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Chief Justice of Sikkim High Court noted that there had been an undue delay in recording of statement of the victims under Section 164 of the Code of Criminal Procedure, 1973 by Magistrates.

Against the Mandate of Law

CJ noted that the Magistrates had been fixing dates after a week or two with respect to the recording of statements after receiving the application from the investigating officer concerned, which is against the mandate of law.

Summoned – Improper Practice as it entails unnecessary wastage of time & resources

It also came to the notice of Chief Justice that the Magistrates recording the statements were being routinely summoned by the Session Court and Special Courts to prove the contents of the statement.

Citing the decision of Sikkim High Court in State of Sikkim v. Rakesh Rai, 2012 Crl. L.J. 2737 observed that there was no justification in calling the Magistrate as a witness.

Andhra Pradesh High Court in Guruvindapalli Anna Rao v. State of Andhra Pradesh, 2003 Crl. L.J. 3253 observed that if any Magistrate records the statement of a witness under Section 164 CrPC, it is not necessary for the Sessions Judge to summon the Magistrate to prove the contents of the statement recorded by him. When a Magistrate, discharging his official functions as such, records the statement of any witness under Section 164 CrPC such statement is a ‘public document’ and it does not require any proof.

Hence, in view of the above, Chief Justice of Sikkim High Court directed that the magistrates shall record the statement of victims/witnesses on the same day when such applications are received and in case the same is not possible, then the statement has to be recorded on the immediate next day.

Further, the Sessions Judges/Special Judges may not summon the Magistrates in a routine manner to prove the contents of such statement.


Sikkim High Court

 

[Dt. 09-04-2021]

Case BriefsDistrict Court

Court of Sessions Judge, Gondia: Suhas V. Mane, Sessions Judge, remanded the matter to Magistrate on noting no foundation in the Magistrate’s observation.

Factual Matrix

Applicant who was the husband of respondent 1 had filed a missing complaint stating that his wife was missing and he suspected that respondent 2 kidnapped her. But no cognizance for the same was taken by the Police, therefore complainant approached the Magistrate by filing the application under Sections 97 and 98 of the Code of Criminal Procedure for issuing search warrant.

It was alleged in the application that respondent 2 seduced respondent 1 and forced her to flee away with him. Further, it was also alleged that respondent 2 wrongfully confined respondent 1.

Magistrate rejected the application by observing that the applicant mentioned in the report that there was a love affair between respondent 1 and 2. Prima Facie it was revealed that respondent 1 voluntarily went with respondent 2.

Magistrate did not issue search warrant, though it was alleged that his wife was wrongfully confined.

“…provisions of section 97 and 98 of the Code of Criminal Procedure are identical with the provisions of Article 32 of the Constitution of India as there are concerns with life of person and liberty of the person.”

 Revision Petitioner submitted that rejection of application was not legal and proper, hence the request was made to set aside the order and allow the revision petition.

Bench laid down the following points for consideration:

1] Whether the impugned order passed by Judicial Magistrate First Class, Tiroda in Miscellaneous Criminal Case No. 58/2021 dated 02-03-2021relating to rejecting the application, is legal, valid and proper?

2] Whether any interference is required in the said order?

3] What order?

Bench noted that when it was alleged in the application that respondent 2 seduced and wrongfully confined respondent 1 in a secret place, then without recording the statement of respondent 1, how did the magistrate conclude that prima facie it reveals that respondent 1 voluntarily went with respondent 2.

The above observation of Magistrate had no foundation, he ought to have followed the procedure when it was pointed out to him that the applicant’s wife had been wrongfully confined by a particular person.

Hence, Magistrate erred and did not follow proper procedure, therefore interference was required.

Adding to the above Sessions Judge expressed that issuance of search warrant directing police to produce respondent 1 before the Magistrate is necessary and after that recording of respondent 1’s statement.

Conclusion

  • Revision Petition was allowed.
  • Order of the Magistrate was set aside.
  • Matter remanded to the Judicial Magistrate with direction that he shall issue a search warrant and after production of respondent 1 appropriate steps may be taken.

[Kavidas v. Varsha, Criminal Revision Application No. 9 of 2021, decided on 18-03-2021]


Advocates who appeared before the Court:

Advocate Shri. S. J. Chavhan, for Petitioner. Ld. APP Shri Khandelwal for Respondents.

Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjay Dhar, J., addressed the instant petition against the order of Judicial Magistrate, Bandipora, whereby the Magistrate had returned the petition seeking maintenance stating it to be beyond the jurisdiction of the Trial Court. The Bench remarked,

“If at all there was any ground for returning the petition to the petitioners, the same should have been done at the very first hearing, not after proceeding with the case for more than six months, that too in a case where a destitute lady had approached the learned Magistrate for grant of maintenance.”

The petitioner, who was the wife of the respondent and was the mother of a minor son. The petitioner approached the Court of Chief Judicial Magistrate, Bandipora, with a petition under Section 488 of CrPC seeking maintenance from the respondent. The petition was transferred by CJM to Judicial Magistrate 1st Class, Bandipora, for disposal.

The Trial Court had observed that the petitioner at the time of filing the petition were residing at Hajin, Bandipora whereas the respondent was residing at Grath Saloora, Ganderbal, and according to the magistrate, neither Hajin, Bandipora nor Grath Saloora, Ganderbal fall within his territorial jurisdiction. The Magistrate had further observed that it was not the case of the petitioners that they at any point in time last resided within the jurisdiction of the Trial Court. Therefore, the Trial Court held that it did not have territorial jurisdiction to entertain the petition and, accordingly, the same was directed to be returned to the petitioner.

Observation and Analysis

The Bench, after going through the provisions of Section 488(8) of the J&K CrPC, which is in pari material with Section 126(1) of Central CrPC opined that proceedings for maintenance could be filed by a wife against her husband either in the district where she resides or in the district where the husband resides and also where she had last resided with her husband. The provisions of Section 488(8) read as under:

“488(8)Proceedings under this section may be taken against any person in any district where he is or his wife resides or where he last resided with his wife, or as the case may be, the mother of the illegitimate child.”

Noticing that the petition was transferred to the Trial Court by the orders of CJM, Bandipora, who was vested with jurisdiction over whole of the District Bandipora and that Section 192 of J&K CrPC gave jurisdiction to CJM to transfer any case of which he had taken cognizance, for inquiry or trial, to any Magistrate subordinate to him, the Bench opined,

“When a Chief Judicial Magistrate transfers a petition or a complaint to a Magistrate subordinate to him, the said subordinate Magistrate is conferred with the jurisdiction to entertain and try such complaint or petition.”  

Hence, the Court reached the findings that the Magistrate, while passing the impugned order, had ignored the provisions contained in section 192(2) of the J&K CrPC. Also, the Court vehemently criticised the fact that, the petition was pending in the Court of Judicial Magistrate for about six months and the Trial Court had put the hapless petitioner in a precarious position by returning the petition citing lack of jurisdiction.

Consequently, it was held that the impugned order of the Trial Court suffered from grave illegality as the same had been passed in disregard of the provisions contained in Section 192 of the J&K CrPC and, therefore, was unsustainable in law. Hence, the impugned order was set aside with the directions to the Trial Court to entertain and dispose of the petition filed by the petitioners with utmost promptitude in accordance with the law.[Masooda Begum v. Mohammad Ashraf Dar,  2021 SCC OnLine J&K 163, decided on 03-03-2021]


Appearance before the Court by:

For the Petitioner: Adv. Aftab Ahmad


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsInternational Courts

Caribbean Court of Justice: A Full Bench of Justice Saunders, Wit, Anderson, Rajnauth-Lee, Barrow and Jamadar dismissed the appeal being devoid of merits.

