Case BriefsSupreme Court

Supreme Court: A bench headed by RF Nariman, J has granted Rajasthan Police two months deadline to complete the investigation into the suspicious death of National Law University (NLU)-Jodhpur student Vikrant Nagaich in 2017.

The court was hearing a plea by the student’s mother seeking transfer of the investigation in the case from the Rajasthan police to the Central Bureau of Investigation (CBI).

Neetu Kumar Nagaich, the mother of the deceased student, had approached the court and accused the state police of “lackadaisical and callous manner of the probe” into the FIR lodged on June 29, 2018, with Jodhpur’s Mandore police station. She has sought an independent inquiry while complaining of a shoddy probe with probable collusion to shield some influentials.

The mother of 21-year-old NLU student claimed that the FIR in the case was not registered for a period of 10 months from the date when the incident occurred, and was reluctantly filed thereafter. Three years since, the investigation is at a standstill with no progress and no chargesheet filed in the case, stated the plea. In the plea, she added that the state was “criminally negligent in the investigation” or was “trying to cover” up for the perpetrators or had some malafide intention.

The third-year law student, Vikrant was found dead on August 14, 2017, under unnatural circumstances near a railway track opposite the university. The authorities tried to present the case as that of suicide due to alleged depression.

[Neetu Kumar Nagaich v. State of Rajasthan, 2020 SCC OnLine SC 561 , order dated 08.07.2020]

(With inputs from ANI)

Case BriefsHigh Courts

Andhra Pradesh High Court: A Division Bench of Sri Jitendra Maheshwari, CJ and Lalitha Kanneganti, J., permitted the employees of the parent company of LG Chem Limited who belonged to South Korea to return back to their country as they were not binded by the restraining order of the Court wherein, the directors and employees of the LG Chem Ltd. company are not allowed to leave the country till the investigation is going on.

Who has filed the present petition?

Employees of LG Chem Limited have filed the present petition who are South Korean Nationals and are questioning the letter dated 28th May, 2020 addressed by the Assistant Commissioner of Police, seeking.

Petitioners have sought the following directions:

  • Issuance of an appropriate writ, order or direction to set aside the letter dated 28th May, 2020 issued by respondent 2
  • pleaded that presence of the petitioners in their country is very much essential as they have their own personal obligations to be performed.

Senior Counsel, Mukul Rohatgi on behalf of the petitioners submitted that the petitioners have nothing to do with the affairs of LGPI, Visakhapatnam and they are South Korea nationals and employees of LGC, South Korea as such they cannot be restrained from leaving to their country.They are not the employees or directors of LGPI.

Further, he  submitted that the petitioners will cooperate with the process of enquiry/investigation undertaken by any agency and it is neither feasible nor warranted for them to come to India and participate in the proceedings wherever the respondents require their presence. Petitioners are ready to cooperate from South Korea.

Petitioners visited the LGPI plant at Visakhapatnam as a part of a delegation from LGC (South Korea Team) with a view to supplement and assist the efforts being undertaken by LGPI in assessing the situation and extending care for those affected by the incident of styrene gas leakage.

Petitioners requested the respondent police to record their statements, yet there was unreasonable delay and further they restrained the petitioners from travelling to their own country under the garb of pending investigation.

Advocate General submits that the petitioners can be permitted to leave India provided they give an undertaking stating that they would appear before the Court or investigating agency whenever required, which has been opposed by the Senior Counsel as the same would not be feasible for them.

Decision of the Court

Bench states that petitioners are members of the expert committee of the parent company of LG Chem Ltd. In case their statements are required to the Court, as their statements under Section 161 CrPC were recorded by the police, as stated by the Advocate General, then their presence, if required in the opinion of the Court, may be availed.

Primarily petitioners may not have any liability of the incident, more so, when they are not the employees of the LGPI and are the employees of the parent company– LGC and came to India from South Korea to assist and find out the cause for the incident.

Thus, in view of the above, Court allows petitioners to travel from India to South Korea subject to following directions:

  • Shall filed individual affidavits
  • To be specified in the affidavit that as and when any response is sought for during investigation by the authorities, the same will be furnished.
  • Also to be specified in the affidavits that if their presence is required by the Court, they shall remain present as and when directed.

Petition was disposed of. [Jong Un Lee v. State of A.P., 2020 SCC OnLine AP 163 , decided on 24-06-2020]


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Case BriefsHigh Courts

Gujarat High Court: The Division Bench of Sonia Gokani and N.V. Anjaria, JJ.,  while addressing a matter for protection of a couple, stated that

By way of social policing, attempt can also be made by the officer concerned who is investigating the earlier complaint of the petitioner filed against family members of the corpus and to make an attempt to bring an amicable solution between the families.

In the present matter, Corpus was produced through Video Conferencing at District Court, Palanpur.

Additional District Judge, Robin Mogera helped the Court in specifying the girl-corpus and further the Bench noticed that the corpus expressed her desire before the ADJ to join her husband. She also confirmed that she was carrying foetus in her womb of the petitioner.

