Case BriefsSupreme Court

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

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

Facts and Appeal

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

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

Discussion and Observations

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

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

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

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

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

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

Decision

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


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsHigh Courts

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

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

Factual Scenario

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

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

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

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

Suicide

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

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

Analysis

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

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

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

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

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

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

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

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


Advocates before the Court:

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

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

Case BriefsHigh Courts

Bombay High Court: The Division Bench of R.D. Dhanuka and R.I. Chagla, JJ., refused to quash departmental enquiry against the petitioner even when there were pending criminal proceedings against him.

Petitioner sought writ, order or direction for quashing and setting aside the impugned charge sheet dated 05-07-2021 issued by the Respondent for the purpose of the departmental enquiry against the Petitioner.

It was submitted that the petitioner was already facing a criminal case in respect of the said charges which were levelled for the initiation of the departmental enquiry.

Petitioner’s counsel stated that the charge sheet on criminal enquiry as well as the departmental enquiry had identical charges. Hence, in view of the charges and evidence being common in the departmental proceedings as well as in Criminal case, departmental enquiry has to be quashed and set aside.

Analysis, Law and Decision

Court on perusal of the charge sheet issued in a departmental and criminal enquiry, opined that the charges against the petitioner were not identical in both the proceedings. All the witnesses proposed to be examined are also not the same.

Supreme Court in the decision of M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679, clearly held that simultaneous continuance of departmental enquiry with criminal proceedings is permissible independently.

Though the High Court held that the above-stated case does not support the case of the petitioner.

Court stated that the petitioner has to file his reply to the charge sheet issued by the respondent for conducting departmental enquiry. Adding to the said, the bench held that it will not interfere with the departmental enquiry and the time to file a reply to the charge sheet granted to the petitioner in the departmental enquiry is extended by 2 weeks.

In view of the above discussion, petition was dismissed. [Prashant Raosaheb Chormale v. Punyashlok Ahilyadevi Holkar Solapur University, 2021 SCC OnLine Bom 1314, decided on 22-07-2021]


Advocates before the Court:

Mr N.V. Bandiwadekar a/w Mr. Vinayak Kumbhar i/b Ashwini N. Bandiwadekar for the Petitioner.

Mr Manjunath Kakkalameli, for Respondent 1.

Case BriefsHigh Courts

Karnataka High Court: K. Natarajan, J., allowed the petition and quashed the impugned order.

The facts of the case are such that accused 1 i.e. Greenbuds Agro Farms Limited Company and accused 2 to 5 are the Managing Directors and Directors of the said Company who are alleged to have collected investments from the general public and cheated the public. The individual investors have filed complaints before different Police Stations consequent to which jurisdictional Assistant Commissioner was appointed as Competent Authority for the purpose of taking action against the accused under Section 5 of the Karnataka Protection of Interest of Depositors in Financial Establishments Act, 2004 (hereinafter referred to as ‘Act’). Accordingly, investigation was done and a common charge-sheet was filed by the Police Inspector, Financial and Vigilance Unit, C.I.D., before the Trial Court. The Trial Court, by its impugned order, rejected the charge-sheet filed under the Act on the ground that the Police Inspector is not the Competent Officer to file the report, and the accused were discharged for the offence punishable under Section 9 of the Act.  Aggrieved by this, the State by C.I.D. filed the instant petition under Section 482 of the Code of Criminal Procedure Code, 1973 (for short, ‘Cr.P.C.’).

Counsel for the State submitted that as per Section 4 of the CrPC, the Special Court established under the Act is having power to try the offences punishable under the IPC as well as the offences punishable under the Special Law, but the Trial Court misread Section 5 of the Act and committed error in discharging the accused which is illegal.

The Court relied on judgment State v. Khimji Bhai Jadeja (Crl. Ref. No.1 of 2014 dated 8-7-2019) wherein it was held that

…“76. From Chapter XII of the Cr.P.C., it is evident that upon disclosure of information in relation to commission of a cognizable offence, the police is bound to register the FIR. The registration of FIR sets into motion the process of investigation. The same culminates into the filing of the final report by the police officer before the Magistrate. Thus, in respect of every FIR, there would be a separate final report and, there could be, further report(s) in terms of Section 173(8)…

The Court observed that the offences which are similar in nature committed by the same accused within twelve months can be tried together by framing a common charge as per Section 219 of the CrPC, but the question of filing common charge-sheet in multiple crimes or complaints is impermissible.

