Case BriefsTribunals/Commissions/Regulatory Bodies

Central Bureau of Investigation, CBI, Ghaziabad- Shivank Singh, Special Judicial Magistrate (CBI), while rejecting the closure report of the CBI, accepted the protest petition and directed for further investigation in Pravin Chanam murder case. The Court while criticising the shoddy investigation stated,

“…it may be noted that there are many lapses on the part of UP Police which has hauled this case with open ends. This court is in deep pain to note that due to such lapses, the parents and family of the deceased did not even get a chance to see the dead body of the deceased or to perform the last rites of their late son”.

In the pertinent matter, it was alleged in the FIR that Pravish Chanam (deceased) went missing from a concert of an international music band ‘Chain Smokers’, Greater Noida on 08-09-2017, for which a missing complaint was lodged on 09-09-2017. The dead body of the deceased was found and cremated on 13-09-17. It was further alleged that ‘despite desperate pursuance’, the family came to know about the death only after the cremation of his body. The family thus claimed negligence on the part of the police/local authorities and suspected criminal intent with the possibility of organ trafficking, after the post mortem report mentioned a number of injuries. Moreover, it was further submitted that the brother only got to know about the deceased on 14-07-2017, whereas the FIR was lodged on 09-09-2017 itself. Also, it was observed that there was a ‘failure in transmission of information’ regarding the missing report of the deceased from the Police Station to the control room, which could have disseminated the information further.

Interestingly, Dr. G. Khan, Joint Director, FSL, Lucknow had also stated that the post mortem report was not up to the mark, which got later corroborated from the Forensic department of AIIMS, New Delhi.

The CBI mentioned in the closure report that since the death appeared as an accident without any criminal intent, further ruling out the possibility of criminal conspiracy, deserves a closure report to be filed. Subsequently, a protest petition was filed by the family.

The Court took note of several facts, which appeared contrary to each other and while giving due weightage to the most natural witnesses, stated,

“if the most natural witnesses, infront of whom the deceased were on his death bed and was taken to hospital by police have stated there was only one bandage on right leg and one one right arm. It is hard to believe that the injuries on face and forehead, and other injury of around 47 cms on left thigh of the deceased mentioned in post mortem report were not visible to them. Investigation agencies have failed to put forth this point that as to when and how those injuries were made when all of such independent and natural witnesses have stated about the injuries which do not fall in line with the injuries mentioned in Post Mortem Report”.

The Court after considering the statements of the witnesses, evidences, CCTV footages, Post Mortem Report, raised questions on the unavailability of crucial witnesses in the investigation, who could have played a pivotal role. And found it hard to believe that the friends who accompanied the deceased to the concert, who even submitted that they waited for the deceased at the venue, did not meet the Doctor with the ambulance at the same venue.

Therefore, while lambasting the UP Police, the Court exclaimed,

“Keeping in view the abovesaid observations, it can be said that there is something more than what is being portrayed through sketched illustrations. The intention to outwit and hoodwink the court with the almost deluded closure report thus become latently apparent. Thus, in considered view of this court, further investigation is required to be done. Accordingly, the protest petition is allowed, closure report filed by CBI in RC 5 (S)/2019/CBI/SCB/ Lucknow is hereby rejected. CBI is directed to further investigate the case. And said, The shoddy investigation done by UP Police in the present case with sinister potential with regard to human life deserves strong disapproval by this court. Such manner shown by the police strikes a blow at rule of law. Justice V.R. Krishna Iyer had very aptly said, ‘Who will police the Police?’”.

[Phanjoubam Linthoingambi v. C.B.I., RC 5 (S)/2019/CBI/SCB/ Lucknow, decided on 13-10-2021]


Agatha Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Punjab and Haryana High Court: Arun Kumar Tyagi, J., while addressing bail application of accused in a case pertaining to Honour Killing, stated it to be a,

“Glaring example how the directions given by Supreme Court are flouted, how the necessity of protection to the couple marrying against the wishes of their family members is ignored.”

The brief facts of the case were that the deceased-Dharambir married to one Sunita against her family’s wish. Pursuant to which the couple were abducted and subsequently, the dead body of Dharambir was recovered from Sidhmukh Canal after two days. Investigation revealed the same two be the outcome of honour killing by the family members of Sunita.

Noticing that the case involved allegations of honour killing of Dharambir by persons whose honour was allegedly subjected to disgrace by the deceased by performing marriage with their relative Sunita Rani, the Bench referred to the decision of Supreme Court in Lata Singh v. State of U.P., (2006) 5 SCC 475, wherein the Supreme Court had directed the administration/police authorities throughout the country to “see to it that if any boy or girl who is a major undergoes inter-caste or interreligious marriage with a woman or man who is a major, the couple are not harassed by anyone nor subjected to threats or acts of violence, and anyone who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.” Again in Bhagwan Dass v. State (NCT) of Delhi, (2011)6 SCC 396, the Supreme Court had held,

“In our opinion honour killings, for whatever reason, come within the category of rarest of rare cases deserving death punishment. It is time to stamp out these barbaric, feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous, uncivilized behaviour. All persons who are planning to perpetrate ‘honour’ killings should know that the gallows await them.”