Court had protected both the petitioner and the corpus who had married against the wish and will of the girl’s parents.

Even during the  video conference it is quite visible that girl’s mother tried to emotionally blackmail by the stating that she may have to end her life if corpus continues to express her desire to join her husband.

Court requested the ADJ to make an attempt to bring an amicable solution and if he deems fit, he may refer the matter to the Mediation Center.

Protection to the couple shall continue for 4 months, Thereafter the matter shall be posted before the Superintendent of Police, Palanpur, who shall decide as to whether to continue such protection or not.

Caste system in the country is making it more and more difficult for the young people to decide their own life partner and the rigidity in the minds of adults in the family becomes the serious cause of division of human relationship.

Further the Court added that it gets difficult for the administration to handle social and emotional upheaval which eventually turn into legal battleground. Petition was disposed of in the above-view. [Niteshkumar Mulchandbhai Prajapati v. State of Gujarat, 2020 SCC OnLine Guj 897 , decided on 17-06-2020]

Case BriefsCOVID 19High Courts

Kerala High Court: A Division Bench of A.K. Jayasankaran Nambiar and Shaji P. Chaly, JJ. addressed a petition filed wherein a direction is sought to consider the complaint alleging the movement of a mysterious figure during night hours.

Petitioner sought direction to respondent 2 to consider the complaint that he has preferred alleging the movement of a mysterious figure during night hours within the territorial limits of 3 police stations namely, Vadakkekkad Police Station, Kunnamkulam Police Station and Guruvayoor Temple Police Station.

Statement filed by respondent 3 stated that while investigations were undertaken the complaints received from the persons in locality, said investigations did not yield any clue regarding the identity of the mysterious person.

However, it was noticed that there were a number of people, who were violating the lockdown restrictions under the guise of pursuing this mysterious figure. Some of the arrests were also made, of persons who were found moving around during night hours and thereby violating the restriction orders in force.

Bench while disposing of the petition, stated that the statement of police authorities with regard to the investigation had already been conducted thus respondent 2 is directed to consider the preferred complaint by the petitioner within 2 weeks. [Rajesh A. Nair v. Director General of Police, State Police Directorate, Thiruvananthapuram, 2020 SCC OnLine Ker 1303, decided on 11-04-2020]

Case BriefsHigh Courts

Delhi High Court: Anu Malhotra, J., while deciding a petition with regard to the investigation of Sanjeev Chawla alleged for acting as a bookie in fixing the India and South Africa cricket matches from 16-02-2000 to 20-03-2000, held that,

“Investigating Agency in the said matter is permitted to conduct an interrogation of the petitioner at Tihar jail complex only in terms of timeline stipulated in terms of Section 167(2) of CrPC, 1973, for a period not exceeding 15 days from the date of arrest.”

Background of the Case

Sanjeev Chawal (Petitioner) a citizen of United Kingdom was an accused under Section 173 of CrPC for the allegation of commission of offences punishable under Section 420/120-B Penal Code, 1860 in relation to,

An alleged conspiracy to fix matches during the India-South Africa Cricket series played through February-March, 2000 in alleged connivance with Hansie Cronje, Captain of South Africa Cricket Team.

Petitioner had allegations of being the main conduit in match-fixing.

Averments in the police report under Section 172 of CrPC submitted by the Crime Branch, three accused persons were arrested, Sanjeev Chawla (Petitioner) and Manmohan Khattar allegedly absconded having left for UK and Canada, respectively.

Petitioner had further been extradited on 12-02-2020.

Through the petition filed, petitioner submitted that trial court failed to consider and take into account the three Letters of Assurances of the Ministry of Home Affairs, whereby the Government of India had given a solemn sovereign assurance that at all times and during pre-trial custody, petitioner would be lodged at the Tihar Jail Complex, Delhi and that thus, no police remand could be granted and that the petitioner had been extradited from the United Kingdom only to face trial and not for any investigation.

Senior Advocate Vikas Pahwa, on behalf of the petitioner reiterated that the extradition had been granted only on the basis that the petitioner was being extradited to face trial and not for any investigation and thus, no investigation could be carried out nor permitted and that the pre-trial detention of the petitioner could only mean detention at the Tihar Jail and nowhere else as had been stated by the Government of India.

Further adding to the above, Clauses 9&10 of the Guidelines for Extradition issues by Ministry of External Affairs in India categorically spelt out the extradition could be granted only for the trial on the basis of the evidence made available in the charge sheet and not for the purpose of any investigation.

APP, Kewal Singh Ahuja on behalf of the Government (NCT of Delhi) submitted that during the investigation it was found that the present petitioner had played the most vital role in the commission of the crime. Statements of Hansie Cronje and Hamid Cassim before the Kings Commission allegedly clearly pointed to his deep-rooted involvement in the case.

It was submitted by ASG, through the status report that neither the Investigating Agency nor the Government of India, had given any assurances that on extradition no further investigation in the matter could be carried out and that for the purposes of a fair trial, petitioner has to be confronted with the evidence against him to unearth the whole conspiracy.

