Case BriefsHigh Courts

Kerala High Court: Stating that, though the Press has a duty to inform the public, the Division Bench of Devan Ramachandran and Sophy Thomas, JJ., observed that, it is the well-accepted thumb rule that the Press shall not indulge in sensationalism; or in speculating upon the guilt or otherwise of any accused or other individual; or to create an opinion about the comportment or character of a person involved in the Trial; and not to embellish, by impelling or sponsoring an opinion they seek.

Appellant challenged the interim order wherein the Single Judge had issued a direction against the appellant ‘not to publish/broadcast/ telecast any item concerning or relating to the petitioner herein while reporting about Crime No.6/2022 of Crime Branch Police Station and S.C.No.118/2018 of Additional Special Sessions Court (SPE/CBI) III, Ernakulam except the order of the Court for a period of three weeks from today’. 

The contention of the appellant was that the above amounted to a complete ban and operates as a violation of the well-recognized principles of the freedom of the Press, to report and publish the truth.

Analysis and Decision

High Court stated that, it will address the issue: Parameters which are to be kept in mind when a News Media reports on an ongoing Criminal Trial or investigation.

For the above-stated issue, Court stated that its path was illuminated by the holdings of the Supreme Court in Sahara India Real Estate Corporation Ltd. v. SEBI, (2012) 10 SCC 603, wherein, the Hon’ble Court has unambiguously declared that orders postponing reporting of certain phases of Criminal Trial (including identity of the victim or the witness or the complainant) can be applied for a short duration and solely in cases of “real and substantial risk of prejudice” to the proper administration of justice or to the fairness of Trial.

Bench expressed that, the various High Courts and the Supreme Court have repeatedly been engaged qua the contours of the tenuous balance between reporting of facts relating to a crime and the unexpendable requirements to be maintained for a Fair Trial; but there can be little doubt that the Press have a duty to inform the public truthfully about the crimes and the facts relating to investigation, arrest and such other.

Expressing in a more elaborate manner, with respect to the above, Court added that the press certainly cannot be allowed to run amok and will have to be imposed with reasonable restrictions, so as to make sure that every trial and investigation is conducted fairly, openly and above board.

“Press has a duty to inform the public, the publication of lurid details and other sensitive investigative inputs, which are within the sole jurisdiction of the courts to decide upon, certainly require to be put on a tight leash.”

Coming to the impugned order, Bench stated that though it does not want to speak in detail on the merits of the rival factual contentions but there is no doubt that direction not to publish/broadcast/ telecast ‘any item’ concerning or relating to the appellant’, certainly travels beyond the reasonableness of the restrictions sanctioned by the Supreme Court. 

The term ‘any item’ is not merely very vague but would also cause an unfair fetter on the Press to make a fair reporting within the parameters of law, and therefore, we (Court) feel it necessary to modify the same, though to a very limited extent.

 Bench deemed it apposite to dispose of the writ appeal, vacating the impugned order to the extent to which it had restrained the appellant from reporting ‘any item’ relating to the first respondent but clarifying that they shall not engage in sensationalism, or pursue any line of reportage intended to forge an impression against the first respondent or any other accused or witness with respect to their involvement or otherwise in the crime; and without in any manner, commenting about the ‘in camera’ proceedings.

Further, the Court stated that, when the Investigating Officers have already been restrained by the aforesaid order against the State Police Chief, the apprehension of the first respondent stands allayed fully; and resultantly, an absolute ban for publication of ‘any item’ relating to the writ petitioner would perhaps be not relevant any further.[Indo-Asian News Channel (P) Ltd. v. T.N. Suraj, WA No. 566 of 2022, decided on 6-5-2022]


Advocates before the Court:

For the appellant:

BY ADVS. SRI.KALEESWARAM RAJ

           C.P. UDAYABHANU

           THULASI K. RAJ

           SHILPA SOMAN

For the Respondents:

BY SR.ADV.SRI.GEORGE POONTHOTTAM

SRI.NAVANEETH KRISHNAN

BY SR. GOVT. PLEADER SRI.BIJOY CHANDRAN

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): The Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members) held that, in the case of both Swiggy and Zomato, prima facie there existed a conflict of interest situation, warranting detailed scrutiny into its impact on the overall competition between the RPs vis-à-vis the private brands/entities which the platforms may be incentivised to favour.

An information had been filed under Section 19(1)(a) of the Competition Act, 2002 by National Restaurant Association of India (Informant/NRAI) against Zomato and Swiggy (OPs) alleging that the practices of Zomato and Swiggy were in violation of Section 3(4) read with Section 3(1) of the Act.

Factual Background


NRAI submitted that the OPs provide restaurant partners (RPs) a listing service and allow consumers to interact with them through their platforms.

Further, NRAI stated that it is only because of the network effects of the OPs that, despite their anti-competitive practices, RPs are still dependent on the platforms to earn revenues, which shows the absence of countervailing buyer power with the RPs.

Bundling of Food Delivery

It was alleged that the stated delivery services are not optional for the RPs who wish to avail listing service and they are forced to take the delivery service of the platform.

Adding to the above, NRAI stated that the bundling of delivery services is an unfair imposition.

It is violative of Section 19(3) of the CCI Act.

Data Masking

RPs receive no data or information about the end-consumers to whom the food is delivered, which is a practice of OPs.

Due to the above-stated, RPs are not aware of where the foods is being delivered, to whom and in how much time, which creates a lack of transparency.

Vertical Integration 

NRAI has further alleged that OPs are engaging in a dual role on their platform where they list their own cloud kitchen brands exclusively on their platform, akin to private labels, thereby creating an inherent conflict of interest in the platform’s role as an intermediary on one hand and as a participant on the other hand.

One-Sided Contracts

It was alleged that Zomato and Swiggy enter into one-sided contracts with RPs owing to their superior bargaining power.

Further, NRAI has alleged that Zomato and Swiggy often compel the RPs to commit exclusively to be listed on their respective platform through incentives, lower commissions etc. to maintain their competitive edge in the market, at the exclusion of other new entrants. This creates/strengthens barriers for a new entrant into the market which would find itself deprived of essential and interdependent inputs like RPs and customers which would be locked-in to the incumbents’ platforms.

Infact, price parity terms have also been imposed on the RPs through their respective contracts.

NRAI has also alleged that the commissions which are charged by the OPs from RPs are unviable and are to the tune of 20% to 30%, which are extremely exorbitant for the RPs.

In view of the above allegations, NRAI sought an inquiry under the Act against the OPs.

Analysis and Decision


Coram stated that it emerged from the claims made by Zomato and Swiggy that bundling delivery with ordering enables them to control the time taken for delivery and qualitatively standardise such delivery for the end consumer.

In Commission’s opinion, bundling did not seem to raise any competition concern as such. Even otherwise, the Informant was not able to substantiate its claim that bundling of delivery with ordering, in itself, led to cause AAEC either between restaurants or between hyperlocal delivery service providers.

Moving further, the Commission was of the view that prima facie a conflict-of-interest situation arose in the instant case, both with regard to Swiggy and Zomato, because of the presence of commercial interest in the downstream market, which may come in the way of them acting as neutral platforms.

Coram added that the above-said required detailed examination and further, remarked that,

Given that platforms are vertically related with the RPs, including their private brands and those operating through their respective cloud kitchens, such arrangements whereby preferential treatment is accorded to some entities can be looked as a potential contravention of Section 3(4) read with Section 3(1) of the Act. 

Both Swiggy and Zomato operate as major intermediary platforms in the food delivery space, underscoring their market power and ability to adversely as well as appreciably affect the level playing field. 

Commission also observed that a holistic examination is required to ascertain whether the intermediaries prevent competition on merits, creating an ecosystem likely to cause an appreciable adverse effect on competition.

Further, the price parity clause may discourage the platforms from competing on a commission basis as RPs need to maintain similar prices on all platforms and provide similar prices to the customers, regardless of the commission rates paid to the platform. Hence, the said arrangements can cause AAEC on the market, therefore investigation is made out.

In Commission’s opinion, the allegations pertaining to delayed payment cycle, imposition of one-sided clauses in the agreement, charging of exorbitant commission etc., they did not seem to have an effect on competition.

Concluding the matter, Commission held that prima facie with respect to the conduct of Zomato and Swiggy, investigation by the DG to determine whether the conduct of the OPs have resulted in contravention of the provisions of Section 3(1) of the Act read with Section 3(4) was required.[National Restaurant Association of India v. Zomato India Ltd., 2022 SCC OnLine CCI 22, decided on 4-4-2022]

Case BriefsHigh Courts

Calcutta High Court: Rajasekhar Mantha, J. while adjudicating a case involving serious offences under Section 365, 354B and other provisions of IPC directed the Director General of Police, West Bengal to initiate appropriate departmental proceeding against the ASI, Arnab Chakraborty and any other person that he may feel was responsible for misleading the Court further handing over the investigation to CID, West Bengal.

The Court took on record the report filed by the Additional Superintendent of Police as on 19-04-2022 wherein the lapses on the investigation were admitted. it was further noticeable from the records that there were large number of other lapses which had not been addressed. The Court further posed the question as to why the Superintendent of Police had not signed the report himself. The Court was highly dissatisfied with the punishment of “Censure” on the Investigating Officer, ASI, Arnab Chakraborty imposed by the appointing authority. The above report also revealed that he was recently promoted from Constable to ASI and entrusted investigation.

The Court believed that the entire file as regards the conduct of the investigation by ASI, Arnab Chakraborty must be looked into by a higher authority. The Court directed that a copy of the writ petition by the Counsel for the petitioner shall be transmitted to the DGP along with the report of the Inspector-in-charge, Superintendent of Police dated 19-04-2022.

Finding the investigation of the instant case perfunctory the Court handed over the investigation to CID for an independent investigation. Further matter was adjourned for hearing on 07-06-2022 where DGP’s report would be taken on record.[Madhu Singh v. State of West Bengal,  2022 SCC OnLine Cal 895, decided on 26-04-2022]


Mr Soumya Majumder, Mr Ravi Kumar Dubey: For the petitioner.

Mr Samrat Sen, AAAG, Ms Manali Ali: For the State


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madras High Court: Dr Anita Sumanth, J., expressed that with the inception of Section 74(5)of GST Act, it is the case of the revenue that the collection of amounts in advance has attained statutory sanction, provided the same are voluntary in Form GST-DR03.

Merely because an assessee has, under stress of investigation, signed a statement admitting tax liability and has also made a few payments as per the statement, cannot lead to self-assessment or self-ascertainment.

In the present matter, mandamus was sought to restrain the first respondent from harassing the petitioner baselessly without addressing its grievance petition and refund claim pending before the respondents.

The petitioner was registered as a Small-Scale Industry under the MSME Act and was an assesseee under the provisions of all the Goods and Service Tax Act, 2017. An investigation was conducted on the premises of the petitioner and various documents and registers were seized. Further, during the investigation, a statement was recorded from one S.A Kumar, who also deposed to the affidavit filed in support of the present petition, to the effect that the petitioner had not discharged its GST liability correctly.

