Case BriefsDistrict Court

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

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

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

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

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

Court’s Reasoning

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judicial Scrutiny

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

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

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

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

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

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

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

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

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

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

Hence, the observations made herein are prima facie and shall not prejudice either of the parties at the stage of final arguments of the present writ petitions or in the proceedings for interim protection. [Dhruv Krishan Maggu v. Union of India, WP (C) No. 5454 of 2020, decided on 08-01-2021]

Hot Off The PressNews

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

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

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

Further investigation is under progress.

PRESS RELEASE


CBIC

[Press Release dt. 29-12-2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: S.A. Dharmadhikari, J., dismissed the instant petition filed under Articles 226 and 227.

The facts of the case follow as, the respondent, who was a person of criminal antecedents, had come with his relatives armed with Pharsas and Guns to the petitioner and threatened to eliminate him and his family when the petitioner demanded balance amount of the sale proceeds of land sold to the respondent by father of the petitioner.

The petitioner submitted that, he had approached the Police Station but his report was not recorded, being aggrieved by that a representation had also been made to the Superintendent of Police for taking action against the miscreants but no action had been taken. Therefore, the petitioner requested the Court that a writ of mandamus may be issued to the Superintendent of Police to decide the said representation and take action against the respondent and also provide adequate protection to the petitioner from the respondent.

The counsel for the State, Abhishek Singh Bhadoriya argued that, the relief sought by the petitioner could not be granted in view of the fact that the petitioner had an alternative remedy of filing complaint before the Magistrate under Section 156(3) of the CrPC and the same was not availed by him.

The Court, relied on Sakiri Vasu v. State Of U.P., (2008)2 SCC 409, wherein, the Supreme Court held that, “if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result, it is open to the aggrieved person to file an application under Section 156 (3) CrPC before the learned Magistrate concerned the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made. The Magistrate can also monitor the investigation to ensure a proper investigation.”

 In view of the above, the Court dismissed the petition stating that, the High Court should discourage the practice of filing a writ petition or petition under Section 482 CrPC, simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done. For this grievance, the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC. However, the Court further directed that, if the petitioner approaches the Magistrate, the Magistrate concerned shall proceed in accordance with law including the precedents enumerated hereinabove. [Bharat Singh Gurjar v. State of M.P.,  2020 SCC OnLine MP 2924, decided on 22-12-2020]

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of G. Narendar and M.I. Arun JJ., allowing the present petition, discussed the meaning, scope and ambit of the word ‘enquiry’ and provisional application of Section 43-A of the Karnataka Panchayatraj Act, 1993.

Background

A complaint was lodged against the petitioners before Lokayukta, on the ground of misconduct in the discharge of official duties (allowing alleged wrongful construction). The Upalokayukta (3rd Respondent) registered a case and conducted an investigation under Section 9 of the Karnataka Lokayukta Act, 1984. During investigation, the petitioners intimated that the Assistant Executive Engineer of the Public Works Department (PWD) had failed to respond to the panchayat letter dated 03-07-2014 and as it had neither rejected nor granted the NOC, for the proposed construction and as there was an unnecessary and unwarranted delay on the part of the PWD, the council passed a resolution granting the proposal unanimously. Following the said event, the Lokayukta submitted a report under Section 12(3) of the Lokayukta Act and further directed action under Section 48(4) of the Karnataka Panchayatraj Act, 1993. Thereafter, the 2nd respondent passed the impugned order, invoking Section 43-A of the aforementioned Act.

Issue

Whether there is compliance with the provisions of Section 43-A(1) of the Karnataka Panchayatraj Act, 1993 in the process of passing the impugned order, thereby removing the petitioners not only from their respective offices but also from the membership of the Gram Panchayath?

Relevant Provisions of the Karnataka Panchayatraj Act, 1993

  • Section 48 Resignation or removal of Adhyaksha and Upadhyaksha; ss.4: Every Adhyaksha and Upadhyaksha of Grama Panchayat shall, after an opportunity is afforded for hearing him, and if necessary after obtaining a report from the Taluk Panchayat and considering the same be removable from his office as Adhyaksha or Upadhyaksha by the Government for being persistently remiss or guilty of misconduct in the discharge of his duties and an Adhyaksha or Upadhyaksha so removed who does not cease to be a member under sub-section (2) shall not be eligible for re-election as Adhyaksha or Upadhyaksha during the remaining term of office as member of such Grama Panchayat.
  • Section 43A Removal of members for misconduct: The Government if it thinks fit, on the recommendation of the Grama Panchayat, or otherwise, may remove any member after giving him an opportunity of being heard and after such enquiry as it deems necessary if such member has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or has become incapable of performing his duties as a member.

 Observations

The Court reproduced the relevant provision of the Karnataka Panchayatraj Act, 1993 and placed reliance on M.N. Dasanna v. State of Andhra Pradesh, (1973) 2 SCC 378, for understanding the meaning of the word ‘enquiry’.

Further, under Para 12, the Court cited the meaning of the word ‘Enquire’ and ‘Enquiry’ as defined in the book ‘The Law Lexicon with Maxims’ by Sumeet Malik,

Enquire – To enquire or inquire means to make investigation, i.e., to examine systematically in detail and it can never mean that conclusions of investigation would have any binding force or be conclusive,

Enquiry – Covers the hearing of the case, i.e., recording evidence, admitting documents and generally completing the record upon which a finding would be based. It is only after all the material has been placed on the record by both the sides that the stage of reporting a finding would arise.

The Court, continued to say, “It can be gainfully stated that the word ‘enquiry’ as occurring in the Section clearly implies an investigation by the Government and a concomitant to such an enquiry is furnishing of material upon the Government and an opportunity to rebut or test the veracity of the material put against or the persons acted against, and thereafter, the provision visualizes an opportunity of being heard which necessarily implies an opportunity of hearing to the parties to present their summation on the merits of the material relied upon and merits of the case. Further, the powers vested in the Government can be invoked only on proof of certain charge as enumerated under clause (i) to (v) of the Section 43-A of the Panchayatraj Act, 1993.” Enumerating the said charges briefly, in addition to considering the order directing removal, the Court observed, “The impugned order fails to state as to which ground has been proved enabling the competent authority to pass the order of removal and punishment under sub section (2) of Section 43-A of the Karnataka Panchayatraj Act.”

Dismissing the entire enquiry, the Court remarked that “(…) no enquiry worth its name has been conducted as the enquiry stood terminated on the first and only date of hearing itself. It does not reflect as to whether relied upon materials were furnished to the petitioners or as to whether the authors of statements were tendered for cross-examination to test the veracity of their statements.”