BACKGROUND

The facts of the case are such that criminal complaints were filed in the Magistrates’ Court by the Respondents pursuant to Sections 56 and 59 of the House of Assembly (Elections) Act (i.e. “Elections Act”). The Respondents alleged that the Appellants (members of the Dominica Labour Party, “DLP”) were guilty of the offence of treating by hosting two free public concerts shortly before the 2014 General Elections, intending thereby to corruptly influence the electorate to vote for the DLP. After the Magistrate issued the summons, the Appellants sought judicial review of his decision to assume jurisdiction over the complaints. It was held that the Magistrate was acting in excess of his jurisdiction since a charge of treating challenged the validity of the Appellants’ election, and as such, any action had to be brought by election petition to the High Court. This view was premised on Section 40 (1) (a) of the Constitution which provides that the High Court has the jurisdiction to hear questions of membership and questions concerning the validity of an election. The summons was quashed. The Respondents appealed. The majority Court of Appeal decided in favour of the Respondents and reinstated the summons. The majority stated that Section 59 created a summary process and gave the Magistrate the power to summarily try and convict a person for treating. That power did not intrude upon the accepted exclusive jurisdiction of the High Court in Section 61 of the Elections Act and Section 40 (1) (a) of the Constitution to determine questions of membership of the House. Therefore, the relevant sections did not conflict. Thereby instant appeal before the CCJ was filed.

ISSUES

The parties disagree on four main points which may conveniently be encapsulated as follows:

  1. The ‘Parallel Modes of Trial Point’;
  2. The ‘Constitutionality Point’;
  3. The ‘Weight of Jurisprudence Point’ and
  4. The ‘Equality before the Law Point’.

OBSERVATION AND DECISION

The ‘Parallel Modes of Trial Point’

The Court observed that where a candidate was involved, there were two distinct modes of addressing elections offences, evident on a reading of the Elections Act. First, the summary offences procedure, where offences like treating are tried before a Magistrate. Second, the election petition procedure, which was concerned with the undue return or undue election of a member of the House and where one of the bases upon which such return or election can be found to be undue is the engagement in certain corrupt practices, inclusive of treating. The imposition of the disqualification from retaining a seat in the House set out in Section 61 of the Act did not fall within the summary jurisdiction mode of trial and therefore, was not within the Magistrate’s power.

The ‘Constitutionality Point’;

The Court observed that the relevant provisions of the Elections Act did not conflict with Section 40 (1) of the Constitution. First, summary proceedings for treating did not concern the validity of elections; they were concerned to vindicate the criminal law. Second, on reading section 35 (4) of the Constitution, it was clear that ‘any person’ may be convicted of treating and such conviction impacts, inter alia, their membership, or prospective membership, in the House. Such a person necessarily included members of the House of Assembly.

‘Weight of Jurisprudence Point’,

The Court observed that the cases relied on by the Appellants were all inapplicable to the present appeal as they dealt with the quite separate issue of the exclusive jurisdiction of the High Court, to determine the validity of an election by way of election petition. The proceedings before the Magistrate did not directly concern any question of the validity of elections, it concerned the criminal prosecution of the summary offence of treating.

 ‘Equality Before the Law Point’,

The Court observed that the Appellants’ contention, if correct and put into practice would create two categories of offenders, that is, ordinary citizens subject to the summary prosecution process and members of the House who were immune from it. Such an interpretation offended the principles of equality before the law and the rule of law which were deeply embedded in the Constitution. There was no evidence that it was the intention of the Legislature of Dominica to create this bifurcation in the exposure to the criminal law.

In a concurring judgment, Burgess J. agreed with the decision of the majority, that the appeal should fail as the Elections Act created a two-pronged punitive approach aimed at eliminating corrupt electoral practices, first, the imposition of criminal consequences and second, the unseating of successful candidates. A comparative analysis of legislation from various Commonwealth jurisdictions demonstrated that this two-pronged approach is not anomalous. The Appellants argued that the words, “every person” in Section 56 of the Elections Act did not encompass successful candidates, and Justice Burgess found that in the absence of express language by Parliament, that argument must fail.

In view of the above, appeal was dismissed.[Roosevelt Skerrit v. Antoine Defoe, CCJ Civil Appeal No DMCV2020/001, decided on 09-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: The Full Bench of Sanjay Yadav, Mahesh Chandra Tripathi and Siddhartha Varma, JJ., in a very significant ruling expressed that:

“…writ of Habeas Corpus is not maintainable against the judicial order or an order passed by the Child Welfare Committee under the J.J. Act.”

Instant writ petition was listed in the reference made by the Division Bench of this Court, in order to consider the various provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 and the law laid down by various Courts.

Following issues were framed by the Division Bench:

“(1) Whether a writ of habeas corpus is maintainable against the judicial order passed by the Magistrate or by the Child Welfare Committee appointed under Section 27 of the Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home?;

(2) Whether detention of a corpus in Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home pursuant to an order (may be improper) can be termed/viewed as an illegal detention?; and

(3) Under the Scheme of the Juvenile Justice (Care and Protection of Children) Act, 2015, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and as such, the proposition that even a minor cannot be sent to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home against his/her wishes, is legally valid or it requires a modified approach in consonance with the object of the Act ?”

Ancillary Issues

Bench noted that apart from the above framed issues there were some ancillary issues attached in cases of elopement of minor girls ad on recovery, sending them to Nari Niketan/Protection Home/Care Home.

Run-away Marriages

Large number of habeas corpus petitions are filed by the parents/guardians or alleged husband for production of their wards or wife, who leave their parental houses in “run-away marriages”.

Court while dealing with habeas corpus petitions are required to ensure that the person whose production is sought is not illegally detained.

Further, elaborating more on the above aspect, Bench expressed that difficulty arises in the cases where the minor girl has entered into matrimonial alliance and is steadfast in her resolve to continue to cohabit with the partner of her choice. —- At times, the girl is even on family way.

On perusal of Section 11 and 12 of the Hindu Marriage Act, it would be seen that contravention of the prescribed age under Section 5(iii) of the Act would not be given as a ground on which the marriage could be void or voidable.

Child Marriage Restraint Act, 1929 aims to restrain performances of child marriages but does not affect the validity of a marriage, even though it may be in contravention of the age prescribed under the Act. Performance of such marriage punishable under the law with imprisonment which can extend up to three months and with a fine. Even Section 12 of the Act provides to issue an injunction to prevent performance of any child marriage.

Supreme Court while considering the provisions of the Child Marriage Restraint Act has observed that contravention of the provisions of the said Act would only lead to punishment and marriage would not be void.

Now coming back to the issues framed, Court addressed the first issue in the following manner:

Nature and scope of the habeas corpus writ has been considered by the Constitution Bench of the Supreme Court in Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674.

In dealing with a petition for habeas corpus, High Court has to see whether the detention on the date, on which the application is made to Court, is legal, if nothing more has intervened between the date of application and the date of hearing …”Ref. A.K. Gopalan v. Government of India, AIR 1966 SC 816.

High Court expressed that: writ of habeas corpus lies against the order of remand made by a court of competent jurisdiction. It is well accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical or wholly illegal manner.

In Serious Fraud Investigation Office v. Rahul Modi, (2019) 5 SCC 266 the Supreme Court cancelled bail granted by the Delhi High Court to Rahul Modi and Mukesh Modi accused of duping investors of several hundred crores through a ponzi scheme run by their Gujarat based other co-operative societies. Both the accused were released by the Delhi High Court in a habeas corpus writ petition even though they were remanded to judicial custody under the orders of a competent court.

Proceeding further to analyse the questions, Bench opined that the Magistrate or the Committee in case directing the girl to be kept in protective home under the J.J. Act the Magistrate or the Committee, should give credence to her wish.

In order to bring more clarity on the matter, Bench referred to the decision of Supreme Court in Raj Kumari v. Superintendent Women Protection House, 1997 (2) A.W.C. 720, wherein it was held that a minor cannot be sent to Nari Niketan against her wishes and the same preposition of law is being incorporated in the orders passed by this Court while entertaining the Habeas Corpus Writ Petition of minor girl, who has been detained in Nari Niketan by a judicial order.

High Court considered an issue as to whether there is any authority for detention of the corpus with any person in law.

