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., Criminal Revision No. 1555 of 2020, 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, WP No. 141 of 2021, 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]


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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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Case BriefsHigh Courts

Karnataka High Court: John Michael Cunha, J., while allowing the present application for bail under Section 439 Criminal Procedure Code, 1973 made significant observations with respect to default bail under Section 167(2) Criminal Procedure Code and protection guaranteed by Article 21 of the  Constitution of India.

 Brief Facts

The facts of the case are briefly enumerated hereunder;

  1. That the petitioner accused 2 and 3 were arrested and produced before the Court on 28-12-2019 on the charge of committing offences punishable under Sections 22(b) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”)
  2. That as per Section 36A(4), the respondent was required to file charge-sheet by 27-06-2020 but an application was filed before the Special Judge for NDPS cases, seeking an extension of time.
  3. That an order with respect to the aforementioned application was passed, dated 1-06-2020, granting an extension of time by another 90 days, to the respondent authority.
  4. That the present petition is moved under Section 439 CrPC, praying to enlarge the petitioner on bail exercising right against the same under Section 167(2) CrPC.

 Issue

  1. Whether the petitioners are entitled to grant of bail as per Section 167(2) r/w Section 36A(4) of the NDPS Act due to non-completion of the investigation?

 Observation

The Court cited the following cases pursuant to its decision;

  • Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602; Highlighting the prerequisite of granting an extension of time to the investigative authorities, the Court said, “when a report is submitted by the Public Prosecutor to the designated Court, for extension under Clause (bb), notice shall be issued to the accused before granting such an extension so that the accused may have an opportunity to oppose the extension of time on legitimate grounds available to him.”
  • Sanjay Dutt v. State, (1994) 5 SCC 410; Clarifying on what shall be considered as an aforementioned notice, the Court held, “requirement of such notice to the accused before granting the extension for completing the investigation is not a written notice to the accused giving reasons therein. Production of the accused at that time in the Court informing him that the question of extension of the period for completing the investigation is being considered is sufficient for the purpose.”
  • Sanjay Kumar Kedia v. Intelligence Officer, NCB,2010 Cri.L.J 2054; In this case, the Court relying on the decision in Hitendra Vishnu, said that the proviso inserted as (bb) in sub-section (4) of Section 20 of TADA was pari-pateria with proviso to sub-section (4) of Section 36A of NDPS Act and an extension in such cases can be granted only upon satisfaction of certain conditions.
  • Kasi v. State; 2020 SCC OnLine SC 529, wherein considering the extension given by the High Court of Madras on the ground that the time period under section 167(2) CrPC is eclipsed by the judgment of the Supreme Court dated, 23-03-2020 in Suo Moto WP(C) No. 3 of 2020, it was held “Para 17. The order dated 23-03-2020 cannot be read to mean that it ever intended to extend the period of filing charge sheet by police as contemplated under Section 167(2) of the Code of Criminal Procedure. The IO could have submitted/filed the charge sheet before the Magistrate.” Therefore, even during the lockdown as has been done in so many cases the chargesheet could have been filed/submitted and the IO was not precluded from filing the same. There is no contradiction at all with respect to the extension of limitation order by the Supreme Court order dated 23-03-2020 and the statutory protection granted under Section 167(2) CrPC.
  • The Court also observed that the right of accused under Section 167 CrPC can be denied only when the accused fails to furnish bail as mentioned under Explanation I to the said Section. It was further said that proviso to Section 167(2) CrPC is beneficial legislation made to cure the mischiefs of the preliminary investigation.

Decision

While allowing the present petition, securing bail bond and sureties, the Court reiterated the observation of the Supreme Court where it was categorically stated, “Personal Liberty is too precious a fundamental right. Article 21 states that no person shall be deprived of his personal liberty except according to the procedure established by Law. So long as the language of Section 167(2) of CrPC remains as it is, I have to necessarily hold that denial of compulsive bail to the petitioner herein will definitely amount to violation of his fundamental right under Article 21 of the Constitution of India. The noble object of the Hon’ble Supreme Court’s direction is to ensure that no litigant is deprived of his valuable rights.” The Court further said that the present instance is an indirect frustration of the petitioner’s right under Section 167(2) CrPC and it is “really shocking to note that even after expiry of the extended period of 90 days, neither the charge sheet has been filed nor the accused has been produced before the Court.” [Sayeed Majid Ahamad v. State of Karnataka, Crl Pet. No. 4398 of 2020, decided on 05-10-2020]


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Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Bench of Buwaneka Aluwihare, LTB Dehideniya and P Padman Surasena, JJ., dismissed an appeal filed aggrieved by the decision of the Provincial High Court of Western Province holden at Panadura which had set aside the judgment of the learned Magistrate and ordered a retrial to be conducted against the Appellant. Thus, the instant appeal was filed.