The Managing Director had signed the undertaking and in line with the same, the petitioner remitted a sum of Rs 1 crore.

Petitioner stated that it had no liability to tax, that the MD and Officials were forced to accept liability to tax and the admission was by no means, voluntary.

Further, the petitioner had made serious allegations about the high handedness of the authorities during the conduct of search and the scant regard expressed for the sentiments of the family of the MD and employees of the petitioner.

Whether the collection of any amount during the process of investigation is statutorily permitted?

Whether the products sold are branded or unbranded?

If unbranded then there is no liability to GST.

Whether the petitioner is entitled to the refund of the amounts paid during investigation and the revenue relies upon the provisions of Section 74(5) of the Act?

Section 74 provides for a determination of tax not paid or short paid or erroneously refunded or the wrongful availment or utilization of Input Tax Credit by reason or fraud, willful misstatement or suppression of facts.

The remittance under Section 74(5) is in terms of Rule 142 of the Central Goods and Services Tax Rules, 2017 and has to be made in Form GST DRC-03.

It was noted that the payment was ‘voluntary’ and the same procedure had been followed in regard to the second instalment as well.

“Prior to the inception of the GST Act, instances were rife when officials of DRI and Customs Department were infamous for collecting advance payments of tax from assesses, many a time under coercion, and in the course of investigation itself.”

Thus, according to the revenue, the remittances made by the petitioner during the investigation in terms of Section 74(5) amount to ‘self-ascertainment’. Having remitted two instalments of tax as per is own ascertainment, it cannot pray for a mandamus seeking a refund of the amount.

“No collection can be insisted upon prior to a final determination of liability being made.”

Further, the Bench added that, what Section 74(5) provides is the first opportunity for an assessee to pay tax, interest and penalty liability even prior to the issuance of a show-cause notice and such acceptance will have to be in the form of either self-ascertainment or an ascertainment by the proper officer.

In the present matter, the enquiry and investigation were on-going, personal hearings had been afforded and both the parties were fully geared towards issuing/receiving a show-cause notice and taking matters forward.

Hence, the understanding and application of Section 74(5) was wholly misconceived.

Therefore, the mandamus as sought for by the petitioner was issued and the amount collected of Rs Two Crores shall be refunded to the petitioner within a period of four weeks.[Shri NandhiDhall Mills India (P) Ltd. v. Senior Intelligence Office, WP No. 5192 of 2020, decided on 7-4-2022]


Advocates before the Court:

For Petitioner: Mr.Hari Radhakrishnan

For Respondents: Mr.V.Sundareshwaran (for R1 to R3 & R5)

Senior Panel Counsel R4 – Given up

Case BriefsHigh Courts

Kerala High Court: While addressing the matter with regard to the media trial, Mohammed Nias C.P., J., expressed that, half-truths and misinformation cannot be the basis of publications or telecast.

Reports/telecast having the effect of prejudicing mankind against the parties and the court before the case is heard clearly interferes with the course of justice.

Petitioner was arrayed as the third accused alleged for the commission of offences under Sections 116, 118, 120-B and 506 read with Section 34 of the Penal Code, 1860, though a report was filed by the investigating officer changing Section 120B to Section 120 B (1) for adding offence under Section 302 IPC.

The de facto complainant was one of the investigating officers. Initially, there were only 7 accused in the case but later Mr Gopalakrishnan, the brother-in-law of the petitioner and a film actor was also arrayed as the 8th accused.

It was stated that the 6th respondent using his online news portal telecasted items regarding the cases in question from 25-12-2021 onwards fabricating more and more allegations against Mr Dileep and the petitioner about matters which were sub judice in the ongoing trial and the pending investigation.

It was alleged that the 6th respondent was resorting to sensationalism/publication/broadcast of fabricated allegations against the accused persons and their associates.

There was a specific allegation that respondents 3 to 5 were instrumental in leaking out the reports of the alleged investigation which led to the parallel trial by the media.

The first among the interim reliefs sought was to prohibit publication/broadcast of matters relating to the above said crime and the Sessions Case except the orders passed by the courts of law till the disposal of the Writ Petition and also to direct the 6th respondent to produce the contents of the entire telecast from 25-12-2021 till date in Report TV Channel and their Portal concerning the matter.

Analysis and Decision

High Court observed that the media interest or media debate, are all permitted in a democracy government by rule of law subject to one inviolable exception namely that the media cannot during the course of trial or investigation suggest/publish/telecast that A or B is guilty or that C or D is untrustworthy or an honest witness.

The above said are impermissible as the said suggestions of guilt of innocence or creditworthiness of witness etc.. are beyond the permissible rights of the media.

Media cannot usurp the jurisdiction of the courts which alone has the constitutional authority to decide the guilt/innocence of a person or decide on the content, quality or the width of any right available to any citizen/accused/suspect.                                                                          

Further, it was observed that,

Publication of leaks from the investigation agencies and to level allegations against individuals based on such leaks are not protected by the freedom of press under Article 19 (a) of the Constitution and it cannot be a defense that what was telecast was the allegation based on the prima facie findings of an investigating agency or worse on the basis of suspicions of Investigating agency.

Bench noted that, even the accused who is arrested during investigation and produced before a Magistrate under Section 167 (1) CrPC is entitled only to get a copy of the remand report as on the said basis his custody is sought. The Code only directs the investigating Officer to transmit to the Magistrate a copy of the entries in the case diary and when even the accused is not entitled to get the copy of any of the documents except remand report at that stage, it is difficult to comprehend as to how any other person/citizen/media can get copies of the details which even the accused is not entitled.

High Court observed that the during the course of the investigation, the investigating agency is not allowed to divulge the details of the investigation of any crime to the public at large on three counts:

  • Principle
  • Authority
  • Propriety

The Court suggested that the members of the electronic media should be bound by the spirit of guidelines issued under Norms of Journalist Conduct published by the Press Council of India, 2019.

The Bench held that the 6th respondent is to be prevented from telecasting/publishing the reports, therefore Court held that the present case warrants the extreme steps of passing directions against the 6th respondent to prevent such publications relating to the petitioner.

The matter is to be posted on 29-4-2022. [T.N. Suraj v. State of Kerala, WP (Crl.) No. 346 of 2022 (S), decided on 19-4-2022]


Advocates before the Court:

Sr. Advocate and Additional Director General of Prosecutions Sri. Gracious Kuriakose

Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., held that, when a Judge recuses, no litigant or third party has any right to intervene, comment or enquire. The recusal has to be respected, whether a reason has been spelt out in detail or not.

Instant petition under Section 482 CrPC had been filed for setting aside the order passed by the Special Judge and directions for the resignation of FIR have also been sought.

Petitioner’s Counsel submitted that the petitioner was the Director and authorized representative of the Indian Fitness Connect Private Limited. Ozone Spa Private Limited filed an application under Section 156(3) CrPC against the petitioner and other Directors of India Fitness Connect which was pending before the Metropolitan Magistrate.

Petitioner alleged that the said complainant had sought to influence the Court of Metropolitan Magistrate.

High Court found that there was absolutely no merit in the present petition.

Further, the Bench added that Special Judge was justified in disallowing the application under Section 156(3) CrPC and directing the registration of an FIR, as no police investigation was required in the matter. However, it was the view of this Court that the Special Judge erred in allowing the petitioner to lead evidence in the complaint filed by her.

Additionally, the order of the Metropolitan Magistrate before whom the complaint case against the petitioner was pending, was clearly a recusal order. Supreme Court’s decision in Assn. v. Union of India, (2016) 5 SCC 1 while dealing with the issue of recusal observed that:

“A Judge may recuse at his own, from a case entrusted to him by the Chief Justice. That would be a matter of his own choosing. But recusal at the asking of a litigating party, unless justified, must never to be acceded to. For that would give the impression that the Judge had been scared out of the case, just by the force of the objection…..”

The Bench observed that,

“…an investigation into the cause/reason for recusal by a Judge, particularly, by a litigant, would itself be an interference with the course of justice.”

 Court also added that, had a Judge refrained from giving a reason for recusal, no one can insist on the Judge making such disclosures. The discretion of the Judge concerned in the matter of disclosure is absolute.

It was noted that the petitioner sought full disclosures by forcing the police to make inquiries from the Metropolitan Magistrate, who in order to ensure fairness in the trial, chose to recuse.

It was for the concerned Metropolitan Magistrate to decide whether to initiate any contempt or other criminal proceedings against the petitioner and the “known person”. The learned Metropolitan Magistrate did not find any need to do so and it is not for the petitioner to question that decision, which is what she is seeking to achieve by insisting on the registration of an FIR and filing a complaint case under Section 200 Cr.P.C. To that extent the refusal of the police to register the FIR and the refusal of the learned Special Judge to advise the registration of the FIR are both proper.

Hence, the petition filed by the petitioner seeking registration of the FIR and quashing of the order of the Special Judge dated 16th July, 2020 was dismissed. [Sherry George v. GNCTD, 2022 SCC OnLine Del 1031, decided on 13-4-2022]


Advocates before the Court:

For Petitioner: Mr. Ankur Mittal and Mr. Abhay Gupta, Advocates.

For Respondent: Manjeet Arya, APP

Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., expressed that, personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

Instant application had been filed under Section 438 CrPC for grant of anticipatory bail in respect of FIR under Sections 420, 406 and 34 Penal Code, 1860.

Factual Background


An FIR was lodged by an authorized representative of M/s Vaishali Infratech (P) Ltd. on the allegations of cheating and misappropriation. The applicant, through his company, is a builder and has a project, namely ‘Rudra Palace Heights’, in which the complainant/Company booked 11 flats.

Large sums of money had also been paid for the flats amounting to Rs 1,33,87,500 towards 75% of the consideration. Applicant was the promoter and director of M/s Rudra Buildwell (P) Limited. There were others also named as accused in the FIR.

It was stated that despite the fact that the flats were to be fully constructed and handed over in 2018, till date, no flat had been handed over to the complainant, rather the complainant came across a Charge intimation to the Registrar of Companies filed by the applicant, informing of the sale of the very same 11 flats to 11 other persons.

Hence, the allegation that the applicant had cheated the complainant.

Analysis, Law and Decision


“While it is no doubt true that the case arising out of contracts would have civil and criminal contours, but it is not that if no civil case was filed it would detract from the complaint made to the police nor would the opposite hold true.”

High Court expressed that, custodial interrogation is more effective to question a suspect.

The cocoon of protection, afforded by a bail order insulates the suspect and he could thwart interrogation reducing it to futile rituals.

Further, the Bench stated while interrogation of a suspect of one of the basic and effective methods of crime solving, the liberty of an individual also needs to be balanced out.

High Court noted that the views of the Supreme Court explained in numerous judgments have been incorporated in the amended Criminal Procedure Code, particularly with the introduction of Section 41A CrPC and amendments to Section 41A CrPC.

Thus, even for arresting any person in connection with an offence punishable with imprisonment of upto 7 years, the police have to first issue a notice and arrest only when there is no cooperation from the noticee/suspect. There are, of course, other conditions in which the police officer may arrest, as provided for under Section 41(1)(a) & (b) CrPC.