The Court also observed that though the Trial Court rightly refused to accept the charge-sheet, but committed error in discharging the accused. As per Section 4 of Criminal Procedure Code i.e. CrPC, once the Special Court is established, the question of discharging the accused of the reasons that the charge-sheet is filed by incompetent Investigating Officer does not arise.

The Court further observed that the State-C.I.D. Police have no authority to file common charge-sheet in different complaints. However, the Investigating Officer has to file separate chargesheet against each crime registered by the Police on individual complaint. Thereafter, the Special Court shall take cognizance of the offences both punishable under the IPC and the Special Act by following the Cr.P.C. and dispose of the matter in accordance with law.

The Court thus held “the Trial Court committed error in rejecting the charge-sheet on the ground that the Investigating Officer is not the Competent Authority to file the charge-sheet and wrongly discharged the accused for the offence punishable under Section 9 of the Act.”[State of Karnataka v. Greenbuds Agro Form Limited Company, 2021 SCC OnLine Kar 12475, decided on 31-05-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

Counsel for Petitioner: Mr. Sheelavanth V.M.

Counsel for Respondents: Mr. B.L. Ravidnranath and Mr. Raghavendra N.

Case BriefsHigh Courts

Allahabad High Court: While deciding an application for quashing the charge sheet, Om Prakash-VII, J., disposed of the same finding it difficult to conclude that the offences levelled against the applicant are not made out.

The present application has been filed by the applicant pleading the Court for quashing the charge sheet as well as the entire proceedings in Case No.160 of 2020 in connection with the FIR registered for offence punishable under Section 380 of the Indian Penal Code (IPC) pending before the Addl. Chief Judicial Magistrate, Saidpur, Ghazipur. The applicant has also requested for a stay on any further proceedings in the aforesaid case.

Counsel for the applicant, Shashank Kumar has submitted that the applicant has been falsely implicated in the said case and that the charge sheet has been submitted on the basis of insufficient evidence. It is also contended that the present prosecution has been instituted with malafide intention.

Counsel for the respondent has vehemently objected to the present application and the relief sought.

Upon careful perusal of the facts, circumstances and arguments advanced by both the parties, the Court observed that all the submissions made by the applicant are directed towards the disputed questions of fact which cannot be adjudicated by the Court under section 482 of the Criminal Procedure Code, 1973.

With respect to the question of law, there is a well-settled position of law through a string of judgments delivered by the Supreme Court in the cases of R.P. Kapur v. State of Punjab, AIR 1960 SC 866, State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, State of Bihar v. P. P. Sharma, 1992 Supp (1) SCC 222 and Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq, (2005) 1 SCC 122. The materials on record are sufficient to help in arriving at the conclusion that it cannot be said that the offences levelled against the applicant are not made out.

Later counsel for the applicant prayed for expeditious disposal of the applicant’s bail application.

In view of the above, the Court disposed the application with the direction that in case applicant surrenders before the Court below and applies for bail within two months from the date of present order, the same shall be considered and decided in view of the settled law. For a period of two months, no coercive action shall be taken against the applicant.[Ram Milan Yadav v. State of U.P., Application u/s 482 No. 13647 of 2020, decided on 28-09-2020]


Yashvardhan Shrivastav, Editorial Assistant has put this story together

Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., dismissed an application which was filed under Section 482 of the Code of Criminal Procedure, 1973 to quash the Charge Sheet.