The Accused-Appellant was charged in the Magistrate’s Court under Section 314, Section 314 read with 102, Section 333, Section 343, Section 380 read with Section 102 and Section 409 read with Section 102 of the Penal Code. Magistrate at the conclusion of the trial acquitted the Appellant from all of the above charges. Being aggrieved the Respondent had appealed to the Provincial High Court which had set aside the judgment of the Magistrate and ordered a retrial to be conducted against the Appellant.

The Court while dismissing the appeal affirmed the judgment of the High Court stating that after considering the facts and having perused all the evidence it was clear that the Magistrate had not taken into consideration the evidence adduced by the defence before he came to the conclusion that the prosecution has not proved its case. Moreover, it also appeared that the Magistrate had failed to assess, evaluate and appreciate the evidence adduced in the trial as a whole. They based their conclusion on the following quotation from the Indian case of State of U.P. v. M.K. Anthony, (1985) 1 SCC 505 where the Supreme Court of India had held that

“while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view of the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies of trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.”

[Dehigaspe Patabandige Nishantha Nanayakkara v. Kyoko Kyuma, SC Appeal No. 123 of 2012, decided on 07-08-2020]


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Case BriefsHigh Courts

Madras High Court:  G.K. Ilanthiraiyan, J., quashed the proceedings filed under the Domestic Violence Act in light of being barred by limitation.

The instant petition was filed to quash the Domestic Violence proceedings under the Domestic Violence Act.

Petitioner and respondent are husband and wife, due to some misunderstanding between the two, the respondent left the matrimonial home and went to her parents home.

Thereafter, petitioner filed a petition for dissolution of marriage, whereas the respondent on the other hand also filed a petition for restitution of conjugal rights.

Petitioner’s Counsel contended that the Domestic Violence proceedings were filed only to harass the petitioner and escape from the legal proceedings.

Domestic Violence complaint was filed after the lapse of 1 year 10 months, therefore barred by limitation, and Magistrate ought not to have been taken cognizance under the DV Act.

In view of the above, the DV proceedings need to be quashed.

Bench relied on the decision in Inderjit Singh Grewal v. State of Punjab, (2011) 12 SCC 588 wherein it was held that, under Sections 28 and 32 of the DV Act, 2005 read with Rule 15(6)of the Protection of Women from Domestic Violence Rules, 2006 which make the provisions of the Code of Criminal Procedure applicable.

“…the issue of limitation, in view of the provisions of Section 468 Code of Criminal Procedure, that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Code of Criminal Procedure applicable and stand fortified.”

Therefore, the respondent ought to have lodged the complaint within a period of 1 year from the date of the incident.

Hence, the complaint lodged against the petitioner under the DV Act cannot be sustained. [N. Prasad v. Harithalakshmi, 2020 SCC OnLine Mad 1767, decided on 20-07-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of D.N. Patel, CJ and Prateek Jalan, J., directed that the statements under Section 164 of the Code of criminal Procedure, 1973 of children in need of care and protection should be recorded by the Metropolitan Magistrate over video conferencing or by visiting the observation homes.

Petitioner has established a Child Care Institution under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Reason for filing the present petition was that, out of a rescue operation in July, 2020 ten minors who were working as child labour were rescued and brought to the Mukti Ashram.

Contention of the petitioner is that the children were compelled to leave Mukti Ashram and physically attend the Court of the Metropolitan Magistrate for recording of their statements under Section 164 of the Code of Criminal Procedure, 1973 and for giving samples for COVID-19 testing.

Respondents should lay down procedures for recording of the childrens’ statements and their medical testing, which does not require them to leave the institution or at atleast to attend at crowded public places.

Bench stated that in the interest of the children who require care and protection it should be necessitated that their exposure t crowded environments be avoided in the prevailing circumstances of the COVID-19 pandemic. As far as possible, they shouldn’t be required to leave the premises of the Child Care Institution in which they are housed.

