Case BriefsHigh Courts

Orissa High Court: The Bench of Dr A. K. Mishra, J., allowed a petition filed to quash the order passed taking cognizance of the offences under Sections 448, 427, 380, 506 and 149 IPC.

The facts of the case were that a complaint was filed against the petitioner stating that the Executive Officer of Phulbani NAC and Tahasildar, accompanied by their staff and police, demolished the toilet and room of the complainant’s house. Getting the said news, when opposite party 2 arrived at the spot and made a protest, the accused persons abused and threatened him. After demolition, they took away the belongings kept in that house for construction purpose. His report in this regard was not accepted by the police. Later on when a case was registered and investigation was conducted police filed the final report. The Court, vide an earlier order observed that the act complained of appeared to have inseparable nexus with the discharge of the official duty and as such the Court should not have taken cognizance of the offences against the petitioner in the absence of sanction order under Section 197 CrPC. The Court quashed the proceeding in the case against two other accused persons. The act complained of was found to have integrally connected to the duty of the officers like that of the petitioner.

The Court held that the present petitioner stood at equal footing with that of the co-accused persons against whom proceeding was already quashed for want of sanction under Section 197 CrPC. Hence the proceeding against present petitioner was also ordered to be quashed under Section 482 CrPC. [Rabindranath Mohanty v. State of Orissa, 2019 SCC OnLine Ori 107, Order dated 07-03-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Ashwani Kumar Singh, J. dismissed a petition praying for the arrest of a few persons named in a first information report.

Petitioner herein had lodged a police case against Respondent’s 6 to 9 for offence under Sections 304-B, 34 and 120-B of the Penal Code, 1860. Since the said respondents had not been arrested so far, the instant petition was filed praying for a direction to the State to arrest them.

The Court observed that there may be a case in which innocent persons may be implicated in the criminal case. The police in course of an investigation may not like to arrest such person. On completion of investigation, the police may submit a report that those persons named in the FIR are innocent. There may be a case where even informant may turn into the category of accused in the same police case. In such cases also, it would be highly unfair to arrest a person, who may be innocent and whose name is maliciously be given by the informant in the FIR.

It was opined that only because a person is named in the first information report, the Court would not issue any direction for the arrest of those persons. Since the instant police case was under investigation; to arrest or to not arrest an accused named in the FIR was within the exclusive domain of police. In view thereof, it was held that it would be highly unsafe for a Court to issue direction, while exercising extraordinary writ jurisdiction, to the respondent authorities to arrest a person named in the FIR.[Govinda Kumar v. State of Bihar, 2019 SCC OnLine Pat 248, Order dated 25-02-2019]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench comprising of Manojit Mandal and Joymalya Bagchi, JJ., in the wake of rising cyber crimes in the present times, issued directions to ensure that the investigation of crimes involving electronic evidence is conducted in a fair, impartial and effective manner.

Allegations, as mentioned in the FIR, pertain to a matrimonial dispute between the petitioner and his wife. Further, it has been alleged that the petitioner with the object of defaming and denigrating the wife had posted objectionable pictures of wife on a social network platform and circulated such materials widely. Offences under Sections 66 E & 67A of IT Act were not added in the FIR, an investigation by Assistant Sub-Inspector of Police in violation of Section 78 of the IT Act was conducted.

Keeping in view the facts and circumstances of the present case and due to lack of materials on record that objectionable pictures were circulated without consent and knowledge of de-facto complainant, the Court was of the opinion that custodial interrogation of accused/petitioner may not be necessary and he may be granted anticipatory bail subject to the conditions as laid down under Section 438(2) of CrPC, 1973.

Further, the High Court felt that there is a crying need to train and familiarise members of the police force in the matter of collection, reception, storage, analysis, and production of electronic evidence. The bench also stated that:

“It is also relevant to note that electronic evidence by its very nature is susceptible to tampering and/or alteration and requires sensitive handling. A breach in the chain of custody or improper preservation of such evidence render it vitiated and such evidence cannot be relied in judicial proceedings. Necessary certification under Section 65D of the Information Technology Act is also a pre-requisite for admissibility of such evidence. Even if such certification is present, reliability of electronic evidence depends on proper collection, preservation and production in court. Any lacuna in that regard would render such evidence vulnerable with regard to its probative value. These factors have come to our notice not only in the present case but also in a number of cases argued before us in recent times.”