“..in terms of the law of the land Section 173(8) of the Cr.P.C., 1973 provides for continuing investigation even after the filing of the police report under Section 173(2) of the Cr.P.C., 1973”

Thus, in the above view, it is submitted that the police interrogation of the petitioner was very essential.

Union of India submitted that,

“…from the investigation conducted so far, there is sufficient evidence to prove that the accused persons namely Sanjeev Chawla, Hansie Cronje, Krishan Kumar, Rajesh Kalra, Sunil Dara @ Bittoo and Manmohan Khatter mentioned in Column No 11 of the chargesheet had entered into a criminal conspiracy to fix the cricket matches played between India and South Africa from 16.02.2000 to 20.03.2000 in India.”

Union of India relied on the Extradition Treaty and the instruments of ratification between India and U.K.

Adding to above submissions, UOI submitted that petitioner falls under the category of “fugitive criminal” in terms of Section 2(f) of the Extradition Act, 1962 and thus trial of the petitioner qua the alleged commission of offence punishable under Section 420/120 IPC has to be conducted in which would not preclude the Investigating Agency from invocation of the powers of investigation in terms of Section 173(2) of CrPC.

“… in terms of Article 11 Sub-clause 3 of the Extradition Treaty between the United Kingdom and India, it is not necessary that the extradition can be made only when a charge sheet has been filed but if the material placed is sufficient to justify committal for trial to indicate that there is prima facie material to satisfy the Requested State that the fugitive is involved in the offence/ offences, the same would suffice to grant the prayer for extradition.”

Decision

ASG Supreme Court of India Sanjay Jain on behalf of Union of India expressly stated that the terms of Letter of Assurances would be followed in letter and spirit and that petitioner would not be taken out of Tihar Jail except with permission, granted by Court in terms of Section 173(8) of CrPC.

Thus, the bench disposed of the petition with a direction to effect that impugned order of trial court is modified to the effect that the petitioner during the entire stage of pre-trial detention, trial and conviction, if any, in terms of Letters of Assurances would continue to be lodged at Tihar Jail.

Further, petitioner cannot be taken out of Tihar jail for the purpose of investigation or interrogation in police custody, through the investigating agency in the matter is permitted to conduct the same at Tihar jail only.

The period of investigation will end on 28-02-2020; whereafter no further investigation will be granted.

Court also stated that the Investigating Agency shall, however, take care to ensure that the petitioner is treated with dignity during the investigation and interrogation conducted. [Sanjeev Kumar Chawla v. State, Crl. M.C. No. 870 of 2020, decided on 20-02-2020]

Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi J., dismissed the original petition filed under Article 227 of the Constitution where the petitioner prayed the Court to direct the Sessions Court to pass orders under Section 173(8) of CrPC to direct the investigating officer to conduct further investigation in the case of her son’s death, Sreejith. He had been missing since 26-07-2013. 

On the basis of the complaint filed by the petitioner, a case under Section 57 of the Kerala Police Act was registered. During the investigation, it was revealed that Sreejith had died on the very day he had gone missing after getting electrocuted by coming into contact with the live electric fence put up by Rajagopalan and Raghavan, the neighbours of Sreejith to prevent the entry of wild animals into their property. After they found the dead body of Sreejith, they buried the dead body without informing any person. The aforesaid two persons were arrested for the offences punishable under Sections 304 and 201 read with 34 IPC and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The case is pending in the Court of Session. Counsel for the petitioner, C.P. Udayabhanu and Navaneeth N. Nath contended that the murder not a case of mere culpable homicide not amounting to murder. 

The High Court referred to Vinubhai Haribhai Malaviya v. State of Gujarat, JT 2019 (10) SC 537, where the Supreme Court held that the Magistrate had the power to order further investigation under Section 173(8) CrPC at all stages of the case before the trial actually commences and whether further investigation should or should not be conducted is within the discretion of the learned Magistrate who could exercise such discretion on the facts of each case in accordance with law. In light of this decision, the Court held that the petitioner should have approached the appropriate court below and seek further investigation of the case. It was not proper for this Court to exercise its jurisdiction under Article 227 of the Constitution of India even before the petitioner had approached the appropriate court below in that regard.

They further stated that the High Court should discourage the practice of filing a writ petition or filing petition under Section 482 CrPC, simply because the complainant had a grievance that his/her complaint was not properly investigated by the investigating agency. They cited Thomas v. Achamma Thomas 2009 (2) KLT 931 which explained that filing of the writ petition is not absolutely barred, but it is well settled if there are an alternative and efficacious remedy provided under the provisions of the concerned Act, normally the

High Court should not interfere by exercising the extra-ordinary jurisdiction.

The Court stated that no other arguments were advanced before them as to which Court, whether it is the Magistrate’s Court or the Sessions Court, the petitioner should approach seeking further investigation. The Court dismissed the original petition is dismissed and made clear that the petitioner was at liberty to approach the appropriate court below seeking a further investigation of the case by the police under Section 173(8) CrPC. [Santha v. State of Kerala, 2019 SCC OnLine Ker 5405, decided on 17-12-2019]

Case BriefsHigh Courts

Calcutta High Court: Rajasekhar Mantha, J., has referred to three important questions, which in the Court’s opinion are required to be settled by an appropriate larger bench.