Court directed as follows:

  • Statements under Section 164 of the Code of Criminal Procedure, 1973 of children in need of care and protection can be recorded by the Metropolitan Magistrate over video conferencing or if the Metropolitan Magistrate deems it necessary, he/ she can visit the concerned observation homes/Child Care Institutions where such children are housed, for recording the statement in person.
  • Proceedings before the Child Welfare Committees and other bodies where the children are required to participate, are already being conducted by video-conference. We direct that this process should be continued, and the requirement of taking the child out of the home/ Child Care Institution should be avoided as far as possible.
  • Covid-19 tests will also be carried out by the State authorities for the children in need of care and protection who are staying at different homes/Child Care Institutions under the Juvenile Justice (Care and Protection of Children) Act, 2015. The sample shall be collected for this purpose either at the home/Child Care Institution or at the office of the Sub-Divisional Magistrate of the area. The authorities will ensure that all precautions for the welfare of the child are taken, and that the sample is expeditiously collected, so that the child can return to the home/ institution.

In view of the above observations, petition was dismissed. [Bachpan Bachao Andolan v. GNCTD, WP(C) No. 4361 of 2020, decided on 28-07-2020]

Op EdsOP. ED.

“Quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest.” [1]

Section 482[2] of the Code of Criminal Procedure, 1973 (“CrPC/Code”) saves the inherent power of the High Court(s). As per the said provision, “Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

A bare perusal of the provisions of Section 482 CrPC would clearly demonstrate that the said section does not confer any new power on the High Court[3]. In fact, it only saves the inherent power, which every High Court possessed before the enactment of the Code. Further, the provision envisages three circumstances under which the inherent jurisdiction may be exercised, namely: to give effect to an order under the Code; to prevent abuse of the process of court and to otherwise secure the ends of justice.

As per the Supreme Court[4], “The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution.” Pertinent to mention here that the Courts have consistently cautioned[5] that though, the inherent jurisdiction under Section 482 CrPC is wide, however, the same must be “exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist.”

Under the Code of Civil Procedure, 1908 (“CPC”), provision[6] for saving the inherent power of the Courts, including that of the trial courts, exists, however, no provisions for saving of inherent powers of the courts, subordinate to the High Court, exist under the Code/CrPC. Despite this, the subordinate courts, even in criminal proceedings are not handicapped to exercise their ancillary/auxiliary powers to do what is absolutely necessary for dispensation of justice. It is trite law[7], “[u]nder such circumstances in order to do what is absolutely necessary in the ends of justice or prevent prejudice or miscarriage of justice what is not prohibited could be taken as permitted because the Code of Criminal Procedure cannot be taken to have contemplated and provided for every contingency by making exhaustive provisions to meet the situations”.

As per the  Supreme Court[8], “All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice.” Clearly, despite the existence of an express provision under the Code/CrPC, saving the inherent powers of trial courts, all criminal courts are possessed of an “auxiliary power subject to restrictions which justice, equity, good conscience and legal provisions demand, provided it will not unnecessarily prejudice somebody else.”[9]

The inherent powers of the High Court(s) have, time and again, been invoked, inter alia, for seeking quashing of criminal complaint(s)/FIR(s) and proceedings, inter alia, in the instances where; criminal cases have a predominant and an overwhelming element of civil dispute, which the victim and the offender have settled[10]; continuance of prosecution will be a futile exercise which would serve no purpose[11]; allegations made in the first information report or the complaint, even if they are taken on their face value and accepted in their entirety, do not prima facie constitute any offence[12] or make out a case against the accused; allegations made in the FIR or complaint are so absurd and inherently improbable[13] on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; quashing of orders of issuance of summons/process[14]; etc.

Another instance where the inherent powers of the High Court(s) is often invoked is for the restoration of criminal complaint[15], dismissed for non-prosecution. However, no such power of restoration of criminal complaint, dismissed for non-prosecution, or power of review exists with the trial/Magistrate’s Court. In fact, it is trite law[16], under the Code/CrPC no power is conferred on the Magistrate to review or recall the order passed by him[17]. Accordingly, the only remedy available with the complainant under such an event is the invocation of the inherent powers of the High Court.

In this regard, the Supreme Court in A.S. Gauraya v. S.N. Thakur[18], observed, “[b]ut the question remains whether a Magistrate can restore a complaint to his file by revoking his earlier order dismissing it for the non-appearance of the complainant and proceed with it when an application is made by the complainant to revive it…..The Criminal Procedure Code does not contain any provision enabling the criminal court to exercise such an inherent power.”