For the said purpose, certain directions were issued to ensure that investigation of crimes involving electronic evidence is conducted in a fair, impartial and effective manner.

Following are the directives:

  • Proper training of members of police force in reception, preservation and analysis of electronic evidence.
  • Only the officers who have been trained in accordance to the manner as stated above shall be involved in the investigation of crimes involving offences under IT Act and the offences in which electronic evidence plays a pre-dominant part.
  • Every district shall have a cyber cell comprising of officers with specialised knowledge in the matter of dealing with electronic evidence in order to render assistance to local police.
  • A standard operating procedure regarding preservation, collection, analysis and producing electronic evidence to be submitted by Director General of Police, West Bengal on the next date of hearing.
  • Specialised forensic units to be set up in the State in order to facilitate examination and/or analysis of electronic evidence.

The matter has been posted for further hearing on 11-03-2019. [Subhendu Nath v. State of W.B., 2019 SCC OnLine Cal 242, Order dated 18-02-2019]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Karuna Nand Bajpayee and Ifaqat Ali Khan, JJ. dismissed a petition seeking quashing of a First Information Report filed against the petitioner for offences committed under Sections 148, 307, 353 and 504 of Indian Penal Code, 1860, and Section 7 of the Unlawful Activities (Prevention) Act, 1967.

The Court observed that grounds for quashing of FIR are well-settled, and thus in such cases court must refrain itself from embarking upon a roving enquiry into details of the case. It was noted that all the contentions raised by the petitioner’s counsel related to the determination of disputed questions of fact which may be adequately discerned either through proper investigation or adjudicated by the trial court. The ambit of an investigation into the alleged offence is an independent area of operation and does not call for interference except in rarest of rare cases. Relying on Ajit Singh v. State of Uttar Pradesh, 2006 SCC OnLine All 1409 it was opined that operational liberty to collect sufficient material, if any, cannot be scuttled prematurely by any uncalled for overstepping of the Court. 

The Court held that perusal of the case records, prima facie, made out the offence alleged and there appeared to be sufficient ground for investigation in the case. In view thereof, prayer for quashing FIR was refused. However, it was directed that the petitioner shall not be arrested unless credible evidence against him is collected by the Investigating Officer.[Umar Mohd. v. State of U.P, Criminal Misc. Writ Petition No. 330 of 2019, Order dated 08-01-2019]

Business NewsNews

As reported by media, the board of ICICI Bank had appointed Retired Supreme Court Judge, Justice Srikrishna to investigate in regard to the allegations placed against Kochhar. The investigation concluded with Justice Srikrishna finding Kocchar guilty of violating the lender’s code of conduct.

On 30-01-2019, the board of ICICI Bank released a statement stating that, “After due deliberations, the Board of Directors decided to treat the separation of Ms Chanda Kochhar from the Bank as a ‘Termination for Cause’ under the Bank’s internal policies, schemes and the Code of Conduct, with all attendant consequences (including revocation of all her existing and future entitlements such as any unpaid amounts, unpaid bonuses or increments, unvested and vested & unexercised stock options, and medical benefits), and require the clawback of all bonuses paid from April 2009 until March 2018, and to take such further actions as may be warranted in the matter.”

[Source: Indianexpress.com]

Case BriefsHigh Courts

Tripura High Court: The Bench of S. Talapatra, J. dismissed a criminal revision petition challenging an order whereby the Sessions Court refused to take cognizance of a police report filed under Section 173(2) of the Code of Criminal Procedure, 1973 on the ground that further investigation was continuing against the arrested and absconding accused persons.

The question before the Court was that whether a police report can be filed in part keeping the investigation incomplete or continuing; and whether such a report could be brought within the definition of ‘police report’ under Section 2(r) of CrPC.

Learned public prosecutor submitted that the trial court was duty bound to consider the police report and infer whether any offence has been disclosed. Whereas counsel on behalf of respondent argued that a police report can be filed only after completion of investigation as there was no other provision in CrPC to file a police report in part.

The Court observed that Section 2(r) of CrPC clearly stated that a report forwarded by a police officer to the Magistrate is a police report. Whether on the basis of the said report, cognizance of any offence shall be taken by the Magistrate, is altogether a different question.

It was opined that after receipt of a police report, the Magistrate can do one of following: (i) he may decide that there is no sufficient ground for proceeding further and drop action; (ii) he may take cognizance of offence under Section 190(1)(b) of CrPC on the basis of materials in the police report; or (iii) he may direct further investigation by the police.