In the instant case, the Investigating Officer (“IO”) had prayed for a voice sample of the petitioner to enable FSL experts to compare the same with certain evidence that was already in custody of the IO. The Magistrate has allowed the IO’s prayer and directed the petitioner to provide a voice sample before the FSL expert. Aggrieved thereby, the petitioner filed the instant revision.

Notably, the petitioner was not named as accused in the FIR and the investigation was still on.

The petitioner argued that as the law presently stands, a witness cannot be compelled to give a voice sample. Per contra, the State relied on the decision of the Supreme Court in Ritesh Sinha v. State of U.P., (2019) 8 SCC 1, to contend that if an accused can be compelled to give voice sample, as held in the said case, then a witness who is not an accused, at an investigation, can be definitely asked to give voice sample.

Considering the submissions of the parties, the High Court was of the view that the following questions require to be settled by an appropriate larger Bench:

“(a) Whether Section 311-A read with Section 53 and 53-A CrPC along with Section 5 of the Identification of Prisoners Act, 1920, empowers a Magistrate to compel a witness in course of investigation into an FIR, to give voice sample in the aid of such investigation?”

(b)Can the principle laid down by the Supreme Court in the Ritesh Sinha v. State of U.P. be applied also to witnesses in course of investigation?

(c)Whether a witness even in course of an investigation can be compelled to give evidence, that could subsequently emerge as a ground for including him as an accused in the final investigation report?”

The High Court directed the matter to be placed before the Chief Justice for reference to an appropriate Bench.

In the meantime, however, the petitioner was ordered to give voice samples to the IO in the presence of the FSL expert. It was directed that the said sample shall be kept sealed and unopened, and the parties shall abide by the result of the reference proposed. [Mukul Roy v. State of W.B., 2019 SCC OnLine Cal 4341, decided on 12-12-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Gurvinder Singh Gill, J., disposed of the petition directing the respondents to issue written advance notice to the petitioner in terms of Section 160 of Criminal Procedure Code, 1973 in case of any inquiry or investigation.

The facts of the case are that the brother-in-law of the petitioner 1, son of petitioner 2 and husband of petitioner 3, have been falsely involved in one FIR under Sections 457, 380, 120-B read with 34 of Penal Code, 1860. Further, in order to pressurize the petitioners, the police have been raiding their house and issuing threats to involve them in some false case, in case aforesaid brother-in-law is not produced. The petitioners have approached this court seeking directions for protection of their lives and liberty.

The Court disposed of the petition with a direction to respondent 4, Senior Superintendent of Police, Amritsar to ensure that in case, the petitioners are required to be associated with any inquiry or investigation or some information is to be elicited from them, then a written advance notice in terms of Section 160 of Criminal Procedure Code, 1973 be served upon them. The Court further clarified that this order would not act as immunity for the petitioners in case if any wrongful act done by the petitioner has been found. [Prabhleen Kaur v. State of Punjab, 2019 SCC OnLine P&H 1948, decided on 11-10-2019]

Case BriefsForeign Courts

Court of Appeal of Sri Lanka: KK. Wickremasinghe and K.Priyantha Fernando, JJ. contemplated an appeal against the judgment of High Court related to Section 70 of the Bribery Act, 1994 i.e for offence of ‘Corruption’.

The Appellant raised an objection in the Magistrate’s Court, that the investigation was initiated by an incompetent authority on anonymous complaint. The Magistrate rejected the preliminary objections raised by the appellant. Hence, the appellant filed a revision application in the High Court, where the revision application was dismissed by the High Court.

The counsel for the appellant submitted that according to the Act when any investigation had to be commenced against a person the Commission had to communicate it to the aggrieved person. Further, it was submitted that, genuineness of the communication had to be investigated, and that the identity of the person who communicated was important for that purpose. Another main contention of the counsel was if the allegations were found to be false against the person, the complainant who communicated the said complaint to the Commission had to be punished hence; such complainant had to be an identifiable person.

The appellant also relied on the Indian Criminal law i.e the Code of Criminal Procedure and cited Section 154 CrPC, i.e. Information in Cognizable cases, it was stated that similar to Section 154 CrPC in SriLankan Code they had Section 109 which stated that, every information received by a Police officer had to be given orally or in writing and that if given orally, it had to be reduced to writing and shall be signed by the person who was giving such information.

On the other hand the counsel for the respondent submitted that the word ‘communication’ was nowhere defined in the Act, therefore the functions and the objectives of the Act had to be taken into consideration when interpreting the same. It was also contended that the word ‘communication’ had no relevancy under Section 21 when interpreting the same. It was submitted that the Commission only acted upon the genuine complaint and the false once automatically got filtered.