It had been held in Shri Gurbaksh Singh Sibbia v.  State of Punjab, (1980) 2 SCC 565, as well as reiterated in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 that the power to release on anticipatory bail is extraordinary in character, it would “not justify the conclusion that the power must be exercised in exceptional cases only”.

High Court opined that, the present matter is the one wherein investigations would be hampered without custodial interrogation.

The Bench observed that, the powers of the police for conducting a holistic and complete investigation in the matter, including into alleged resale and backdating/uploading of documents on the ROC website, are wide, assuming that the applicant has not revealed to them the true details.

The disposal of an anticipatory bail application does not require a trial, even a mini trial, on the allegations and defence.

fundamental question would only be whether or not the liberty of the applicant ought to be curtailed by refusal of anticipatory bail or whether the interest of justice would still be served if he is granted the benefit.  

High Court held that the applicant be released on bail and shall be bound by the following conditions:

  • Applicant shall join the investigation as and when required to do so by the investigating officer and shall cooperate with the investigating agencies and make a disclosure of complete details of the 11 persons relating to whom the resale had allegedly occurred.
  • The applicant shall not leave NCR without orders of the Trial Court;
  • Applicant shall furnish his mobile phone/landline number and residential address as well as that of his surety to the I.O./SHO concerned and both shall keep their mobile/landline phones operational at all times during this period and in the event of any change of the same, will immediately inform the same to the I.O./SHO;
  • Applicant shall drop a pin location on Google Maps so that the location of the applicant is available to the Investigating Officer;
  • Applicant shall not directly or indirectly contact the complainant or any other witnesses and any attempt shall be deemed to be an attempt to influence them;
  • SHO is directed to accept the bail bond only after verifying the address of the applicant.

In view of the above, the bail application stood disposed of. [Mukesh Khurana v. State of NCT Delhi, 2022 SCC OnLine Del 1032, decided on 13-4-2022]


Advocates before the Court:

For the applicant:

Ms. Rebecca John, Senior Advocate with Mr. Vishal Gosain, Ms. Adya, Ms Megha Bahl, Ms. Sahiba Singh and Mr. Yash Chaturvedi, Advocates

For the Respondent:

Mr. G.M. Farooqui, APP for respondent/State with SI Yashpal

Mr. Aman Lekhi, Senior Advocate, Mr. Mohit Mathur, Senior Advocate with Mr. Mudit Jain, Advocates for complainant

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Prakash Shrivastava, CJ. and Rajarshi Bharadwaj, J. took up a petition and directed Damayanti Sen, IPS presently working as Special Commissioner of Police to Kolkata Police to investigate in the matter of rape cases at village Nehalpur, Nandipara, incident on Dol Purnima and English Bazar.

Advocate General had informed that in respect of rape of a minor girl at village Nehalpur, the statement of the victim under Section 164 Cr.P.C. had to be recorded that day. In respect of the incident at Nandipara, Kuchenkora area he submitted that the culprit has been arrested and his confessional statement has been recorded. It was informed that in respect of another incident of rape of a minor girl on the day of Dol Purnima, he has submitted that two persons have been apprehended, one of them is minor and that the statement of victim under Section 164 Cr.P.C. has been recorded. He has also submitted that medical examination of the victim as also the accused has been done and the protection as directed by this Court has been extended.

Petitioner suggested the name of Smt. Damayanti Sen, IPS stated to be posted as the Special Commissioner of Police to Kolkata Police, for supervising the investigation due to her previous performance and independent way of working in earlier investigations.

Court was of the opinion that looking at the nature of incidents and the allegations which have been made senior lady police officer should be appointed to supervise the investigation. Considering the material pointed out, the Court directed the investigation of the incidents at village Nehalpur, Nandipara, incident on Dol Purnima noted above as also the incident of rape at English Bazar will be done under the supervision of Smt. Damayanti Sen, IPS presently working as Special Commissioner of Police to Kolkata Police.

Progress of the investigation report to be filed in the next hearing on 20-04-2022.[Sumitra Bhattacharyya (Neogi) v. State of West Bengal, WPA(P) 139 of 2022, decided on 12-04-2022]


Suchita Shukla, Editorial Assistant has reported this brief.

Op EdsOP. ED.

Introduction and scope

Telephone tapping or wiretapping is defined as “the activity of secretly fitting a special device to someone’s phone in order to listen to their phone conversations without being noticed”.[1] In India, only some special authorities like the Government can tap telephones and that too under certain specified conditions as integrity and security of the nation and maintenance of public order and safety.[2] Private individuals have no authority or power to tap phones or private conversations. Passive wiretapping is the authorised and legal wiretapping done by the authorities whereas active wiretapping is illegal which is done by controlling the signal and attracts an imprisonment of 3 years.[3]

Telephone tapping is a violation of the right to privacy and right to freedom of speech and expression the two of which are fundamental rights as guaranteed under the Constitution of India[4]. The Telegraph Act, 1885[5] governs and controls the telephone tapping in India but it seemed not to be effective and enough against the infringement of the rights of people when wireless communications came to the front. The PUCL case then gave guidelines with respect to the protection of right to privacy with respect to the tapping of telephones in India. It laid down “detailed safeguards designed to check arbitrariness in the issuance of telephone tapping orders”.[6]

Scope

The scope is restricted to the Indian scenario regarding the telephone tapping used as an investigation technique. The time-frame for consideration revolves around the time when the judgment of the case was given to the present day, trying to analyse the use and significance of telephone tapping.

Telephone tapping and its uses

Telephone tapping is interchangeable with and additionally implies wiretapping. It initially began in USA in 1890s after the development of phone recorder.[7] Roy Olmstead, a peddler, was sentenced based on proof collected by tapping a telephone situated in his house. He at that point expressed that, the specialists had disregarded his basic rights however the court maintained his conviction, expressing that tapping someone’s telephone is certainly not an actual attack on privacy.[8] Preceding the assault at Pearl Harbor and the resulting entrance of the USA in World War II, the US House of Representatives held hearings on the authenticity of tapping of phone for public safety. Important enactment and legal choices regarding the legitimacy along with lawfulness of wiretapping did occur a very long time before World War II as was seen in Charles Katz v. United States[9], wherein the Supreme Court of USA expressed that wiretapping requires a warrant.[10] All these developments began in the USA but have spread across the world with all the major countries of the world providing safeguards against wiretapping but using the same for public safety under some checks and balances.

With the advancement of technology and the use of the same by criminals to execute the evil plans, it has become necessary for Governments and authorities to track these activities. And for the same purposes, an effective way is to tap the telephone or other communication devices.  Kuldip Singh, J. quoted regarding the authority’s use of telephone tapping:

1. … With the growth of highly sophisticated communication technology, the right to hold telephone conversation, in the privacy of one’s home or office without interference, is increasingly susceptible to abuse. It is no doubt correct that every Government, howsoever democratic, exercises some degree of sub rosa operation as a part of its intelligence outfit but at the same time citizen’s right to privacy has to be protected from being abused by the authorities of the day.[11]

In the cases, wherein there is no direct contact made, telephone tapping acts as an evidence provider to prove a certain crime. For instance, if a drug dealer communicates or makes the deliveries through phone and not by going in the streets, the police if intercepts the calls and finds proof, it will act as an important evidence for these kinds of crimes since no such proof could have been found physically. Crimes like terrorism, trafficking are unsafe and the investigations of the same involve high risk for the persons involved. By using wiretapping, investigation can be done from a distance without making direct contact, thus reducing the risks to the lives of the investigators or police officers. Although Y.P. Singh suggests that “Tapping phones especially for tax evasion and corruption needs to be done only in rarest of rare cases.”[12] Surveillance can be done in an implicit way without making the criminal conscious of being kept under watch. Today, every telephonic service supplier has a place that is a group of servers called mediators so as to tap telephones. The two sorts of intercepting services that are accessible in today’s time are Integrated Services Digital Network (ISDN) and the leased line.[13] In ISDN, an intervention set up captures the call and later communicates it by means of a PRI line to the workplace of a government organisation. Additionally, the Law Enforcement Department can tune in to the telephone on their PRI line and save the call for record.

Depending on the interception laws and policies of the country, government authorities can actively intercept the telephonic communications. This helps in expanding the surveillance net and preventing any unlawful activity. Based on the same reasons and uses, the Indian Home Ministry sought changes to the Telegraph Act so as to widen their scope of surveillance.[14]

Statutes and safeguards regarding telephone tapping in India

The communication devices like telephones and telegraphs have been mentioned in Entry 31 of the Union List[15]. Both, the Central and the State Governments reserve the privilege to intercept telephones under the provisions of the Telegraph Act, 1885[16]. Besides this, under Section 25 of the Act it is provided that action should be taken in case of illegal phone tapping and extracting information.[17] Punishment for such acts is provided under the Act for up to 3 years.[18] At sometimes the need exists wherein the inspecting authority wishes to record the telephone discussions being held by the individual that is under doubt. The specialists should look for consent from the Home Ministry prior to proceeding along with such a demonstration. In the request explicit details and motives must be put forward. Also, the requirement for phone tapping should be presented. At that point the Ministry considers the request and awards consent after assessing the basis and urgency of the request. Every agency provides an approval slip prior to setting a telephone under investigation.[19] With regard to States, the State Home Secretary is the delegated authority to provide sanctions. The phones of lawmakers can not be tapped formally. It must be clearly provided on the slip that the reviewed individual is not a politician.[20]

Other than the Telegraph Act, the other statute that relates to telephone tapping is the Information Technology Rules, 2009[21]. It defines the term interception:

Interception means the acquisition of the contents of any information through the use of means, including an interception device to misuse such information and includes—

  1. monitoring of information by means of a monitoring device;
  2. viewing the contents of any direct or indirect information; and
  3. diversion of any direct or indirect information from its intended destination to any other destination.

If the information retrieved or recorded from a call stays with either the sender or receiver then this will not be considered as an act of interception since interception should involve the dissemination of such information to some other person.

By the 1990’s a great many frauds came up in the country and a number of these were related to what people perceived to be illegal tapping of the telephones. The opposing parties did assert that their telephones had been wiretapped by Government based on the request of the ruling party. Subsequently, it brought about PUCL[22] requesting the Supreme Court to explain the legislation in regard to the tapping activities in India. For the situation, the applicant’s essential dispute stated that adequate technical protections to contain the discretionary control exercised under the provisions given ought to be included in Section 5(2). In this way, despite the fact that Section 7(2)(b) of the Act engages the Government to come up with guidelines accommodating “the precautions to be taken for preventing the improper interception or disclosure of messages”[23] till that time the government did not provide any standards or rules. Furthermore, the NGO likewise affirmed that the amendment introduced to Section 5(2) of the Act was not appropriate because it allowed telephone tapping not only for public safety and integrity of India yet in addition the inciting of offences too was allowed to be tracked by means of telephone tapping.[24]

The guidelines in PUCL case[25] were:

  1. The conditions under which telephone tapping can be done under Section 5(2) were specified—

(i) sovereignty and integrity of India;

(ii) the security of the State;

(iii) friendly relations with foreign States;

(iv) public order; or

(v) for preventing incitement to the commission of an offence.”