These principles were reiterated by the Punjab and Haryana High Court[19] to the effect, “The Code of Criminal Procedure does not confer any power to review/recall an order. The only situation, in which a court may legitimately alter its order is, where it proposes to correct clerical and/or arithmetical errors. A complaint, once dismissed for failure of the complainant to put in appearance, therefore, cannot be restored.”

Pertinently, under CPC, the provisions for restoration of suit[20] dismissed for failure of service of summons[21] and non-appearance of parties[22]; setting aside of an order of ex parte proceedings[23] and setting aside of ex parte decree[24], exist. However, under the Code/CrPC, once a complaint is dismissed for non-prosecution and/or the accused is discharged or acquitted, in terms of the provisions of Sections 249[25] and 256[26]  CrPC respectively, the Magistrate cannot be approached by the complainant for the purpose of restoration of such complaint/ proceeding, even for the reasons of “sufficient cause” or otherwise. In fact, as aforementioned, under such circumstances, the only remedy available with such a complainant would be to invoke the jurisdiction of High Court(s) in terms of Section 482 CrPC. Understandably, in the absence of any such power on the Magistrate’s Court to review/recall/set aside its order for dismissal of complaint for non-prosecution, the burden of the High Courts intensifies to a great deal. At the same time, the absence of remedy/recourse with a bona fide complainant may also result in undue harassment, delay in criminal proceeding/prosecution, incurring of additional expenses, etc. 

The Law Commission of India (“the Law Commission”) as early as the year 1991, carried out an exhaustive study, inter alia, of the provisions of Section 256 CrPC, especially in the context of absence of power of the trial/ Magistrate’s Court to restore criminal complaint/proceedings and submitted its Report[27] on its comments and recommendations. The Law Commission in the said Report duly acknowledged that the absence of such power of restoration of criminal complaint/ proceeding with the trial court may, “cause and are likely to cause serious hardship and injustice in practice in several cases.” It was further appreciated by the Law Commission that even in the cases where such absence of the complainant may be justified by the reasons of “sufficient case”, the consequential order of acquittal of the accused for the reasons of such absence may result in throwing out of a meritorious case. Under such an event of passing of an order of acquittal, it was recognised, would bar a subsequent trial before the same court and the complainant would be bound/burdened to take recourse to remedies of appeal, etc., which may prove costly and tedious. Further, acknowledging, “a meritorious complaint of a complainant cannot be allowed to be thwarted, only on the ground that the complainant was unable to remain present”, the Law Commission was of the opinion that the power to set aside dismissal and restoring the complaint has to be conferred with the criminal/Magistrate’s Court. Accordingly, the Law Commission recommended the amendment to Section 256 CrPC by incorporating the provision of initial termination of proceedings on complainant’s absence which may ultimately lead to acquittal, unless the order of such termination is set aside in the manner proposed. As per the recommendation of the Law Commission, the order of termination of proceedings may be set aside within a period of 30 (thirty) days of such order, on an application of the complainant and the service/notice of the same on the accused.

The Law Commission, again vide its 233rd Report[28] reiterated its previous recommendations made in the year 1991 and recommended, “appropriate  amendments in Sections 249 and 256 of the Code of Criminal Procedure, 1973 inserting provisions on the lines of Order 9 CPC, enabling restoration of complaints.” Pertinently, in its earlier Report (141st Report), the Law Commission had also recommended amendment of Section 482 CrPC for conferment of inherent powers also on all subordinate criminal courts, other than the High Court. Clearly, the recommendations were premised on the understanding that the same may enable reducing the burden of superior courts and ensuring that no injustice is resulted as a course of administration of criminal justice.

It is settled law, procedural prescriptions/laws are the handmaid and not the mistress; a lubricant, not a resistant, in the administration of justice[29]. As per the Supreme Court[30], “Procedure is meant to subserve and not rule the cause of justice. Procedural laws must be liberally construed to really serve as handmaid. Technical objections which tend to defeat and deny substantial justice should be strictly discouraged.” Further, considering the dynamic nature of laws and dependent on the need of society, laws must adapt and modify so that such societal needs are properly catered to. In light of recommendations of the Law Commission and being cognizant of the fact that the absence of provisions of restoration of criminal complaint, dismissed for some unforeseeable and unavoidable reasons would result in aggravating the plight of the victim, complainant and the overburdened judicial system, it is only apt that the recommendations of the Law Commission for amendment of the provisions of Sections 249 and 256 CrPC are adopted under the Code. In the alternate or simultaneously, explicit provision for recognition of the ancillary powers or conferment of inherent powers on trial/ Magistrate’s Court may be introduced under the Code so that the mere absence of procedural provisions, does not deprive the victims of abuse of their substantial rights and proper legal recourse.


