Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Dr. Kaushal Jayendra Thaker and Gautam Chowdhary, JJ. dismissed a petition which was filed praying for quashment of the impugned FIR under Sections 420, 406, 120-B Penal Code, 1860.

First informant aged about 28 years, does business and petitioner 1 and 2 are also into business. The first informant moved to the Magisterial Court, who after verifying the facts, issued direction to the police officer to investigate and took cognizable case as the informant had to get machines on concessional rates by the petitioner 1. The bank transaction of Rs.2,03,280/- from the bank of the informant was made to the petitioner. Despite the money being given by way of bank account, no machine was supplied to the informant. Thereafter, Kamlesh Singh to whom the money was also sent, issued a cheque after deducting commission. The amounts could not be realized and therefore, the informant again requested both the accused along with his brother but they locked the premises and were not available. FIR was registered but no action was taken and therefore, the informant moved the Court which has directed investigation as it is prima facie found that cognizable offence has been committed by the accused.

Counsel for the petitioners submitted that the alleged incident occurred on 25-08-2020 but the FIR was lodged on 25-02-2022 without any proper explanation. It was further submitted that Sections 4 and 5 of the Criminal Procedure Code, 1973 would be applicable as according to the petitioner’s counsel, the offence alleged to be committed under the Negotiable Instruments Act, 1881.

The Court observed that these facts go to show that it is not a matter which falls under the Negotiable Instrument Act as sought to be canvassed by counsel for the petitioners. The provisions of Section 4 of Cr.P.C. read with Section 5 relate to procedure where commission of offence under the Special Act. In the present case, the informant has invoked the criminal jurisdiction and not the jurisdiction under Section 138 of the Negotiable Instrument Act and therefore, Section 5 cannot be made applicable.

The Court relied on Noorulla Khan v. Karnataka State Pollution Control Board, 2021 SCC OnLine SC 601, where it was held by the Supreme Court that Section 5 of Cr.P.C. applies to the proceedings under the Special Act. The Act specifies certain procedural justice and protection. Proceedings under the Indian Penal Code would be governed by the Criminal Procedure Code only and therefore, the provisions of Section 5 of Cr.P.C. and 468 Cr.P.C. read with contours for invoking Article 226 of the Constitution will not permit us to interfere in the investigation as prima facie, facts go to show that the ingredients of Section 406, 420 and 120-B IPC are made out against the accused. The actus reus is also prima facie proved to dupe the informant.

The Court opined that FIR cannot be said to be belated as Sections 420, 406, 120B Penal Code, 1860 permits lodgment of the FIR within a period as prescribed by Section 468 Cr.P.C. The petition was dismissed holding that the registered case cannot be said to be such which is beyond the period of limitation and that there is a abuse of process of law.

[Mohar Pal v. State of U.P., 2022 SCC OnLine All 427, decided on 21-06-2022]

Advocates who appeared in this case :

Harikesh, Advocate, Counsel for the Petitioner;

G.A., Advocate, Counsel for the Respondent.

*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsDistrict Court

Karkardooma Courts, Delhi: While addressing a case of alleged criminal conspiracy, Virender Bhat, ASJ-03, expressed that,

“The circumstances in a case, when taken together on their face value, should indicate the meeting of minds between the conspirator for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy.”

The prosecution’s case was that the accused were members of an unlawful assembly on 25th and 26th February, 2020 and the object of which was to take revenge for the death of the several Hindus during riots and to teach Muslims a lesson, and in order to achieve the said, they hatched a conspiracy to which they bludgeoned to death innocent persons namely Aas Mohammad.

As per the charge sheet, three persons were apprehended, and their mobile phones were seized and the data was checked. As per the WhatsApp data on the phone of Mohit Sharma and Shivam Bhardwaj, it was revealed that they were members of the WhatsApp group “Kattar Hindu Ekta”. An accused Lokesh Solanki was found to be a member of this group and messages had also been sent to group by him.

Analysis, Law and Decision

Court expressed that the offence of criminal conspiracy has its foundation in an agreement to commit an offence, it consists not merely in the intention of two or more, but in the agreement of the two or more to do an unlawful act by unlawful means.

“…the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved by direct evidence or by circumstantial evidence or both.”

Elaboration further with regard to conspiracy, Bench stated that it requires an act and an accompanying mental state.

To convict a person for the offence of conspiracy, the prosecution must show that he agreed with others that together they would accomplish the unlawful object of the conspiracy.

In the present matter, the only evidence with regards to hatching the conspiracy of the accused were the chats on the WhatsApp group “Kattar Hindu Ekta”.