Elections of the Legislative Assembly of Uttarakhand were held in the year, 2012. The applicant had contested the said election as a candidate of the Indian National Congress Party. While contesting the said election, the present applicant had printed a picture (photo) of Lord Badrinath in his handbills as well as pamphlets. On account of this illegal act on the part of the applicant to influence the voters and used the religious feelings of local people, an FIR was lodged against the applicant under Section 125 of the Act, 1951 and Section 153A of the Penal Code, 1860. After the submission of charge sheet when the Chief Judicial Magistrate took cognizance under Section 171-F of the Penal Code read with Section 123 (3) of the Act, 1951 against the present applicant and passed the summoning order, being aggrieved by which the applicant had filed a revision which was allowed by the Sessions Judge and in pursuance to the revisional order the Chief Judicial Magistrate took the cognizance in the offence punishable under Section 125 of the Act, 1951 and issued summons to the present applicant. The counsel for the applicant, Pankaj Purohit contended that the applicant was already a popular candidate and was well known in the constituency, he was given the charge of “Youth Welfare and Sports” portfolio in the Government; he completed his tenure of five years as a Cabinet Minister in the Government. He further contended that from the bare perusal of the FIR, it was evidently clear that no offence is made out as defined under Section 125 of the Act, 1951; by mere printing of pamphlets with the picture of Shri Badrinath Temple, no offence under Section 125 of the Act, 1951 was constituted; during the investigation, no evidence was collected by the Investigating Officer which would infer the promotion of religious enmity or hatred between two communities on account of the fact of printing of the pamphlets, containing the photo of Lord Badrinath Temple. The counsel for the State, S.S. Adhikari assisted by P.S. Uniyal on the contrary contended that Investigating Officer had found credible evidence against the applicant for his involvement in commission of the crime; there was a specific case against the applicant for his involvement in commission of the crime.

The Court while dismissing the application set aside the prayers of quashing the charge-sheet and explained that “it was fundamental duty of every citizen to promote harmony and the spirit of common brotherhood and fraternity amongst all the people of India transcending religious, linguistic and regional or sectional diversities. For fair and peaceful election, during the election campaign, party or candidate should not indulge in any activity which may create mutual hatred or cause tension between different classes of the citizens of India on ground of religion, race, caste, community or language.”

The Court further held that the applicant was not able to show at this stage that allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the applicant.[Rajendra Singh Bhandari v. State of Uttarakhand, 2020 SCC OnLine Utt 551, decided on 21-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Uttaranchal High Court: N.S. Dhanik, J., partly allowed a criminal revision which was preferred against the Judgment and order passed by the District and Sessions Judge whereby he had confirmed the judgment and order passed by Chief Judicial Magistrate and also against the judgment and order passed by Chief Judicial Magistrate in a Criminal Case under Section 3/7 of the Essential Commodities Act, whereby the revisionist were convicted for the offence punishable under Section 3/7 of the Essential Commodities Act and sentenced to undergo one-year simple imprisonment and to pay a fine of Rs 5,000.

The informant lodged an FIR alleging therein that on information, the informant came to know that two Nepali people who often smuggling the cement, compost, kerosene oil, etc from Tankpur to Nepal upon their motorcycles. The informant along with other police officials reached the Gandhi Park and seeing two persons who were tying the plastics canes in their motorcycles outside the warehouse of Naresh Chandra Gupta. Both tried to run away, but they were arrested on the spot. From the possession of the accused persons, Jaricanes were recovered and on asking regarding the said recovery, they told that they had purchased the Kerosene oil from the Naresh Chandra Gupta (present revisionist) and 20 litres kerosene oil was also recovered from the warehouse of Naresh Chandra Gupta. After investigation, the charge sheet against the accused revisionist for the offence punishable under Section 3/7 of the Essential Commodities Act was filed. The Counsel for the revisionist, Mr. Bhuwanesh Joshi submitted his arguments only on the quantum of sentence. He submitted that the revisionist had served about 27 days in the jail and that he was a poor person and the matter relates back to the year 2008.

The Court while partly allowing the revision modified and reduced the sentence to three months considering the contention that matter related back to the year 2008 and ends of justice would be sub-served if the jail sentence of the revisionist is reduced adjusting the period already undergone by him, although the sentence of the fine was enhanced from Rs 5,000 to Rs 10,000.[Naresh Chandra Gupta v. State of Uttarakhand, 2020 SCC OnLine Utt 550, decided on 16-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, SK Kaul and MR Shah, JJ has held that it’s order dated 23.03.2020, wherein the Court had extended limitation period of appeals from high courts or tribunals on account of COVID-19 pandemic, 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.