The Court, observed that the word ‘communication’ was not defined anywhere in the Act. It was held that, “The word used in the Sinhala text of Act No. 19 of 1994 for communication is ‘I(lll)®~®’. Act No. 19 of 1994 does not mention whether such ‘communication’ should be anonymous or onymous, although the procedure to be followed by the Commission upon receiving the ‘communication’ is provided.”

It was noted by the Court that under Section 4(1) of the Act, 1994, it was stated that ‘Upon receipt of the communication under subsection (1) the Commission, if was satisfied that such information was genuine and that the communication disclosed material upon which an investigation ought to be conducted, shall conduct such investigation as may be necessary for the purpose of deciding prosecution.’

It was further observed by the Court that the legislature had made a clear and certain provision to filter the ‘communication’ received by the Commission; it filtered the false communication and acted upon the genuine complaints only. It was held that even the communication was anonymous it would not cause any prejudice.

The Court hence, suggested that there were sufficient reasons to initiate the investigation and no interference was required. “It was also important to note that Sri Lanka was a signatory to the United Nations Convention against Corruption (UNCAC). There was a specific provision in ‘UNCAC’, where protection should be given to whistleblowers. Unfortunately, such provision was not available in our legislature. In this context, I am of the view that, such ‘communication’ even if it is anonymous, should be acted upon, if it can be verified independently to be genuine to commence an investigation.”[Director General, Commission to Investigate v. Narasinghe Buwelikada Deshika Malkanthi, 2019 SCC OnLine SL CA 7, decided on 09-08-2019]

Case BriefsHigh Courts

Patna High Court: Ashwani Kumar Singh, J. dismissed an application for the quashing of FIR by the petitioner under Articles 226 and 227 of the Constitution of India.

An FIR was registered under Section 366 read with Section 34 of the Penal Code, 1860 against the petitioner where it was alleged that he took the daughter of one Ram Narayan Pandey, who was aged about 18 years, when she was going to the Durga Mandir with her mother on 18-04-2019 at about 5.30 p.m. to offer her prayers. The petitioner along with others came there on a Bolero jeep and assaulted his daughter. When his wife protested, the accused pushed aside the informant’s wife and put his daughter in the vehicle and sped away.

The counsel for the petitioner Shubhesh Pandey submitted that the allegations made in the FIR were false and that the alleged victim had attained the age of majority, who out of her own sweet will, went with the petitioner and voluntarily married him.

After a careful perusal of the records, the Court held that the allegations made in the FIR were quite serious and they attracted the ingredients of a cognizable offence. To hold an investigation into a cognizable offence is the statutory right of the police. The defense taken by the petitioner that the victim went together with him out of her own sweet will and married him was to be examined by the police in the course of the investigation. At the stage of the investigation, the court would not come to any conclusion regarding the veracity of allegations made in the FIR. It is a well-settled principle of law that at this stage, the Court has no role to play. The role of the Court would start only after the investigation is completed and a report under Section 173(2) of the Code of Criminal Procedure is filed.

In view of the above-noted facts, the instant application was dismissed since the allegations made in the FIR attracted the ingredients of a cognizable offence, and there was no reason to quash the FIR.[Benkatesh Kumar v. State of Bihar, 2019 SCC OnLine Pat 1355, decided on 22-07-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Vivek Rusia, J. dealt with a bail application where the petitioner sought bail for the offence under Section 14 of the State Security Act and thereby granted the said bail to the externed petitioner.

The first bail application was filed under Section 439 CrPC by the petitioner who was externed by the District Magistrate under the State Security Act. The petitioner was found within the prohibited area of Dewas and was subsequently arrested. The learned counsel for the petitioner, Hitesh Sharma submitted that the offences had been tried by the court and the petitioner was ready to abide by the conditions.

The counsel for the State, Akshat Pahadia, submitted that there were several cases against the petitioner and therefore he was externed for a period of one year.

The Court observed that an investigation was over and the offences attracted the penalty of three years. It was further observed by the Court the fact that early conclusion of the trial was a bleak possibility and prolonged pre-trial detention being an anathema to the concept of liberty and the material placed on record did not disclose the possibility of the petitioner fleeing from justice, the Court was though inclined to extend benefit of bail to the petitioner but with certain stringent conditions in view of nature of offence. Hence, the bail was granted.[Jakir v. State of M.P., 2019 SCC OnLine MP 1286, decided on 26-06-2019]

Case BriefsHigh Courts

Patna High Court: Birendra Kumar, J. dismissed a criminal miscellaneous application filed by the petitioner challenging the order of cognizance passed against him under various Sections of IPC and Prevention of Corruption Act, 1988. 

In the instant petition the accused in connection with Vigilance P.S. Case of 2013 registered under Sections  409, 420, 467, 468, 471, 477A and 120B of the Penal Code as well as under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988. The petitioner, when worked as an Executive Engineer, was alleged to pass false measurement report of Government schemes and uncompleted worked which was marked as completed in the aforementioned reports. It was further alleged that the reports were submitted in collusion with the Assistant Engineer. 

It was averred by the petitioner that allegation made in the FIR on their face value did not disclose a cognizable offence made out against the petitioner and even if any non-cognizable offence is made out, investigation of the same was not permissible, except under order of the Magistrate.