Can Magistrate direct the detention of a person?

Corpus was detained in the Nari Niketan under the directions of the Magistrate, the first thing to be determined is – whether the Magistrate can direct the detention of a person in the situation in which the petitioner is. To which the answer was no the magistrate has no absolute right to detain any person at the place of his choice or any other place unless the same could be justified by some law and procedure.

Detention at Nari Niketan

Elaborating further, Bench expressed that no law has been quote with regard to whether the Magistrate may direct detention of a witness simply because she does not like to go to any particular place. Hence, in such circumstances, the direction of the Magistrate that she shall be detained at Nari Niketan is absolutely without jurisdiction and illegal.

It is the paramount responsibility of the Committee to take all necessary measures for taking into account the child’s wishes after making due enquiry, which contemplates under Section 36 of J.J. Act and take final decision.

Therefore, Bench stated that in case corpus is in Women Protection Home pursuant to an order passed by the Child Welfare Committee, which is neither without jurisdiction nor illegal or perverse, the detention of the corpus cannot be said to be illegal and in case petitioner is aggrieved with the Child Welfare Committee or Magistrate’s order, petitioner is at liberty to take recourse or remedy of an appeal or revision under Sections 101 and 102 of the J.J. Act.

In the present matter, Bench observed that the petitioner corpus was 17 years, one month and 8 days old, hence was directed to be placed in Women Protection Home, since she came under the ambit of a child as defined under Section 2(12) of the J.J Act.

Once corpus is minor and the girl had refused to go with her parents, then in such situation arrangement has to be made. Her interest in paramount.

Therefore, wish of minor and the wish/desire of girl can always be considered by the Magistrate concerned/Committee and as per her wishes/desire further follow up action be taken in accordance with law under the J.J. Act.

Conclusion

Issue 1: If the petitioner corpus is in custody as per judicial orders passed by a Judicial Magistrate or a Court of Competent Jurisdiction or a Child Welfare Committee under the J.J. Act. Consequently, such an order passed by the Magistrate or by the Committee cannot be challenged/assailed or set aside in a writ of habeas corpus.

Issue 2: An illegal or irregular exercise of jurisdiction by a Magistrate or by the Child Welfare Committee appointed under Section 27 of the J.J. Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home cannot be treated illegal detention.

Issue 3: Under the J.J. Act, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and the Magistrate/Committee must give credence to her wishes. As per Section 37 of the J.J. Act the Committee, on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child’s wishes in case the child is sufficiently mature to take a view, pass one or more of the orders mentioned in Section 37 (1) (a) to (h).

[Rachna v. State of U.P.,  2021 SCC OnLine All 211, decided on 08-03-2021]


Advocates before the Court:

For the Petitioner: Avinash Pandey, Amicus, Sri Shagir Ahmad

For the Respondent: G.A., JK Upadhyay

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., quashed a complaint about defamation filed by a lawyer against Business Standard. It was held that the complainant had no locus to file the complainant.

What do the petitioners want?

Petitioner sought the quashing of Order as well as Complaint Case titled: Lohitaksha Shukla v. Business Standard (P) Ltd. pending before the Metropolitan Magistrate.

What was the basis of complaint?

Complaint was based on an article titled: “The Long and Short of it” which was published in the petitioner’s newspaper – Business Standard under the authorship of Mitali Saran.

Averments of the Complainant

Lohitaksha Shukla, Complainant who was an advocate by profession averred that he was informed about the factum of publication of the article by his friends. In the complaint he alleged that the article was not based on facts and contained some defamatory insinuations against RSS and it’s members, as it accused members of RSS being oppressive to Indians, mentally disturbed and disrespectful to Indian National Symbols ridden with psycho sexual complexes, practitioners of discrimination based on caste and physically unfit.

Further, he added that being a member of RSS, his reputation had been adversely affected.

Metropolitan Magistrate found that there was sufficient material for summoning the accused 1, 2 and 3 under Section 500 IPC.

Petitioner’s Stand

Petitioners submitted that if a Magistrate were to take cognizance of the offence of defamation on a complaint filed by one who was not an “aggrieved person”, the trial and conviction of an accused in such a case by Magistrate would be void and illegal.

Petitioner 2 has averred that the allegation of complainant that he was ‘Editor in Chief’ of petitioner 1 at the time of publication of the article was baseless, as he had never been ‘Editor in Chief’ of petitioner 1.

Adding to the above, it was submitted that the complainant was not “person aggrieved” within the meaning of Section 199(1) CrPC and hence, was not competent to institute a private complaint and even if the complaint was taken on the face value, the same did not disclose any offence whatsoever which falls within the ambit of Sections 499 and 500 IPC.

Complainant could not establish how his reputation was harmed or his moral or intellectual character was lowered as a result of the said article. Though he claimed that he had been asked by his friends to leave RSS as a result of that article, but he could not bring anyone to the witness box in support of the said assertion, hence failed to prove that article brought any kind of defamation to him.

Bench noted that Section 199(1) CrPC mandated that the magistrate could take cognizance of the offence only upon receiving a complaint by a person who was aggrieved.

Purpose and intent of this provision is to limit the power of Magistrate to take cognizance of offences pertaining to defamation in order to prevent and discourage the filing of frivolous complaints. 

Court observed that, in the present case, the complainant had not been able to show as to how he was the “person aggrieved” within the definition of Section 199(1) CrPC and thus, the contents of complaint suffered from vices of illegality or infirmity. Even complainant was not a part of “identifiable class” or definite “association or collection of persons” as enumerated in Explanation (2) to Section 499 of IPC.

Trial Court did not take into consideration the above-stated provision.

High Court referred to the Supreme Court decision in Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 with regard to the scope of “opinion of Magistrate”.

Hence, in view of the above discussions, Court held that the complaint in question was not maintainable and was liable to be dismissed.  [Business Standard (P) Ltd. v. Lohitaksha Shukla,  2021 SCC OnLine Del 988, decided on 01-03-2021]

Case BriefsHigh Courts

Allahabad High Court: Dr Y.K. Srivastava, J., expressed while deciding the present application that:

“Proceeding for interim maintenance, shall as far as possible, be disposed of within 60 days from the date of service of notice on the husband.”

Instant application was filed under Section 482 CrPC, seeking quashing of order in proceedings in a case filed under Section 125 of CrPC.

Additional Advocate General appearing for the State respondents raised an objection with regard to the maintainability of the present petition on the ground that the order sought to be quashed, related to grant of interim maintenance, is subject to a final adjudication on the main petition filed under Section 125 CrPC It is submitted that it is open to the applicant to raise all his objections before the Family Court.

Section 125 CrPC falls under Chapter IX of the Code of Criminal Procedure, 1973 and it contains provisions whereunder, an order for maintenance of wives, children and parents can be made. The object of the provisions contained under Chapter IX is to provide a speedy and effective remedy against persons, who neglect or refuse to maintain their dependent wives, children and parents.

It was observed that the proceedings for maintenance under Section 125 CrPC are of a summary nature and the purpose and object of the same is to provide immediate relief to the applicant.

An application under Section 125 CrPC can be moved by the wife on fulfilment of two conditions :-

a) the husband has sufficient means and;

(b) he neglects or refuses to maintain his wife, who is unable to maintain herself. The Magistrate, in such a case, may direct the husband to pay such monthly sum of the money, as deemed fit taking into consideration the financial capacity of the husband and other relevant factors.

Bench observed that Section 125 CrPC is in the nature of a benevolent provision having a social purpose with the primary objective to ensure social justice to the wife, child and parents, who are unable to support themselves so as to prevent destitution and vagrancy.

With regard to the third proviso of Section 125 CrPC, Court expressed that it gives a timeline by providing that the proceeding for interim maintenance, shall as far as possible, be disposed of within 60 days from the date of service of notice on the husband.

Hence, an order granting interim maintenance is subject to a final adjudication on the main petition and the interim maintenance granted during the pendency of the proceedings is only provisional maintenance subject to final determination to be made on the conclusion of the proceedings.