2) The Union Home Secretary or State Home Secretary are the only ones to issue a request for tapping.

3) A copy of such an authorised tapping will be forwarded to the Review Committee.

4) The validity of the command sanctioning the telephone tapping will be 2 months.

5) Further, the Government is additionally needed to show that the data looked for is not available via some alternative methods.

6) Additionally, the Court commanded an advancement of a special committee which can survey the legitimacy and legal validity of every tapping activity.

7) Though the choice to make an evaluation framework has been seriously criticised. Legal fraternity excused it to be empowering the individuals that approve tapping activity to survey the personal requests with an assembly of partners acting arbitrarily and secretively so as to abuse the privacy and related rights.26

Although the petitioners contended that so as to protect the right to privacy of citizens, judicial scrutiny should be present and exercised while such authorisation, it was denied by the Court giving the reason that no statute provides for the same and hence, it cannot be followed. As per the procedural protections defined by the Supreme Court inPUCL case27 Government at the Centre initiated a modification to the Telegraph Rules, 1951 by introducing a new provision.[26] These guidelines had a far-reaching impact and now the Information Technology Act, 2000[27] gives extensive power to intercept devices in the field of digital communication without the 2 conditions as provided under the Telegraph Act thus making it easier to intercept and tap data.

The need for regulation and the rights infringed by telephone tapping

Surveillance in any form helps the State in controlling and preventing the crimes which are to cause public chaos. It helps in protecting and maintaining the sovereignty and safety of a nation. On the same lines, India uses means of communication and surveillance on them as a method to ensure public order is maintained. Interception and wiretapping is the most common way of intruding the privacy of an individual which is sanctioned by the State. PUCL case[28] made sure that such intrusion is only done by authorised agencies and that too following the established procedure of law. The guidelines hence provided made sure to specify the procedure to be followed and the authorities which can permit wiretapping among other details. Interception as such becomes problematic because different statutes govern different means of communication. Adding to it, the procedure for authorisation is not safe and creates room for abuse of power without authorisation. The need for regulation and safeguards also arises from the fact that the Government does not provide with accurate information when asked about the number of requests for authorisation for telephone tapping being made by different agencies. The Government denies to provide such information when the RTIs are filed. The RTIs filed were with the intention of just asking for the count of the interceptions authorised or requested about but the Government did not heed to them and refused to provide any such information citing the reason to be Section 8 of the RTI Act[29]. In such a situation where correct information is not dispensed the guidelines issued are not bound to be followed properly. When there is proper flow of information in the public domain then it becomes clear as to what the rules and regulations should be and how they are supposed to be implemented. In CPIO, Intelligence Bureau v. Sanjiv Chaturvedi[30], intelligence agencies have been brought under the purview of RTI in cases wherein it is claimed that human rights have been violated so that proper safeguards can be taken against any type of arbitrary action.

The Supreme Court has held in PUCL case[31] that wiretapping constitutes as a grave invasion to one’s privacy. To establish the base of the existence of right to privacy and infringement of the same by authorities, the Court mentioned Kharak Singh v. State of U.P.[32] stating that Article 21[33] encompassed the “right of an individual to be free from restrictions or encroachments on his person”.[34] This case however dealt with the physical invasion of privacy of a person but in PUCL[35] the scope was expanded to include telephonic conversations. It was further stated that “the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as ‘right to privacy’ ”.[36] It has been contended that the act of telephone tapping violates the fundamental rights under Articles 19[37] and 21. The right to privacy and the right to freedom of speech and expression hold utmost importance in a person’s life and the wiretapping of the telephones infringes them both. Although, these infringements are not considered when the act is permitted due to the process recognised by law. But the power that will be exercised when the right to privacy is violated should have a strong reason for the same. Also, in R.M. Malkani v. State of Maharashtra[38], it was observed that “Article 21 contemplates procedure established by law with regard to deprivation of life or personal liberty. The telephonic conversation of an innocent citizen will be protected by courts against wrongful or high-handed interference by tapping the conversation.”

Conclusion

The threat to privacy exists and has increased in this age of technology and advancement. Agencies other than the State authorised ones have access to data which breaches one’s privacy. Such a sensitive situation requires proper safeguards to be taken and a balance being achieved between the rights of the citizens and the interests of the State. These interests should be of paramount importance like security of the country and preventing the loss of life of people at large if it comes to the infringement of rights of citizens. A strong reason needs to exist for an agency in case the data or information has to be taken through means of wiretapping or interception.  

Wiretapping is much uncoordinated. At one particular time, different agencies monitor the same number hence only increasing the workload than being efficient and quick in their work. This difficulty arises due to the lack of a central database which can provide information as to at a particular time how many phones are being tapped and by which agency. Phone tapping has become a highly dependable work when it comes to security agencies and all the safeguards and rules should be followed to ensure everyone’s safety and non-infringement of rights.

As Justice Rajinder Sachar, former Chief Justice of Delhi High Court, rightly quotes “Civil liberties are far too important to be left to the executive or the Home Secretary. There is every danger of wrong permissions being given out, resulting in indiscriminate tapping.”[39]

It is also argued that a setup like USA should be followed wherein a Judge allows sanctions for phone tapping after considering the merits of the case. By and large, the Supreme Court has made a fair decision and has at least laid the basis for a framework. Any law that tends to be arbitrary can be implemented in a proper manner to overcome the arbitrariness and serve the purpose for which it has been made. However, given the way that Indian laws experience the ill-effects of the issue of non-implementation, the task to justify the law that infringes rights increases. Wiretapping remains an important element to trace the crimes but there needs to be taken certain measures and procedures to be followed properly to ensure it does not violate anyone’s privileges and rights.


*3rd year student, BALLB, Symbiosis Law School, Hyderabad. Author can be reached at  puneetdhanoa13@gmail.com.

[1]Cambridge Advanced Learner’s Dictionary & Thesaurus, 4th Edn. (2013), p. 976.

[2]Telegraph Act, 1885, S. 5(2).

[3]Telegraph Act, 1885, S. 25.

[4]Constitution of India.

[5]Telegraph Act, 1885.

[6]People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301.

[7]Frank A. Rubino, The Debate over Wiretapping in Criminal Investigations,  <https://www.frankrubino.com/legal-articles/the-debate-over-wiretapping-in-criminal-investigations/>.

[8]Federal Grand Jury in Roy Olmstead Bootlegging Case, Seattle, 1926, Museum of History and Industry, <https://digitalcollections.lib.washington.edu/digital/collection/imlsmohai/id/1101>.

[9]1967 SCC OnLine US SC 248 : 19 L Ed 2d 576 : 389 US 347 (1967).

[10]Charles Katz v. United States, 1967 SCC OnLine US SC 248 : 19 L Ed 2d 576 : 389 US 347 (1967).

[11]People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301, 304..

[12]Sandeep Unnithan, The Secret World of Phone Tapping, India Today (20-12-2010) <https://www.indiatoday.in/magazine/cover-story/story/20101220-the-secret-world-of-phone-tapping-745112-2010-12-20>.

[13]Zubin Dash, Do our Wiretapping Laws Adequately Protect the Right to Privacy, Economic and Political Weekly, Vol. 53, Issue 6 (2018).

[14]Sandeep Unnithan, The Secret World of Phone Tapping, India Today (20-12-2010), <https://www.indiatoday.in/magazine/cover-story/story/20101220-the-secret-world-of-phone-tapping-745112-2010-12-20>.

[15]Constitution of India, Sch. 7, Union List, Entry 31.

[16]Telegraph Act, 1885,S. 5.

[17]Telegraph Act, 1885,S. 25.

[18]Telegraph Act, 1885,S. 26.

[19]Zubin Dash, Do our Wiretapping Laws Adequately Protect the Right to Privacy, Economic and Political Weekly, Vol. 53, Issue 6 (2018).

[20]Zubin Dash, Do our Wiretapping Laws Adequately Protect the Right to Privacy, Economic and Political Weekly, Vol. 53, Issue 6 (2018).

[21]Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009.

[22]People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301.

[23]Telegraph Act, 1885,S. 7(2)(b).

[24]Telegraph Act, 1885,S. 5(2).

[25]People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301.

26 Frank A. Rubino, The Debate over Wiretapping in Criminal Investigations, <https://www.frankrubino.com/legal-articles/the-debate-over-wiretapping-in-criminal-investigations/>.

27People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301.

[26]Telegraph Rules, 1951, S.419-A.

[27]Information Technology Act, 2000.

[28]People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301.

[29]Right to Information Act, 2005, S. 8.

[30]2017 SCC OnLine Del 10084.

[31]People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301.

[32]AIR 1963 SC 1295.

[33]Constitution of India, Art. 21.

[34]Kharak Singh v. Union of India, AIR 1963 SC 1295, para 28.

[35]People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301.

[36]People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301, 311, para 18.

[37]Constitution of India, Art. 19.

[38](1973) 1 SCC 471, 479, para 31.

[39] Sandeep Unnithan, The Secret World of Phone Tapping, India Today, (20-12-2010), <https://www.indiatoday.in/magazine/cover-story/story/20101220-the-secret-world-of-phone-tapping-745072-2010-12-09>.

Case BriefsDistrict Court

Court of Session, Ernakulam Division: Shibu Thomas, II Additional Sessions Judge, denied bail to tattoo artist alleged of committing rape under Section 376 of the Penal Code, 1860.

A bail application was filed under Section 439 CrPC in a matter wherein the petitioner was an accused alleged for an offence under Section 376 of the Penal Code, 1860.

The said tattoo artist has been alleged of committing rape with several women.

Prosecution’s Case

The petitioner was the proprietor of a studio named INKFECTED TATTOO, on 21-6-2021, he committed rape on de facto complainant at the tattoo studio, hence accused of the above-stated offence.

Public Prosecutor while opposing the bail application contended that the petitioner was involved in similar other cases and a foreign woman was the informant in one of the crimes.

Analysis and Decision

 Since 6th March, 2022 the petitioner/accused was in judicial custody.

As per the report, the investigation was in a preliminary stage. Though there was a delay of 8 months in filing the complaint, Court held that it was inclined to grant bail considering the nature of the offence and strong similar antecedents of petitioner and stage of the investigation.

Bench expressed that,

Granting of bail to the petitioner at this stage may affect smooth progress of the investigation and possibility of the petitioner influencing the witnesses and interfering with the investigation cannot be ruled out. 

Therefore, in view of the above reasoning, the petition was dismissed. [Sujeesh v. State of Kerala, 2022 SCC OnLine Dis Crt (Ker) 1, decided on 22-3-2022]


Advocates before the Court:

Petitioner/Accused: By Advs. Sri. Geo Paul and Sri. C.R. Pramod

Respondent/Complainant/State: By Public Prosecutor Sri. T.P. Ramesh

Case BriefsSupreme Court

Supreme Court: The bench of Indira Banerjee and JK Maheshwari, JJ has given split verdict on the issue as to whether the Special Court is debarred from taking cognizance of an offence under Section 23 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and obliged to discharge the accused under Section 227 CrPC, only because of want of permission of the jurisdictional Magistrate to the police, to investigate into the offence.