On perusal of the chats, it nowhere indicated that the said group had been formed for any particular illegal object i.e., to kill the persons belonging to the Muslim community as well as to vandalize/burn their properties and that the members had agreed with each other that they would accomplish any such unlawful object of the conspiracy.

Infact, as per the Court’s opinion, the said chats revealed that the members were keeping themselves ready for any attack from other communities.

“There was nothing in the WhatsApp Chats to lead this Court to any conclusive or irresistible inference that the members of the group had agreed for any particular unlawful object and for accomplishment of that unlawful object.”

Further, the Court analyzed that the messages posted in the group nowhere indicated that the members had formed the requisite mental state to launch an offensive against the members of the other community and to commit vandalization/arson of their properties and kill them.

In fact as per the prosecution’s case, except for Lokesh Solanki, none of the other accused were a member of the said group, hence it would be unfathomable as to how an agreement between all the accused to do an illegal act can be inferred merely from the message posted in the said WhatsApp group.

In view of the above discussion, the charge of the conspiracy failed.

Another statement relied upon by the Special PP was of Nisar Ahmed who stated that the accused were asking Hindus to come out of their homes, to bring out the Muslims from their homes, kill them and rob/usurp their homes. Even if the said statement was taken at its face value, it would still only indicate exhortation.

For the above, Court stated that,

“Mere exhorting others to come out and indulge in criminal activities does not tantamount to any agreement between the person who holds out exhortation and the person to whom the exhortation is held out, to commit a crime.”

Therefore, no offence of criminal conspiracy was made out. [State v. Lokesh Kumar Solanki, 2022 SCC OnLine Dis Crt (Del) 20, decided on 15-3-2022]

Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi and Abhay S. Oka, JJ has held that any default or delay in the payment of EPF contribution by the employer under the Employees Provident Fund & Miscellaneous Provisions Act, 1952 is a sine qua non for imposition of levy of damages under Section 14B and mens rea or actus reus is not an essential element for imposing penalty/damages for breach of civil obligations/liabilities.

In the case at hand, the establishment of the appellant(s) was covered under the provisions of the Act 1952, but still failed to comply with the same and for such non-compliance of the mandate of the Act 1952, initially the proceedings were initiated under section 7A and after adjudication was made in reference to contribution of the EPF which the appellant was under an obligation to pay and for the contravention of the provisions of the Act 1952, the appellant(s) indeed committed a breach of civil obligations/liabilities and after compliance of the procedure prescribed under the Act 1952 and for the delayed payment of EPF contribution for the period January 1975 to October 1988, after affording due opportunity of hearing as contemplated, order was passed by the competent authority directing the appellant(s) to pay damages as assessed in accordance with Section 14B of the Act 1952.

The Division Bench of Karnataka High Court under the impugned judgment held that once the default in payment of contribution is admitted, the damages as being envisaged under Section 14B of the Act 1952 are consequential and the employer is under an obligation to pay the damages for delay in payment of contribution of EPF under Section 14B of the Act 1952.

The Supreme Court was, hence, called upon what will be the effect and implementation of Section 14B of the Act 1952 and as to whether the breach of civil obligations or liabilities committed by the employer is a sine qua non for imposition of penalty/damages or the element of mens rea or actus reus is one of the essential elements has a role to play and the authority is under an obligation to examine the justification, if any, being tendered while passing the order imposing damages under the provisions of the Act 1952.

The Court relied on the three-Judge Bench ruling in Union of India v. Dharmendra Textile Processors, (2008) 13 SCC 369 while examining the scope and ambit of Section 271(1)(c) of the Income Tax Act, 1961 held that as far as the penalty inflicted under the provisions is a civil liability is concerned, mens rea or actus reus is not an essential element for imposing civil penalties

“18. The Explanations appended to Section 271(1)(c) of the IT Act entirely indicates the element of strict liability on the assessee for concealment or for giving inaccurate particulars while filing return. … Object behind enactment of Section 271(1)(c) read with Explanations indicate that the said section has been enacted to provide for a remedy for loss of revenue. The penalty under that provision is a civil liability. Wilful concealment is not an essential ingredient for attracting civil liability as is the case in the matter of prosecution under Section 276-C of the IT Act.”

Bound by the ruling in the aforementioned judgment, the Court upheld the verdict of the High Court.

[Horticulture Experiment Station Gonikoppal, Coorg v. Regional Provident Fund Organization, 2022 SCC OnLine SC 223, 23.02.2022]

*Judgment by: Justice Ajay Rastogi