In light of the above discussion, the Court exercised its inherent jurisdiction in respect of the reliefs prayed for.

Counsel for the applicant at this stage made a prayer that he may be permitted to withdraw the present application and stated that the applicant would contest the proceedings before the court below.

The present application filed under Section 482 CrPC stood, accordingly, dismissed. [Mithilesh Maurya v. State of U.P., Application u/s 482 no. – 19612 of 2020, decided on 08-01-2021]

Case BriefsHigh Courts

Allahabad High Court: Raj Beer Singh, J., observed that:

“The object of the Section 125 CrPC being to afford a swift remedy, and the determination by the Magistrate as to the status of the parties being subject to a final determination by the Civil Court, when the husband denies that the applicant is not his wife, all that the Magistrate has to find, in a proceeding under Section 125 CrPC, is whether there was some marriage ceremony between the parties, whether they have lived as husband and wife in the eyes of their neighbours, whether children were born from the union.”

The instant revision was preferred against the order passed under Section 125 of Criminal Procedure Code.

Contention that falls for consideration:

Whether respondent 2 has been able to show herself as married wife of revisionist in order to claim maintenance from revisionist under Section 125 CrPC?

Proceedings under Section 125 CrPC. are summary proceeding. In Supreme Court’s decision of Dwarika Prasad Satpathy v. Bidyut Prava Dixit, (1999) 7 SCC 675, it was observed that the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC.

Bench expressed that it is a well-settled law that for the purposes of a proceeding under Section 125 CrPC, the factum of marriage has to be prima facie considered.

“If there is prima facie material on record to suggest that the parties have married or are having relationship in the nature of marriage, the court can presume in favour of the woman claiming maintenance.”

 Court also stated that an order passed in an application under Section 125 CrPC does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide a summary remedy for providing maintenance to a wife, children and parents.

In the decision of S. Sethurathiuam Pillai v. Barbara it was observed that maintenance under Section 488 CrPC, 1898 (similar to Section 125 Cr.P.C.) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties.

Court observed that in a proceeding for maintenance under Section 125 CrPC, a Magistrate or Judge of the Family Court has to be prima facie satisfied about the marital status of the parties, as a decision under Section 125 CrPC is tentative in nature, subject to the decision in any civil proceeding, as has been held in Santosh v. Naresh Pal (1998) 8 SCC 447.

In light of the above discussions, High Court states that if from the evidence which is led, the Magistrate/Court is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125 CrPC which are of summary nature, strict proof of performance of essential rites is not required.

In the instant matter, respondent 2 had submitted that her nikah was solemnized with the revisionist and out of that marriage, she gave birth to a daughter, but she was killed by the revisionist, whereas the case of the revisionist was that his nikah was never solemnized and they never lived as husband and wife together.

Limited Scope of Revisional Court

Question whether the respondent 2 was a married wife of revisionist, is a question of fact and thus, this court cannot upset the finding of the trial court by entering into re-appreciation of evidence, unless it is shown such a finding is not based on evidence or some patent error of jurisdiction is shown. In the instant case, no such eventuality could be shown. In fact, if the wife had been neglected and the wife was entitled to maintenance, the scope of interference by the Revisional Court is very limited.

Further, the Court added that in view of evidence on record, the grant of maintenance from the date of application cannot be said arbitrary or against law. The quantum of maintenance also appeared reasonable and appropriate.

“If a party deliberately delays the proceedings for long period, such party must not be allowed to take advantage of such tactics.”

 High Court found no illegality, perversity or error of jurisdiction in the impugned order.

While parting with the decision, Court added that the Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. [Irshad Ali v. State of U.P., 2021 SCC OnLine All 92, decided on 08-01-2021]


Advocates who appeared on behalf of the parties:

 Counsel for Revisionist: Krishna Mishra

Counsel for Opposite Party: G.A.

Case BriefsHigh Courts

Telangana High Court: P. Naveen Rao, J., discussed and reiterated the scope of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 extensively.

“As against the procedure envisaged in the Code of Criminal Procedure, where power is vested in the Magistrate, to monitor investigation of a crime under the Act, 1989 and take cognizance of the crime, the power is now vested in the Special Court.”

Illegal Intimacy

First petitioner submitted that second petitioner is her daughter and her marriage was performed in the year 2017. After 4 months of their marriage, the husband of the second petitioner developed illegal intimacy with another woman who is stated to be the daughter of the sixth respondent and were living under one roof.

The husband of petitioner 2 started harassing her. Later in the panchayat held by the elders, there was an understanding that Shivakumar would lead marital life with the second petitioner by leaving the daughter of respondent 6.

Even after the above-held panchayat, the illegal relationship of Shivakumar and daughter of respondent 6 continued.

Based on the above complaint, a crime was registered under Sections 498-A and 497 IPC. Sixth respondent’s daughter gave an assurance in front of the police that she would not interfere in marital life of second petitioner and requested the petitioners to withdraw the case.

Later, even after the settlement, the illegal relationship continued and this time, the respondent filed a complaint alleging that petitioners abused them in filthy language and on caste lines.

Complaint under Section 34 IPC and Sections 3(1)(r)(s), 3 (2) (va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Petitioners have now alleged that taking advantage of the registration of crime, sixth respondent and his daughter threatened the petitioners and were forcing the second petitioner to give divorce to her husband.

Petitioners contended that the police has not been following the procedure and requires the Court to direct the fourth respondent to follow the Supreme Court decision in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

Scope of Power of Police

On the issue of the scope of power of police to conduct an investigation, the arrest of accused, grant of bail, and the role of Constitutional Courts in such matters was extensively considered by the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335.

Further, the Bench expressed that it is a settled principle of law that once a cognizable crime is reported, police have to register the crime and investigate into the crime. Such an investigation has to be taken up immediately, collect the evidence and then take steps to finalize the investigation and file the final report.

Scope of  The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

The scope of provisions of the Act, 1989 came up for consideration before the Supreme Court in Subhash Kashinath Mahajan v. State of Maharashtra,(2018) 6 SCC 454. The Supreme Court held that merely because a crime is reported under the Act, 1989, it need not be registered automatically and to avoid false implication of an innocent person, a preliminary enquiry may be conducted by the Deputy Superintendent of Police concerned to find out whether allegations in the complaint made out a case to proceed under the Atrocities Act, and that the person need not be arrested.

In Union of India v. State of Maharashtra, (2020) 4 SCC 761, Supreme Court reviewed the directions issued in Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454.

Further, after extensively referring to the view taken by the Supreme Court in Union of India v. State of Maharashtra, (2020) 4 SCC 761, Supreme Court observed in Prithvi Raj Chauhan v. Union of India, (2020) 4 SCC 727:

“9. Concerning the provisions contained in Section 18-A, suffice it to observe that with respect to preliminary inquiry for registration of FIR, we have already recalled the general Directions 79.3 and 79.4 issued in Subhash Kashinath case [Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 : (2018) 3 SCC (Cri) 124]. A preliminary inquiry is permissible only in the circumstances as per the law laid down by a Constitution Bench of this Court in Lalita Kumari v. State of U.P. [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524], shall hold good as explained in the order passed by this Court in the review petitions on 1-10-2019 [Union of India v. State of Maharashtra, (2020) 4 SCC 761] and the amended provisions of Section 18-A have to be interpreted accordingly.

10. Section 18-A(i) was inserted owing to the decision of this Court in Subhash Kashinath [Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 : (2018) 3 SCC (Cri) 124], which made it necessary to obtain the approval of the appointing authority concerning a public servant and the SSP in the case of arrest of accused persons. This Court has also recalled that direction on Review Petition (Crl.) No. 228 of 2018 decided on 1-10-2019 [Union of India v. State of Maharashtra, (2020) 4 SCC 761] . Thus, the provisions which have been made in Section 18-A are rendered of academic use as they were enacted to take care of mandate issued in Subhash Kashinath [Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 : (2018) 3 SCC (Cri) 124] which no more prevails. The provisions were already in Section 18 of the Act with respect to anticipatory bail.”