After a perusal of records, the Court noted that eighteen charge sheets had been filed in the instant case. Admittedly, these charge sheets were not a result of the further investigation but of a continuing investigation. Hence, it was inferred that the subject police report was not filed on completion of the investigation. In view thereof, it was held that there was no infirmity in the impugned order.[State of Tripura v. Bimal Chakraborty, 2019 SCC OnLine Tri 1, decided on 03-01-2019]

Case BriefsHigh Courts

Tripura High Court: Appalled at the shocking revelations made in a bail application, the Bench of Sanjay Karol, CJ. asked for a detailed tabulated data on the number of people granted bail under the Narcotic Drugs and Psychotropic Substances Act, 1985 and the reasons for granting such bail.

While hearing a bail application on behalf of Krishna Kumar, who along with four others were found consciously possessing 298 kilograms of a contraband substance, the Court made the above-mentioned observations. Another accused in the same case, Pritam Roy, was granted ad-interim bail by a Special Judge on humanitarian grounds. During the hearing of the present case, the Director General of Police (Tripura) was also present. Under instructions from the DGP, a statement with regard to the status of the cases under the provision of the NDPS Act and release of the accused persons only for the year 2018 was furnished. According to this statement, 435 out of 660 people against whom a case was registered under the NDPS Act, were granted bail.

When presented with such shocking data, the learned Judge asked for the reason why was it so facile for accused to get bail under the NDPS Act. The Court questioned “the reasons for grant of bail; is it what is commonly termed as a default bail; is it that the Public Prosecutor conceded to the grant of bail; is it that the Public Prosecutors did not oppose the same; is it that the Courts have passed the orders without following the settled principles of law; or is it that innocent stand falsely implicated. If so, then why no action, in accordance with law, stands taken against the erring persons by the authorities?”

The DGP, Tripura was directed to submit a detailed report of all cases registered under NDPS Act in 2018 in the State of Tripura. It was directed that such report should also include the reasons for the grant of bail (if any) among others.[Haricharan Biswas v. State of Tripura, 2019 SCC OnLine Tri 24, Order dated 10-01-2019]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench comprising of Karuna Nand Bajpayee and Ifaqat Ali Khan, JJ., dismissed a petition on the ground that the contentions raised by the petitioners’ counsel were related to disputed questions of fact.

The Court had been called upon to adjudge the worth of prosecution allegations and evaluate the same on the basis of various intricacies of factual details. The veracity and credibility of the indictment was questioned, the absence of material which would substantiate the allegations that were contended and false implication was pleaded.

The High Court dismissing this petition held that only a prima facie satisfaction of the court about the existence of sufficient ingredients constituting the offence is required in order to see whether the FIR required to be investigated or deserves quashing. The ambit of the investigation into the alleged offence is an independent area of operation and does not call for interference in the same except in rarest of rare cases. Further, it stated that the operational liberty to collect sufficient material cannot be scuttled prematurely by any uncalled for overstepping of the Court. It has to be an extremely discreet exercise. Call for determination on pure questions of fact should be adequately discerned either through proper investigation or should be adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial court in case a charge sheet is submitted. The Court did not deem it proper to have a pre-trial before the actual trial begun. The FIR was thus not quashed. [Seraj Ahamad v. State of U.P., 2019 SCC OnLine All 23, Order dated 08-01-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Bench of Sanjay Kumar Gupta, J. allowed this petition seeking a direction to the official respondents for reinvestigation because of shoddy, incomplete and unreasoned investigation conducted in a perfunctory manner.

The facts of the case are that the father, brother of the petitioner and the petitioner himself were criminally abused, beaten up and restrained by the accused persons. An FIR was lodged but the police refused to take any actions against the accused persons. It was stated that the Challan in the aforesaid FIR was produced before the Court of Learned Munsiff only under Sections 341/323/34 RPC and only against a few of the respondents and left over the serious offences and rest of the accused persons. The petitioners further contended that the criminal case under the FIR whose challan was presented in the Court of Munsiff required a reinvestigation as the medical record which had been annexed with the petition was not considered by the Investigating Officer during the investigation.

The Court allowed the petition and ordered for further investigation. [Mohd. Arif v. State of J&K, 2018 SCC OnLine J&K 1046, decided on  24-12-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Sandeep Sharma, J. allowed a bail application due to full cooperation of the petitioner during the investigations.