Decision

Allowing the present petition, the Court said, “When the law provides a thing to be done in a particular manner, the authorities shall perform the act in that manner only. The use of the word ‘enquiry’ is not superfluous. It has been used conjunctively with the phrase ‘opportunity of being heard’ … what is envisaged by the provision cannot be treated as a summary enquiry by the competent authority and an enquiry and opportunity of hearing are mandatory.”

[Bhavani v. State of Karnataka, 2020 SCC OnLine Kar 2011, decided on 08-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: In a case where withing a couple of days of the alleged dowry death of a doctor in Agra, a suicide note was leaked to the newspapers of the city, the 3-judge bench of Dr. DY Chandrachud*, Indu Malhotra and Indira Banerjee, JJ has said that selective disclosures to the media affect the rights of the accused in some cases and the rights of victims families in others.

“The media does have a legitimate stake in fair reporting. But events such as what has happened in this case show how the selective divulging of information, including the disclosure of material which may eventually form a crucial part of the evidentiary record at the criminal trial, can be used to derail the administration of criminal justice.”

Background

The deceased, a doctor by profession, married the accused, also a doctor, in 2014. Over Rs.1.50 crores were spent by the deceased’s father for conducting the marriage. It was alleged that even thereafter, deceased’s husband, his parents, brother-in-law and sister-in-law misbehaved with the deceased on account of dowry. Deceased’s father alleges to have paid money on several occasions by cheque to her in-laws. Also, she was severely assaulted in 2017. In the meantime, the deceased suffered miscarriages on two occasions and ultimately, adopted a daughter. The FIR states,

“… dowry greedy people killed Dipti in [xxx] for non-receipt of dowry and non-fulfilment of the demands, and admitted Dipti in their hospital itself in the almost dead condition, in order to save themselves, but she was not allowed any treatment with the intention of killing her. In order to save the life of Dipti, the applicant took her away to the Sarvodaya hospital Faridabad for treatment, at the earlies.” (sic)

While the Sessions Judge denied anticipatory bail on 21 August 2020, the single judge of Allahabad High Court held that

(a) the FIR prima facie appears to be engineered to implicate the applicants;

(b) there is no corelation in between the various allegations leveled in the FIR; and

(c) the allegations “are general in nature” with no specific role being assigned to the accused.

Analysis

On FIR being “engineered” to implicate the spouse of the deceased and his family

Finding the judgment of the Single Judge of the High Court of Judicature at Allahabad unsustainable, the Court held that the FIR contained a recital of allegations bearing on the role of the accused in demanding dowry, of the prior incidents of assault and the payment of moneys by cheque to the in-laws of the deceased. It aslo referred to the telephone calls which were received both from the father-in-law of the deceased on the morning of 3 August 2020 and from the deceased on two occasions on the same day- a few hours before her body was found.

“The grant of anticipatory bail in such a serious offence would operate to obstruct the investigation. The FIR by a father who has suffered the death of his daughter in these circumstances cannot be regarded as “engineered” to falsely implicate the spouse of the deceased and his family.”

On publicity of the alleged suicide by media

“This is not fair to the accused because it pulls the rug below the presumption of innocence. It is not fair to the victims of crime, if they have survived the crime, and where they have not, to their families.”

The investigating officer has a duty to investigate when information about the commission of a cognizable offence is brought to their attention. Unfortunately, this role is being compromised by the manner in which selective leaks take place in the public realm. Neither the victims nor their families have a platform to answer the publication of lurid details about their lives and circumstances.

“The daughter of the appellant had died in mysterious circumstances. The family had completed the last rites. To expect that they should be scouring the pages of the print and electronic media before reporting the crime is a mockery of the human condition.”

Further, the apprehension of the appellant that the deceased’s husband and his family have a prominent social status in Agra and may have used their position in society to thwart a proper investigation cannot be regarded to be unjustified.

On transfer of investigation to CBI

“The investigation by the UP Police in the present case leaves much to be desired.”

The Court said that it would be a travesty if it were to ignore the glaring deficiencies in the investigation conducted so far. Further,

“The status of the accused as propertied and wealthy persons of influence in Agra and the conduct of the investigation thus far diminishes this Court’s faith in directing a further investigation by the same authorities. The cause of justice would not be served if the Court were to confine the scope of its examination to the wisdom of granting anticipatory bail and ignore the possibility of a trial being concluded on the basis of a deficient investigation at best or a biased one at worst.”

Hence, it is necessary to entrust a further investigation of the case to the CBI in exercise of the powers of this Court under Article 142 of the Constitution.

Directions

(i) The order passed by the Single Judge of the High Court of Judicature at Allahabad allowing the applications for anticipatory bail by the respondents-accused set aside and the bail granted to them stands cancelled; and

(ii) The CBI is directed to conduct a further investigation in the matter.

[Dr. Naresh Kumar Mangla v. Anita Agarwal,  2020 SCC OnLine SC 1031, decided on 17.12.2020]

Case BriefsSupreme Court

“A fair investigation is, but a necessary concomitant of Articles 14 and 21 of the Constitution of India and this Court has the bounden obligation to ensure adherence by the police.”

Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and Krishna Murari, JJ has IPS Officer Satyarth Anirudh Pankaj as the senior officer, State of Uttar Pradesh to carry out further investigation in the Ram Bihari Chaubey murder case after it found the investigation and closure report submitted by the UP Police to be “extremely casual and perfunctory in nature”.

Directing that IPS Officer Pankaj will be free to select a team of competent officers of his choice, the Court directed that

“the investigation must be concluded within a period of two months from the date of receipt of a copy of this order, unless extension is required, and the final report be placed before this Court. The Director General of Police (DGP), Uttar Pradesh shall do the needful.”

Background

Ram Bihari Chaubey, was shot dead at his residence in Village Shrikanthpur, Chaubepur, Varanasi in the State of Uttar Pradesh, on 04.12.2015. Four unknown assailants were stated to have come on a motorcycle. Two of them entered the residence and shot the deceased, while the two others waited outside, after which they all escaped.

From the material collected during investigation it was apparent that the murder was committed due to political rivalry by hatching a conspiracy effectively with the help of BJP MLA Sushil Singh (the respondent no.5[1]). An affidavit filed before the Allahabad High Court, disclosed that Sushil Singh 24 criminal cases against him including under Section 302 IPC.  In five cases final report had been filed in absence of credible evidence. In nine cases, he had been charge sheeted but was acquitted.  Five criminal trials are still pending against him and he had also been put behind bars under the provisions of National Security Act by order dated 11.11.1998.