 Similar views were held by the Punjab and Haryana High Court itself in Civil Writ Petition No.6717 of 2009 titled as ‘Asha and another Vs. State of Haryana, 2012 SCC OnLine P&H 12746

Adverting to the disturbing features of the case and adumbrating upon the directions required to be issued for preventing abuse of process and securing ends of justice, the Bench held that since the police had knowledge regarding marriage of Sunita with Dharambir as they had filed a protection petition which was later withdrawn by them, the police was expected to take immediate steps for their rescue on receipt of information regarding their abduction. However, even though Sunita had named the persons with whom her husband Dharambir was last seen, yet no raid had been conducted to arrest the persons named or to join them in investigation for ascertaining the whereabouts of Dharambir. The Bench expressed,

“The present case is a glaring example how…the police tries to understate the offences, delay the investigation, shield the accused by its inaction and still claim that there was no laxity or delay in investigation of the case by it and how the higher police officers, who do not even know that the case falls in the category of honour killing and they are required to follow the directions given by the Supreme Court, look the other way round and ignore the deficiencies surfacing during investigation with almost culpable failure to appropriately supervise/monitor the investigation and take appropriate remedial action to discharge their statutory obligations.”  

Accordingly, the Court directed the Director-General of Police, Haryana to conduct an enquiry into the matter and take appropriate departmental action against the defaulting Police officers/officials.

In the backdrop of above, noticing flagrant violation of the directions issued by the Supreme Court and this Court, delay or laxity in proper investigation and collection of evidence available and delay in conclusion of trial and for preventing abuse of process and securing ends of justice and, the Bench issued directions as under:

Directions to State Governments

  1. State government (Punjab and Haryana) and U.T. Chandigarh Administration were directed to appoint Committees consisting of Home Secretary, Finance Secretary, Additional Director General of Police, Legal Remembrancer and Member Secretary of the State Legal Services Authorities, Punjab, Haryana and U.T. Chandigarh at the State level within one month to examine issues of compliance with the directions issued by the Supreme Court and this Court and submit their reports with their recommendations within three months.
  2. Governments were directed to consider recommendations so made and take policy based action for implementing them.
  3. The Committee was directed to periodically monitor the issue of compliance with such directions in the States.

Directions to the police

 The Director Generals of Police, Punjab, Haryana and U.T. Chandigarh were directed to

  • create a Special Cell in each Districts to collect and maintain information and prepare the database in respect of couples who approached the Courts for protection and call for reports regarding assessment of threat perception to them and take appropriate action/issue necessary instructions, and
  • set up 24 hour helpline or enable any of the helplines already set up to receive and register request for protection and to coordinate with the concerned police officers/officials for providing necessary assistance/advice/protection to such couples.

The Director Generals of Police were also directed to issue instructions to the Commissioners of Police/Senior Superintendents of Police/ Superintendents of Police for ensuring that,

  • in case of reporting of any violence against inter caste or inter religion marriage or honour killing, FIR is immediately registered and upon registration of FIR, intimation is simultaneously given to the concerned Deputy Superintendent of Police who shall ensure that effective investigation is done and taken to its logical end within 60/90 days.
  • Immediate steps are taken to provide security to the couple/family and, if necessary, to remove them to a safe house keeping in mind their safety and threat perception.
  • Any failure by any police officer/official to comply with the aforesaid directions be considered as an act of misconduct for which departmental action be taken under the service rules.

 Directions for expeditious trial

  • The subordinate Courts were directed to ensure that cases of Honour Killing are assigned to the designated Court/Fast Track Court/one jurisdictional courts to ensure expeditious disposal within the period of six months. The direction was said to apply on pending cases as well with modification of applicability from the date of receipt of a copy of this order.
  • In case of non-appearance of any of the witnesses, the concerned Court shall take appropriate action against the concerned witness absenting without any lawful excuse under Section 174 of Penal Code, 1860 or under Section 350 of the CrPC against him.
  • In cases where the trial is not concluded within the period of six months, the concerned Court shall submit the progress report to the High Court seeking extension of time specifically mentioning the period within which the trial is likely to be concluded.

 Directions to the State Legal Services Authorities:-

The State Legal Services Authorities, Punjab, Haryana and U.T. Chandigarh were directed:

  • to prepare a scheme for providing legal aid to couples seeking protection and also legal aid to the complainant for representing him in cases of violence against inter caste/inter religion marriage and honour killings and properly presenting the case before the trial Court for award of compensation to the victims of violence against inter caste/inter religion marriages and dependents of victims of honour killings against accused in the eventuality of their conviction;
  • to further strengthen through para legal volunteers, Anganwadi Workers, National Social Service Volunteers, Saksham Yuva, Students of Law Colleges and School/College Legal Literacy Clubs their public awareness programmes against the social evils of violence against inter caste/inter religion marriages and honour killing; and
  • to take appropriate steps for award of appropriate interim/final compensation to the victims of inter caste/inter religion marriage and dependants/legal heirs of victims of honour killing under the Victim Compensation Scheme including the steps of issuance of appropriate directions by this Court, if so required.

Hence, Haryana State Legal Services Authority was also directed to take appropriate steps for award of compensation to legal heirs of Dharambir within three months. The accused were granted regular bail on the ground of parity as the co-accused had been granted bail, and the trial was likely to take time due to number of prosecution witnesses to be examined and due to restrictions imposed to prevent spread of infection of Covid-19. [Ravi Kumar v. State of Haryana, CRM-M-23537-2020, decided on 31-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioners: Advocate Aditya Sanghi, Advocate Vikas Bishnoi,

For State of Haryana: Deepak Sabharwal, Addl. A.G., Haryana

For State of Punjab: P.S. Walia, Asstt. A.G., Punjab

For U.T. of Chandigarh: Amit Kumar Goyal, Addl. Public Prosecutor

Case BriefsHigh Courts

Tripura High Court: S.G. Chattopadhyay, J., rejected an application filed for seeking pre-arrest bail whereby the petitioner was apprehending arrest registered under Sections 353,333,307 and 384 read with Section 34 IPC.

In the FIR dated 12-08-2021 informant alleged that he was going to his office for performing duty. Accused along with his associates stood on his way and attacked him with an iron rod. The accused gave several blows on his forehead with the said iron rod. Besides physically assaulting him, accused also destroyed his official papers and robbed him of a sum of Rs 7000/-.