Setting aside the Madras High Court judgment, where it was had held that the Supreme Court order dated 23.03.2020 eclipsed all provisions prescribing period of limitation until further orders, including the time prescribed under Section 167(2) of the code of Criminal Procedure, the bench said,

“neither this Court in its order dated 23.03.2020 can be held to have eclipsed the time under Section 167(2) CrPC nor the restrictions which have been imposed during the lockdown announced by the Government shall operate as any restriction on the rights of an accused as protected by Section 167(2) regarding his indefeasible right to get a default bail on non-submission of charge sheet within the time prescribed.”

On 23.03.2020, the Court had extended the limitation for filing petitions/ applications/ suits/ appeals/all other proceedings to obviate lawyers/litigants to come physically to file such proceedings in respective Courts/Tribunals. The Court, in the present order explained that the said order was passed to protect the litigants/lawyers whose petitions/ applications/ suits/ appeals/all other proceedings would become time barred they being not able to physically come to file such proceedings. The order was for the benefit of the litigants who have to take remedy in law as per the applicable statute for a right.

“When this Court passed the above order for extending the limitation for filing petitions/ applications/ suits/ appeals/all other proceedings, the order was for the benefit of those who have to take remedy, whose remedy may be barred by time because they were unable to come physically to file such proceedings.”

Stating that the scheme of Code of Criminal Procedure clearly delineates that provisions of Section 167 of Code of Criminal Procedure gives due regard to the personal liberty of a person, the Court explained that without submission of charge sheet within 60 days or 90 days as may be applicable, an accused cannot be detained by the Police. The provision gives due recognition to the personal liberty.

Noticing that the law of limitation bars the remedy but not the right, the Court said that the Investigating Officer in the present case could have submitted/filed the charge sheet before the (Incharge) Magistrate. Therefore, even during the lockdown and as has been done in so many cases the charge-sheet could have been filed/submitted before the Magistrate (Incharge) and the Investigating Officer was not precluded from filing/submitting the charge-sheet even within the stipulated period before the Magistrate (Incharge).

On High Court’s opinion that the lockdown announced by the Government is akin to proclamation of Emergency, the Court said,

“The view of the learned Single Judge that the restrictions, which have been imposed during period of lockdown by the Government of India should not give right to an accused to pray for grant of default bail even though charge sheet has not been filed within the time prescribed under Section 167(2) of the Code of Criminal Procedure, is clearly erroneous and not in accordance with law.”

It is pertinent to note that another bench of Madras High Court had, in Settu v. State, Crl.OP(MD)No. 5291 of 2020, already considered the judgment of this Court dated 23.03.2020 and noticing that personal liberty is too precious a fundamental right, it had held,

“The noble object of the Hon’ble Supreme Court’s direction is to ensure that no litigant is deprived of his valuable rights. But, if I accept the plea of the respondent police, the direction of the Hon’ble Supreme Court which is intended to save and preserve rights would result in taking away the valuable right that had accrued to the accused herein.”

The single judge in the impugned judgment before the Court had called the above mentioned Madras High Court order uncharitable. On this the Court said that the impugned judgment is not only erroneous but also sends wrong signals to the State and the prosecution emboldening them to act in breach of liberty of a person. It, further, said that all Courts including the High Courts and the Supreme Court have to follow a principle of Comity of Courts. A Bench whether coordinate or Larger, has to refrain from making any uncharitable observation on a decision even though delivered by a Bench of a lesser coram.

“A Bench sitting in a Larger coram may be right in overturning a judgment on a question of law, which jurisdiction a Judge sitting in a coordinate Bench does not have. In any case, a Judge sitting in a coordinate Bench or a Larger Bench has no business to make any adverse comment or uncharitable remark on any other judgment.”

[S. Kasi v. State, 2020 SCC OnLine SC 529 , decided on 19.06.2020]


Also read:

COVID-19| SC extends limitation period for filing petitions/applications/suits/appeals, etc.