An affidavit was filed by the DGP before the Supreme Court on 22.02.2020 stating that there was   no cogent evidence against Sushil Singh despite discreet efforts. Investigation of the case was therefore closed on 30.01.2019 and report submitted in the concerned court along with other police papers on 04.06.2019 with regard to the 4 accused persons only and no further investigation was pending against any person.

Analysis

The Court took note of the fact that the investigation which had been kept pending since 04.12.2015 was promptly closed on 30.01.2019 after this Court had issued notice on 07.09.2018.

Further, the Closure Report filed before the Court simply stated that there was no concrete evidence of conspiracy against Sushil Singh and that the informant had not placed any materials before the police direct or indirect with regard to the conspiracy. As and when materials will be found against Sushil Singh in future, action would be taken as per law.

Recording that the investigation and the closure report are extremely casual and perfunctory in nature, the Court noticed that the investigation and closure report do not contain any material with regard to the nature of investigation against the other accused including Sushil Singh for conspiracy to arrive at the conclusion for insufficiency of evidence against them.

“The closure report is based on the ipse dixit of the Investigating Officer. The supervision note of the Senior Superintendent of Police (Rural), in the circumstances leaves much to be desired. The investigation appears to be a sham, designed to conceal more than to investigate.” 

The Court also reminded the police of its primary duty to investigate on receiving report of the commission of a cognizable offence.

“This is a statutory duty under the Code of Criminal Procedure apart from being a constitutional obligation to ensure that peace is maintained in the society and the rule of law is upheld and applied. To say that further investigation was not possible as the informant had not supplied adequate materials to investigate, to our mind, is a preposterous statement, coming from the police.”

On scope of judicial interference in investigations, the Court said that investigation is the exclusive privilege and prerogative of the police which cannot be interfered with but if the police does not perform its statutory duty in accordance with law or is remiss in the performance of its duty, the court cannot abdicate its duties on the precocious plea that investigation is the exclusive prerogative of the police.

“Once the conscience of the court is satisfied, from the materials on record, that the police has not investigated properly or apparently is remiss in the investigation, the court has a bounden constitutional obligation to ensure that the investigation is conducted in accordance with law.  If the court gives any directions for that purpose within the contours of the law, it cannot amount to interference with investigation.”

The Court, hence, partially set aside the closure reports dated 02.09.2018, 17.12.2018 culminating in the report dated 30.01.2019 insofar as the non-charge sheeted accused are concerned only. Those already charge sheeted, were not interfered with.

Further, considering that the trial has commenced against the charge sheeted accused, the Court directed that further trial shall remain stayed.

[Amar Nath Chaubey v. Union of India, 2020 SCC OnLine SC 1019, order dated 14.12.2020]


[1] Ed Note: The order is silent on the name of Respondent No. 5. The name has been deduced from the Allahabad High Court verdict in Abhai Nath Chaubey v. State of U.P., 2019 SCC OnLine All 5782.

Case BriefsHigh Courts

Madras High Court:  G.R. Swaminathan, J., observed that,

What the government does must inspire the confidence of the people. Every time a custodial death occurs, the legitimacy of the State suffers a big dent.

Factual Matrix

Petitioner a permanent resident belonged to a scheduled caste community. His elder brother fell in love with a relative namely, Punitha and in view of the objection raised by her parents, he started residing elsewhere. Punitha’s family complained as if had been abducted.

Since the elder brother and Punitha could not be traced, petitioner and other members of the family were periodically directed to appear for enquiry before the investigating officer. Further, petitioner alleged that all the family members were subjected to physical abuse.

It was further stated that, local police arrived at the petitioner’s house and several times and had beaten up the petitioner, his youngest brother i.e. Ramesh on the next visit. The younger brother of the petitioner was taken in custody and later he did not return home.

Suicide

Ramesh was found hanging, according to the petitioner he was tortured by the local police and he died as a result.

In order to cover up the crime, police made the above-stated incident appear as if he had committed suicide.

A complaint was registered under Section 174(3) of CrPC.

The petition had been filed seeking a direction to the respondents to exhume the body and conduct a second postmortem.

Court had directed for conducting the second postmortem at the burial itself. The entire second postmortem was also directed to be videographed. Hence, the second post-mortem was done accordingly.

The entire autopsy had been duly videographed and even a statement was made in writing to that effect in the status report, it turned out that what was recorded were only brief clippings.

Custodial Death

It has been stated that a proper videograph was not taken at all and in view of the same petitioner’s counsel insisted that appropriate directions will have to be issued for the future observance and strict compliance in cases of custodial death or where it is alleged that the death is due to police torture.

Bench referred to the Division Bench of this Court in a PIL in WP (MD) No. 78 of 2019, decided on 28-09-2020.

Further, the Court stated that,

“…foundations of any democratic government rest on popular acceptance. Though State primarily functions through its coercive apparatus, its actions must be perceived as proper by the people.”

“A dead person is equally entitled to justice. I would call it posthumous justice.”

Court also observed that, Whenever someone suffers an unnatural death, the circumstances that led to it will have to be unearthed. Otherwise, there would be no closure.

To ensure the above stated, Court issued the following directions:

(i) The Judicial Magistrate conducting the enquiry under Section 176(1)(A) CrPC shall ensure that the family of the deceased or its representatives are given access to see the body both front and back and are also allowed to take video and photos.

(ii) No autopsy shall take place or commence without the next of kin having seen the body. Of course, if the family of the deceased refuses to see the body, even after so being permitted by the concerned Judicial Magistrate conducting the enquiry, the Judicial Magistrate can, in writing, permit the conducting of postmortem.

(iii) The autopsy shall be carried out by a team of two doctors who have a master’s degree in forensic medicine and are attached to a Medical College and Hospital in the State. In other words, what is called forensic autopsy must be conducted.

(iv) The autopsy shall be done by adhering to the norms laid down by the Hon’ble Division Bench in V. Eswaran v. Government of Tamil Nadu, dated 16-04-2019 in W.P. No. 10694 of 2019 and in W.P.(MD)No. 78 of 2019, dated 28-09-2020.

(v) The whole body shall be x-rayed in order to find out if there are any fractures. The entire autopsy should be videographed from the start of the examination till its completion by adhering to the following six phases set out in Modi ‘a Textbook of Medical Jurisprudence and Toxicology’ 26th Edition edited by Justice K.Kannan.

vi) The autopsy report should be prepared expeditiously and handed over to the investigating officer in the case so that the filing of the final report is not delayed. A copy of the autopsy report as well as video should be simultaneously given to the legal heir or representatives of the family of the deceased. This alone will enable them to take recourse to legal remedies immediately. 