A bail petition has been filed under Section 438 CrPC for grant of anticipatory bail with regard to the FIR under Sections 419, 420, 467, 468 and 120-B IPC.

It was stated by the petitioner that the object of bail was to secure the attendance to which he was fully cooperative during the time of investigation and that at this stage nothing was required to be recovered from him.

The Court relied on the Supreme Court decision in the case of Dataram Singh v. State of U.P., (2018) 3 SCC 22, whereby relevance was drawn towards participation in the investigation and not absconding when required by the investigating officer. It further held that if the accused was hiding due to the fear of being victimized, the court shall take it into account and act accordingly. Accordingly, the Court allowed the bail petition but warned the petitioner that if he misuses his liberty or violates any of the conditions imposed upon him the bail shall be cancelled.[Narinder Awasthy v. State of H.P.,2018 SCC OnLine HP 1592, decided on 15-11-2018]

 

Case BriefsHigh Courts

Gujarat High Court: A Single Judge Bench of R.P. Dholaria, J., allowed a petition filed against the order of the lower courts, whereby petitioner’s application for granting custody of his vehicle which was involved in an offence under the provision of Gujarat Prohibition Act, 1949, was dismissed.

The main issue that arose before the Court was whether the lower courts were justified in rejecting the application of petitioner for the release of his vehicle, pending investigation.

The Court observed that the lower courts have not handed over the interim custody of the vehicle to petitioner in view of Section 98 of the Gujarat Prohibition Act, 1949, which provides embargo for handing over the custody of the vehicle used in the offence pending the trial. The respondent’s contention with regard to the lower courts and revisional courts having no jurisdiction to hand over custody of the vehicle used in the offence as per the provisions of Section 451 of the Code of Criminal Procedure 1973, was rejected by the Court.

The Court held that this instant case was covered by the judgment delivered in Hardikbhai Mukeshbhai Chauhan v. State of Gujarat, Special Criminal Application No. 7642 of 2018 and subsequently allowed the petition filed by the petitioner. The Court directed the lower court to immediately release the vehicle owned by the petitioner after due verification and following the procedure of recording such evidence as it thinks necessary as provided under Section 451 of the Code of Criminal Procedure 1973. [Rangrej Shokatbhai Noormohammed v. State of Gujarat, R/Special Criminal Application No. 9528 of 2018, Order dated 30-10-2018]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench of Annie John, J., allowed an appeal filed against the order of the trial court whereby accused was found guilty for the offence punishable under Section 58 of the Kerala Akbari Act.

The main issue that arose before the Court was whether the order of the trial court was good in law.

The Court observed that there was several loopholes in the investigation conducted by the police. Firstly, the sample of the contraband articles was sent to the Court after a delay for 4 days and such delay was unexplained by the prosecution. Secondly, the chemical analysis report was unclear and lastly, the forwarding note did not contain a sample seal. The appellant relied upon the case of Ramankutty v. Excise Inspector, Chelannur Range, 2013 (3) KHC 308, wherein it was held that an accused becomes entitled to the benefit of doubt if there is an unexplained delay on the part of the prosecution. The Court found this case applicable to the facts and circumstances of the instant case and it also observed that it was the duty of the prosecution to prove that the contraband articles were produced before the Court without any sort of tampering. The investigation under the Kerala Akbari Act could be conducted by the Akbari Officer appointed by the state government and every Akbari Officer had a territorial jurisdiction, however, in the instant case, the investigating officer was not authorized to investigate the matter since it was outside his territorial jurisdiction.

The Court after considering all the lacunae in the investigation held that the order of the trial court was liable to be set aside since it was based on such faulty investigation. Resultantly, the appeal was allowed and the order of the trial court was set aside.[Ravi v. State,2018 SCC OnLine Ker 4640, order dated 30-10-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench of Shekher Dhawan, J., dealt with a writ petition for the release of retiral benefits i.e. leave encashment to the petitioner. 

Petitioner had filed the instant petition for the release of leave encashment as a retiral benefit. Facts of the case were that a charge sheet was filed against the petitioner after which he got retired from the service. Petitioner contended that an employee like him, if had already retired, only his gratuity could have been withheld but not other retiral benefits in accordance with the case of Punjab State Civil Supplies Corpn. Limited v. Pyare Lal, 2014 SCC OnLine P&H 15012.