Factual Background

The Court was hearing the appeal is against a judgment by the High Court of Karnataka, upholding an order dated 19th April 2018 passed by the Principal District Judge, Uttar Kannada, Karwar, taking cognizance against the Appellant of offence under Section 23 of POCSO.

On or about 27th October 2017, a news report was published in the Newspaper, Karavali Munjavu, regarding the sexual harassment of a 16 year old girl. On or about 30th October 2017, the victim’s mother lodged a complaint, inter alia, against the appellant i.e. Editor of the said Newspaper for disclosing the identity of the victim under Section 23 of POCSO that deals with the procedure to be followed by the Media while reporting the POCSO related cases.

The Appellant filed an application for discharge under Section 227 of the Cr.P.C. on the purported ground that an offence under Section 23 of POCSO being non-cognizable, the police could not have investigated the offence without obtaining an order of the Magistrate under Section 155(2) of the Cr.P.C. The Trial Court dismissed the application of the Appellant, whereupon the Appellant filed a Criminal Petition in the High Court under Section 482 of the Cr.P.C.

The High Court dismissed the Criminal Petition, holding that the non obstante provision of Section 19 of POCSO overrides the provisions of the Cr.P.C., including Section 155 thereof. The High Court refused to quash the proceedings initiated against the Appellant under Section 23 of POCSO.

Relevant Provision under POCSO Act

  1. Section 23 deals with the procedure to be followed by the Media while reporting the POCSO related cases.
  2. Section 19(5) provides that where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed, is in need of care and protection it shall, after recording reasons in writing, make immediate arrangements to give the child such care and protection including admitting the child into a shelter home or hospital within 24 hours of the report.
  3. Section 19(6) requires the Special Juvenile Police Unit or local police, as the case may be, to report information to the Child Welfare Committee and the Special Court or where no Special Court has been designated to the Court of Sessions without unnecessary delay, within 24 hours from the receipt of information. The report is to include need, if any, of the concerned child for care and protection and steps taken in this regard.
  4. Section 31 of POCSO, provides that the provisions of the Cr.P.C., including provisions as to bail and bonds are to apply to the proceedings before a Special Court, and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting prosecution before a Special Court shall be deemed to be a Public Prosecutor.
  5. Section 33(9) of POCSO confers powers of a Court of Sessions on the Special Court to try offences under POCSO, also has nothing to do with the reporting or investigation of an offence. Subject to the provisions of POCSO, the Special Court is to try an offence under POCSO, as if it were a Court of Sessions “as far as may be”, in accordance with the procedure 17 specified in the Cr.P.C. for trial before a Sessions Court. Neither Section 31 nor Section 33(9) of POCSO makes any reference to investigation.

Relevant provisions of CrPC

  1. Section 4(1) requires all offences under the Penal Code, 1860 to be investigated, inquired into, tried or otherwise dealt with according to the CrPC.
  2. Section 4(2) requires all offences under any other law to be investigated, inquired into, tried or otherwise dealt with according to the provisions of the CrPC, subject to any enactment for the time being in force, regulating the manner and place of investigating, inquiring into, trying or otherwise dealing with offences.
  3. Section 5 categorically states that nothing in the CrPC shall, in the absence of a specific provision to the contrary, affect any special law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force.
  4. As per Section 155(2), for non-cognizable offence, the order is required to be taken from the Magistrate.

Justice Banerjee’s opinion

Banerjee, J refused to accept the argument of the Appellant that the proceedings were vitiated and liable to be quashed or the Appellant was liable to be discharged without trial, only because of want of prior permission of the jurisdictional Magistrate to investigate into the alleged offence.

On a combined reading of Sections 4(1) and (2) with Section 5 of the Cr.P.C., all offences under the IPC are to be investigated into, tried or otherwise dealt with in accordance with the provisions of the Cr.P.C. and all offences under any other law are to be investigated, inquired into, tried or otherwise dealt with, according to the same provisions of the Cr.P.C., subject to any enactment for the time being in force, regulating the manner of investigating, inquiring into, trying or otherwise dealing with such offences. POCSO is a special law for protection of children against sexual abuse.

Applying the well settled principle that legislative intent is to be construed from the words used in the statute, as per their plain meaning, Banerjee. J observed that had Legislature intended that the CrPC should apply to investigation of an offence under Section 23 of POCSO, would specifically have provided so. The expression “investigation” would, as in Section 4(1) or (2) of the CrPC, have expressly been incorporated in Section 31 or Section 33(9) or elsewhere in POCSO.

She explained that the language and tenor of Section 19 of POCSO, that deals with reporting of offence, and sub-sections thereof makes it absolutely clear that the said Section does not exclude offence under Section 23 of POCSO. This is patently clear from the language and tenor of Section 19(1), which reads “…. any person who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed……”. The expression “offence” in Section 19 of POCSO would include all offences under POCSO including offence under Section 23 of POCSO of publication of a news report, disclosing the identity of a child victim of sexual assault.

Banerjee, J was of the opinion that a child against whom offence under Section 23 of POCSO has been committed, by disclosure of her identity, may require special protection, care and even shelter, necessitating expeditious investigation for compliance of sub-sections (5) and (6) of Section 19 of POCSO.

“POCSO not only protects children from sexual offences but also protects the interests of children in general, as victims as well as witnesses. The right of a child to dignity not only requires that the child be protected from offences of sexual assault, sexual harassment and pornography but also requires that the dignity of a child be safeguarded. Disclosure of the identity of a child who is a victim of sexual offences or who is in conflict with the law is in fundamental breach of the right of the child to dignity, the right not to be embarrassed.”

Justice Maheshwari’s Opinion

Under the POSCO Act, it is not clear all the offences under the said Act are cognizable or some are non-cognizable. However, the Court may have to take the assistance from the provisions of CrPC on the said issue.

The offence under Section 23 is non-cognizable and Section 19 or other provisions of POCSO Act do not confer power for investigation except to specify the manner of reporting the offence. However, in absence of having any procedure for investigation under the POCSO Act, either for cognizable or non-cognizable offences, as mandated by sub-section (2) of Section 4 of CrPC, the procedure prescribed in CrPC ought to be followed in the matter of investigation enquiring into and trial. Section 5 of CrPC is a saving clause by which the procedure prescribed in the special enactment will prevail otherwise in absence of the provision and the procedure specified in CrPC may be applicable.

To state that all offences under POCSO Act are cognizable, would not be justified without taking note of the provisions of CrPC. It is true that to decide the cognizability and non-cognizability, the maximum sentence prescribed for the offence would be taken into consideration, but if the sentence prescribed for the offence is less than 3 years then those offences of POCSO Act would be non-cognizable. It is clarified, Section 19 of the POCSO Act overrides the provisions of Cr.P.C. only to the extent of reporting the matters to the police or SJPU and other ancillary points so specified in Section 19.

Therefore, the procedure of Section 155(2) is required to be followed in an offence of POCSO Act under Section 23 which is non-cognizable and the Special Court is required to look into the procedure followed in the investigation. As per Section 155(2), for non-cognizable offence, the order is required to be taken from the Magistrate but in the light of Sections 2(l) and 28 of POCSO Act, the Special Courts are required to be designated to deal with offences under POCSO Act and they have been authorized under Section 33, conferring a power to such Special Courts to take cognizance. Therefore, Maheshwari, J was of the opinion that the word used in Section 155(2) be read as “Special Courts” in place of “Magistrate”, which may take cognizance of any offence under POCSO Act.

Conclusion

In view of the split verdict in the case at hand, the matter will now be placed before a larger bench.

[Gangadhar Narayan Nayak v. State of Karnataka, 2022 SCC OnLine SC 337, decided on 21.03.2022]


For appellant: Senior Advocate Devdutt Kamat

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs Excise and Service Tax Appellate Tribunal: Anil Choudhary (Judicial Member) dismissed applications filed by the Revenue pertaining to rectification of mistakes.

All the appeals had arisen from the common order-in-appeal, whereby the claim of interest on the amount deposited during investigation, and was finally refunded on being successful in appeal, was denied holding that the amount deposited during the investigation, ipso facto, becomes pre-deposit when the assessee carries the dispute before the Appellate Forum.

The Tribunal found that there was no error in the Final Order and the Rectification of Mistake Applications were without any merit.[Hitesh Industries v. Commr. of CGST, 2022 SCC OnLine CESTAT 60, decided on 09-03-2022]


Shri Bipin Garg and Ms J. Kainaat, Advocates for the appellant.

Shri Pradeep Gupta, Authorised Representative for the respondent/Department


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Akil Kureshi, CJ and Rekha Borana, J. dismissed the petition and kept it open for the petitioners to file a fresh public interest petition.

A PIL was filed by the petitioners sustaining serious allegations with respect to mismanagement of respondent 2 Arth Credit Cooperative Society.

The Court observed that in this public interest petition as it stands today, there are no supporting documents or informative evidence, even prima facie sustaining serious allegations made by the petitioners with respect to mismanagement of the respondent 2 Arth Credit Cooperative Society.

The Court further observed that a citizen approaching the Court in a public interest jurisdiction holds a greater duty to make full research and present necessary facts before the Court to cause further investigation.

The Court thus held “we are not inclined to entertain this petition.”[Gajendra Purbia v. Union of India, D.B. Civil Writ Petition (PIL) No. 3069/2022, decided on 02-03-2022]


Appearances:

For Petitioner(s): Mr. Sumit Singhal


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Appellate Tribunal, Mumbai: The Coram of Justice Tarun Agarwala (Presiding Officer) and Justice M.T. Joshi (Judicial Member) while addressing a matter whether a Chartered Accountant could be held guilty by SEBI for lack of due diligence, held that,

Lack of due diligence can only lead to professional negligence which would amount to a misconduct which could be taken up only by ICAI.

Background

An appeal was filed against the order passed by the Whole Time Member of Securities and Exchange Board of India whereby the appellant who was a statutory auditor/chartered accountant had been prohibited from issuing any certificate of audit and had been restrained from rendering any other auditing services to any listed companies and intermediaries for a period of one year.

Factual Matrix

Deccan Chronicle Holdings Limited, its promoters, directors, and Chartered Accountant (appellant) were issued show cause notice after investigation, wherein it was alleged that the company had understated its outstanding loans to the tune of Rs 1339.17 crores in the year 2008-9 and had also wrongly disclosed the difference between the actual and reported outstanding loans for the FYs 2009-10 and 2010-11.

Misleading Financial Information

Further, it was alleged that the company had manipulated its financials and failed to make necessary disclosure and that the promoters of the company wrongly transferred loans on the last day of the FY and reverted it on the first day of the financial year, thus misleading financial information.

In view of the above, show cause notice alleged that the appellant had violated Section 12A(a), (b) and (c) of the Securities and Exchange Board of India Act, 1992 read with Regulation 3(a), (b), (c) and (d) and Regulation 4(1), 4(2)(f), (k) and (r) of the Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003.