Therefore, in light of the above discussion, bench dismissed the petition. [Sattarsetti Nirmala v. State of Telangana, 2021 SCC OnLine TS 167 , decided on 06-01-2021]

Case BriefsHigh CourtsTribunals/Commissions/Regulatory Bodies

It’s the last day of 2020, and here we are with the 20 most-read Case Briefs of the SCC Online Blog in the Year 2020.

The following lists consist of the most-loved Case Briefs by SCC Blog Readers.

[Bombay High Court]

Bom HC | State Govt. declares ATMA, XAT, MAT, GMAT entrance tests not to be valid eligibility for MBA/MMS courses, instead only MS-CET, CMAT and CET to be valid: Read HC’s decision on Government Circular

[Anmol Jagdish Baviskar v. Minister, Higher and Technical Education Department Mumbai; 2020 SCC OnLine Bom 3853, decided on 11-12-2020]


[National Consumer Disputes Redressal Commission]

If a person carries out trading in shares on an occasional basis by opening a Demat Account, will that person come under the ambit of Consumer? Read NCDRC’s opinion

[Vaman Nagesh Upaskar v. India Infoline Ltd., 2020 SCC OnLine NCDRC 469, decided on 28-10-2020]


[Bombay High Court]

Bom HC | If the wife is earning something for livelihood, can the same be a ground to refuse alimony under S. 24 of Hindu Marriage Act? Read Court’s ruling reiterating SC’s decision

[Arpana Vijay Manore v. Dr Vijay Tukaram Manore, 2020 SCC OnLine Bom 3925, decided on 09-12-2020]


[Delhi High Court]

Del HC | Schools free to decline Online Education Facility to students whose parents fail to pay tuition fees

[Queen Mary School Northend v. Director of Education, 2020 SCC OnLine Del 736 , decided on 08-07-2020]


[Allahabad High Court]

All HC | Offences under Ss. 498-A IPC and 3/4 of Dowry Prohibition Act compounded in light of settlement between parties

[Deena Nath v. State of U.P., 2020 SCC OnLine All 1057, decided on 23-09-2020]


[Supreme Court]

Maintenance of wife|Husband doesn’t have to pay maintenance in each of the proceedings under different Maintenance laws [Explainer on Supreme Court guidelines]

[Rajnesh v. Neha,  2020 SCC OnLine SC 903, decided on 04.11.2020]


[Kerala High Court]

Ker HC | If a particular income is not taxable under Income Tax Act, it cannot be taxed on basis of estoppel or any other equitable doctrine; Court reiterates principles for recovery under Income Tax Act

[Uniroyal Marine Exports v. CCE,  2020 SCC OnLine Ker 5175, decided on 17-11-2020]


[Allahabad High Court]

[Maintenance to Muslim wife] All HC | “S. 125 CrPC perhaps one of the most secular enactment ever made in this country”: HC while upholding maintenance awarded to a divorced Muslim wife

[Jubair Ahmad v. Ishrat Bano, 2019 SCC OnLine All 4065, decided on 18-10-2019]


[Kerala High Court]

Ker HC | No blanket order should be passed under S. 438 CrPC to prevent accused from being arrested when there is no crime registered against him; Court quashes order granting anticipatory bail

[State of Kerala v. Ansar M.C.,  2020 SCC OnLine Ker 4569, decided on 21-10-2020]


[Supreme Court]

SC clarifies law on admissibility of electronic evidence without certificate under Section 65B of Evidence Act, 1872

[Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571, decided on 14.07.2020]


[Allahabad High Court]

All HC | Can a complaint filed in light of S. 138 NI Act be dismissed on ground of one day delay? Read Court’s reasoned order

[Pankaj Sharma v. State of U.P., 2020 SCC OnLine All 1339, decided on 22-09-2020]


[Chhattisgarh High Court]

Chh HC | Can an application for anticipatory bail under S. 438 CrPC be filed directly before the High Court? || Thorough Analysis

[Hare Ram Sharma v. State of Chhattisgarh, 2020 SCC OnLine Chh 639, decided on 18-11-2020]


[Bombay High Court]

[S. 125 CrPC] Bom HC | Wife cannot be denied maintenance on ground of having a source of income

[Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLine Bom 694, decided on 26-05-2020]


[Calcutta High Court]

Cal HC | Rejection of complaint under S. 156(3) CrPC by Magistrate without taking cognizance under S. 190(1)(a) is an error in law; correct approach explained

[Pranati v. State of W.B., 2020 SCC OnLine Cal 132, decided on 21-01-2020]


[Delhi High Court]

Del HC | If interim maintenance by wife has already been secured under Domestic Violence Act, will application under S. 125 CrPC be maintainable? Court answers

[Rani v. Dinesh, Crl. Rev. P. 1091 of 2019 and Crl. M.A 13677 of 2020, decided on 02-12-2020]


[Himachal Pradesh High Court]

HP HC | Remedy under S. 125 CrPC and S. 12 of DV Act, 2005 are distinct and different; Law does not prohibit wife to proceed under both of the said statutory provisions simultaneously or otherwise; Petition dismissed

[Sachin Sharma v. Palvi Sharma,  2020 SCC OnLine HP 2109, decided on 26-10-2020]


[Chhattisgarh High Court]

Chh HC | S. 320 CrPC is no bar to the exercise of power of quashing of FIR in matrimonial matters; Petition allowed

[Gurumukh Das Chandani v. State of Chhattisgarh, 2020 SCC OnLine Chh 568, decided on 27-10-2020]


[Allahabad High Court]

All HC | Principle contained in S. 141 of NI Act is not applicable to a sole-proprietary concern, firm need not be arraigned as an accused while making a claim for recovery under S. 138 of the NI Act

[Dhirendra Singh v. State of U.P., 2020 SCC OnLine All 1130, decided on 13-10-2020]


[Karnataka High Court]

[MV Act] Kar HC | Will the insurance company be liable for compensation if the vehicle was insured as ‘private vehicle’ but plyed on ‘hire’ at the time of accident? HC decides

[United India Insurance Co. Ltd. v. Basavaraj, 2020 SCC OnLine Kar 1652, decided on 02-11-2020]


[National Consumer Disputes Redressal Commission]

NCDRC | Can a consumer claim refund of principal amount if flat not delivered on time? Commission untangles two fundamentals for Buyer — Consumer

[Ankur Goyal v. Rise Project (P) Ltd., 2020 SCC OnLine NCDRC 465, decided on 14-10-2020]

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

Bombay High Court: C.V. Bhadang, J., addressed whether the Family Court can application for reliefs under Section 18 to 22 of the Protection of Women from Domestic Violence Act, 2005.

The instant application was filed in regard to the transfer of Criminal Miscellaneous Application pending before the Judicial Magistrate for dissolution of marriage on the ground of cruelty.

Bench noted that the applicant was seeking reliefs against the respondent with regard to the dissolution of marriage and permanent custody of the children.

Respondent had filed Criminal Miscellaneous Application under Sections 12, 17, 18, 19, 20, 22 and 23(2) of the D.V. Act, seeking a residence order a protection order and monetary reliefs.

Principle Issue 

Whether the Family Court can entertain the application, as framed and filed by the respondent before the Magistrate?

Court referred to the three decisions of Single Judges of this Court which have already covered the above issue:

  • Minoti Subhash Anand v. Subhash Manoharlal Anand (R.D. Dhanuka, J.),2015 SCC OnLine Bom 6113
  • Sandip Mrinmoy Chakraborty v. Reshita Sandip Chakraboarty ( Bharati H. Dangre, J.), 2018 SCC Online Bom 2709
  • Santosh Machindra Mulik v. Mohini Mithu Choudhari (S.C. Gupte, J.), Misc. C.A. No. 64 of 2019 decided on 15-11-2019

This Court has consistently held that in view of Section 7(2)(b) of the Family Courts Act, read with Section 26 of the Protection of Women from Domestic Violence Act, 2005, Family Court would get jurisdiction to entertain the application for reliefs under Section 18 to 22 of the D.V. Act.