The Court observed that no cognizable offence was disclosed in the FIR against the petitioner though the apparent allegation of embezzlement of public money was there. It was stated that, petitioner was a Government servant having a specific allegation of submission of measurement report which showed completion of the work whereas the work was not completed at all in respect of Government schemes. Hence, prima facie material was there against the petitioner for proceeding with the trial. [Md. Zahoorul Haque v. State Of Bihar, 2019 SCC OnLine Pat 1017, decided on 25-06-2019]

Case BriefsHigh Courts

Karnataka High Court: Sunil Dutt Yadav, J. granted regular bail on the ground that the case of the commission of offence with pre-meditation was yet to be proved during trial.

A bail application was filed with respect to the offence of murder punishable under Section 302 of the Penal Code, 1860.

The facts of the case were that a complaint was lodged by the complainant against her husband, mother-in-law and sister-in-law for harassing the complainant for about two months. It was further submitted that the complainant had gone back to her parent’s house after the altercation with her husband, but thereafter husband came to the parents’ place and started a quarrel, the mother tried to pacify but the petitioner stabbed the complainant’s mother with a knife, who succumbed to the injuries and died. Thus, the case was registered and the accused was arrested.

Tejas N., counsel for the petitioner stated that the petitioner himself had suffered injuries in altercation according to the statement of the witness. It was further submitted that the context in which altercation took place the reaction of the petitioner was in the nature of reaction to the grave and sudden provocation. Thus, prayed for the grant of bail.

The Court opined that the Sessions Judge had dismissed the application of the petitioner stating that prima facie materials were made out against the petitioner with regard to commission of offence but the court held that petitioner was entitled to bail on the ground that context of the altercation including injuries was, matter to be explained and proved in trial. Hence, application for the bail was allowed.[Syed Raheem v. State of Karnataka, 2019 SCC OnLine Kar 565, decided on 03-06-2019]

Case BriefsHigh Courts

Karnataka High Court: H.B. Prabhakara Sastry, J. dismissed the petition under Section 438 of Code of Criminal Procedure for an offence punishable under Sections 307, 504, 506 read with Section 34 of Indian Penal Code, 1860.

The facts of the case were that petitioner and the complainant had a quarrel with respect to the headphone. The petitioner, one night, assaulted the victim with a knife and inflicted several injuries upon him. It was the nearby public that rescued the victim from the fight and he was rushed to the hospital. The complainant received the phone call regarding the incident and rushed to the hospital and found the injured victim in ICU. The complaint was thus registered against the petitioner for offence punishable under Sections 307, 504, 506 read with Section 34 of Indian Penal Code, 1860.

Srinivasa C., Advocate for the petitioner submitted that complaint was an exaggerated version of the simple altercation. It was further submitted that the accused and victim were relatives and were very much interested in living in a coordinated harmony. Therefore, prayed for the grant of the bail.

Divakar Maddur, High Court Government pleader argued that accused and victim were known to each other prior to the incident but the statement of the victim, who had attributed direct overt act against the petitioner as the one who stabbed him and caused several injuries with the help of the knife. It was further submitted that as the investigation was in process, the enlargement of the bail was not warranted and thus prayed for the dismissal of the present application.

The High Court after submission by the parties held that statement of the victim, that too, stated to have given in the hospital in the presence of the doctor to the police officer cannot be discarded at the stage of the investigation. Moreover, the investigation is said to be in progress. As such apprehension expressed by the prosecution that the enlargement of the accused on the relief of the bail may hamper the case cannot be ignored and hence rejected the present petition.[Mohd. Waseem v. State of Karnataka, Criminal Petition No. 3215 of 2019, decided on 23-05-2019]

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agarwal, J. while allowing a writ petition filed by a registered medical practitioner, held that the jurisdictional criminal court has to follow the directions issued by the Supreme Court in the matters of Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 and Martin F. D’Souza v. Mohd. Ishfaq, (2009) 3 SCC 1, while directing registration of FIR and investigation under Section 156(3) CrPC against medical professionals.

The petitioner was a qualified gynaecologist. One patient, who was admitted to her Nursing Home, delivered a girl child and thereafter Conventional Tubectomy was performed on her by the petitioner. However, after that, the patient developed some complaints and she was shifted to another hospital where she passed away. Relatives of the deceased accused the petitioner of medical negligence. Complaint was filed against her with the Police. Inquiry was made; the Chief Medical and Health Officer also deputed four doctors to file a report. In the said report, it was found that there was no negligence on the part of the petitioner. However, some time thereafter, the mother of the deceased approached the Chief Judicial Magistrate with an application under Section 156(3), where under the CJM directed the SHO concerned to hold a preliminary enquiry, after which FIR was registered against the petitioner for offences punishable under Sections 269 and 304-A IPC. Aggrieved thereby, the petitioner filed the present petition.