If after receipt of the autopsy report, the legal heir/representatives of the deceased family give in writing that they intend to move the High Court, the body shall be preserved in the mortuary for at least 48 hours. If the body is disposed of either by cremation or otherwise in the meanwhile, the very purpose of holding a second post-mortem will be rendered infructuous.

While parting with the decision, Court stated that:

All of us know that hasty cremation in the tragic Hathras gang rape case led to controversy. It is in the interest of the police to take the family of the deceased into confidence and avoid rushing things through. They are stakeholders in the process and the police have to treat them accordingly.

Court allowed the petition with the aforesaid directions. [Santhosh v. District Collector, Madurai District; 2020 SCC OnLine Mad 5541, decided on 02-12-2020]

Case BriefsSupreme Court

Supreme Court:  The 3-judge bench of SA Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ has reiterated that the Courts should not thwart any investigation unless no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on.

Referring to the decision in State of Haryana v. Bhajan Lal, (1992) Supp. (1) SCC 335, the Court said,

“(…) the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint, the 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 or in the complaint.”

In S.M. Datta v. State of Gujarat, (2001) 7 SCC 659 the Court cautioned that criminal proceedings ought not to be scuttled at the initial stage.

“Quashing of a complaint should rather be an exception and a rarity than an ordinary rule.  (…) if a perusal of the first information report leads to disclosure of an offence even broadly, law courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere.”


FIR against Skoda Auto Volkswagen over alleged use of cheat devices


Skoda Auto Volkswagen India Private Limited is engaged in the business of manufacture, import and sale of passenger vehicles in India. The 3rd Respondent in the case lodged an FIR, alleging that he had bought 7 Audi Brand cars from the authorised dealers of the manufacturing Companies and knowing fully well that their vehicles have been installed with cheat devices, the manufacturer had prepared wrong records and documents.

The Petitioner moved Allahabad High Court seeking quashing of the FIR alleging that the FIR is based entirely upon the order of the NGT, which is the subject matter of two civil appeals before the Supreme Court.

Allahabad High Court rejected the prayer for quashing of the FIR. However, the High Court protected the officers of the petitioner against arrest till the submission of the Report under Section 173(2) Cr.P.C. subject however to the condition that they shall cooperate in the investigation.

Not satisfied with a mere protection against arrest and the refusal of the Allahabad High Court to quash the FIR, the petitioner argued before the Supreme Court:

  1. That the Police cannot investigate an issue, the substratum of which is sub judice before this Court in the civil appeals arising out of the order of the NGT; and
  2. That the High Court failed to take note of the long delay on the part of the 3rd Respondent in lodging the complaint and
  3. That the VAHAN Portal of the Government shows the purchase of only 3 vehicles as against the claim of the 3rd Respondent to have purchased 7 vehicles.

Why the Supreme Court refused to quash FIR


On Issue 1

Should pendency of the Civil Appeals and the interim order passed by Supreme Court be taken as a deterrent for anyone else to lodge a police complaint and seek an investigation?

Two original applications came to be filed before the NGT in the year 2015, alleging that the manufacturers of the vehicles in question were employing deceit devices. This coincided with the issue of notice by the Automotive Research Association of India to the manufacturers. The   applicants before the NGT did not seek any relief for themselves, as purchasers of vehicles. The reliefs sought by the applicants before the NGT were broad and general. Hence,

“ (…) the order of the NGT, passed on the applications filed by certain individuals not claiming as purchasers of vehicles, cannot   be   taken   as   an   impediment   for   an   individual   who purchased cars from the manufacturers, to lodge a complaint, if he has actually suffered on account of any representation made by the manufacturers.”

Further, the interim order passed by the Supreme Court not to take any coercive steps has to be understood only in the context of the aforesaid directions of the NGT which became the subject matter of the Civil Appeals.

Can police investigate into the same set of allegations which form the subject matter of proceedings pending adjudication before Supreme Court?

The question whether such devices are installed in the cars purchased by the 3rd respondent herein and the question whether there was any representation in this regard to the petitioner, are all questions of fact, peculiar and particular to the 3rd respondent herein. NGT had no occasion to examine the cars purchased by the 3rd respondent herein.

The Court said,

“At this stage no one can presume whether the defence of the manufacturer to the police complaint will be purely on a question of fact or purely on a question of law or on mixed questions of fact and law.”

  • If the petitioner takes a defence that no such devices were installed in the cars purchased by the 3rd respondent or that there was no (mis)representation in this regard, it will be a pure question of fact, which cannot be gone into in a quash petition.
  • If the petitioner takes a defence that the installation of such devices, though true, does not violate any law, then it will be a pure question of law.

The Court said that the action initiated by the Automotive Research Association of India in November 2015 and the proceedings that went on before the National Green Tribunal from the year 2015 to the year 2019, have to be seen in the light of the Dieselgate Scandal[1]. All of them were part of the global outrage that actually concerned the damage caused to the environment by the emissions from the cars allegedly fitted with manipulative devices.

The proceedings before the NGT were not intended to address issues relating to individuals, such as

(i) whether any emissions manipulation software, called in common parlance as ‘defeat devices’ were installed in the vehicles purchased by certain individuals; and

(ii) whether any representation was made to the purchasers of the cars in which such devices had been installed, about the emission efficiency level of the cars

Hence, the Court rejected the contention that the substratum of the police complaint is something that is already the subject matter of adjudication before this Court in the appeals arising out of the order of the NGT. It held that the High Court has been fair to the petitioner, by granting protection against arrest till the filing of the report under section 173(2) of the Code.

On Issue 2

Mere delay in lodging the complaint, cannot by itself be a ground to quash the FIR. The law is too well settled on this aspect to warrant any reference to precedents.

On Issue 3

The Court did not go into the third issue as it is a question of fact which has to be established only in the course of investigation/trial.

[Skoda Auto Volkswagen India Private Limited v. State of Uttar Pradesh, 2020 SCC OnLine SC 958, decided on 26.11.2020]


*Justice V. Ramasubramanian has penned this judgment 

For Petitioner: Senior Advocate Dr. Abhishek Manu Singhvi

For 3rd Respondent: Senior Advocate Maninder Singh

[1] In September-2015, allegations of installation of manipulation devices by car manufacturers emerged from the US Environmental Protection Agency triggering investigations in several European Union States. After claims were lodged and legal action initiated, the German Federal Motor Transport Authority appears to have given permission in June-2016 for the recall of about 2 million vehicles across Europe. In the light of these developments, one of the manufacturers entered into an agreement with the US Environmental Protection Agency in December-2016 giving certain options to the customers. These and the subsequent developments, which attained notoriety as the diesel-gate 18 scandal, led to the German Federal Court of Justice (Bundesgerichtshof-BGH) giving a ruling on May 25, 2020 in favour of the car owners for damages.
Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and BR Gavai, JJ has held that not obtaining prior consent of the State Government under Section 6 of the the Delhi Special Police Establishment Act, 1946 (DPSE Act) would not vitiate the investigation unless the illegality in the investigation can be shown to have brought about miscarriage of justice or caused prejudice to the accused.