Hot Off The PressNews

The Special Judge, CBI Cases, Jabalpur (Madhya Pradesh) has convicted Sh. Bhola Nath Singh Yadav, then Sub Inspector. Railway Protection Force & Incharge Out-Post Rewa (Madhya Pradesh) under Sections 7 & 13 (2) read with 13 (1) (d) of PC Act and sentenced him to undergo 7 years Rigorous Imprisonment with fine of Rs. 2,50,000/- in a bribery case.

CBI had registered a case on 24.10.2012 against Shri Bhola Nath Singh Yadav alias B.S. Yadav, Sub-Inspector, Railway Protection Force & Incharge RPF Out-Post Rewa (Madhya Pradesh) for demanding illegal gratification of Rs. 10,00,000/- from the complainant (resident of Satna (Madhya Pradesh) & owner of Godown / Scrap Yard) for not implicating him in a false case related to the theft of 100 metres 12 Core Railway signal cable from Turki Railway Station. After negotiation, the accused agreed to accept the bribe money in two installments of Rs. 8,00,000/- & Rs. 2,00,000/- and an accepted bribe of Rs. 2,00,000/- from the complainant on 29.10.2012.

After investigation, CBI filed a charge sheet on 20.12.2012 against the accused. The Trial Court found the accused guilty and convicted him.


Central Bureau of Investigation

[Press Release dt. 24-12-2019]

Case BriefsHigh Courts

Rajasthan High Court: Arun Bhansali, J. dismissed a writ petition filed by the petitioners against an order passed by Rajasthan Non-Government Educational Institution Tribunal, Jaipur (the Tribunal).

In the instant case, during the pendency of a charge sheet leveling four charges against the respondent, the petitioners passed a resolution inter alia compulsorily retiring the respondent under the provisions of Section 16 (1) of the Rajasthan Non-Government Education Institutions Act, 1989. Aggrieved thereby, the respondent approached the Tribunal by filing an appeal which was allowed. In its impugned judgment, the Tribunal quashed the order of compulsory retirement passed by the petitioners holding it illegal. It also ordered for reinstatement of the respondent with all the consequential reliefs including salary and other benefits. Aggrieved thereby, the petitioners filed the instant writ petition assailing the order of the Tribunal.

The learned counsel for the petitioners, Dr Nupur Bhati and Abhishek Mehta, contended that the Tribunal was not justified in passing the impugned order as, “the burden was on the respondent to prove that he was unemployed from the date of his compulsory retirement till reinstatement, which was not proved.”

The Court observed that “the petitioners were bent upon relieving the respondent from service and, therefore, applied the procedure of compulsory retirement, which was not justified.”  Reliance was placed on the judgment in State of Gujarat v. Umedbhai M. Patel, (2001) 3 SCC 314, where certain principles regarding compulsory retirement were laid down. The Court observed that the petitioners acted contrary to those principles, and held that “from the material which came on record, it was apparent that the order of compulsory retirement was passed as a shortcut to avoid departmental enquiry which was already pending and the same was imposed as a punitive measure by the petitioners and in those circumstances the order was clearly contrary to principles (vi) & (viii) above, the findings of the Tribunal qua the wrongful exercise of power of compulsory retirement cannot be faulted.”

Regarding justification of consequential reliefs, it was held that “..during the intervening period as a temporary employee got engagement with some institution cannot be a reason for the petitioners to deny the payment of back salary and other benefits once it is found that their action was against the law and the order of compulsory retirement was passed only with an intention to ease out the respondent from employment during pendency of enquiry.”

In the view of the above, the Court dismissed the petition holding that the same was devoid of substance.[Chopasni Shiksha Samiti v. Gajendra Singh, 2019 SCC OnLine Raj 430, Order dated 09-05-2019]

Case BriefsHigh Courts

Allahabad High Court: This application was addressed by Ajit Singh, J. which was filed under Section 482 Criminal Procedure Code for quashing of the entire criminal proceeding along with the charge sheet arising out of the case filed under Sections 452, 354-K(a), 323, 504, 506 for first applicant and under Ss. 452, 354-K(a), 323, 504, 506 IPC & 3(1)(I)B SC/ST Act for second applicant and cognizance order pending before Special Judge (SC/ST Act), Jhansi.