Abhishek Sinha and Vaibhav Maheshwari, Advocates for the petitioner contended that the impugned order was sustainable as the petitioner did not first comply with provisions of Sections 154(1) and 154(3), Ravi Kumar Bhagat, Deputy Government Advocate submitted that the final closure report was yet to be filed. Abhishek Sharma, Advocate representing the mother of the deceased supported the order under challenge.

The High Court noted precautions and principles laid down by the Supreme Court in the aforenoted two cases which have been consistently followed in subsequent judgments. The High Court was of the view that the order of the CJM was not unsustainable for more than one reason. It was, inter alia, held: “the principle of law laid down by the Supreme Court in Jacob Mathew and Martin D’Souza for registration of criminal case against a doctor before registering an FIR under Section 154(1) of the CrPC by getting an expert opinion from a qualified doctor would apply with equal force while registering /directing for registration of offence under Section 156(3)…” It was reiterated: “obtaining a medical opinion from experts was sine qua non for direction of registration and investigation of offences against medical practitioners.” Since the directions were not followed by the CJM in the present case, the impugned order was held unsustainable was thereby quashed. The petition was, thus allowed. [Krishna Dixit v. State of Chhattisgarh, 2019 SCC OnLine Chh 47, dated 14-05-2019]

Case BriefsHigh Courts

Gauhati High Court: Reiterating that mere likelihood of suspicion cannot be a reason to charge someone for an offence, Rumi Kumari Phukan, J. allowed a criminal petition and quashed the FIR registered against the petitioners under Section 120-B, 32 and 307 IPC.

The matter related to a long pending land dispute between the petitioners on one hand and the injured and the informant on the other hand. The injured was shot from the backside while riding his motorcycle. The informant, the wife of the injured, lodged an FIR against the petitioners on suspicion that the attack was committed by them in response to their land dispute.

J.J. Borbhuiya, I., Mohan, R. Ali and K.H. Choudhary, Advocates, representing the petitioners vehemently submitted that the criminal proceeding could not stand and continue on sheer suspicion. Per contra, T. Sarma and H.K. Sarma, Advocates, for the informant asserted that the proceedings should continue till the end. However, D. Das, Additional Public Prosecutor, submitted that the injured himself could not identify the assailants.

 Perusing the record, the High Court noted that the informant tried to project the case only on suspicion and there was no supporting evidence to suggest the complicity of the petitioners. It was observed: “Criminal prosecution cannot be permitted to continue on the whims and pleasure of the litigants unless cogent, clear and convicting evidence collected in course investigation.” Holding that the same was very much lacking in the present case, the Court was of the view that continuance of the criminal proceeding against the petitioners would cause a miscarriage of justice. Thus, the prayer made by the petitioners was allowed and the impugned FIR was quashed. [Anuradha Gogoi v. State of Assam, 2019 SCC OnLine Gau 2296, decided on 14-05-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for Prevention of Money Laundering: A Coram of Justice Manmohan Singh (Chairperson) and G.C Mishra (Member) allowed an appeal against the order passed by the Adjudicating Authority to retain seized assets based on a reasonable belief of the respondents.

In this instant case, an FIR was registered by the Central Bureau of Investigation in relation to allegations that Sterling Group of companies and the Sandesara Group were involved in bribing public officials in the period between the period 2005 to 2011 for obtaining tenders for the supply of goods, loans by banks and financial institutions. The statements of one Ajay Panchal, who was maintaining diaries in the year 2011 was recorded, and it was stated that Angadias, one of the appellants, were involved in the transfer of suspected proceeds of crime from Vadodara to Delhi between “Starling Biotech Limited and various individuals/entities based in Delhi”. There was a search of the appellant’s premises and properties were seized based on the FIR.

The Appellate Tribunal took note of the allegations against the appellants and ordered that the impugned orders were passed without any due consideration to the provisions of the Prevention of Money Laundering Act, 2000. The Appellate Tribunal, in its findings, opined that the allegations that the appellant’s services were used to transfer funds from the Sandesara Group to certain public officials did not hold true since the averment as to the whether there were any proceeds of crime was not concluded by the Directorate of Enforcement. The properties seized, pertained to the year 2017 whereas in the FIR and complaints it was noted that the transactions took place between 2005 and 2011. The Tribunal opined “the impugned orders have been passed without any application of mind and in a completely mechanical manner.”

 It was noted by the Tribunal that the Respondents failed to produce any material having relation or link between the appellants and Sterling Biotech Ltd., they also could not provide any proceeds of crime being generated from the transactions. The Petitioners have the option to enforce Section 8(8) of PMLA which provides an alternative statutory remedy to allow the release of property even during trials. The Appellate Tribunal noted that Sections 17 to 21 of PMLA provide that the outer limit up to the date for deciding the application for retention of property within the meaning Section 21(4) is 180 days from the date of seizure of any property or records and this said period cannot be extended. Thus, the Appellate Tribunal reiterated the provisions of Sections 17 and 18 of PMLA and stated that if the Adjudicating Authority has a legitimate reason for investigation of the said property, it should pass an order on the same and direct for investigation wherein the assets will be frozen for a period not exceeding 90 days, otherwise, the properties shall be defreezed.