Counsel for the applicant submitted that it would emerge from the injury report that the informant received simple injury. Counsel, therefore, submitted that the allegations of the informant that the accused gave repeated blows with an iron rod on his fore head was entirely false because had it been so, he would have received grievous injuries.

Counsel for the respondent submitted that the accused attacked the informant deliberately with deadly weapon when he was in the discharge of his official duty. He further submitted that the informant and the neighbouring people who witnessed the occurrence had consistently supported the allegations. It was contended that arrest and detention of the accused was necessary to ascertain the motive of the crime and book his associates because the FIR itself would show that the accused was being accompanied by his associates while committing the said offence.

The Court noted that from the injury report of the informant that after the alleged assault, he was treated in Gomati District hospital where doctor found swelling injuries on his neck, fore arm and other parts of his body and cut injuries were also found on his forehead and left elbow which supports the allegation that blows were inflicted by the accused on those parts of his body.

The Court was of the view that allegations against the accused were serious and sufficient incriminating materials supporting those allegations were available on record. Pre arrest bail of the accused at this stage is likely to impair a fair investigation.

The Court rejecting the application held that it would not be appropriate to grant pre-arrest bail to the accused.[Pran Krishna Das v. State of Tripura, 2021 SCC OnLine Tri 468, decided on 15-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: While addressing a matter of custodial violence in Tihar Jail, Mukta Gupta, J., stated that:

Walls of prison, howsoever high they may be, the foundation of a prison is laid on the Rule of Law ensuring the rights to its inmates enshrined in the Constitution of India.

Present matter was filed by the mother, sister and brother of Ankit Gujjar who lost his life to custodial violence in Tihar Jail.

Background

Ankit Gujjar, an under-trial prisoner was beaten brutally by the officials of Tihar Jail and despite repeated PCR calls and messages neither was any effort made to save Ankit nor complaint lodged nor FIR registered, nor any evidence collected. Rather a counter-affidavit was registered on the complaint of Jail Officials against Ankit.

Petitioners submitted that the deceased was long being harassed by the officials of Tihar Jail as he was unable to meet the regularly increasing demands of money made by them.

Grievance of the petitioners was that despite the fact that from the first PCR call itself the petitioners family was stating that Ankit was beaten because he failed to comply with the demands of money of the Deputy Superintendent Narender Meena and in this relation they have also provided the numbers to which the amounts were transferred, however, the entire investigation as was evident from the proceedings noted in the FIR as also the status report filed was aimed to show that since there was recovery of a mobile phone, charger and knife from the cell of the deceased, he was being transferred and when he refused to be transferred a scuffle took place, ignoring the genesis of the occurrence that there was demand of money from Narender Meena which was not fulfilled due to which Ankit was mercilessly beaten.

Serious Offence

High Court stated that in case the allegations of the petitioners are correct, it is a very serious offence that requires in-depth investigation to unearth the manner in which alleged extortion was carried out in the prison.

Bench directed for that the investigation of case under Sections 302/323/341/34 IPC be transferred to CBI. Further, a status reports to be filed by the SP concerned.

Proper Inquiry on whether medical treatment was provided to Ankit or not

An investigation not only as to who all committed the offence of brutally beating the deceased Ankit resulting in his death has to be carried out, but the role of jail doctors in not providing proper treatment at the right time is also required to be ascertained by a proper inquiry.

“…necessary rules and regulations so that the police is not denied entry in the jail to conduct an enquiry/investigation into the commission of a cognizable offence are also required to be made.”

 Further, the Court added that the present matter calls for immediate remedial actions by the State and Director General, Prison so that unscrupulous officers at the Jail do not take advantage of the knowledge of the non-working of the CCTVs so that they can get away by doing any illegal act/offences.

“A status report will be filed by the Director General( Prisons) indicating the measures taken to streamline the system as regards the CCTV cameras at the Jail and when the same are not working what alternative measures can be taken in the meantime, accountability of the Jail officers and Jail doctors and the mechanism by which immediate entry is provided to the police to the Jail on receipt of an information of a cognizable offence and the remedial steps taken.”

Petition to be listed on 28-10-2021. [Geeta v. State, 2021 SCC OnLine Del 4297, decided on 8-09-2021]


Advocates before the Court:

For the petitioners: Mehmood Pracha, Advocate with Shariq Nisar, Sanawar Choudhary, Yashovardhan Ojha and Jatin Bhatt, Advocates.

For the respondents: R.S. Kundu, Additional Standing Counsel for State/Respondent 1 and with Inspector Jeet Ram, P.S. Hari Nagar.

Anil Soni, CGSC for Union of India/Respondent 3.

Rajesh Kumar, Special P.P. for CBI/Respondent 4

Case BriefsHigh Courts

Karnataka High Court: M. Nagaprasanna J. allowed the criminal petition and quashed the impugned order dated 30-07-2016 passed by Additional Civil Judge, Udupi.

The facts of the case are such the wife of respondent 2/complainant borrowed finance from the Karnataka State Finance Corporation (‘the Corporation’) for establishing Sri Durga Printers and Sri Durga Printers Conventional Hall but failed to pay the loan amount on time pursuant to which the property of respondent 2 was brought to sale by way of public auction. The petitioner became the highest bidder of the property and the property was directed to be handed over to him when the complainant made objections to the auction on the ground that the property was worth more than Rs 55/- lakhs had been sold at Rs 29/- lakhs by the Corporation. Thereafter, the complainant registered an FIR against the petitioner alleging that the petitioner had threatened him with life to not interfere with the auction proceedings. Based on the complaint for the alleging offence punishable under Section 506 of the Penal Code, 1860 i.e. IPC, investigation was conducted and ‘B’ report was filed. The petitioner filed a protest petition against acceptance of ‘B’ report under Section 200 of Criminal Procedure Code i.e. Cr. PC. The Magistrate recorded the sworn statement of the complainant and on perusal of the report, directed registration of criminal case against the petitioner for offence punishable under Section 506 of the IPC and summons issued. It is at this stage, the petitioner approached this Court in the subject criminal petition.