Applicant contended before the Court that no offence against the applicants was disclosed and that this case was instituted with the malafide intention for harassing the applicants for which applicant had also provided documents and statements supporting his contention.

High Court was of the view that from the materials on record and facts of the case it cannot be said that no offence was made out against the applicants. But since the facts presented are disputed questions of fact, which the Court could not adjudicate under Section 482 of the Criminal Procedure Code. Therefore, Court refused to quash the entire proceeding of the case and it was directed that in case the applicants appear and surrender before the court below within 30 days from today and applies for bail, their prayer for bail shall be considered. [Sunil Kori v. State of U.P., 2019 SCC OnLine All 2065, Order dated 23-04-2019]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and L. Nageswara Rao and Sanjay Kishan Kaul, JJ has set aside the Bombay High Court decision refusing the Maharashtra Police a ninety-day extension to file the charge-sheet under the Unlawful Activities Prevention Act, 1967 against the human rights activists in Bhima Koregaon violence case.

Background of the case:

The activists Surendra Gadling, Mahesh Raut, Rona Wilson, Professor Shoma Sen and Sudhir Dhawale were arrested after an FIR was lodged alleging that members of the ‘Kabir Kala Manch’, under the head ‘Bhima Koregaon Shouryadin Prerna Abhiyan’, held a meeting of the Elgar Parishad, where active members of CPI (Maoist) supposedly raised inflammatory slogans and engaged in certain other allied activities, with the intention to conspire, incite and abet the commission of terrorist acts and other unlawful activities by using violent means, thus, promoting enmity between different groups, which ultimately culminated 2 in the break-out of violent riots on 1.1.2018, at a place popularly known as Bhima Koregaon, where a large population of people was said to have gathered to celebrate the 200th anniversary of the battle at Bhima Koregaon.

Alleged non-compliance of the proviso to Section 43D(2)(b) of the Unlawful Activities Prevention Act, 1967:

On the question that whether the necessary ingredients of the proviso to Section 43D(2)(b) of the said Act were set out in the application for extension of a period of 90 days, for further investigation and filing of charge-sheet in the said crime, the Court explained that there are certain requirements that need to be fulfilled, for its proper application of the proviso to Section 43D(2)(b). These are as under:

  1. It has not been possible to complete the investigation within the period of 90 days.
  2. A report to be submitted by the Public Prosecutor.
  3. Said report indicating the progress of investigation and the specific reasons for detention of the accused beyond the period of 90 days.
  4. Satisfaction of the Court in respect of the report of the Public Prosecutor.

After perusing the material placed before it, the Court said that it cannot accept the argument that the material set out in the document does not meet with the requirements of the proviso, insofar as the reasons for seeking extension for the period of investigation are concerned. It, however, said that there is no doubt that the report/application of the public prosecutor, setting out the reasons for extension of 90 days of custody to complete investigation leaves something to be desired.

It was, however, noticed:

“The first document, purporting to be the application of the IO, contains the reasons for such extended period of investigation but the second document details out the grounds in extenso and cannot be said to be only a mere reproduction of what is stated in the first document. It cannot, thus, be said that there has been complete absence of application of mind by the public prosecutor. Undoubtedly the request of an IO for extension of time is not a substitute for the report of the public prosecutor but since we find that there has been, as per the comparison of the two documents, an application of mind by the public prosecutor as well as an endorsement by him, the infirmities in the form should not entitle the respondents to the benefit of a default bail when in substance there has been an application of mind.”

Ruling:

The Court, hence, set aside the Bombay High Court order and held that the respondents would not be entitled to the benefit of default bail. The Court, however, clarified that since charge-sheet has been filed, the observations made in the present order wouldn’t affect the right of accused to seek regular bail.

[State of Maharashtra v. Surendra Pundlik Gadling, 2019 SCC OnLine SC 188, decided on 13.02.2019]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench comprising of Karuna Nand Bajpayee and Ifaqat Ali Khan, JJ., dismissed a petition on the ground that the contentions raised by the petitioners’ counsel were related to disputed questions of fact.

The Court had been called upon to adjudge the worth of prosecution allegations and evaluate the same on the basis of various intricacies of factual details. The veracity and credibility of the indictment was questioned, the absence of material which would substantiate the allegations that were contended and false implication was pleaded.