High Court viewed that controversy was restricted to petitioner’s prayer for leave encashment and by virtue of decision referred above it had already been decided that leave encashment cannot be withheld. With the above view, the petition was disposed of. [Pawan Kumar v. Punjab State Co-operative Societies,2018 SCC OnLine P&H 1677, decided on 02-11-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Sanjay Kumar Gupta, J., dismissed a bail petition filed by the petitioners under Section 497-A of the Code of Criminal Procedure, seeking bail in a matter involving offences under Sections 420,467, 468, 471 of the Ranbir Penal Code and Section 5(2) of J&K Prevention of Corruption Act, 2006.

The main issue that arose before the court was whether the petitioners are entitled to get bail in a matter involving alleged offences of corruption and cheating.

The Court observed that the petitioners were alleged to have made back-dated appointments in lieu of money from the beneficiaries. The petitioners had made back-dated appointments and as such, it is an action which is covered under the category of cognizable offences. The appointments made by the petitioner were allegedly illegal, also some of the appointees were students and the others were running their own businesses. Another serious allegation that was leveled against the petitioners was that they have tampered with the records of daily wage workers and have replaced their names with the names of appointees who were given appointment by the petitioners. The Court relied upon the judgment of State of A.P. v. Bimal Krishna Kundu, (1997) 8 SCC 104, wherein it was held that arming an accused with a bail order, when serious allegations of corruption are leveled against him/her, would hamper the investigation and would also impede the prospects of unearthing all ramifications involved in the conspiracy. 

The Court held that the allegations leveled against the petitioners were quite serious in nature and hence granting them bail would not be the appropriate thing to do. Further, all the aspects of the matter require detailed investigation and for that purpose custodial interrogation is also required. Resultantly, the bail petition was dismissed.[Mohd. Kubir Malik v. State of J&K, 2018 SCC OnLine J&K 788, order dated 03-11-2018]

Case BriefsHigh Courts

Allahabad High Court: A petition was filed before a Division Bench comprising of Ramesh Sinha and Dinesh Kumar Singh, JJ., for quashing an FIR registered under Sections 409, 419, 420, 467, 468, 471, 477A, 201, 218 and 120-B/34 IPC and 13(2) Prevention of Corruption Act, 1988.

Facts of the case were that an FIR was filed against petitioner in 2006 and the investigation was pending even after 12 years. Petitioner submitted that a similar petition had been filed by accused where an interim order was passed in his favour, therefore, he is also entitled for the same. Petitioner contended that from perusal of FIR it could not be said that any offence was made out against him. Petitioner also stated the fact that investigation of the case was yet not been completed.

High Court after considering the facts and circumstances of the case and submissions of petitioner directed the investigating officer to complete the investigation and submit police report before the Court. Further, the direction was issued to not arrest the petitioner before the completion of investigation and submission of the report under Section 173(2) Criminal Procedure Code, 1973. [Bharti Singh v. State of U.P., 2018 SCC OnLine All 1933, order dated 11-10-2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Biswajit Basu, J. dismissed a civil revision pertaining to grant of relief under Section 6 of the Specific Relief Act, 1963.

The suit under the said section was filed by the petitioner alleging that he was the tenant in the suit property. That he was dispossessed from the same without his consent and without due process of law. The suit was filed for the relief of reclaiming the possession. The trial court, vide the order impugned, dismissed the suit of the petitioner herein. Aggrieved thereby, the instant revision was filed.

The High Court perused the record. It was observed that Section 6 provides a special and speedy remedy for a particular kind of grievance to place back in possession a person who had been evicted from the immovable property of which he had been in a possession, otherwise than by process of law. Therefore, possession of the plaintiff over the immovable property on the date of dispossession is the condition precedent to invoke jurisdiction of Section 6. Investigation into the title favouring such possession is irrelevant in the proceeding of such nature. In the facts of the present case, it was clear that the petitioner was not in possession of the suit property on the date on which the unlawful dispossession was alleged. Therefore, the Court held that no interference was called for in the order impugned passed by the trial court. The revision petition was accordingly dismissed. [Ramesh Chand Koiri v. Chandan Koiri,2018 SCC OnLine Cal 6471, dated 19-09-2018]

Case BriefsHigh Courts

Gauhati High Court: A Division Bench comprising of Ujjal Bhuyan and Nelson Sailo, JJ., allowed a criminal appeal filed against the order of the trial court whereby the appellant was convicted and sentenced for life under Section 302 IPC.