WTM’s Conclusion

WTM concluded stating that the company had made wrong misleading or inadequate disclosures to the stock exchange and had understated the outstanding loans and interest and financial changes in the annual returns.

Further, it held that the appellant under Sections 224 and 227 of the Companies Act, 1956 owes an obligation towards the shareholders to report true and correct facts about the financials of the company and audit is caused to report correctly and faithfully under Section 227 of the Companies Act.

Additionally, the WTM held that the appellant overlooked the reporting of the outstanding loans and that he was not diligent and cautious and that it was his obligation to check the details of the outstanding loan from the bank and through other independent sources which he failed to do so and thereby did not adhere to the Auditing Assurance Standard (AAS)  and consequently allowed the fudging of the books of accounts by the company which suggested that the appellant colluded with the other notices.

Analysis, Law and Decision

Tribunal held that the impugned order could not be sustained for the following reasons:

In the Bombay High Court decision of Price Waterhouse Co. v. SEBI, WP No. 5249 of 2010, it was held that while exercising the powers under the SEBI Act, it is not open to SEBI to encroach upon the powers vested with the Institute under Chartered Accountant Act, 1949.

However, in a given case, if there is material against the C.A. to the effect that he was instrumental in preparing false and fabricated accounts in connivance, then SEBI is entitled to pass appropriate orders under Section 11(4) of the SEBI Act in the interest of the investors or securities market and is entitled to take measures as prescribed in the said section.

Further, SAT in its decision of Price Waterhouse Co. v. SEBI, Appeal No. 6 of 2018, found that the scope of the enquiry was only restricted to the charge of professional negligence since the C.A/C.A Firm were not dealing directly in the securities. This Tribunal held that in absence of inducement, fraud was not proved nor there was connivance or collusion by the C.A.s and therefore, the provision of section 12 (A) of SEBI Act and Regulation 3 & 4 of PFUTP Regulations are not applicable.

In the present matter, A.O. found that due diligence was not carried out by the appellant and there was no finding that the appellants were instrumental in preparing false and fabricated accounts or have connived in preparation or falsification of the books of account. Additionally, the Coram found that the appellants had manipulated the books of accounts with knowledge and intention, in the absence of which, there was no deceit or inducement by the appellants.

In the absence of any inducement, the question of fraud committed by the appellants does not arise.

Tribunal found that the appellant as a statutory auditor was not responsible for the preparation and falsification of the books of accounts, the financials of the company and the balance sheet of the company.

Concluding the matter, Coram held that once CA was not found responsible for the preparation of financials of company, merely because he was not cautious will not suggest that he colluded with the promoters and directors of the company.

In view of the above discussion, Tribunal allowed the appeal, and the impugned order did not sustain so far as it concerned the appellant (CA). [Mani Oommen v. SEBI, 2022 SCC OnLine SAT 60, decided on 18-2-2022]


Advocates before the Tribunal:

Mr. Chetan Kapadia, Advocate with Mr. Rahul Sarda, Mr. KRCV Seshachalam, Ms. Sabeena Mahadik, Mr. Aayush Kothari, Mr. Sagar Hate, Advocates i/b. Visesha Law Services for the Appellant.

Mr. Pradeep Sancheti, Senior Advocate with Mr. Abhiraj Arora, Mr. Karthik Narayan, Mr. Harshvardhan Nankani, Mr. Shourya Tanay, Advocates i/b. ELP for the Respondent.

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Akil Kumar, CJ and Sameer Kureshi, J. allowed the writ petition and set aside the proceedings issued by show cause notice and subsequent demands confirmed by OIO. 

The case of the petitioner is that he is a Customs House Agent and the co-petitioners were importers engaged in the import of Glass Chatons at Customs ports at Jaipur. One investigation was conducted by Additional Director, DRI (Zonal) Unit Ahmedabad, in connected matter by DRI, Jaipur who after the investigation demanded custom duty under Section 28 of the Act of 1962 and proposed confiscation of the seized goods and imposition of penalty under Section 124, 112, 114A of the Act, 1962. The show cause notice was issued as back as dated 06.08.2014 and in connected matter in 2019. By way of present petitions, the show cause notice (SCN) issued by officers of Directorate of Revenue Intelligence (DRI) under Sections 28 and 124 of the Customs Act, 1962 (in short, ‘Act’ of 1962), are challenged.

Counsel for petitioner submitted that the DRI Officers are not proper officers and show cause notice issued by them are ab initio void, illegal and lacks jurisdiction.

Counsel for respondents submitted that a number of writ petitions were filed before various High Courts for quashing of show cause notices issued by DRI Officers in which directions have been given to first approach Adjudicating Authority to decide the issue of jurisdiction.

The Court in the judgment titled M/s Canon India Private Ltd. v. Commissioner of Customs, AIR 2021 SC 1699 observed

  1. From a conjoint reading of Sections 2(34) and 28 of the Act, it is manifest that only such a Customs Officer who has been assigned the specific functions of assessment and reassessment of duty in the jurisdictional area where the import concerned has been affected, by either the Board or the Commissioner of Customs, in terms of Section 2(34) of the Act is competent to issue notice under section 28 of the Act. Any other reading of Section 28 would render the provisions of Section 2(34) of the Act otiose inasmuch as the test contemplated under Section 2(34) of the Act is that of specific conferment of such functions.”

The court thus observed that On perusal of judgment referred above and relying on provisions of Section 2(34) which defines “proper officer”, Section 6 which defines “functions and powers of custom officer” and Section 28 which refers to “procedure of demand and recovery by the proper officer” having jurisdiction to issue show cause notice and to carry out adjudication, we hold that the entire proceedings initiated by officers of DRI in as much as by issuance of show cause notice under Section 28/124 of the Customs Act lacks jurisdiction and are without any authority of law because the present show cause notice is not issued by custom officer but by DRI officer who has not been assigned specific function/power under Section 6 to issue show cause notice U/S 28 of the Act of 1962. DRI officer is not Competent Authority to issue show cause notice and adjudicate the same as “proper officer”. The Act, the notification relied upon do not define and bring the DRI officers within four corners of “proper officers” having functions and powers to act under Section 28 of the Act of 1962.

The Court held “The proceedings issued by show cause notice and subsequent demands confirmed by OIO are set aside, as prayed in the writ petitions.”

[Fairdeal Shipping Agency Pvt Ltd v. Joint Commissioner of Customs (Preventive), Jaipur; 2022 SCC OnLine Raj 411; decided on 09-02-2022]


Appearances:

For Petitioner(s): Mr. Arun Goyal

For Respondent(s): Mr. Kinshuk Jain


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Chandra Dhari Singh, J., granted bail while referring to a catena of Supreme Court decisions with regard to the law on bail.

An application under Section 439 of the Code of Criminal Procedure, 1973 was filed seeking regular bail in an FIR registered for the offences punishable under Sections 406/420/120B of the Penal Code, 1860.

Factual Matrix

In 2014, Auto Web approached the complainant at the office of HDFC Bank Limited for the grant of Credit Facilities in the nature of Inventory Funding and Cash Credit Facilities by the complainant. It was represented that Auto Web was the ‘Authorized Dealer’ of Hyundai and engaged in the business of ‘sales’ and ‘service’ of vehicles manufactured by Hyundai since the year 2013.

Complainants processed and sanctioned the credit facilities on the basis of the request and representation made by the director of Auto Web. Consequent thereto, the loan agreement was executed between the complainant and Auto Web, in relation to the credit facilities.

The stocks of the vehicles (inventory) were the primary security of the complainant, in addition to the cross collateral. Accordingly, from time to time, on the request of Directors, existing facilities were modified/enhances/renewed and other facilities were granted on the basis of the documents. In the balance sheets of Auto-Web, it was shown that the company was generating profits.

As per the last enhancement/renewal, the complainant had sanctioned an amount of Rs 15 Crores towards Inventory funding, Rs 1.50 crores as CC Limit and adhoc limits of Rs 3.50 crore to Auto Web duly utilized said limits sanctioned by the complainant.

Based on the request of the accused persons for disbursal of funds, the complainant used to disburse the amounts directly into the account of manufacturer, whereupon the stocks (cars) got released to the dealer, which stock was hypothecated to the complainant.

Further, in terms of the arrangement between the complainant and Auto Web, proceeds from the sale of the inventory (Cars) were to be credited into the inventory funding account of the dealer for the purposes of repayment of the limits utilized by the dealer.

In 2019, the officials of the Bank noted stress in the accounts of Auto Web and certain gaps in the stock audit report.

After a point of time, the directors of Auto Web failed to regularize the accounts and remained evasive and thereafter started avoiding contact with the bank officials.

In 2020, upon reconciling accounts, it was found that Auto Web utilized a major portion of the credit facilities granted by the complainant towards the purchase of 143 vehicles amounting to Rs 11,40,75,861 from Hyundai.

The Bank found that the vehicles available in stocks was much less than the inventory received from the manufacturer, pursuant to the disbursals made by Complainant. Hence, there was a gap of about Rs 11.45 crores which was not accounted for.

The stock of only 34 Vehicles at 2.35 Crores was found available with accused persons and Vehicles amounting to Rs. 11.45 Crores had been found to been fraudulently misappropriated.

Therefore, the vehicles worth more than 11 crores which were purchased from the funds made available by the complainant had been sold by the accused without crediting the sale proceeds into the inventory funding account of the Bank.

It was clear that the vehicles purchased from the funds of the complainant had been illegally sold without crediting the payments to the complainant and the sale proceeds had been criminally misappropriated.

Accused/borrower illegally removed all the hypothecated vehicles and misappropriated an amount of Rs 13,60,72,600.

The petitioner/applicant was arrested on 5-8-2021, therefore the bail application before the Additional Sessions Judge and the same was dismissed.

Analysis, Law and Decision

In the present matter, the wife of the petitioner/applicant filed an affidavit in pursuance of the order of this Court and disclosed the mode of repayment to the financial institutions at his place/address of residence once he was enlarged on bail.

The investigation had been completed, charge sheet had been filed and the petitioner languished in jail since 5-8-2021.

All the incriminating evidences/materials against the Petitioner/Applicant were documentary in nature and had already been seized by the investigating agency. As per the statutory provisions, the maximum sentence for the offence punishable under Section 420 of the IPC was upto seven years.

Supreme Court in Joginder Kumar v. State of U.P., (1994) 4 SCC 260, had dealt with the contours of Article 21 of the Constitution of India with regard to the arrest of an accused to the effect that the power to arrest cannot be exercised in isolation, and that it must have justification for the exercise of such power, as no arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person, without reasonable satisfaction reached after some investigation as to the genuineness and bonafides of a complaint and a reasonable belief qua the person’s complicity and the need to necessitate such arrest.

Further, in Arnab Manoranjan Goswami v. State of Maharashtra, (2021) 2 SCC 427, Supreme Court reiterated the value of the personal liberty enshrined under Article 21 of the Constitution of India. The Supreme Court further emphasized that the basic rule behind bail jurisprudence is “to bail not jail”. The Court went on to observe that it is our earnest hope that our courts will exhibit acute awareness of the need to expand that footprint of liberty and use our approach as a decision-making yardstick for further cases for the grant of bail.