Counsel for petitioner Mr K. N. Nitish submitted that the entire allegation against the petitioner would not make out an offence punishable under Section 506 IPC, the petitioner is innocent of the property that was put to auction and because the petitioner purchased the property belonging to the complainant, the complainant to harm the petitioner has registered the criminal case. It was also submitted that the Magistrate while rejecting ‘B’ report and directing registration of the criminal case, did not apply his mind with regard to the offence alleged or the ‘B’ report and has mechanically ordered registration of the criminal case.

Counsel for respondent Ms B.G. Namitha Mahesh submitted that since the Police have conducted investigation and the Court has not accepted the ‘B’ report, it is a matter for trial and the Magistrate at this stage need not apply his mind as everything would be at large in the trial. The petitioner can as well prove his innocence in the trial Court and this Court at this stage should not interfere or interject the criminal trial.

The Court observed that Section 503 IPC, which defines ‘criminal intimidation’ would direct that whoever threatens another person with any injury to his person, reputation or property by an act, he is not legally bound to do and executes certain threats, commits criminal intimidation. Therefore, the intention of the petitioner ought to have been to do any injury to the complainant, his reputation or property. If the complaint is seen qua Section 506 of the IPC, it does not link any action of the petitioner to Section 503 of the IPC, for an offence punishable under Section 506 of the IPC.

The Court further observed that as narrated in the complaint, the property of the complainant was sold by the Corporation for a very less price and the loan was adjusted to the auction money. It is only because the petitioner was the auction purchaser of the property, though, through legal means, the complaint is registered by the complainant. Therefore, there cannot be a better case of giving a criminal colour to a legal act of the Corporation.

The Court relied on judgment Chandrapal Singh v. Maharaj Singh, (1982) 1 SCC 466 wherein it was observed

……a tendency to perjure is very much on the increase and unless by firm action courts do not put their foot down heavily upon such persons the whole judicial process would come to ridicule. We see some force in the submission but it is equally true that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court. Complainant herein is an Advocate. He lost in both courts in the rent control proceedings and has now rushed to the criminal court. This itself speaks volumes. Add to this the fact that another suit between the parties was pending from 1975. The conclusion is inescapable that invoking the jurisdiction of the criminal court in this background is an abuse of the process of law and the High Court rather glossed over this important fact while declining to exercise its power under Section 482, Cr.P.C.”

The Court further observed that merely because a complainant files a protest petition and gives a statement with regard to his protest petition, the Magistrate ought not be swayed away by such protest petition. It is incumbent upon the learned Magistrate to consider ‘B’ report, protest petition and the evidence on record and record his finding as to why he rejects the ‘B’ report and accepts the protest petition. Application of judicious mind by the learned Magistrate while setting the criminal trial in motion, in cases particularly where protest petition is filed against the ‘B’ report by the complainant, becomes sine qua non, failing which, the order taking cognizance notwithstanding the ‘B’ report, becomes a routine exercise. Reasons to be recorded in such circumstances need not be elaborate but must bear application of mind.

The Court thus held The registration of FIR could not have been done by the Police without at the outset referring the matter to the learned Magistrate. This is yet another infirmity in the entire proceedings. Therefore, on the aforesaid reasons with regard to the application of mind on the part of the learned Magistrate and registration of FIR being violative of Section 155 of the Cr.P.C. the entire proceedings stand vitiated.”

[Nagaraj Rao v. State, Criminal Petition No. 8922 of 2017, decided on 17-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court: Ali Mohammad Magrey, J., held that FIR under Section 482 of CrPC cannot be quashed at the threshold stage. The Bench stated,

“It is not proper to scuttle away the investigation at its thresh-hold stage, if FIR discloses the commission of offences; High Court should not interfere with the investigation which would amount to stalling the investigation and jurisdiction of statutory authorities to exercise powers in accordance with the provisions of criminal Code.”

 The instant petition was filed assail the impugned FIR under Section 5(1)(e) read with 5(2) of J&K Prevention of Corruption Act 2006 read with Section 168 Ranbir Penal Code and to seek directions commanding the respondents not to cause any kind of interference into the business activities as well as the properties of the petitioner in any manner.

The Petitioner claimed to have resigned from the post of Junior Assistant in the Rural Development Department in 2017, which stated to have been accepted by the respondents on 15-01-2018 and thereafter he was doing his business and trading, paying his regular income taxes, but while doing so, he was stated to be implicated in corrupt activities stating that he had indulged in business activities while in active Government Service and, had, therefore, accumulate disproportionate assets beyond his known source of income in the shape of moveable/immoveable properties on his own name.

The petitioner challenged the FIR and subsequent investigation on the grounds that the very context/reading of the FIR did not disclose the commission of offence under Section 5 (1) (e) read with 5 (2) of J&K Prevention of Corruption Act 2006 read with Section 168 RPC as the language used in the FIR did not meet the ingredients for commission of aforesa0id offences. The petitioner submitted that the property mentioned in the FIR did not belong to him and was owned by different entities. Calling the FIR a misconduct on the first count, the petitioner contended that he was not a public servant and had retired three years ago from the Government employment and was not indulged in any business activities during his service.

Whether the FIR containing allegations which set the police in motion, can be quashed at the threshold stage?

