliament and the State Legislatures have simultaneous powers in relation to Goods and Services Tax.

  • This Court is of the Prima facie opinion that the ‘Pith and Substance’ of the CGST Act is on a topic, upon which the parliament has power to legislate as the power to arrest and prosecute are ancillary and/or incidental to the power to levy collect goods and service tax.

When a law is challenged on the ground of being ultra vires to the powers of the legislature, the true character of the legislation as a whole has to be ascertained.

Bench opined that when a law dealing with a subject in one list is also touching on a subject in another list, what has to be ascertained. If on examination of the statute, it is found that the legislation is in substance on a matter assigned to the legislature enacting that statute, then it must be held valid, in its entirety even though it may trench upon matters beyond its competence. Incidental encroachment is not prohibited.

In light of the discussion of the above point, Court prima facie opined that the pith and substance of the CGST Act is on a topic, upon which the Parliament has power to legislate as the power to arrest and prosecute are ancillary and/or incidental to the power to levy and collect GST. 

  • Even if it is assumed that power to make offence in relation to evasion of GST is not to be found under Article 246A, then the same can be traced to Entry I of List III. The term ‘Criminal Law’ used in the aforesaid entry is significantly wide and includes all criminal laws except the exclusions.

Supreme Court’s decision in Kartar Singh v. State of Punjab, (1994) 3 SCC 569, has emphasized that the language used in the aforesaid entry is couched in very wide terms and the scope of the term ‘criminal law’ has been enlarged to include any matter that could be criminal in nature.

In view of the above, High Court prima facie opined that even if Sections 69 and 132 of the Act could not have been enacted in pursuance to power under Article 246A, they could have been enacted under Entry 1 of List III, as laying down of a crime and providing for its punishment is ‘criminal law’.

  • This Court, at the interim stage, cannot ignore the view taken by the Gujarat High Court with regard to application of Chapter XII CrPC to the CGST Act.

In Gujarat High Court’s decision in Vimal Yashwantgiri Goswami v. State of Gujarat, R/Special Civil Application No. 13679 of 2019, it was held as under:

♦ When any person is arrested by the authorised officer, in exercise of his powers under Section 69 of the CGST Act, the authorised officer effecting the arrest is not obliged in law to comply with the provisions of Sections 154 to 157 of the Code of Criminal Procedure, 1973. The authorised officer, after arresting such person, has to inform that person of the grounds for such arrest, and the person arrested will have to be taken to a Magistrate without unnecessary delay, if the offences are cognizable and non-bailable.

However, the provisions of Sections 154 to 157 of the Code will have no application at that point of time. Otherwise, Section 69 (3) provides for granting bail as the provision does not confer upon the GST officers, the powers of the officer in charge of a police station in respect of the investigation and report. Instead of defining the power to grant bail in detail, saying as to what they should do or what they should not do, the short and expedient way of referring to the powers of another officer when placed in somewhat similar circumstances, has been adopted. By its language, the sub-section (3) does not equate the officers of the GST with an officer in charge of a police station, nor does it make him one by implication. It only, therefore, means that he has got the powers as defined in the Code of Criminal Procedure for the purpose of releasing such person on bail or otherwise. This does not necessarily mean that a person alleged to have committed a non-cognizable and bailable offence cannot be arrested without a warrant issued by the Magistrate.

♦ The authorised officer exercising power to arrest under section 69 of the CGST Act, is not a Police Officer and, therefore, is not obliged in law to register FIR against the person arrested in respect of an offence under Sections 132 of the CGST Act.

♦ An authorised Officer is a ‘proper officer’ for the purposes of the CGST Act. As the authorised Officers are not Police Officers, the statements made before them in the course of inquiry are not inadmissible under Section 25 of the Evidence Act.

♦ Power to arrest a person by an authorized officer is statutory in character and should not be interfered with Section 69 of the CGST Act does not contemplate any magisterial intervention.