High Court observed that the consequences of pre-trial detention are grave and keeping an under trial in custody would necessarily impact his right to defend himself during the trial in as much as he will be clearly denied the right to a fair trial, which was guaranteed under Article 21 of the Constitution.

Settled Law

The fraudulent and dishonest intention should be present since inception for an offence of Cheating.

In the present case, a non-payment of miniscule amount in comparison to the huge amounts paid over the years had been deliberately given a criminal colour.

Further, it was stated that since the investigation was complete, there was no apprehension of tampering with any documents, influencing witnesses or absconding from the trial. Hence, Court satisfied the triple test laid down by the Supreme Court in P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791.

Bench noted that it was an admitted fact that the evidence to be adduced in the instant case was substantially documentary in nature, which were already in the custody of the Investigation Agency. The petitioner had been languishing in jail for more than five months.

Conclusion

High Court opined that the petitioner should be enlarged on bail.

The Bench held that,

Let the petitioner be released on regular bail pending trial on his furnishing of personal bond in the sum of Rs. 1,00,000/- (Rupees One Lacs only) with two solvent sureties of like amount to the satisfaction of the Trial Court, subject to the further conditions as follows:-

(a) he shall surrender his passport, if any, to the Investigating Officer and shall under no circumstances leave India without prior permission of the Trial Court;

(b) he shall cooperate in the trial and appear before the Trial Court of the case as and when required;

(c) he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case;

(d) he shall provide his mobile number(s) and keep it operational at all times;

(e) he shall drop a PIN on the Google map to ensure that his location is available to the Investigating Officer;

(f) he shall commit no offence whatsoever during the period he is on bail;

(g) In case of change of residential address and/or mobile number, the same shall be intimated to the Investigating Officer/Court concerned by way of an affidavit.

[Vikas Chawla v. State of NCT of Delhi, 2022 SCC OnLine Del 382, decided on 7-2-2022]


Advocates before the Court:

For the petitioner:

Mr Vikas Pahwa, Sr. Advocate with Mr Sumer Singh Boparai, Mr Abhishek Pati, Mr Sidhant Saraswat and Mr Shadman Siddiqui, Advocates

For the Respondent:

Ms Kusum Dhalla, APP for State Mr Tushar Jarwal, Mr Rahul Sateeja, Mr Ambar Bhushan and Mr Anurag Soan, Advocates for BMW Finance/Complainant

Mr Kunal Tandon and Mr Chetan Roy, Advocates for HDFC Bank/ Complainant

Case BriefsSupreme Court

Supreme Court: In a case where deceased had sustained a gun-shot injury with a point of entry and exit, the 3-judge bench of Dr. DY Chandrachud*, AS Bopanna and Vikram Nath, JJ has held that the non-recovery of the weapon of offences or the failure to produce a report by a ballistic expert would not discredit the case of the prosecution which has relied on the eyewitness

The Court relied on the following rulings wherein it was held that examination of a ballistic expert is not an inflexible rule in every case involving use of a lethal weapon and that surrounding circumstances in the prosecution case are sufficient to prove a death caused by a lethal weapon, without a ballistic examination of the recovered weapon.

Gurucharan Singh v. State of Punjab, (1963) 3 SCR 585

“It has, however, been argued that in every case where an accused person is charged with having committed the offence of murder by a lethal weapon, it is the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which, and in the manner in which, they have been alleged to have been caused; and in support of this proposition, reliance has been placed on the decision of this Court in Mohinder Singh v. State [(1950) SCR 821] . In that case, this Court has held that where the prosecution case was that the accused shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the injuries were caused by a gun, and the nature of the injuries was also such that the shots must have been fired by more than one person and not by one person only, and there was no evidence to show that another person also shot, and the oral evidence was such which was not disinterested, the failure to examine an expert would be a serious infirmity in the prosecution case. It would be noticed that these observations were made in a case where the prosecution evidence suffered from serious infirmities and in determining the effect of these observations, it would not be fair or reasonable to forget the facts in respect of which they came to be made. These observations do not purport to lay down an inflexible Rule that in every case where an accused person is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only if an expert is examined. It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed by post-mortem notes is so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential. Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured or the oral evidence can be corroborated by leading the evidence of a ballistic expert. In what cases the examination of a ballistic expert is essential for the proof of the prosecution case, must naturally depend upon the circumstances of each case.

State of Punjab v. Jugraj Singh, (2002) 3 SCC 234

“18. In the instant case the investigating officer has categorically stated that guns seized were not in a working condition and he, in his discretion, found that no purpose would be served by sending the same to the ballistic expert for his opinion. No further question was put to the investigating officer in cross-examination to find out whether despite the guns being defective the fire pin was in order or not. In the presence of convincing evidence of two eyewitnesses and other attending circumstances we do not find that the non-examination of the expert in this case has, in any way, affected the creditworthiness of the version put forth by the eyewitnesses.”

[Gulab v. State of Uttar Pradesh, 2021 SCC OnLine SC 1211, decided on 09.12.2021]


Counsels

For Appellant: Advocate S Mahendran, nominated by the SCLSC

For State: AAG Diwakar with Advocate Ruchira Goel


*Judgment by: Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: Despite a slipshod investigation in a case, the 3-judge bench of NV Ramana, Surya Kant and Hima Kohli*, JJ has upheld the conviction of a man guilty of killing his wife within a few months of the marriage on her failing to satisfy the demands of dowry. The deceased Fulwa Devi had gone missing from her matrimonial home and her body was found on the bank of river Barakar after a week.

What does the law state?

For convicting the accused for an offence punishable under Section 304B IPC, the following pre-requisites must be met:

  1. that the death of a woman must have been caused by burns or bodily injury or occured otherwise than under normal circumstance;
  2. that such a death must have occurred within a period of seven years of her marriage;
  3. that the woman must have been subjected to cruelty or harassment at the hands of her husband, soon before her death; and
  4. that such a cruelty or harassment must have been for or related to any demand for dowry.

Section 304B IPC read in conjunction with Section 113B of the Evidence Act shows that once the prosecution has been able to demonstrate that a woman has been subjected to cruelty or harassment for or in connection with any demand for dowry, soon before her death, the Court shall proceed on a presumption that the persons who have subjected her to cruelty or harassment in connection with the demand for dowry, have caused a dowry death within the meaning of Section 304B IPC. The said presumption is, however, rebuttable and can be dispelled on the accused being able to demonstrate through cogent evidence that all the ingredients of Section 304B IPC have not been satisfied.

Facts, circumstances and investigation – Analysed

  • The Investigating Officer recorded the statements of the witnesses, prepared the inquest report of Fulwa Devi, testified about the two places of occurrence namely, the matrimonial home of the deceased at village Karni and the spot at the bank of river Barakar where the dead body was found, but failed to record the statements of any of the residents of the village that comprised of only twenty-five houses including the statement of the neighbours of the accused;
  • He also did not make any concerted effort to trace the dead body of the deceased. It was only on persistent efforts made by the father, brother and brother-in-law of the deceased, that the dead body was ultimately located after almost a week from the date Fulwa Devi had gone missing from her matrimonial home by which time, the body had got decomposed to a large extent.
  • failure to explain the circumstances under which the deceased had vanished from her matrimonial home.
  • failure to establish an illicit relationship between the deceased and her brother–in-law or that she was living with him and not residing at her matrimonial home.
  • The plea raised on behalf of the accused that the body recovered from the banks of Barakar river was unidentifiable, was also found devoid of merits when the father of the deceased testified that he could recognize the dead body as that of Fulwa Devi, from a part of the face that had remained intact and from the clothes that were found on the body.

Two Hypothesis of the crime – Analysed

No eye witness has been produced who could testify as to how the body of the deceased was found on the banks of river Barakar. Hence, the Court observed the following two hypothesis:

  1. the deceased was done away with within the four walls of her matrimonial home, her dead body was smuggled out and dumped into the river.
  2. the deceased was alive when she was taken to the river-side under some pretext and pushed in, leading to her death by drowning.

If the first assumption is taken to be correct, then surely, some villager would have seen the accused persons carrying the dead body to the river where it was finally dumped. However, the prosecution had not produced any villager who was a witness to the body of the deceased being taken out of the matrimonial home and carried to the river. Therefore, this version would have to be discarded in favour of the second one which is that the deceased was alive, when she was accompanied to the river and then she was forcibly pushed in and could not emerge alive from the watery grave. The latter assumption also gains strength from the post mortem report which records that there were no signs of any ante mortem injury on the body. If the deceased was killed in the house, then the body would certainly have revealed some signs of struggle.

Conclusion

Recovery of the body from the banks of the river clearly indicates that Fulwa Devi had died under abnormal circumstances that could only be explained by her husband and in-laws, as she was residing at her matrimonial home when she suddenly disappeared and no plausible explanation was offered for her disappearance.

Hence, despite the shoddy investigation conducted by the prosecution, the Court was of the view that the circumstances set out in Section 304B of the IPC have been established in the light of the abovementioned facts.

“The circumstances put together, unerringly point to his guilt in extinguishing the life of his wife within a few months of the marriage on her failing to satisfy the demands of dowry.”

Hence, the appellant who is presently on bail, was directed to surrender before the Trial Court/Superintendent of Jail within four weeks to undergo the remaining period of his sentence.

The Court however acquitted Fulwa Devi’s mother-in-law as, from the evidence on record only certain omnibus allegations have been made against her with respect to dowry demands, however, the prosecution was not able to indicate any specific allegations, nor point to any specific evidence or testimony against her. She was, hence, directed to be released forthwith, if not required to be detained in any other case.

[Parvati Devi v. State of Bihar, 2021 SCC OnLine SC 1285, decided on 17.12.2021]


*Judgment by: Justice Hima Kohli

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., expressed that it is settled law that at the stage of framing the charge, the trial court is required to consider whether there are sufficient grounds to proceed against the accused and at that time, trial court is required to consider only police report referred to under Section 173 of the Code and documents sent with.  

Instant application under Section 482 of the Code of Criminal Procedure, 1973 challenged the order of the CBI which declined to direct investigator to produce the documents sought by the applicant (accused).

Factual Background

CBI registered a complaint against the applicant, Deputy Commissioner of Customs and others under Section 120-B of IPC and Section 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act.

After completion of the investigation, charge-sheet was filed against the applicant and seven others. Whereafter, the applicant-accused approached the trial Court with the prayer that the entire material with the investigator which was not made part of the charge sheet, be summoned under Section 91 of the CrPC. Certain documents were sought for production by the applicant.

Application under Section 91 of the CrPC was moved at the stage of framing of charge wherein the applicant pleaded that production of aforesaid documents was necessary for proving the innocence of the applicant and also to assist this Court to decide the charges levelled against him.