*Managing Associate, L&L Partners Law Offices

[1] Latin maxim meaning, “When the law gives anything to anyone, it also gives all those things without which the thing itself could not exist.”

[2] Section 482 CrPC  

[3] Priya Vrat Singh v. Shyam Ji Sahai, (2008) 8 SCC 232 

[4] State of Karnataka v. L. Muniswamy, (1977) 2 SCC 699 

[5] State of A.P. v. Golconda Linga Swamy, (2004) 6 SCC 522 

and State of A.P. v. Gourishetty Mahesh, (2010) 11 SCC 226 

[6] 151. Saving of inherent powers of Court.—Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of the justice or to prevent abuse of the process of the court.

[7] Madhavi v. Thupran, 1987 SCC OnLine Ker 219

[8] Minu Kumari v. State of Bihar, (2006) 4 SCC 359 [Also refer to State Prosecutor, In re, 1972 SCC OnLine Ker 201]

[9] Madhavi v. Thupran, 1987 SCC OnLine Ker 219

[10] Parbatbhai Aahir v. State of Gujarat, 2017 SCC OnLine SC 1189

[11] Shiji v. Radhika, (2011) 10 SCC 705

[12] State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335

[13] Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736; State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 and M. Mohan v. State, (2011) 3 SCC 626

[14] Urmila Devi v. Yudhvir Singh, (2013) 15 SCC 624; Aroon Poorie v. Jayakumar Hiremath, (2017) 7 SCC 767

[15] Jagir Singh v. State of Haryana, 2006 SCC OnLine P&H 1276; Purshotam Mantri v. Vinod Tandon, 2008 SCC OnLine P&H 125

[16] Bindeshwari Prasad Singh v. Kali Singh, (1977) 1 SCC 57

[17] Including an order passed for dismissal of complaint for its non-prosecution

[18] (1986) 2 SCC 709

[19] Krishan Lal v. Sangeeta Aggarwal, 2009 SCC OnLine P&H 4894

[20] Order 9  Rule 4 of the Code of Civil Procedure, 1908 

[21] Order 9  Rule 2 of the Code of Civil Procedure, 1908 

[22] Order 9  Rule 3 of the Code of Civil Procedure, 1908  

[23] Order 9  Rule 7 of the Code of Civil Procedure, 1908 

[24] Order 9  Rule 13 of the Code of Civil Procedure, 1908 

[25] 249. Absence of complainant.—When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused.

[26] 256. Non-appearance or death of complainant.— (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.

[27] 141st Report on Need for Amending the Law as Regards Power of Courts to Restore Criminal Revisional Application and Criminal Cases Dismissed for Default in Appearance.

[28] 233rd Report on Amendment of Code of Criminal Procedure Enabling Restoration of Complaints (August, 2009)

[29] State of Punjab v. Shamlal Murari, (1976) 1 SCC 719

[30] Sarah Mathew v. Institute of Cardio Vascular Diseases, (2014) 2 SCC 62

Case BriefsCOVID 19High Courts

Karnataka High Court: While deciding the issue of conducting remand proceedings under Section 167 of Criminal Procedure Code, 1973 by use of Video Conferencing, the Division Bench of Abhay Sreenivas Oka, C.J., and S. Vishwajith Shetty, J., held that in light of the exceptional circumstances created by the spread of Covid-19, and notwithstanding the clear provision of law under Section 167 (2) Proviso (b) of CrPC, first remand proceedings can be permitted through video conferencing and the same shall be in accordance with the directions issued by the Supreme Court in In re, Guidelines for court functioning through video conferencing during Covid-19 pandemic, 2020 SCC OnLine SC 355.