  • In view of the Supreme Court Judgment in Directorate of Enforcement v. Deepak Mahajan and the aforesaid Gujarat High Court Judgment, the arguments that prejudice is caused to the petitioners as they are not able to avail protection under Article 20(3) of the Constitution and/or the provisions of CrPC do not apply even when CGST Act is silent, are untenable in law.

Judicial Scrutiny

 When any person is arrested under Section 132(5) of the CGST Act, the said person has to be informed of the grounds of arrest and must necessarily be produced before a Magistrate under Section 69 (2) within a period of 24 hours.

 The above-stated would ensure judicial scrutiny over the acts of executive and it cannot be termed as unreasonable and/or excessive.

 Adding to its analysis, the Court stated that just because the CGST Act provides for both adjudications of civil liability and criminal prosecution doesn’t mean that the said Act is unfair or unreasonable.

  • Court prima facie finds force in the submission of the ASG that the Central Tax Officers are empowered to conduct intelligence-based enforcement action against taxpayers assigned to State Tax Administration under Section 6 of the CGST Act.
  • What emerges at the prima facie stage is that it is the case of the respondents that a tax collection mechanism has been converted into a disbursement mechanism as if it were a subsidy scheme.

To conclude the Court held that what emerges at the prima facie stage is that it is the case of the respondents that a tax collection mechanism has been converted into a disbursement mechanism as if it were a subsidy scheme.

Hence, in view of the serious allegations, the Court expressed that it is not inclined to interfere with the investigation at the present stage and that too in writ proceedings. At the same time, innocent persons cannot be arrested or harassed. Consequently, the applications for interim protection are dismissed with liberty to the parties to avail the statutory remedies.

It is settled law that though the powers of constitutional courts are wide and discretionary, yet there exist certain fetters in the exercise of such powers.

 In the Supreme Court decision of Hema Mishra v. State of U.P., (2014) 4 SCC 453, it was held that despite the fact that provision regarding pre-arrest bail, had been specifically omitted in Uttar Pradesh, the power under writ jurisdiction is to be exercised extremely sparingly.

Court’s view in the instant case is that the allegation that a tax collection mechanism has been converted into a disbursement mechanism most certainly requires investigation.

Bench stated that it has no doubt that the trial court, while considering the bail or remand or cancellation of bail application, ‘will separate the wheat from the chaff’ and will ensure that no innocent person against whom baseless allegations have been made is remanded to police/judicial custody.

Hence, the observations made herein are prima facie and shall not prejudice either of the parties at the stage of final arguments of the present writ petitions or in the proceedings for interim protection. [Dhruv Krishan Maggu v. Union of India, 2021 SCC OnLine Del 241, decided on 08-01-2021]

Hot Off The PressNews

On the basis of specific intelligence, under the direction of the Commissioner of Customs (Preventive), Bhubaneswar Shri Debashish Sahu, investigation was initiated and relevant business premises of Exporter and Customs House Agent at various places was searched.

Prima facie evasion of Customs duty to the extent of Rs 8,07,66,314/- (Rupees Eight Crore Seven Lakh Sixty-Six Thousand Three Hundred and Fourteen) only by M/s. B S Minerals, Keonjhar, Odisha-758001 on Iron Ore fines which was to be exported from Paradeep, India to Main Port, China in-vessel “MV MAGNUM FORTUNE” was detected by the Customs officials.

Thereafter, 52051 MT of goods valued at Rs.26,92,21,045/-were seized. Subsequently, the exporter deposited Customs duty to the tune of Rs.8,07,66,314/- (Rupees Eight Crore Seven Lakh Sixty Six Thousand Three Hundred and Fourteen) only and submitted Bank Guarantee of Rs. One Crore to the government exchequer for taking the provisional release of the goods in addition to depositing a Bond of Rs 5.4 Crore with the Customs Authorities.

Further investigation is under progress.

PRESS RELEASE


CBIC

[Press Release dt. 29-12-2020]