Answering the question in negative, the Bench stated that the remedy under Section 482 CrPC can be invoked into service only in the following circumstances:

  1. to pass orders in order to give effect to an order passed under CrPC
  2. to prevent abuse of process of Court
  3. to secure the ends of justice: and
  4. to prevent mis-carriage of justice

Keeping in view the allegations contained in the FIR, the Bench opined that it could by no stretch of imagination be said that the case of petitioner fell within the ambit/contours of section 482 CrPC. The Supreme Court in catena of decisions had discussed the scope of Section 561-A CrPC corresponding to Section 482 CrPC of Central Code and had laid down the following tests:

  1. “Where the allegations made in the first information report or the complaint even if are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
  2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
  3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
  4. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of Magistrate as contemplated under Section 155(2) of the Code.
  5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
  6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party:
  7. Where a criminal proceeding is manifestly attended with malafide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

 Applying the tests laid down above, the Bench stated that the entire matter was at its infancy stage and did not fall within the four corners of the tests laid down. The Bench stated,

 “This Court has only to ascertain whether the allegations made in the FIR do disclose or do not disclose the commission of offences, if it does, then it cannot be quashed at its thresh-hold stage.”

 In Som Mittal v. State of Karnataka, 2008 AIR SCW 1003, the Supreme Court had held that,

“It has been consistently held that the power under Section 482 must be exercised sparingly with circumspection and in rarest of rare cases. Exercise of inherent power under section 482 of the CrPC is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal.” 

While keeping in view the scope of section 482 CrPC the Court should refrain from making prima facie decision at interlocutory stage when entire facts of the case are incomplete, hazy and more so, when material evidence is yet to be collected and issues involved could not be seen in their true perspective.

In the backdrop of above, the Bench held that prima facie it appeared that the allegations contained in the FIR relate to the offences which were cognizable and non-cognizable and hence, warrant investigation. Accordingly, the petition was dismissed. [Mohabat Ali Khan v. UT of JK, 2021 SCC OnLine J&K 595, decided on 20-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Sr. Advocate Mohsin Qadri with Advocate Mohammad Tahseen

For UT of J&K: Sr. D.A.G. B. A. Dar and Inspector Irfan Ul Hassan (IO) Anti-Corruption Bureau (in person)

Case BriefsSupreme Court

Supreme Court: A Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ. has held that if the Investigating Officer does not believe that the accused will abscond or disobey summons, he/she is not required to be produced in custody. While remarking that if arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person, the Supreme Court observed:

“The word ‘custody’ appearing in Section 170 CrPC does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the Investigating Officer before the court while filing the chargesheet.”

Facts and Appeal

The appellant was sought to be roped in an FIR which was registered seven years ago. The appellant was a supplier of stones to U.P. Rajya Nirman Ltd., and was booked under Section 409 (Criminal breach of trust) and Section 120-B (Punishment for criminal conspiracy) of the Penal Code, 1860. The appellant had already joined the investigation and the chargesheet was ready to be filed. An arrest memo was issued against him. The trial court took a view that unless the person is taken into custody, the chargesheet will not be taken on record in view of Section 170 (Cases to be sent to Magistrate, when evidence is sufficient) of the Criminal Procedure Code.

The appellant had filed an anticipatory bail application before the Allahabad High Court, which was rejected. Aggrieved, the appellant approached the Supreme Court.

Discussion and Observations

The short issue before the Court was whether the anticipatory bail application of the appellant ought to have been allowed.

The Supreme Court gave its imprimatur to judicial opinion in several decisions of the Delhi High Court and Gujarat High Court where it had been observed on consideration of Section 170 CrPC that it does not impose an obligation on the officer-in-charge to arrest each and every accused at the time of filing of the chargesheet.

The Court noted that it had in fact come across cases where the accused cooperated with the investigation throughout and yet on the chargesheet being filed, non-bailable warrants were issued for his production premised on the requirement that there is an obligation to arrest the accused and produce him before the court. The Court said that it failed to appreciate why there should be a compulsion of the officer to arrest the accused.

Following the dictum in Joginder Kumar v. State of U.P., (1994) 4 SCC 260, the Court reiterated that merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. It was observed:

“We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond.”

The Court was faced with a situation where the trial court was insisting on arrest of an accused as a pre-requisite formality to take the chargesheet on record in view of provisions of Section 170 CrPC. The Court considered such a course misplaced and contrary to the very intent of Section 170.

Decision

In the instant case, when the appellant had joined the investigation; investigation was complete, and he was roped in after seven years of registration of FIR, the Court was of the view that there was no reason why at this stage he must be arrested before chargesheet is taken on record. Accordingly, the appeal was allowed and the impugned order of the Allahabad High Court was set aside. [Siddharth v. State of U.P., 2021 SCC OnLine SC 615, decided on 16-8-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: A Division Bench of Indira Banerjee and V. Ramasubramanian, JJ. reversed concurrent judgments of the trial court and the Madhya Pradesh High Court whereby three persons were convicted in a murder case and sentenced to life imprisonment. The Supreme Court found that the police investigation in the case was done under political pressure for extraneous considerations, designed to turn the informant and her family members as accused, and allow the real culprits named in the FIR to escape.

Facts and Appeal

Accused 2 (“informant”) was the wife of Accused 1 and sister of Accused 3. The prosecution’s case was that on the night of 13-5-2008, all three accused attacked Accused 1’s brother with knife and lathis resulting in his death. Thereafter with intention of screening the crime, Accused 2 took the victim to the hospital and sent a false information to police that the murderous assault was committed by two other persons, Ruia Yadav and Kailash Yadav. The case was that Accused 1 had a quarrel with his brother (deceased) over non-payment of Rs 250 by the deceased to Ruia, and in that quarrel Accused 1 got injured and thereafter all three accused attacked the deceased. The accused were charged for offences punishable under Section 302 (punishment for murder) read with Section 34 (acts done in furtherance of common intention) of the Penal Code, 1860.