The issue arose due to some recent instances where immediately after the remand proceedings, either the accused or the police personnel were tested positive for Covid-19. Assisting the Court, counsel C.V. Nagesh, highlighted the concerned provisions which deal with the issue at hand; mainly Article 22(2) of the Constitution and Sections 57 and 167 of the CrPC. It was submitted that both Article 22(2) and Section 167 of CrPC require that every person who is arrested and detained in police custody shall be produced before the Magistrate within 24 hours of such arrest. Additionally Section 167 (2) Proviso (b) of CrPC, enumerates various cases where an accused can be produced before a Magistrate through the medium of electronic video linkage. It was further submitted that the principle behind producing the accused before a Magistrate is to give the accused a chance to complain about the ill-treatment meted out to them by the police; however if an accused is produced via video- conferencing, the presence of the police around the accused at the police station may prevent them from making a grievance regarding any ill-treatment.

Perusing the legal provisions and the submissions made by the amicus curiae, the Bench observed that Section 167 (2) Proviso (b) of CrPC, lays down several instances wherein electronic video linkage can be used; however, if any contingency to use video linkage is not covered under Section 167, then such instance may not be lawful. The Court also perused the Guidelines issued by the Supreme Court in In re, Guidelines for court functioning through video conferencing during Covid-19 pandemic and Rule 11.1 of Karnataka High Court Rules for Video Conferencing Hearing framed recently in the light of Covid-19 pandemic. The former clearly instructs the Courts at all levels to encourage social distancing to prevent the spread of coronavirus; and the latter states that in cases of exceptional circumstances police custody remand or judicial custody remand, at the first instance, can be granted through Video Conferencing Hearing. The Court observed that under normal circumstances, Rule 11.1 runs contrary to the provisions of Section 167 (2) Proviso (b) of CrPC and Section 167 would prevail over the Rules to that extent; however, the present scenario, wherein the entire country is battling a deadly virus, comes within the category of ‘exceptional circumstances’. Therefore in the backdrop of the Supreme Court Guidelines in the aforementioned case, the Court held that, “If a Magistrate is of the considered view that there is a serious apprehension that the accused may be infected with COVID 19, therefore, for the purpose of following the best health practice, physical production of the accused for the first time before the Court should be avoided, he can for the reasons specifically assigned, authorize the production of accused through video conferencing”. [High Court of Karnataka v. State of Karnataka, 2020 SCC OnLine Kar 556 , decided on 15-06-2020]

Case BriefsHigh Courts

Calcutta High Court: Madhumati Mitra, J., allowed a criminal revision application filed against the order of the Magistrate whereby he had rejected the petitioner’s prayer under Section 156(3) CrPC to send the petition of complaint to the officer-in-charge of the police station for treating the same as first information report.

The petitioner had alleged commission of various offences against her in-laws including rape and forceful abortion of her pregnancy. The petitioner claimed that she had written a complaint before the police authorities and also reported the incident to Superintendent of Police but no action was taken by them. As such, she was compelled to file an application under Section 156(3) CrPC for treating the same as an FIR and directing the officer-in-charge of Habra Police Station to cause an investigation into the allegations. The Magistrate directed the officer-in-charge to verify the allegations. The officer-in-charge in the report stated that the petitioner was physically and mentally tortured by her husband and in-laws on several times but there was no evidence of rape and termination of pregnancy of the petitioner by force except her own statement. On the basis of this report, the Magistrate rejected the petitioner’s application. Aggrieved thereby, the petitioner filed the instant revision application.

The High Court gave due consideration to the submissions made by Angshuman Chakroborty, Advocate appearing for the petitioner, and Sayanti Santra, Advocate representing the State.

Not satisfied with the approach adopted by the Magistrate, the Court observed: “The learned Magistrate has committed an error without taking cognizance of the alleged offences under Section 190(1)(a) CrPC at the time of rejecting the prayer of the petitioner under Section 156(3) CrPC.”

It was further explained: “The appropriate course of action of a Magistrate while rejecting a prayer under Section 156(3) CrPC, to take cognizance of the alleged offences under Section 200 CrPC and to examine the complainant and her witnesses to determine as to whether the process should not be issued. Again under Section 202(1) CrPC the Magistrate, instead of issuing process, may direct an investigation to be made by a police officer. An investigation under Section 202(1) CrPC may hold the Magistrate to ascertain whether or not there is substantial ground to proceed further.”

The High Court was of the opinion that the Magistrate committed an error by rejecting the entire petition of the complaint and, therefore, held the impugned order was not sustainable in law. The Magistrate was directed to consider the petitioner’s prayer under Section 156(3) afresh. [Pranati v. State of W.B., 2020 SCC OnLine Cal 132, decided on 21-01-2020]