The appellant was convicted for murdering the deceased (his brother) due to a land dispute. The allegations were that the appellant trespassed into the house of the deceased and stabbed him to death. The information was given to the police by the son and Ranjit Boro, another brother of the deceased. The appellant was convicted on the basis of testimonies of the wife (PW1) and the daughter (PW 2) of the deceased. The appellant challenged the order of the trial court.

The High Court perused the record and held that there were material discrepancies in the testimonies of the prosecution witnesses (PWs). The scene of the crime as described by the wife and the daughter of the deceased differed in material particulars.  Material witnesses including the informants- the son and Ranjit Boro-were not examined by the prosecution. Moreover, the High Court held that the investigation in the case was done in a lackluster manner. Most important evidence including clothes of the deceased, soaked in blood, were neither collected nor sent for forensic examination. The Court reiterated the settled law that in order to convict an accused in a criminal trial, the charges must be proved beyond reasonable doubt. However, in the instant case, the Court held that the above-stated circumstances did not prove the charges against the accused beyond reasonable doubt. It was also observed that there was a land dispute between the parties, and as such possibility of false implication could not be ruled out. Accordingly, the appeal was allowed and the impugned order was set aside. [Kanak Boro v. State of Assam,2018 SCC OnLine Gau 634, dated 22-6-2018]

Case BriefsSupreme Court

Supreme Court: Holding that the absence of entries in the General Diary concerning the preliminary enquiry is not per se illegal, the bench of NV Ramana and SA Nazeer said:

“As the concept of maintaining General Diary has its origin under the Section 44 of Police Act of 1861 as applicable to States, which makes it an obligation for the concerned Police Officer to maintain a General Diary, but such non-maintenance per se may not be rendering the whole prosecution illegal.”

The Court noticed that CrPC itself has differentiated between irregularity and illegality. The obligation of maintenance of General Diary is part of course of conduct of the concerned officer, which may not itself have any bearing on the criminal trial unless some grave prejudice going to the root of matter is shown to exist at the time of the trial.

The Court, however, rejected the notion that maintaining the General Diary is not necessary and held that if the Officer has not recorded, then it is for the trial court to weigh the effect of the same for reasons provided therein. It said:

“we are aware of the fact that such non-maintenance of General Diary may have consequences on the merits of the case, which is a matter of trial. Moreover, we are also aware of the fact that the explanation of the genesis of a criminal case, in some   cases, plays an important role in establishing the prosecution’s case.”

[State v. H. Srinivas,  2018 SCC OnLine SC 576, decided on 18.05.2018]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar, and Dr. DY Chandrachud, JJ dismissed the petitions seeking the Special Investigation Team (SIT) probe into Special Central Bureau of Investigation (CBI) Judge B.H. Loya’s death case. While doing so, the Court said:

“there is absolutely no merit in the writ petitions. There is no reason for the court to doubt the clear and consistent statements of the four judicial officers. The documentary material on the record indicates that the death of Judge Loya was due to natural causes. There is no ground for the court to hold that there was a reasonable suspicion about the cause or circumstances of death which would merit a further inquiry.”

The sequence of events leading to the present case are:

  • Judge Loya was presiding over the CBI Special Court in Mumbai in the trial arising out of the encounter killings of Sohrabuddin Sheikh in which Amit Shah, the national President of the Bharatiya Janata Party, was one of the accused.
  • On 29 November 2014 Judge Loya travelled to Nagpur with two other judicial officers, Shrikant and SM Modak to attend the wedding in the family of another judicial officer, Swapna Joshi who was then a Member Secretary of the Maharashtra State Legal Services Authority.
  • In the early hours of 1 December 2014, Judge Loya complained of chest pain and was taken to a nearby hospital. He was then referred to Meditrina Hospital, a cardiac care facility, where he was declared “brought dead”.
  • On 11 December 2017, Tehseen Poonawalla filed a petition under Article 32 of the Constitution before the Supreme Court seeking SIT probe into Judge Loya’s death.
  • Jayshri Laxmanrao Patil and another by Bandhuraj Sambhaji Lone also filed petitions on the same issue.
  • On 20 and 21 November 2017, articles on his death were published in the issues of Caravan magazine. The first article was titled “A family breaks its silence : shocking details emerge in death of judge presiding over Sohrabuddin trial”.