“…if the Family Court can entertain an application under Sections 18 to 22, if filed under Section 26 merely because the application is styled as one under Section 12, would hardly make any difference.”

Hence, the present application was allowed and the Criminal Miscellaneous Application was transferred to the Family Court.[Hitesh Prakashmalji Mehta v. Aashika Hitesh Mehta, 2020 SCC OnLine Bom 983, decided on 28-09-2020]


Advocates who appeared before the Court:

Abhijit D. Sarwate for the Applicant.

Arvind Chavan for the Respondent.

Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., reversed the acquittal of the respondent-accused holding him guilty of having committed an offence under Section 138 (dishonour of cheque) of the Negotiable Instruments Act, 1881.

Facts on record

The complainant had come with a case wherein he stated he had friendly relations with the accused. Since the accused was in need of money to purchase immovable property, therefore he requested the complainant to extend the amount of Rs 15,00,000 and Rs 6,00,00 which was extended by the complainant.

In regard to the above legal enforceable debt or liability, two cheques were issued.

On depositing the above cheques, both were dishonoured for the reason “refer to drawer”.

In light of the above circumstances, the complainant filed two separate complaints and Magistrate on taking into consideration the above said facts, acquitted the accused.

In view of the above, the present appeal has been filed.

Advocate for the complainant relied on the decision of Vijay v. Laxman, 2013 STPL (DC) 679 SC, wherein it was held that:

“The burden of proving the consideration for dishonour of cheque is on the complainant, but the burden of proving that a cheque had not been issued for discharge of a legally enforceable debt or liability is on the accused. If he fails to discharge the said burden he is liable to be convicted.”

In view of the above decision, Complainant’s Counsel submitted that trial judge committed illegality and the decision was in view of the legal position and therefore the appeal deserved to be allowed.

Analysis, Law and Decision

Whether the complainant has discharged the initial burden to prove that he had advanced loan to the accused?

With regard to the amount of Rs 15,00,000, it was held that as regards the said amount, the complainant discharged the initial burden of proof that he has advanced loan to the accused.

In his statement under Section 313 of the CrPC, accused did not state that he was holding such account, on which the cheque was issued by the complainant and he did not specifically state that he had not received the amount through the said account.

Bench stated that the complainant had proved that it was legally enforceable debt or liability, which was to the extent of Rs 15,00,000 as against the accused.

As regards the other disputed cheque i.e. amount of Rs 6,00,000, complainant stated he had given the said amount by cash.

In this case, also it can be said that the complainant has discharged the initial burden of proof that he had advanced amount of Rs 6,00,000 as a loan to the accused.

In the instant case, the accused did not deny his signature on the disputed cheques. Though he came with a defence, as to how those cheques went into the possession of the complainant, but as aforesaid that defence is unbelievable.

Bench stated that even if for the sake of arguments we admit that the disputed cheques were blank cheques; yet, when accused admits his/her signatures on the disputed cheques, then the legal position on this point is also clear that the complainant would get an authority under Section 20 of Negotiable Instruments Act to complete the incomplete cheque.

When now the position stands that the complainant has discharged the initial burden, accused admits his signature on the disputed cheques; then presumption under Section 139 of the Negotiable Instruments Act definitely gets attracted in favour of the complainant.

The complainant was the ‘holder of cheques’ and therefore, was entitled to present the same for encashment. Both the cheques were dishonoured.

Statutory notices issued by the complainant were complied with, and therefore, Court held that the accused is guilty of committing the offence punishable under Section 138 of the Negotiable Instruments Act.

Magistrate did not scan the evidence properly with sound legal principles and therefore, interference of this Court was required.

Bench relied on the Supreme Court’s decision in Govindaraju v. State, (2012) 4 SCC 722, with regard to the powers of the Appellate Court, wherein it was observed that:

“The law is well-settled that an appeal against an order of acquittal is also an appeal under the Code of Criminal Procedure, 1973 and an appellate Court has every power to re-appreciate, review and reconsider the evidence before it, as a whole. It is no doubt true that there is presumption of innocence in favour of the accused and that presumption is reinforced by an order of acquittal recorded by the trial Court. But that is the end of the matter. It is for the Appellate Court to keep in view the relevant principles of law to re-appreciate and reweigh the evidence as a whole and to come to its own conclusion on such evidence, in consonance with the principles of criminal jurisprudence”.

Honest drawers’ interest who issue cheques is safeguarded in the Act itself.

In Dalmia Cement (Bharat) Ltd v. Galaxy Traders & Agencies Ltd., (2001) 6 SCC 463, the Supreme Court has explained the scope of offence under Section 138 of the NI Act.

In R. Vijayan v. Baby, (2012) 1 SCC 260, Supreme Court held that while awarding compensation in matters under Section 138 NI Act, interest can be awarded @9% p.a.

Court stated that in view of the above decisions, awarding jail sentence to the respondent/accused may not be in the interest of justice.

Bench also added to its decision that the appellant would also be interested in getting his amount back. Therefore, payment of compensation under Section 357 of the Code of Criminal Procedure to the complainant would be in the interest of justice.

The punishment that can be awarded for an offence under Section 138 of Negotiable Instruments Act is “ imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or both” (stress supplied by me).

Since the complaint was filed in 2013 after the statutory notice. The amount became due to complainant after the date of the notice.

Some amount needs to be given to complainant above the cheque amount towards interest.

Since the rate of interest in banks has gone down nowadays, and therefore, the said rate cannot be equal to the rate granted in R. Vijayan’s case.

After taking into consideration all the above pronouncements it would be in the interest of both the parties to impose fine of Rs 18,00,000 and Rs 8,00,000 in respective cases and to direct the amount of Rs 17,50,000 and Rs 7,50,000 to be paid to complainant as compensation under Section 357(1) of the Code of Criminal Procedure. Deposit time will not be extended. [Kiran Rameshlal Bhandari v. Narayan Purushottam Sarada, 2020 SCC OnLine Bom 3562, decided on 07-12-2020]


Advocates who appeared for the matter:

Shyam C. Arora, Advocate for the appellant
Amol Kakade, Advocate h/f C.D. Fernandes, Advocate for respondent

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., issued guidelines pertaining to deal with cases wherein accused persons are absconded leading to the pendency of cases in subordinate courts.

Pendency of cases

Petitioners Counsel submitted that an FIR was registered and final report for the same was taken by the lower Court for offence under Sections 147, 148, 341, 302 of Penal Code, 1860. Further, It was stated that since some of the accused persons were absconding, the case was being kept pending for the last 8 years without being committed to the appropriate Court.

Adding to the above, Counsel also stated that the petitioner was aged about 70 years, but no progress in the lower Court took place, instead of splitting up the case, it kept on being adjourned on the ground that the accused persons were not present or that the non-bailable warrant was pending.

Analysis and Decision

Accused Persons Absconding

Court noted the fact that several petitions have been filed before the Court wherein case have been kept pending in light of certain accused persons being absconding and subordinate Courts finding the said issue have been finding the same to be a hurdle while dealing with the cases.

The above-stated issue leads to the pendency of the case.

Hence, the Court found this to be the right time to issue certain guidelines for the Court below to deal with the cases in which accused persons have been absconding.

Criminal Rules of practice and Circular Orders, 1958 provides for dealing with cases where the accused persons have absconded.