The trial court convicted the accused persons and sentenced them to life imprisonment. This judgment was confirmed by the High Court. Aggrieved, the informant and her brother (Accused 2 and Accused 3) approached the Supreme Court.

Analysis and Observations

Sequence of events

Closely scrutinising the sequence of events that happened from the date of crime, the Court was of the view that it showed that investigation in the case proceeded towards burying the truth instead of proceeding in pursuit of the truth. The Court narrated the sequence of events which are summarised below:

(i) On 13-5-2008, an Assistant Sub Inspector in the police station concerned received an information from Government Hospital about a person having been brought dead. FIR was registered showing Accused 2 as complainant, and showing Ruia Yadav and Kailash Yadav as accused.

(ii)  The investigation was taken over by another Assistant Sub Inspector (“Investigating Officer”), who started investigation the next morning on 14-5-2008. Normally, one would have expected the investigation first to proceed against Ruia and Kailash who were named as accused. But interestingly, right from the beginning, investigation carried out by the Investigating Officer proceeded in reverse direction by making the informant, her husband and her brother as accused, whereas the original accused Ruia and Kailash were made prosecution witnesses.

(iii) During cross-examination, the Investigating Officer admitted that there were demonstrations by political parties when investigation was taken up by him on 14-5-2008 against Ruia and Kailash. This is perhaps why he first took the informant for  medical examination and got a report to the effect that there were several abrasions on her back. On the basis of such report, the Investigating Officer concluded that the abrasions must have been caused during scuffle between the deceased and the informant.

(iv) The informant, her husband and her brother were arrested on 15-5-2008. In other words, within three days of the commission of crime, persons named as accused in the FIR were made prosecution witnesses and the informant and her family members were made accused.

(v) It was only after 18 days of effecting the arrest of the three accused, that the statement of deceased’s niece (“star witness”) was recorded by the Investigating Officer.

The Court observed that:

“It is quite strange and completely unfathomable as to how, where, why and at what point of time, the investigation that should have started against [Ruia and Kailash] took a u-turn and proceeded towards the very informant and her family members.”

Admissions of Investigating Officer and testimony of star witness

Right from the beginning, accused took the defence that they were implicated and actual accused were made witnesses due to political pressure. The Court found corroboration for this in Investigating Officer’s admission that when he took up the investigation, there were demonstrations held by political parties.

During cross-examination, the Investigating Officer had admitted that he was not aware as to whether Ruia and Kailash (accused named in the FIR) were in police custody or not at the time when he started the investigation. In any case, he did not arrest them after he took up the investigation. But interestingly, the star witness for the prosecution deposed that Ruia and Kailash were in fact arrested. She also revealed what happened thereafter. She told that when Ruia and Kailash were taken into arrest, there was strike in the mohalla and persons of Yadav community put pressure on police for releasing them.

That the case was foisted against the very informant and her family members due to political pressure was also borne out by another admission made by the Investigating Officer where he admitted that the Additional Superintendent of Police gave him verbal order that Ruia and Kailash be impleaded as witnesses instead of accused.

Investigation normally proceeds first against  accused named in FIR

The Court noted it remained unexplained that why the Investigation Officer did not even suspect the role of Ruia and Kailash in the commission of the crime. The Court was conscious of the facts that at times persons who commit the crime, themselves lodge FIR, so as to create alibi of innocence and misdirect investigation. But even in such cases, investigation would normally proceed first against those named as accused in the FIR and thereafter the needle of suspicion may turn against the informant himself.

Recovery of weapons

According to the Investigating Officer, weapons used in the crime were recovered and seized from the house of three accused in presence of witnesses. However, those witnesses did not support the prosecution. They stated that no weapons were seized in their presence.

Further, the Court noted that there was nothing on record to show that the blood stains said to have been present on the weapons, matched with blood of the deceased. The prosecution did not establish either through FSL report or otherwise, that the blood stains on the recovered knife and lathis were that of the deceased. Noting the divergence of judicial opinion on this aspect, the Court concluded that:

“[T]here cannot be any fixed formula that prosecution has to prove, or need not prove that the blood groups match. But the judicial conscience of the court should be satisfied both about the recovery and about the origin of the human blood.”

Burden on court where best legal assistance not available to accused

The Court noted that the accused were represented by amicus curiae either due to inability to engage a counsel or due to non-appearance of the counsel engaged by them at the time of hearing. As a result, the accused did not appear to have the best of legal assistance. The Court observed:

“It is in such type of cases that the burden of the court is very heavy and unfortunately, the Sessions Court and the High Court did not discharge this burden properly.”

Normal human conduct

The Court was of the view that the trial court as well as the High Court did not take into account the normal human conduct. The Court said it was unbelievable that the accused caused death of the deceased (their own family member) due to his failure to return Rs 250 to Ruia, and thereafter they deliberately named Ruia as accused.

It was equally unbelievable that one of the persons who killed the victim in the presence of witnesses, took his body to the hospital in an auto rickshaw. The Court observed that:

“The normal human behaviour in such circumstances will be either to flee the place of occurrence or to go the police station to surrender, except in cases where they are intelligent and seasoned criminals. Neither did happen.”

 Conclusion

The Court was of clear opinion that:

“[T]he investigation in this case was carried out by [the Investigation Officer], not with the intention of unearthing the truth, but for burying the same fathom deep, for extraneous considerations and that it was designed to turn the informant and her family members as the accused and allow the real culprits named in the FIR to escape.”