Background of the case


In the present case, a joint surprise raid was conducted by the CBI in factory premises of Fertico Marketing and Investment Private Limited and it was found that the coal purchased under the FSA was sold in the black market. It was further found by CBI that this was done in connivance with the unknown government officials which led to loss of Rs.36.28 crore to the Central Government. Hence, an FIR was registered by CBI for the offences punishable under Sections 120B and 420 of the IPC and Section 13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the PC Act’) against Anil Kumar Agarwal, Director of said company and unknown officials of the District Industries Centre (DIC), Chandauli.

During the course of investigation, it was found that two officers namely Ram Ji Singh, the then General Manager, DIC, Chandauli and Yogendra Nath Pandey, Assistant Manager, DIC, Chandauli were also part of the conspiracy. Investigation revealed that these two officials had abused their official positions and fraudulently and dishonestly sent false status reports regarding working conditions of the accused companies and thereby, dishonestly induced the Northern Coalfields Limited to supply coal on subsidized rates, for obtaining pecuniary advantage. Hence, a Post-Facto sanction was granted on 7th September 2018.


Arguments


Appellants

The appellants submitted that in the absence of the consent of the State Government under Section 6 of the DSPE Act, the DSPE (CBI) had no powers to conduct investigation in view of the provisions contained in Section 6 of the DSPE Act and that failure in obtaining the consent prior to registration of the FIR would go to the root of the matter and vitiate the entire investigation. It was submitted that an offence under Section 120B of the IPC read with Section 13(1)(d) of the Prevention of Corruption Act cannot stand unless there is a meeting of minds between public servant and the private individuals and as such, an FIR could not be registered. Hence, that investigation in a matter which concerns the conspiracy between the private individual and the public servant, the same would not be permitted unless there is a valid consent under Section 6 of the DSPE Act. Further, the Post-Facto sanction granted on 7th September 2018, would not cure the defect of obtaining the prior consent.

State

The State of Uttar Pradesh has accorded a general consent for extension of powers and jurisdiction of the Members of DSPE, in whole of the State of Uttar Pradesh for investigation of offences under the Prevention of Corruption Act, with the rider that no such investigation shall be taken up in cases relating to the public servants, under the control of the State Government except with the prior permission of the State Government. As such, insofar as the private individuals are concerned, there is no embargo with regard to registration of FIR against them inasmuch as, no specific consent would be required under Section 6 of the DSPE Act.

Further, public servant under the control of the State Government, if not named in the First Information Report, but if, in the further investigation, is found to be involved in the said crime, the prior permission of the State Government would not be required for investigation and the Post-Facto consent was sufficient.


Analysis


The Court noticed that though Section 5 of DPSE Act enables the Central Government to extend the powers and jurisdiction of Members of the DSPE beyond the Union Territories to a State, the same is not permissible unless, a State grants its consent for such an extension within the area of State concerned under Section 6 of the DSPE Act.

Vide notification dated 15th June 1989, the State of Uttar Pradesh accorded a general consent thereby, enabling the Members of DSPE to exercise powers and jurisdiction in the entire State of Uttar Pradesh with regard to investigation of offences under the Prevention of Corruption Act, 1988 and also to all or any of the offence or offences committed in the course of the same transaction or arising out of the same facts.

On appeal filed by the private individuals

“As such, for registration of FIR against the private individuals for the offences punishable under the Prevention of Corruption Act and other offences under the IPC, committed in the course of the same transaction or arising out of the same facts, the Members of DSPE have all the powers and jurisdiction. As such, we find absolutely no merits in the appeals filed by the private individuals.”

On appeal filed by the public officers

“… there are no pleadings by the public servants with regard to the prejudice caused to them on account of non-obtaining of prior consent under Section 6 of the DSPE Act qua them specifically in addition to the general consent in force, nor with regard to miscarriage of justice.”

The Court, hence, found no reason to interfere with the finding of the High Court with regard to not obtaining prior consent of the State Government under Section 6 of the DSPE Act.

[Fertico Marketing and Investment Pvt. Ltd. v. Central Bureau of Investigation, 2020 SCC OnLine SC 938, decided on 17.11.2020]

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Alok Aradhe and H.T. Narendra Prasad JJ., allowed the appeal stating that the Tribunal is not expected to take or adopt a nicety of a civil or criminal case.

The facts of the case are that the deceased was proceeding on his motorcycle on Mysuru Road when he was dashed against by a Hero Honda motorcycle and due to the impact he fell down, sustained injuries and finally succumbed to them. The claimants filed a petition under Section 166 of Motor Vehicle Act, 1988 i.e. MV Act for want of compensation which was rejected on grounds of failure to prove the claim before the Tribunal. Aggrieved by the said impugned order, present appeal has been filed.

Counsel for the appellants submitted that the Tribunal has erred in the impugned judgment because the accident occurred due to rash and negligent riding of the Hero Honda motorcycle by its rider and the Tribunal failed to appreciate the eyewitnesses.

Counsel for the respondents submitted that the Tribunal is justified in dismissing the claim petition because after considering the evidence of the parties and the materials placed on record it was clear that the deceased died due to self fall and the offending vehicle is not involved in the accident.

The Court relied on the judgment Mangla Ram v. Oriental Insurance Company Ltd., (2018) 5 SCC 656 wherein it was observed that:

“In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant eyewitness was discarded by the Tribunal and that the respondent, in that case, was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied.”

The Court further observed that under the Motor Vehicles Act, the standard of proof is much below than what is required in a criminal as well as in the civil case.

The Court thus held that the impugned judgment was decided only on the basis of the police report and failed to consider the evidence of the eyewitnesses. Hence, the Court remanded the matter for reconsideration.

In view of the above, appeal was allowed.[Rukmini v. N.C. Chandru, MFA No. 332 of 2017, decided on 02-11-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Andhra Pradesh High Court: Lalitha Kanneganti, J., addressed a matter wherein the accused was arrested without warrant alleged to have posted certain material amounting to promote enmity, hatred and ill-will.

The instant criminal petition was filed to quash the FIR wherein the petitioner was accused 1 was alleged to have committed the offences punishable under Sections 120-B, 153-A, 505(2) of Penal Code, 1860.