Guidelines

Guidelines to be kept in mind while dealing with cases of absconding accused:

  1. Where the Court has issued process for the appearance of an accused and the same could not be served and if the Court is satisfied that the accused is in absconding, the Court may, after having waited for a reasonable time, proceed under Section 82 of the CrPC.
  2. If the case involves a single accused against whom proceedings have been initiated under Section 82 of the Code, the Court shall shift the case from relevant register to the register of long-pending cases.
  3. When there are several accused persons in a case and only some of them have appeared or have been produced before the Court and if the Court is satisfied that the presence of other accused cannot be secured within a reasonable time, having due regard to the right of such of the accused in attendance to have the case against them enquired into or tried without delay, the Court may split up the case if it is satisfied that such splitting up will cause no prejudice either to the prosecution or to the accused in attendance and proceed with the enquiry or trial as regards the accused who are in attendance.
  4. While splitting up the case as referred, the Court shall assign a fresh number to the split-up case relating to the absconding accused and enter the same in the relevant register of the current year.
  5. In a case exclusively triable by Sessions Court, when there are several accused persons and only some of them have appeared or have been produced before the Court, the Magistrate Court shall follow the same procedure mutatis mutandis till the stage of splitting up of case.
  6. Magistrate Court shall thereafter comply with the provisions of Section 207 or Section 208, as the case may be, insofar as the accused in attendance and commit the case to the Court of Session.
  7. Sessions Court shall be reported about the split-up of the case and the Sessions Court shall assign a number to the split-up case, enter the same in the sessions Register and communicate the number to the Magistrate Court forthwith. The Magistrate Court shall also indicate this number in brackets along with the fresh number assigned to the split-up case relating to the absconding accused.
  8. As and when the absconding accused appears and is produced before the Magistrate Court, the Magistrate Court shall comply with clause (vi) and while committing the case to the Court of Session shall indicate the number assigned by the Sessions Court for the split up the case.
  9. Clauses (i) to (vii) above shall apply, as far as may be to cases where an accused person has appeared but has subsequently absconded.
  10. If the accused has absconded after committal of the case, the Sessions Judge shall follow the same procedure under clauses (ii) to (iv).

Practice provisions of Section 299 CrPC

High Court also stressed upon the need to put in practice the provisions of Section 299 CrPC by the trial courts which deals with recording of evidence in the absence of accused.

  • Record the order which proves that the accused has absconded and there is no immediate prospect of his arrest.
  • Depositions of prosecution witnesses may be recorded and attest and file the same in the split-up case for the purpose of furnishing it to the absconded accused as and when they appear.
  • The above-stated deposition can be given in evidence against the accused in any inquiry or trial for the offence with which he is charged, provided that the witness is either dead or he is incapable of giving evidence or his attendance would cause unreasonable delay, expense or inconvenience.[Exception to the principle embodied in Section 33 of Evidence Act.]
  • The evidence which is recorded against an absconded accused can be read when he is apprehended later and tried even if such evidence is not tendered in his presence, on the fulfilment of the above-said conditions.

Supreme Court’s decision in Nirmal Singh v. State of Haryana, (2000) 4 SCC 41 and Jayendra Vishnu v. State of Maharashtra, (2009) 7 SCC 104 were referred.

The above-stated Judgments were referred to as the said decisions provide a very clear picture on the ambit and scope of Section 299 CrPC.

High Court directed the Court below to follow the above guidelines and proceed further immediately to ensure that the accused is committed to the appropriate Court, as expeditiously as possible. [H. Aarun Basha v. State, 2018 SCC OnLine Mad 12845, decided on 19-12-2018]


Advocates who appeared in the instant matter:

For Petitioner: Mr M.Babu Muthu Meeran

For Respondent: Mr M.Mohamed Riyaz, Additional Public Prosecutor

Case BriefsHigh Courts

Karnataka High Court: Michael Cunha J., dismissed the writ petition being found that the criminal action was rightly initiated against the petitioner.

This instant petition was filed under Article 226 and 227 of Constitution of India read with Section 482 of Criminal Procedure Code, 1973 seeking to quash the charge sheet and the entire proceedings pending before XXIII Additional City Civil and Sessions Judge and Special Judge for Prevention of Corruption Act, Bangaluru City on the grounds that the impugned order suffers from serious illegality as the impugned order of cognizance indicate total non-application of mind and hence is prayed for quashing of it.

Issue 1: Whether the prosecution of petitioner was done in his personal capacity?

Counsel for the petitioners submitted that the allegations leveled in the charge sheet are directed against the firm whereas the charge sheet does not disclose the active role of the petitioner except that he was representing the Company as the Managing Partner and hence prosecution of the petitioner without making the firm as accused is legally untenable and liable to be quashed.

Counsel for the respondents submitted that the allegations made in the complaint indicate that all the affairs of the firm were conducted by the petitioner and he was the face and mind of the Firm and therefore by application of Section 23 of the Mines and Minerals (Development and Regulation) Act, 1957 i.e MMDR Act, he alone could be proceeded and it is for the petitioner to demonstrate at trial that alleged offences were not within his knowledge and that he was not responsible for the day to day affairs of the Firm when the alleged offences were committed.

The Court after perusing all the records stated that the allegations are directed only against the firm and not against the petitioner in his personal capacity. On the other hand, the Firm itself being the offender, vicarious liability could be imputed to the petitioner by virtue of the statutory provision contained in Section 23 of MMDR Act which provides that when an offence is committed by a Company, every person, who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of the business of the Company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Issue 2: Whether the order of taking cognizance and issuing summons is valid or not?

 Counsel for the petitioners submitted that the impugned order does not specify the offences in respect of which cognizance has been taken by the Special Court. It was further submitted that there is no clarity as to whether the cognizance was taken under the Penal Code, 1860 or MMDR Act.

The court observed that the very fact that the petitioner moved for bail based on the offences mentioned in the summons, it is clear that right from the inception, the petitioner was aware of the offences for which summons was issued to him and hence the objection raised by the petitioners has no ground.

The Court relied on the judgment R.R. Chari v. State of U.P., (1963) 1 SCR 121 wherein was stated that “The word ‘cognizance was used in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings.” and observed that Special Judge has taken cognizance under Section 190(1) (a) of CrPC and has thus proceeded to issue summons to the petitioner. Hence it is amply clear that Special Judge has taken cognizance of IPC offences as well as the offences under the provisions of Forest Rules and MMDR Act. It is also settled law that while taking cognizance and issuing summons in respect of IPC offences, based on the report under Section 173 CrPC, recording elaborate reasons is not required provided if sufficient grounds for proceeding against the accused has been satisfied.

It was also observed that in respect of the offences under the provisions of MMDR Act are concerned; Section 22 of the Act creates a restriction on the courts in taking cognizance of the offences under the Act.  The Section reads as under

“22. Cognizance of offences- No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorized in this behalf by the Central Government or the State Government.”

The Court observed that to get over this restriction, the respondent have filed a complaint in the proceedings before the Special Court in terms of Section 22 of the MMDR Act. This complaint thus amounts to due compliance of the statutory requirement prescribed in Section 22 of the MMDR Act.

Issue 3: Will filing of the complaint as stipulated under Section 22 of MMDR Act for Special Court to take cognizance of offence be considered valid?

 Counsel for the petitioner submitted that the impugned order of cognizance does not reflect that the Special Judge has looked into the averments made in the complaint yet.

The Court observed that the allegations made in the complaint as well as the facts constituting the offences alleged against the petitioner in the final report filed by the SIT are one and the same. Hence, if the Special Judge has looked into the final report by SIT and on satisfying himself that the allegations prima facie discloses the commission of offences by the petitioner under IPC as well MMDR Act, it is clear that the Special Judge has taken cognizance of the offences in terms of Section 22 of MMDR Act.

The court also relied on judgments Kanwar Pal Singh v. State of U.P. and observed that non-recording the reasons while issuing summons cannot be a reason to set aside the orders of cognizance and the summons issued to the petitioner.

The Court thus found no illegality in the impugned order and all the arguments stood no ground. The allegations made are duly supported by SIT and make out the ingredients of the offence under Sections 409, 420 of IPC and Sections 21 read with 4(1)(a) of MMDR Act, 1957.

In view of the above, the contentions by the petitioners are rejected and writ petition was dismissed.[Syed Ahmed v. State, WP No. 51101 of 2015, decided by 19-11-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Karnataka High Court: John Michael Cunha J., allowed the petition partly stating that Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate.