The Appellate Tribunal ordered that in this instant case, the properties were seized for the purpose of investigation and the 90 days period had elapsed and there were no concrete averments against the appellants or their property hence the properties were to be defreezed.[Kapoor Chand Galbaji Prajapati v. Joint Director, Directorate of Enforcement, Delhi, FPA-PMLA-2231-2334/DLI/2018, decided on 02-05-2019]

Case BriefsHigh Courts

Gujarat High Court: A Bench of Sonia Gokani, J., while hearing the grievance of the petitioner regarding non-filing of FIR, ordered the authorities to do a necessary investigation after lodging FIR.

A writ petition was made by the petitioner who was aggrieved by non-registration of the first information report on the basis of complaint given in writing. S.D. Mansur, learned counsel for the petitioner contended that the offence being a cognizable offence doesn’t take away his right to lodge the FIR. Thus an application for appropriate order of the court was made by the petitioner.

Jirga Jhaveri, the learned counsel for the respondent, on the other hand, submitted that though a cognizable offence is made out, his first information report was not registered.

The Court after hearing the party relied on the Judgment of Lalita Kumari v. State of U.P., (2014) 2 SCC 1, which mandates that registration of FIR is mandatory under Section 154 of Code of  Criminal Procedure, 1973.  The Court held that the police officer cannot avoid his duty of registering the offence if the cognizable offence is disclosed and the action should be taken against erring officer who does not register the FIR. The court further held that in order to ascertain the information regarding the cognizable offence it was important to conduct the preliminary inquiry. The court thus instructed the respondents to lodge the report and conduct the preliminary inquiry within one week and further instructed the petitioner that if the action is not taken, it shall be open to him to approach the higher officials, as provided under Section 154(3) of the Code of Criminal Procedure, 1973.[Avdhesh Bhawaniprasad Yadav v. State of Gujarat, Special Criminal Application No. 930 of 2019, Order dated 07-02-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for Prevention of Money Laundering: The Coram comprising of Manmohan Singh, J. (Chairperson) and G.C. Mishra (Member) allowed the appeal against the order under Section 26(1) of the Prevention of Money Laundering Act, 2002. 

The brief facts of the case are that the police report against G.S. Sawhney i.e. husband of Sudeep Kaur Sawhney was filed as it was alleged that with the help of forged power of attorney, the persons attempted to get transferred showroom in favor of O.P. Mittal.  It was alleged on behalf of appellants that the respondent did not record any reason of freezing the bank accounts and also did not communicate any order to the appellant. The respondent intimated the order to the banker of the appellant on which the banker didn’t allow the appellant to operate/withdraw/debit money from the accounts and account was freezed by the bank. The application for the seizure of the account during pendency of the offence beyond 90 days under the Act was allowed by the adjudicating authority. Hence, the present appeal.   

Counsel for the appellant, Deepak Gupta contended that as per the provisions of Section 8 (3)(a) of the PMLA, 2000 the attachment or retention of property or record seized shall continue during the investigation for a period not exceeding ninety days which were already over. 

The Court in light of the facts held that there was no compliance of the said section of the Act and the time period of more than 3 years and 10 months have elapsed and no complaint has been lodged against the appellant and thus the order of defreeze of account was passed by the tribunal. 

Reliance in this regard was also placed on a judgment of the Supreme Court in the case of Dipak Babaria v. State of Gujarat, (2014) 3 SCC 502 in which it was held that if a particular thing is to be done in a particular manner, it must be done in that manner only and none other.  [S.K. Sawhney v. Directorate of Enforcement, FPA-PMLA-971of 2015, Order dated 26-04-2019]

Case BriefsHigh Courts

Madras High Court: M. Dhandapani, J., quashed a case registered against the petitioner along with others for demonstrating and raising slogans against the Principal and the Head of the Department (English) of Government College affiliated to Madurai Kamaraj University.

On 17-02-2016, on Anandharaj, a student of B.A. (English), III year, in the said college, committed suicide in his house by self-immolation. After his post-mortem, the petitioner and other students started a demonstration and raised slogans. Since during the demonstration, the petitioner and other students prevented the ingress and egress of the general public from the Government Hospital, a complaint was lodged against them. After completing the investigation, the Police filed a charge-sheet before the Judicial Magistrate. The present petition was filed for quashing of the same.

Holding that the present case was squarely covered an earlier decision of the Court in Jeevanandham v. State, Crl. OP (MD) No. 1356 of 2018, dated 20-09-2018, the High Court observed: “this Court has held that the assembly of persons were expressing and claiming for minimum rights that are guaranteed to an ordinary citizens. If such an assembly of persons are to be trifled by registering an FIR under Section 143 IPC and filing a Final Report for the very same offence, no democratic dissent can ever be shown by the citizens and such prohibition will amount to a violation of fundamental rights guaranteed under the Constitution.” In such view of the matter, the present petition was allowed and the case against the petition pending before the Judicial Magistrate was quashed. [G. Ayyapan v. State, Crl. OP (MD) No. 4305 of 2019, dated 08-04-2019]