Respondent 2 who is the Social Media Coordinator of MLA of Mangalagiri Constituency lodged a complaint alleging that the petitioner who belonged to Telugu Desam Party and Admin of Neti Andhra.com posted certain material on the website by promoting enmity, hatred and ill-will between different groups on the ground of political propaganda with a conspiracy by using the name of Alla Ramkrishna Reddy, MLA of Mangalagiri Assembly Constituency and Advisor to Government Ajay Kallam and requested to take action against the petitioner.

In light of the above complaint, the present crime was registered.

Petitioners Counsel submitted that the investigation was politically motivated and has been conducted with a pre-determined and pre-meditated objective to arm-twist, harass and humiliate the petitioner by depriving of his right to free speech and expression.

The said crime was registered without issuing any notice under Section 41-A CrPC, since all the offences were punishable below 7 years and remanded to judicial custody.

Counsel further added that the act of the police in arresting the accused is in clear violation of the guidelines issued by the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

This Court and Supreme Court in catena of cases held that in order to constitute the ingredients of Section 153-A of IPC, it is necessary that at least two such groups or communities should be involved. Merely enticing the feelings of one community or group without any reference to any other group cannot attract the offence under Section 153-A IPC.

In the instant case, there were no two groups involved as per Section 153-A IPC. The Advisor to the Government and the MLA group cannot be construed as two groups.

Section 505(2) of IPC: Statements creating or promoting enmity, hatred or ill-will between classes.

The counsel for the petitioner submitted that in light of the law laid down by Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 that allegations in the complaint prima facie do not constitute the offences punishable under Section 505(2), 153A and 120B of IPC.

Supreme Court in Arnesh Kumar’s case observed that arrest brings humiliation, curtails freedom and cast scars forever. Lawmakers as well as the police must know about this. The need for caution in exercising the drastic power of arrest has been emphasized time and again.

High Court observed that, in light of the law laid down in Arnesh Kumar’s case, even though the punishment for the offence is below 7 years, the discretion is with the police officer either to arrest the accused or to issue notice contemplated under Section 41-A CrPC.

Further, the Bench noted that, while authorising the detention the magistrate shall record reasons and failure to comply with the directions shall apart from rendering the police officer concerned for departmental action, he shall also be liable for Contempt of Court to be instituted before the High Court.

Even the magistrate will be liable for departmental action by the High Court. 

“Who will police the police” when the police are giving go-by to all guidelines while arresting the accused and producing for remand, the Magistrate shall not mechanically authorise the remand, but shall satisfy that there are sufficient grounds supported by material on which the accused need to be remanded. 

— Justice Krishna Ayyar

In spite of the clear guidelines by the Supreme court, some of the police officials continue to make indiscriminate arrests, immediately after registering the complaint without proper investigation.

Prima Facie, the Court opined that the reasons stated in the remand report were not in consonance with the guidelines issued by the Supreme Court, therefore Bench invited a report along with the record from the magistrate on what basis Section 41A of CrPC was dispensed with and the accused was remanded.

All the further proceedings shall stay in view of the above discussion.

Matter to be posted on 26-11-2020.[Jangala Sambasiva Rao v. State of A.P., IA No. 2 of 2020, decided on 28-10-2020]

Legislation UpdatesNotifications

Government of Punjab vide Notification No. S.O. 52/C.A.25/1946/S.6/2020 withdraws the general consent accorded to the members of the Delhi Special Police Establishment.

In view of revocation of all previous general consents issued earlier, prior consent of the Government of Punjab shall be required, hereinafter, on a case-to-case basis for investigation of any offence or class of offences under Section 3 of the Delhi Special Police Establishment Act, 1946, by the Delhi Special Police Establishment.


Government of Punjab

[Notification dt. 06-11-2020]

Case BriefsHigh Courts

Orissa High Court: A Division Bench of Mohammed Rafiq and B. R. Sarangi, JJ.,  dismissed the petition and vacated the interim order.

 The facts of the case are such that the petitioner is a private limited company, registered under Companies Act was awarded the work “Construction of HL bridge over river Suktel on Tamian to Mundalsar road in the district of Bolangir under Biju Setu Yojana” vide agreement dated 26-02-2014 and the completion date was fixed to 25-02-2016 but it was completed before scheduled dated and handed over on 07-09-2015. Once the work completed and it was open for public transportation few horizontal cracks were to be seen and while the petitioner company was called for restoration work, the nationwide lockdown was announced and due to it being left unattended in the middle of the work, ‘span’ collapsed killing and injuring two persons respectively. Consequently, the petitioner was blacklisted and charged under various sections of the Penal Code, 1860 which stands challenged and pending adjudication. However, now Lokayukta has registered suo motu case against the petitioners and observed that a recently constructed bridge was collapsed resulting in death of two labourers and demanded a fair enquiry to be submitted exercising its power under Section 20(6) of the Odisha Lokayukta Act, 2014, and directed to file status report of the same within a period of three months from the date of passing of the order. Hence the instant application was filed challenging the order of Lokayukta.

Counsel for the petitioner submitted that as there are petitions pending adjudication before Court and the petitioner is also facing criminal charges, Lokayukta also causing an enquiry is prejudicial to the interest of the petitioner and the order passed is without complying the principles of natural justice and, thereby, the said order cannot sustain in the eye of law.

Counsel for the respondent the Lokayukta has only directed for investigation by the Vigilance authority, which is within the complete domain of the Lokayukta under Section 20(6) of the Odisha Lokayukta Act, 2014. If the Lokayukta has been empowered under the statute to issue such direction for investigation, the same should not be interfered with by this Court by passing an interim order and seeks that such interim order should be vacated and allow the Lokayukta to proceed with the matter in accordance with the law.

The Court observed that even though the order of blacklisting the contractor has been challenged before this Court and the matter is pending adjudication, and the contractor himself is facing criminal case lodged against it for such negligence in the work, but that ipso facto cannot disentitle the Lokayukta to cause an enquiry under the provisions of the Odisha Lokayukta Act, 2014 for alleged corruption in the matter of execution of the work itself.

The Court held that if the direction has been given to find out the lapses caused on the part of the government servant and such direction has been issued under Section 20(6) of the Odisha Lokayukta Act, 2014, this Court does not find any illegality or irregularity by issuing such direction by the Lokayukta.

In view of the above, petition is not entertained and accordingly dismissed.[Ram Kumar Agrawal Engineers (P) Ltd. v. Odisha Lokayukta,  2020 SCC OnLine Ori 774, decided on 16-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Jyotsna Rewal Dua JJ. disposed of the petition giving relief to the students and awarding litigation expenses as compensation to be paid by the defaulting respondent college.