Cause of Death:

The summary of the post mortem report records that Judge Loya died due to a heart attack. No complaint has been lodged by his relatives at the local police station or at PS Sadar of any suspicion in regard to the cause of death and the medical officer has recorded the cause of death as a heart attack in the PM report and there was no evidence of assault.

Statements of the 4 judges:

Petitioner’s submission: the procedure of obtaining the permission of the Chief Justice was completed within one day and the statements were submitted by the four judges on the next day. Two of the judges (Judge Shrikant Kulkarni and Judge Barde) were based in Mumbai while the other two (Judge Modak and Judge Rathi) were based at Pune and Baramati.

Court:

  • A discreet inquiry had been ordered by the state government in view of the articles which were published in Caravan regarding the death of a judicial officer. Three of the statements specifically refer to the letter to the Commissioner while the fourth refers to the request which has been made by the Commissioner and the permission which has been granted by the High Court. There was no reason for the four judicial officers to procrastinate or delay the submission of their statements. There is no basis whatsoever to make any imputation against the four officers of the state judiciary.
  • Each of the judges has spoken in detail of the facts and events which were within their personal knowledge. The statements contain matters of detail which would be known to those who were present with Judge Loya. They have a ring of truth.

Petitioner’s Submission: if the four judges had accompanied Judge Loya to hospital, then as colleagues they would not have indicated his name to be Brijmohan instead of Brijgopal.

Court: This is but another attempt to cast doubt on the version of the four judicial officers without a substantive basis or foundation. Judge Loya was taken to hospital in an emergency. The normal course of human events would indicate that his four colleagues would be more concerned about getting Judge Loya attended than filling up an admission form. A mistake did occur in recording his name as Brijmohan instead of Brijgopal. In our view, this cannot be a ground to discredit the detailed factual narration made by the four judicial officers who were with him.

Stating that the conduct of the petitioners and the intervenors is lacking in bona fides and reveals a misuse of judicial process, the Court said:

“An aura of good faith has been sought to be created by submitting that the true purpose of seeking an inquiry into the circumstances relating to the death of Judge Loya is to protect the district judiciary. But as the submissions have evolved, it has become clear that the petition is a veiled attempt to launch a frontal attack on the independence of the judiciary and to dilute the credibility of judicial institutions. Judicial review is a potent weapon to preserve the rule of law. However, here we have been confronted with a spate of scurrilous allegations. Absent any tittle of proof that they are conspirators in a murder the court must stand by the statements of the judicial officers. The judges of the district judiciary are vulnerable to wanton attacks on their independence. This court would be failing in its duty if it were not to stand by them.”

[Tehseen Poonawalla v. Union of India, (2018) 6 SCC 72, decided on 19-04-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Chander Bhusan Barowalia, J., decided a criminal petition filed under Section 438 of CrPC, wherein the prayer to grant anticipatory bail to the petitioners was denied holding that it would affect the investigation.

An FIR was registered against the petitioners under Sections 20 and 29 of the NDPS Act. The petitioners were named in the case by another accused Saleem, who was found in possession of the commercial quantity of contraband substance ‘charas’. The petitioners were absconding since arrest of the said Saleem. The petitioners prayed that they be granted anticipatory bail while the prosecution submitted that the investigation is still at early stages and if the petitioners are enlarged on bail, it might affect the investigation.

The High Court, while discussing the parameters which need to be considered while dealing with anticipatory bail, held that one of the parameters was that balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation; and there should be prevention of harassment, humiliation and unjustified detention of the accused. The Court found that the investigation was at the initial stages and if at that stage the petitioners were enlarged on bail, the investigation would be hampered and there were chances that the petitioners would tamper with the prosecution evidence. The Court also took into account the seriousness of the offence, the fact that the petitioners were likely to flee from justice and the quantity of the recovered contraband was also found to be more than one kilogram, which was a commercial quantity. Thus, the Court was of the view that there was every likelihood that in case the petitioners were enlarged on bail it would effect free, fair and full investigation of the case, thus the balance was in favor of free, fair and full investigation and judicial discretion to admit the petitioners on bail could not be exercised in their favor. Accordingly, the bail was denied and the petition was dismissed. [Amru Ram v. State of H.P., 2018 SCC OnLine HP 161, order dated 27.2.2018]