Technical ground and complete justice

Notably,  Accused 1 did not come up in appeal. However, the Court stated that the instant was a case where it did not proceed on the basis of individual overt acts, but the prosecution story in its entirety was disbelieved. Therefore, to deny the benefit of such conclusion to Accused 1 merely on ground of technicality that he was not in appeal would amount to closing eyes to gross injustice, especially when the Court was empowered to do complete justice under Article 142 of the Constitution.

Decision

In such view of the matter, the Court allowed the appeal and ordered that all three accused shall be released forthwith. [Madhav v. State of M.P., 2021 SCC OnLine SC 613, decided on 18-8-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of V.K. Jadhav and Shrikant D. Kulkarni, JJ., held that,

Mere dishonour of cheque and refusal to pay remaining balance amount involved in the transaction does not amount to abetment to commit suicide.

Factual Scenario

Dnyanoba Shinde (deceased) was the father of first informant. Deceased had agreed to purchase a plot from the applicant and had given the earnest money in 3 installments.

The said transaction came to be cancelled for want of clearance from the town planning department. Late Dnyanoba Shinde requested the applicant to repay the earnest money. Part of the amount of earnest money was paid to Late Dnyanoba Shinde. For the remaining balance amount, the applicant had issued the cheque.

Further, it was alleged that the applicant avoided making payment of balance amount and the cheque given by the appellant was dishonoured.

Due to the avoidance of making the above-stated payment, the mental condition of the father of the first informant was disturbed.

Suicide

Eventually the deceased left the house and committed suicide by hanging and on the suicide note the name of the applicant and others were mentioned making them responsible for suicide.

Applicant has approached this Court for quashing of the FIR and consequent filing of charge sheet filed against him.

Analysis

According to the provisions of Section 306 of the Penal Code, 1860 in order to bring a case of suicide, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigating or by doing certain act to facilitate the commission of suicide.

“…instigation can be inferred where the accused had, by his acts or omission created such circumstances that the deceased was left with no option except to commit suicide.”

Further, it was noted that the allegation levelled against the applicant in no way suggested that there was an active role on the part of the applicant, which led to the suicidal death of the deceased.

Bench stated that the prosecution case was based upon the suicide note, wherein the name of the applicant was figured. There was a big question mark on the genuineness of the suicidal note.

During the investigation it was disclosed that one Sopan Nagorao Mandale resident of Rahul Nagar, Latur had written that note and handed over to the deceased. Thus, it was clear that the very foundation of the prosecution case was shaky.

Therefore, allowing the criminal proceedings against the applicant to continue would be an abuse of the process of the Court and the ends of justice require that the proceedings ought to be quashed.

The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution.

Concluding the matter, Court stated that there was no propriety to continue the criminal proceedings against the applicant and put him on trial. [Balaji v. State of Maharashtra, 2021 SCC OnLine Bom 1597, decided on 5-08-2021]


Advocates before the Court:

Mr. N.D. Kendre, Advocate for the Applicant

Ms. Preeti V. Diggikar, A.P.P. for Respondent No.1 / State Mr. S.S. Panale, Advocate for Respondent No.2

Case BriefsHigh Courts

Delhi High Court: Yogesh Khanna, J., remarked that,

Once the Parliament steps in and cures the defect pointed out by a Constitutional Court, the defect appears to be cured and the presumption of constitutionality is to apply to such provision.

Instant petitions were for grant of bail to the applicants.

Factual Matrix

An enquiry under FEMA, 1999 was commenced on 1-07-2017 by the respondent at various places against Naresh Jain and others, it was alleged that the petitioners and others had appeared on numerous occasions before the Enforcement Directorate and the enquiry was conducted for 2 years under Section 47 of the FEMA.

Further, the ED registered FIR with EOW Cell for Scheduled Offences under the Prevention of the Money Laundering Act, 2002. Thereafter, the petitioners appeared before the ED on several occasions. Searches were conducted by the ED under PMLA at the residential premises of the petitioner Bimal Jain also.

Prosecution complaint was filed before the Special Judge, PMLA against eight accused persons, including the petitioners herein. Petitioner Bimal Kumar Jain also joined the investigation of FEMA as also PMLA on various occasions.

Senior Counsel for the petitioner submitted that:

a) while arresting Bimal Jain, the procedure under Section 19 PMLA was not followed.

b) the Enforcement Directorate cannot be the complainant and the Investigating Officer at the same time; and

c) effect of declaration of twin conditions under Section 45 of the PMLA have been declared unconstitutional and ultra vires in view of decision in Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1.

Analysis, Law and Decision

Non-Compliance under Section 19 of the PMLA

High Court stated that since the arrest of accused Bimal Jain was in execution of the NBWs therefore, the provision under Section 19 of the PMLA could not be adhered to.

Admittedly, Bimal Jain was arrested in execution of the NBW by the Special Judge, PMLA while taking cognizance of prosecution complaint filed by the Enforcement Directorate and thus there was no occasion to comply with the requirement of Section 19 of the PMLA.

Bench stated that, the very fact the complaint was filed by the Enforcement Directorate arraying petitioner Bimal Jain as accused 2, prima facie shows there were reasons to believe the person was guilty of offence punishable under PMLA as the complaint was filed only against a person who was presumed to be guilty.

The Complainant and the Investigating Agency cannot be the same

Court referred to the decision of Mukesh Singh v. State (NCT) of Delhi, (2020) 10 SCC 120.

Twin conditions of Section 45 of the PMLA

Supreme Court in Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1 declared Section 45 of the PMLA as it stood then, as unconstitutional and violative of Articles 14 and 21 of the Constitution of India, but the defects pointed out were cured by the legislature and an amendment to Section 45(1) was made vide Finance Act, 2018.

Supreme Court’s decision in P. Chidambaram v. E.D., (2019) 9 SCC 24 took judicial note of the above amendment.