The instant petition was filed by students seeking the return of their original documents submitted to Himalayan School of Nursing, being run by the Himalayan Group of Professional Institutions, under the aegis of Maa Saraswati Education Trust, registered in the State of Haryana at the time of admission in course GNM i.e. General Nursing & Midwifery Diploma. Even after having approached the authorities on multiple occasions, the college failed to provide the original documents and later confessed to not having them in their possession and the same to be seized by CBI.

Counsel for the respondent submitted that the original certificates are not in their possession and has been seized by CBI. In view of this, Court asked CBI to file a reply. The reply by CBI stated that during search proceedings, files were found and seized for further investigation qua Himalayan Group of Professional Institutions, Kala Amb, Tehsil Nahan, District Sirmaur, H.P., before the Court of Special Magistrate (CBI)-cum-CJM, Shimla.

The Court relied on various judgments emphasizing the evolution of education and its importance, namely Tamil Nadu v. K. Shyam Sunder, (2011) 8 SCC 737 and observed when educator gets down to hand twisting and blackmailing by retaining the original certificates and other documents of its students so as to ensure that their wings are clipped and they do not migrate to any other college or for that matter leave the college.

The Court directed the CBI to retain the photocopies for investigation and return the original documents to the students to prevent any further mental trauma.

The Court further relied on a judgment titled Maharishi Dayanand University v. M.L.R. Saraswati College Education, (2000) 7 SCC 746 and held that petitioner students to be compensated for the legal expenses and hence Rs 50,000 each to be paid by the institution to the students.

In view of the above, the petition stands disposed off.[Twinkle Pundir v. State of H.P., 2020 SCC OnLine HP 1845, decided on 06-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Gujarat High Court: Ilesh J. Vohra, J., heard a matter related to offences alleged under Sections 376 (2) (n), 377, 406, 498(A), 323, 294(b), 506(2) and 114 of the Penal Code, 1860 and under Section 4 of the Dowry Prohibition Act which was filed seeking to quash and set aside the impugned FIR and consequential proceedings.

The wife in the FIR had alleged that her husband right from day one of their marriage indulged in sexual acts with her against her wishes and raped her. It was alleged that, her sister-in-law and her three daughters as well as another sister in law though residing outside the country or in other States in India, also harassed her on domestic issues and demanded dowry, as a result, the complainant came to her parental home at Ahmedabad.

The Court prima facie was of the view that it was a matrimonial dispute between the husband and wife and ingredients for the alleged offence were not made out qua the applicants. Even the allegations of dowry and harassment are also prima facie not established against the present applicants as the applicants are residing in their respective States and country since long considering the law laid down in Ravinder Singh v. Sukhbir Singh, (2013) 9 SCC 245 where it was held,

            “the inherent power of the court in dealing with an extraordinary situation is in the larger interest of administration of justice and for preventing manifest injustice being done. Thus, it is a judicial obligation on the court to undo a wrong in course of administration of justice and to prevent continuation of unnecessary judicial process. It may be so necessary to curb the menace of criminal prosecution as an instrument of operation of needless harassment. A person cannot be permitted to unleash vendetta to harass any person needlessly. Ex debito justitiae is inbuilt in the inherent power of the court and the whole idea is to do real, complete and substantial justice for which the courts exist. Thus, it becomes the paramount duty of the court to protect an apparently innocent person, not to be subjected to prosecution on the basis of wholly untenable complaint”.

The Court further opined that at the stage of investigation, the High Court cannot exercise its inherent jurisdiction to quash the proceedings unless it is found that, allegations do not disclose the commission of cognizable offence or the power of investigation is being exercised by the police mala fidely or where noninterference would result in miscarriage of justice as held in Jehan Singh v. Delhi Administration, (1974) 4 SCC 522. The Court granted interim relief making the matter returnable on 27-11-2020.[Steffi Waring v. State of Gujarat, 2020 SCC OnLine Guj 1531, decided on 09-10-2020]


Suchita Shukla, Editorial Assistant ahs put this story together

Case BriefsHigh Courts

Andhra Pradesh High Court: A Division Bench of Rakesh Kumar and J. Uma Devi, JJ., while ordering CBI investigation in regard to defamatory posts being put up against the Judiciary on social media sites, observed that,

“Petitioner i.e. High Court of Andhra Pradesh is being attacked by some corner with some oblique motive.”

High Court

Petitioner i.e. High Court, whose shoulder is heavily burdened with the responsibility of mainly protecting the right of a citizen guaranteed under Part III of the Constitution of India, is itself before this Court with inward pain due to indirect/direct attack on it by some of the malefactors.

News Trend: Abuse the High Court & Judges

This Court has since April, 2020 noticed that a new trend has developed in the State of Andhra Pradesh which is to abuse the High Court and its Judges on different social media sites along with interviews on electronic media.

No platform for Judges

Judges do not have any platform to prove their sincerity, integrity, etc. even in a case they are otherwise abused or insulted.

Contempt of Courts Act, 1971

Provisions of the Contempt of Courts Act, 1971, in a case of willful disobedience/insult to the Court, one can be dealt with, but the fact remains that penal provisions under the Contempt of Courts Act are though enough to deter persons, who have some faith in the system; but not enough to deter such malefactors in making unwarranted allegations against the Judiciary or Judges.

Waging War –> Judiciary

It has been noted that the person occupying high posts are indulging in waging war against the State of Andhra Pradesh’s Judicial system. The said war against the judicial system will certainly create unnecessary doubt in the citizen’s mind leading to crippling the entire system.

Article 226 of the Constitution of India

In view of the above background, the Andhra Pradesh High Court, Amravati has preferred to invoke the writ jurisdiction under Article 226 with a view to protecting its entity from the attack of some antisocial elements in the State.

Increase in defamatory posts on social media

After filing two complaints by the Registrar General of the High Court of Andhra Pradesh for the offences under Sections 505 (2) and 506 of the Penal Code, 1860, instead of a decline in posting defamatory posts on social media, it started increasing.

In an earlier incident, one of the alleged accused Kondareddydhanireddy, YSRCP had shared a defamatory post against one of the Judges of the Andhra Pradesh High Court.

In the present context, the Judges have been abused in view of some of the orders passed by this Court.

Impact | Orders against State Government and its functionaries

On 22-05-2020, different benches of this Court had passed different orders against the orders and actions of the State Government and its functionaries.

Immediately after the passing of the above-stated orders, social media was flooded with objectionable posts. Even the persons occupying high positions went to the media and gave interviews against the High Court and its Judges, that too, from the party office belonging to a political party, which is in power.