The facts of the case are such that Respondent 2 presented a private complaint under Section 200 of Criminal Procedure Code i.e. CrPC seeking reference of the matter for investigation to the Lokayukta Police under Section 156(3) of CrPC, in the interest of justice. The Special Judge, Special Court under Prevention of Corruption Act, Bengaluru referred the complaint to the Superintendent of Police, Anti-Corruption Bureau, Bengaluru, for investigation and for filing the report before the Court vide order dated 06-10-2016. This order is impugned in this petition on the ground that the procedure followed by the learned Special Judge is contrary to the law laid down by the Supreme Court in Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287.

Counsel for the petitioners submitted that in the absence of any averments made in the complaint to the effect that Respondent 2/Complainant has exhausted the remedy under Sections 154(1) and 154(3) CrPC and there being no affidavit as mandated, the learned Special Judge has committed an error in referring the complaint about investigation under Section 156(3) of CrPC.

Counsel for the respondents submitted that the complaint was filed in the year 2012 much earlier to the law laid down by the Supreme Court in the year 2015 and as such, the principles laid down in the said decision cannot be applied to the facts of the case. Further, he submitted that non-filing of the affidavit may amount to a curable irregularity and the same does not amount to illegality vitiating the impugned order and thus, sought to dismiss the petition.

Relevant paras from the judgment titled Priyaka Srivastava v. State of U.P., (2015) 6 SCC 287 is below

“30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.”

“31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.”

 The Court observed that when a specific prayer is made by the complainant to refer the complaint about investigation under Section 156(3) of CrPC, the principle laid down in the relied judgment above comes into force. It is mandated that when an application is filed under Section 156(3) of CrPC, the same shall be supported by an affidavit, so that the learned Magistrate could verify the truth of the allegations made in the complaint and also to obviate false and irresponsible complaints being filed invoking the jurisdiction of the criminal courts. The direction is binding on all the courts under Article 141 of the Constitution of India.

The Court thus held that the instant complaint was filed in the year 2012, but the order of reference was made only in the year 2016 subsequent to the law laid down by the in Priyanka Srivastava’s case (supra). Hence, the impugned order of reference made by the learned Special Judge cannot be sustained.

In view of the above, petition was allowed partly.[C.T. Ravi v. State of Karnataka,  2020 SCC OnLine Kar 1746, decided on 22-10-2020]


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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]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjay Dhar J., while dismissing the present petition challenging the delegation of power by the Magistrate to the officer in charge of the concerned police station, reiterated that there are cases wherein a preliminary investigation is necessary before registration of FIR and there is no infirmity in delegating the same.

 Brief Facts

The facts of the case are enlisted herewith;

  1. That the petitioner had filed an application under Section 156(3) of CrPC before the Magistrate seeking a direction for registration of FIR.
  2. That in the application it was alleged that at about 9.30 am on 29-08-2020, when the petitioner was working in her land, the accused persons, armed with Dharatis and clubs, trespassed into the said land and hurled abuses upon the petitioner.
  3. That it is also alleged that the petitioner somehow managed to escape from the spot otherwise she would have been physically harmed by the accused persons.
  4. That it was further alleged that the petitioner had approached the concerned SHO and the SSP, but her efforts to get the case registered against the accused persons did not bear any fruits.
  5. That, subsequently she approached the Magistrate with a request to issue a direction for registration of a case against the accused persons in terms of Section 156(3) of CrPC.
  6. That the Magistrate vide a detailed order dated 09-09-2020, after noting the contents of the complaint and the submissions of the counsel for the petitioner, directed SHO to verify the matter and if cognizable offences are made out, to proceed in terms of Section 156(3), CrPC.
  7. That it is this order which is under challenge before this Court by way of the instant petition.

 Contentions

Counsel for the petitioner, Deepak Mahajan, contended that, there was no occasion for the Magistrate to get the matter verified when the application of the petitioner on the face of it disclosed commission of cognizable offences against the accused.

Observations

Reflecting upon the scope of power of the Magistrate under the provisions contained in Section 156(3) of CrPC, the Court said, “Magistrate who has jurisdiction to entertain a complaint under Section 190 of CrPC for taking cognizance of an offence, is empowered to issue direction to the officer-in-charge of a Police Station to register and investigate a case if the information laid before him discloses commission of cognizable offences. The discretion lies with the Magistrate whether to proceed under Section 156(3) of CrPC or to adopt a course in terms of Chapter XIV of the Code of Criminal Procedure by taking cognizance of offences and proceeding in accordance with the provisions contained in the said Chapter.”

With respect to the registration of FIR, the Court referred Lalita Kumari v. Govt. of UP, (2014) 2 SCC 1, and reproduced the eight pointers laid down by the Supreme Court, reiterating the scope of Section 154 CrPC. The Court further placed reliance on the case of Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287, where it was categorically said, “In our considered opinion, a stage has come in this country where Section 156(3) CrPC. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons.”

Moreover, addressing the contention of the counsel for the petitioner that the Magistrate could not have delegated his powers to verify the veracity of the allegations made, the Court said, “(…) once the Magistrate decided to proceed in terms of Section 156(3) of CrPC, she had no option but to get the allegations made in the complaint verified by the officer-in-charge of the Police Station. The Magistrate could have done so by herself only if she would have decided to proceed in terms of the provisions contained in Chapter XIV of the Code of Criminal Procedure and not otherwise.”

Decision

Dismissing the present petition on lack of merits, the Court clarified the interplay of Section 156(3), Section 154 and Section 190 CrPC.[Taro Devi v. UT of J&K,  2020 SCC OnLine J&K 549, decided on 22-10-2020]


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Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: A Division Bench of Mahinda Samayawardhena and Arjuna Obeyesekere, JJ., while hearing a writ petition dismissed it without costs.

The Petitioner was arrested in connection with the Easter Sunday terror attacks on 21-04-2019, by a team of officers of the Criminal Investigation Department led by the Respondent 6. Petitioner was detained on Detention Orders P11 (a) and P11 (b) signed by the President under the Prevention of Terrorism (Temporary Provisions) Act. Before the second Detention Order lapsed, the Petitioner had been released by the Criminal Investigation Department on 29-09-2020. In the petition, it was mentioned that “the release of the Petitioner by the CID as aforesaid clearly contemplates the fact that the CID has concluded investigations in this regard and there was no evidence/proof to proceed with the investigations and/or prosecution against the Petitioner.” However, the petitioner admitted that from the time of his release, fervent attempts were made to re-arrest him.

The Court stated that the release of a suspect by the police during the course of an investigation does not amount to the acquittal of an accused by a Court of law. The Court further explained that Article 12 of the Constitution recognises equality before the law and the equal protection of the law as a fundamental right. Article 13 states no person shall be arrested except according to procedure established by law. However, there is no blanket prohibition in law preventing a suspect from being re-arrested, albeit on solid grounds in terms of the law.

The Court disagreed with the petitioner’s counsel when he submitted that the Attorney-General could not have summoned officers of the Criminal Investigation Department to revisit the matter because it had already been concluded mentioning Section 393 of the Code of Criminal Procedure Act to emphasise the powers given to the Attorney-General in the investigation of an offence. The Court stated that although Petitioner took pains to demonstrate that there is no evidence to connect the Petitioner to the Easter Sunday terror attacks, this Court cannot scrutinise the said evidence and express views on the same. In any event, that contention is confined to the evidence unearthed up to the point of the Petitioner’s release. The investigation is continuing. The Court while dismissing the petition explained that the writ Court cannot monitor criminal investigations as a Magistrate, or perhaps even the Attorney-General, does. Nor can this Court require the Criminal Investigation Department to file further reports appraising the Court of progress of the investigation, to consider whether re-arrest is justifiable. Such matters may be pursued in a different forum.[Bathiudeen Mohamed Riyaj v. C.D. Wickramaratne, 2020 SCC OnLine SL CA 3, decided on 21-10-2020]


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