Applicants Grounds:

Ground (aa): Documents as are necessary to substantiate his non-involvement and false implication in the present case and hence, he has right to claim copies of the documents as well as request the Court for production of documents as same should be brought before the Hon’ble Court in the interest of justice;

Ground (bb): That “Even at the stage of charge, the Court can consider the documents in favour of the applicant, which are of sterling quality and, therefore, such documents would assist the Court in framing the charge or discharging the applicant (emphasis supplied). Evidently, therefore, production of the documents was sought at the stage of framing charge, either for proving the innocence or for rebutting the charges levelled against him.

Question for Consideration:

Whether the accused has right to seek production of documents at the stage of framing charge, which are in custody of investigating agency, but were not produced along with the report?

Analysis, Law and Decision

Settled Law:

Although at the stage of framing of charge, the defence has no right to invoke Section 91 of the CrPC, yet, at the appropriate stage, the Court is empowered to summon production of such documents, which is not part of the charge-sheet but of sterling quality, which has been withheld by the investigator to ensure fair and impartial trial.

Applicant had sought production of about 23 documents. Except for the statement Custom Officer and Superintendent recorded under Section 161 CrPC, other documents or things were in the nature of reports submitted by the Investigating Officer to Supervisory Officer.

Such report submitted by the Investigating Officer to the Supervisory officer is stated to be ‘confidential’ document and it’s primary purpose is to apprise the Superior Officer and law officers of the CBI the result of the enquiries with a view to assess the merits and de-merits of a case and facilitate the passing of the final orders thereon by the Competent Authority.

Bench stated that, prosecution has rightly declined to produce the documents, which were in the nature of supervisory notes, of which the primary purpose was to apprise the superior officer, the result of investigation/enquiry before , “submitting the Final Report” in the Court.

Applicant sought directions to an investigator, to produce statements of two witnesses recorded by him under Section 161 of the Code of Criminal Procedure, 1973, by invoking Section 91 of the CrPC.

Thus, second question is:

Whether expression “Document or other thing” employed in Section 91 of the CrPC, includes a statement of witnesses recorded under Section 161(3) of the CrPC?

Section 91(1) of CrPC empowers the Court to direct production of any “document or other things”.

As per Section 161 of CrPC, police officer reduces into writing any statement made to him in the course of the investigation and the person whose statement is reduced into writing is not required to sign such document. Statement recorded by the police during the investigation is inadmissible in evidence and its’ only purpose is to contradict witness in the manner provided under Section 145 of the Indian Evidence Act, 1872. As against this, ‘document’ denotes any matter expressed upon any substance by means of letters intended to be used as evidence of that matter.

Documentary Evidence

Expression “Document” or other thing” used under Section 91 of the CrPC excludes statement of witness recorded under Section 161 of the CrPC.

Hence, application moved by the applicants under Section 91 of CrPC seeking directions to the investigator to produce statements of witnesses recorded under Section 161(3) of CrPC was not maintainable.

Expression “hearing his submissions” of the accused cannot mean the opportunity to file material but confined to material produced by the police in this case.

“…averments in application moved under section 91 as well as grounds taken up in the application before this Court clearly indicate and suggest that application was seeking production of documents for its consideration, while framing the charge which is not permissible, as this right, is not acknowledged in the Code.”

In view of the application was disposed of. [Mukesh P. Meena v. CBI, 2021 SCC OnLine Bom 4566, decided on 26-11-2021]


Advocates before the Court:

Mr Asutosh Shukla with Mr Pradosh Tiwari for the Applicant.

Mr K.S. Patil for the Respondent-CBI

Op EdsOP. ED.

The term “cognizance” has not been defined under the Code of Criminal Procedure, 19731 (“the Code”). To quote the Supreme Court in Kishun Singh v. State of Bihar2:

  1. … Even though the expression “take cognizance” is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence.

Arrest, investigation, remand and cognizance in criminal matters

Section 41 of the Code3 empowers police officers to arrest a person without warrant in connection with a cognizable offence. Thereafter the mandate of Section 57 of the Code4 requires the arrestee to be produced before the nearest Magistrate within 24 hours of such arrest. The Magistrate can then authorise his custody under Section 167 of the Code5. The essence of Section 167 is for the Magistrate/court to determine if custodial interrogation of the arrestee is necessary to unearth the truth in a given case.

Section 167 of the Code contemplates detention of accused to custody, empowering a Magistrate to authorise such detention of accused in such custody as he thinks fit for a period not exceeding 15 days in total. If the Magistrate does not have jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.

A Magistrate shall, however, not authorise detention to custody for a total period exceeding:

(a) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(b) sixty days, where the investigation relates to any other offence.

If the investigating agency fails to complete its investigation and file its final report within the prescribed period of ninety or sixty days, an “indefeasible right” of bail accrues in favour of the arrestee. The release on bail on account of default committed by the investigating agency is widely known as default or statutory bail.

Nevertheless, if the investigating agency completes the investigation and files a final report/charge-sheet before expiry of the prescribed period under Section 167 of the Code, the Magistrate is empowered to take cognizance of the report and extend the custody of the arrestee.

In Suresh Kumar Bhikamchand Jain v. State of Maharashtra6 it was settled that Section 167 of the Code operated only at investigation stage i.e. pre-cognizance stage and ceases to operate after completion of investigation. Then comes the cognizance stage wherein the court after perusing the final report and material, can extend the remand of accused to custody under other provisions of law. The Magistrate, as held by the Constitution Bench in Dharam Pal v. State of Haryana7 is to apply his mind to a final report/charge-sheet or challan and proceed with the matter as per the provisions stipulated in the Code. The accused continues to remain in custody unless he is granted bail with regards to the merits of the case. Section 209 of the Code8 authorises the Magistrate to remand an accused to custody while committing a matter to the Court of Sessions, if the matter is triable exclusively by the Court of Sessions whereas Section 309 of the Code9 empowers the Magistrate/Court to remand an accused to custody from time to time, by issuing a warrant. However, Sections 209 and 309 of the Code come into picture only at a post-cognizance stage10. This means that the court can exercise these powers only after taking cognizance of the police report/charge-sheet or challan. There however are times when courts keep final reports pending without taking cognizance and yet proceed to extend the custody of accused. As regards prosecution against Judges and public servants, Section 197 of the Code11 states that no court shall take cognizance of such offences without previous sanction of the competent authority. A similar bar exists in certain special statutes like the Prevention of Corruption Act, 198812 (refer Section 1913). In such cases, if the court fails to take cognizance of the offence after completion of investigation, could further detention of the arrestee be legal?

Analysis

In Nitin Nagpal v. State14, the issue cropped up before the Delhi High Court. The record stated that after 18 days of investigation being completed, the Magistrate took cognizance of the report/charge-sheet. This means that the person was not kept in custody either under Section 167 or under Section 209 or Section 309 of the Code. The Single Judge Bench of the Delhi High Court, taking into account the relevant provisions of the Code, agreed with the petitioner’s contentions that it was impermissible for the Magistrate to keep the report pending for 18 days. The custody of the petitioner was therefore termed “illegal”. However, as the Magistrate had taken cognizance of the report albeit after 18 days, the High Court denied releasing the petitioner from jail. It was observed:

  1. Under these circumstances, although I am in agreement with the learned counsel for the petitioner that as on the date of the application for bail made on 4-10-2005 the petitioner’s custody was illegal and he was liable to be released, I am unable to allow the present application for bail underSection 167(2) of the Code for the reason that cognizance has since been taken and presently the petitioner is in judicial custody under a valid order or remand. This application is, accordingly, dismissed.15

In Kapil Wadhawan v. CBI16, the Bombay High Court also had the occasion to deal with the issue. It was argued by the Senior Counsel for the petitioner that after completion of investigation, the report was not filed by producing it before the Special Judge but it was only presented in the Department of the Court. It was therefore contented that the accused deserved to be released on default bail. This contention, however, was rejected by the Single Judge Bench of the High Court observing that the Code did not provide that the report had to be specifically presented before the Magistrate and not Registry.

In Suresh Kumar Bhikamchand Jain17, the Full Bench held that once the final report was filed by the investigating agency, Section 167(2) of the Code ceased to apply, irrespective of whether the Magistrate had taken cognizance of the report or not. Reliance was placed on the Constitution Bench judgment of Sanjay Dutt v. State (2)18\which had observed that once the report was filed, bail could only be sought on merits of the matter and not on account of default of investigation.

While the ratio rendered in Suresh Kumar Bhikamchand Jain decision19 may appear to be correct at first blush, it would be advantageous to refer to Sanjay Dutt judgment20 wherein the five-Judge Bench also observed that the custody of the accused after the challan (charge-sheet) is filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure, which we have seen above to be Sections 209 and 309 of the Code. In cases where the Magistrate or court fails to take cognizance of the final report after completion of investigation is deemed to be a pre-cognizance stage. It is therefore impermissible for the court to extend the custody of accused in such circumstances for two reasons:

  1. remand to custody under Section 167 ceases to apply once investigation is completed; and
  2. custody under Sections 209 and 309 operates only at a post-cognizance stage.

Considering that “custody” in such situations is not governed by any legal provision, it will suffice to say that both, the remand order as well as custody of the accused would be illegal.

Conclusion

It is fairly settled that trial courts have to follow the procedure of law which is provided21 under the Code or statute. They do not have any inherent powers which lie exclusively22with the High Courts.

Based on the above analysis, is it manifest that extension of custody by the court after completion of investigation, without taking cognizance of the final report/charge-sheet renders the custody of an arrestee illegal. An extension of custody under no legal provision is not only impermissible but could infringe a valuable fundamental right. It may be profitable to quote a line authored by  G.B. Pattnaik, J. in Uday Mohanlal Acharya v. State of Maharashtra23:

“Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution of India.”

However, as there is no legal provision in regard to this subject, it would suffice to say that the subject-matter falls under “grey areas” of Article 21 of the Constitution. It is therefore necessary for the authorities concerned to address this issue and take a positive step in this regard.


*Advocate, Bombay High Court.

1 Code of Criminal Procedure, 1973.

2(1993) 2 SCC 16, 23.

3 Section 57 CrPC. http://www.scconline.com/DocumentLink/hCZT8v3u.

4http://www.scconline.com/DocumentLink/0oDm9d53.

5http://www.scconline.com/DocumentLink/zXLseNDD.

6(2013) 3 SCC 77.

7(2014) 3 SCC 306.

8http://www.scconline.com/DocumentLink/7t43wBu8.

9http://www.scconline.com/DocumentLink/4biCv82u.

10Dinesh Dalmia v. CBI, (2007) 8 SCC 770 and Nazma Khatun v. State of West Bengal, 2019 SCC OnLine Cal    9102.

11http://www.scconline.com/DocumentLink/47bUoZz4.

12http://www.scconline.com/DocumentLink/zo935L02.

13http://www.scconline.com/DocumentLink/kvZ11hFM.

142006 SCC OnLine Del 704.

15Nitin Nagpal v. State, 2006 SCC OnLine Del 704.

16 2020 SCC OnLine Bom 11655.

17(2013) 3 SCC 77.

18(1994) 5 SCC 410.

19(2013) 3 SCC 77.

20(1994) 5 SCC 410.

21Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338.

22 S. 482 CrPC.

23(2001) 5 SCC 453.