High Court stated that the legislature has the power to cure the underlying defect pointed out by a Court, while striking down a provision of law and pass a suitable amendment. Bench referred to the decision of Supreme Court in State of Karnataka v. Karnataka Pawn Brokers Association, (2018) 6 SCC 363 it was held:-

“24. On analysis of the aforesaid judgments it can be said that the Legislature has the power to enact validating laws including the power to amend laws with retrospective effect. However, this can be done to remove causes of invalidity. When such a law is passed, the Legislature basically corrects the errors which have been pointed out in a judicial pronouncement. Resultantly, it amends the law, by removing the mistakes committed in the earlier legislation, the effect of which is to remove the basis and foundation of the judgment. If this is done, the same does not amount to statutory overruling.”

Adding to the above analysis, Court remarked that merely because the entire section was not re-enacted would be of no consequence since the provision even after being declared unconstitutional, does not get repealed or wiped out from the statute book and it only becomes unenforceable.

Therefore, High Court held that there is a presumption in favour of constitutionality since the amended Section 45(1) of the PMLA has not been struck down, Court referred to the decision of the Supreme Court in Nagaland Senior Govt. Employees Welfare Assn. v. State of Nagaland, (2010) 7 SCC 643.

If Section 45(1) of the PMLA is ignored, whether the petitioners are entitled to bail per parameter of Section 439 CrPC?

The investigation by EG revealed that Naresh Jain and Bimal Jain along with other accomplices hatched a criminal conspiracy to cause loss to the exchequer and banks by indulging in illegal foreign exchange transaction on the basis of forged/fabricated documents.

Naresh Jain also facilitated parking of funds abroad by Indian nationals through his international Hawala transaction structure created in India and in various other jurisdictions. Naresh Jain conducted international Hawala operation and domestic operation of providing accommodation entries to co-conspirators.

Investigation so far, revealed that Naresh Jain incorporated and operated 450 Indian entities and 104 foreign entities. These entities were incorporated by using original identity proofs and documents of dummy shareholders and directors as well by fabricating identity proofs and documents of these shareholders and directors. Fabricated documents were used to open bank accounts as well.

Further, it was alleged that the petitioners were well connected in India and abroad and there was an apprehension that they will flee from the country to evade trial in case they were enlarged on bail. It was also alleged that Bimal Jain had evaded the summons issued by the department and had refused to join investigation.

ED alleged that the petitioners were involved in various criminal cases and even two Red Corner Notices were issued by Interpol against Naresh Kumar Jain.

Even the allegations were that the petitioners forged their medical certificates and Naresh Jain continues the criminal activities while in Jail and the investigation in the case is still going on and a large number of activities/fact accounts/witnesses /employees and beneficiaries are involved.

Adding to the above allegations, it was stated that if enlarged on bail there was every likelihood the petitioners may flee to Dubai or elsewhere to avoid the process of law and they were flight risks.

Hence, bail was not granted to the petitioners and the petitions were dismissed. [Bimal Kumar Jain and Naresh Jain v. Directorate of Enforcement, 2021 SCC OnLine Del 3847, decided on 30-07-2021]


Advocates before the Court:

For the Petitioner/s: Vikram Chaudhri, Sr. Advocate with Naveen Malhotra, and Harshit Sethi, Advocates.

For the Respondent: S.V.Raju, ASG, .Zoheb Hossain, Special Counsel, Amit Mahajan, CGSC, Aarushi Singh, Mallika Hiremath, Vivek Gurnani, and Agni Sen, Advocates

Case BriefsSupreme Court

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

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

Factual Matrix

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

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

 Appeal

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

Contentions

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

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

Analysis and Observations

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

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

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

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

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

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

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

Decision

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

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


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsHigh Courts

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

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

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

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

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

Analysis by the Court

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

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

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

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

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

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

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

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

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

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

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

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

[Kamal Pal v. State of Punjab, 2021 SCC OnLine P&H 1541, decided on 09-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Counsel for the Petitioners: Manbir Singh Batth. Advocate

Counsel for the State: Monika Jalota, DAG, Punjab

Case BriefsCOVID 19High Courts

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

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

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

“Criteria for release of Under trial prisoners:

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

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

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

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

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

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

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

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

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

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


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For Petitioners: Mr. Shashank Thakur

For Respondent: Mr. Ramakant Mishra

Case BriefsTribunals/Commissions/Regulatory Bodies

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

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

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

What were the demands of the above-stated Unions?

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

Prima Facie Observation of the Commission

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

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

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

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

What was in the DG’s report?

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

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

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

Commission’s Observation on perusing DG Report

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

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

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

Restriction on entry of OLA and UBER

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

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

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

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

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

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

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

Case BriefsTribunals/Commissions/Regulatory Bodies

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

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

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

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

Analysis

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

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

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

Suggestions as Given in Ashwani Kumars Case

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

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

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

(ii) Practice Directions:

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

 (iii) Cases under stay:

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

 (iv) Witness Protection:

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

(v) Monitoring by High Courts

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

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

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


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

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

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

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

Case BriefsSupreme Court

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

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

Background

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

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

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

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

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

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

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

Analysis

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

However,

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

Conclusion

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

ii) The interim order is a cryptic order;

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

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

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

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


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

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


Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Appearances before the Court

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

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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

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


Advocates before the Court:

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

For the Respondent: Kamna Vohra, ASC for the State

Case BriefsHigh Courts

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

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

Kotkapura Firing

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

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

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

Withdrawal of Investigation from CBI

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

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

A Dangerous Mixing of Religion, Politics and Police Administration

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

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

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

Investigation Tainted by Political Maneuvering

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

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

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

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

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

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

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

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

Directions by the Court

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

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

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

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


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

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

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