Investigation

Petitioners Counsel tried to persuade the Court that against the Judiciary, which is one of the main pillars of the democracy, such scathing attack is being made with impunity, which requires immediate intervention and thorough investigation; and, as such, it was prayed to entrust the investigation into the aforesaid matter to an independent investigating agency.

He further submitted that since the attack has been made by the persons occupying high positions and associated with the Government, there was no possibility of an independent and fair investigation at the hands of the State Government controlled agency.

Bench in view of the above directed to entrust all the FIRs to the Central Bureau of Investigation.

Court added that,

While conducting an investigation, it would be necessary to examine as to whether such attacks on Judiciary were made as a result of a larger conspiracy or not.

If it is noticed that it was due to the result of larger conspiracy, the CBI is required to take appropriate action against such culprits irrespective of the post and position.

Court while concluding its decision directed that CBI immediately after taking up investigation may take steps so that all the defamatory posts available on social media, i.e., private respondents, may be struck down and may also take steps to block such users in accordance with the law.

CBI shall submit its report in a sealed cover to the Court within 8 weeks.

The matter has been lited for 14-12-2020.[High Court of Andhra Pradesh at Amaravati v. State of Andhra Pradesh, 2020 SCC OnLine AP 1019, decided on 12-10-2020]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Sonia Gokani and N.V. Anjaria, JJ., on 28-09-2020 during the proceedings of the Vadodara Custodial Death matter once again made sure that no stone was left unturned to go to the root of the matter stating that,

            “Let no stone be left unturned and every possible attempt be made to go to the root of the matter. There must not be any scope of either laxity or soft paddling at any stage of investigation which is not only impermissible, but would also prove to be deleterious for the system.”

The petitioner had filed the petition aggrieved by the fact that his father was missing since 10-12-2019. He had further stated that he had repeatedly approached the respondent-police authorities and also gave written applications, but no heed was paid to his requests and not a single reply was received with regard to the whereabouts of the corpus, till date. He was said to have a retail business of clothes and by obtaining a parking pass from the Western Railway cycle stand, he was doing his business. It was alleged that on 09-12-2019, his father had gone to Vadodara Railway Station to get his bicycle and from there he was taken to Fatehganj Police Station for interrogation and since then, they had not heard of him. The Court on 19-06-2020 had ordered that the corpus be PRODUCED before the court, on the returnable date; however, the police could not trace the missing person. Consequently, a Fir was filed for the offences punishable under Sections 302, 201, 203, 204 and 34 of the Penal Code, 1860 against some police officers. The Court had ordered that the investigation be handed over to the CID Crime so that there was no loss of vital evidence on 05-08-2020.

The Court on 28-09-2020 in the presence of a senior officer from State CID Mr Girish Pandya assessed the road map of investigation provided by the officer where he also informed that once the Court of JMFC permits the Lie Detection Test, as and when deemed appropriate during the course of the investigation, further scientific tests also shall be requested for. The Court further said that periodical reporting shall also be needed till the whereabouts of the corpus was found with substantive and scientific proof. The specifically reminded the investigation officer that,

            “truth is the motto and object of every investigation and in the instant case, all the accused are police personnel who are supposed to be well versed with all possible tactics to overreach the process of law, extraordinary care would be expected on his part.”

The matter is scheduled to be heard on 15-10-2020 where the case diary shall be shared with the Court along with the progress in the investigation, 24 hours advance.[Sheikh Salim Shekhbabu v. State of Gujarat, R/Special Criminal Application No. 2595 of 2020, order dated 28-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and Indira Banerjee, JJ has directed a de novo investigation into the suspicious death of National Law University (NLU)-Jodhpur student Vikrant Nagaich in 2017.

BACKGROUND OF THE CASE

The third-year law student, Vikrant was found dead on August 14, 2017, under unnatural circumstances near a railway track opposite the university. As per the authorities, the student committed suicide due to alleged depression.

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

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

KEY FACTS TAKEN INTO CONSIDERATION BY THE COURT

  • The occurrence took place in the intervening night of 13.08.2017 and 14.08.2017.
  • The inquest proceedings under Section 174 Cr.P.C. were registered on 14.08.2017 but remained inconclusive, and in view of the closure report deserves to be consigned. The death of the deceased was initially sought to be passed off as accidental by collision with a train or suicidal due to depression.
  • The F.I.R. under Section 302, IPC was registered very much belatedly on 29.06.2018, albeit reluctantly, only at the persistence of the petitioner and her husband after they repeatedly approached the higher authorities.
  • Even thereafter the investigation remained at a standstill till the filing of the counter affidavit before this Court as recent as 03.07.2020 with the respondents insisting that the death was accidental and that the nature of injuries could not attribute a homicidal death.
  • Earlier the husband of the petitioner had also petitioned the High Court where till 20.07.2019 the respondents insisted that the death was accidental in nature.
  • The Supreme Court had, on 08.07.2020, directed the completion of investigation within 2 months, after which a ‘very lengthy’ investigation closure report was placed before the Court us taking a stand that though the death was homicidal there was no clue.

COURT’S OBERVATIONS

The Court said that the High Court, despite noticing the long pendency of the investigation, took a misguided approach that the petitioner had not expressed suspicion against any one and neither had he alleged biased against the Investigating Officer, to pass an open ended order to investigate the case and file a report. Hence, the investigation remained inconclusive for nearly three long years with the investigating agency sanguine of passing it off as an accidental death without coming to a firm conclusion avoiding to complete the investigation.

The Court noticed that when, on 08.07.2020, it directed that the investigation be concluded within a period of two months and the final report be placed before it, suddenly a very lengthy investigation closure report was filed taking a stand that though the death was homicidal there was no clue. It, hence, said that

“The closure report is therefore, to our mind, a clear hasty action leaving much to be desired regarding the nature of investigation, because if a detailed investigation had already been done as is sought to be now suggested, there is no reason why a final report could not have been filed by the investigating agency in the normal course of events and needed an order to do so from this Court. The entire investigation and the closure report therefore lack bonafide.”

It was, hence, of the opinion that the interest of justice therefore requires a de novo investigation to be done, to sustain the confidence of the society in the rule of law irrespective of who the actors may be.

DIRECTIONS

  • closure report set aside and a de novo investigation by a fresh team of investigators to be headed by a senior police officer of the State consisting of efficient personnel well conversant with use of modern investigation technology also directed.
  • No officer who was part of the investigating team leading to the closure report shall be part of the team conducting de novo investigation.
  • fresh investigation must be concluded within a maximum period of two months and the police report be filed before the court concerned whereafter the matter shall proceed in accordance with law.

[Neetu Kumar Nagaich v. State of Rajasthan, 2020 SCC OnLine SC 741, decided on 16.09.2020]