The High Court dismissing this petition held that only a prima facie satisfaction of the court about the existence of sufficient ingredients constituting the offence is required in order to see whether the FIR required to be investigated or deserves quashing. The ambit of the investigation into the alleged offence is an independent area of operation and does not call for interference in the same except in rarest of rare cases. Further, it stated that the operational liberty to collect sufficient material cannot be scuttled prematurely by any uncalled for overstepping of the Court. It has to be an extremely discreet exercise. Call for determination on pure questions of fact should be adequately discerned either through proper investigation or should be adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial court in case a charge sheet is submitted. The Court did not deem it proper to have a pre-trial before the actual trial begun. The FIR was thus not quashed. [Seraj Ahamad v. State of U.P., 2019 SCC OnLine All 23, Order dated 08-01-2019]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of S.A. Bobde and L. Nageswara Rao, JJ. allowed a criminal petition filed against the judgment of Hyderabad High Court whereby appellants’ petition under Section 482 CrPC was dismissed.

Respondent 2-wife filed a complaint alleging harassment by her husband and his relatives including the appellants herein. The appellants were maternal uncles of the husband. Pursuant to the said complaint, an FIR was filed under Section 498-A IPC. The appellants filed the petition before the High Court for quashing the FIR. However, the High Court, vide the judgment impugned, dismissed the petition of the appellants. Aggrieved thus, the appellants filed the instant appeal.

The Supreme Court perused the charge sheet and found that the appellants were not the immediate family members of the husband. Except for the statement that they support the husband who was harassing the wife, nothing showed their involvement in the offence alleged. The Court referred to Kans Raj v. State of Punjab, (2000) 5 SCC 207 and Kailash Chandra Agarwal v. State of U.P., (2014) 16 SCC 551 and observed that the relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out. On the facts and circumstances of the present case, the Court held that not even a prima facie case was made out against the appellants. Resultantly, the appeal was allowed; the judgment impugned was set aside; and criminal proceedings qua the appellants, in the matter concerned, were quashed. [K. Subba Rao v. State of Telangana, 2018 SCC OnLine SC 1080, dated 21-08-2018]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench of Raja Vijayaraghavan, J.,  decided a bail application filed under Section 239 of the CrPC wherein it granted bail to the accused because of the default of the prosecution in filing the charge sheet.

The applicant herein was the sixth accused and was remanded to judicial custody on 19.5.2018. He had been languishing in judicial custody for more than 60 days. The counsel on behalf of the applicant submitted that the applicant was entitled to be released on bail on the default of the prosecution in filing the charge sheet within the prescribed period, which was 60 days in the present case.

The High Court observed that more than 60 days had elapsed from the date of remand of the applicant. The final report had not been filed after completion of investigation. The Court held that the applicant had absolute right to be released on bail and it found no reason to refuse the same. The application was accordingly allowed.[Sanal v. State of Kerala,2018 SCC OnLine Ker 3010, dated 09-08-2018]

Case BriefsHigh Courts

Gauhati High Court: A Single Judge Bench comprising of Mir Alfaz Ali, J., dismissed a criminal petition filed under Section 482 CrPC wherein the petitioners sought quashing of charge-sheet and proceedings in criminal cases.

The petitioners were alleged to have trespassed into the land of Respondent 2 and caused damages to the fencing and RCC post. A criminal case was registered and charge-sheet was submitted under Sections 447, 427, 452 IPC against the petitioners.

The High  Court observed that witness statements under Section 161 CrPC clearly show that petitioners trespassed into the land of Respondent 2. A prima facie case for the said was made out. It was noted to be a trite law that for the purpose of exercising inherent power under Section 482, the Court needs to see whether allegations made in the FIR or evidence collected, on its face value, make out any offence. The Court relied on Radhey Shyam Khemka v. State of Bihar, (1993) 3 SCC 54, wherein it was held that the High Court while exercising such power cannot usurp the jurisdiction of trial court. The power has to be exercised to quash prosecution that amounts to abuse of process of court. It cannot be used to hold a parallel trial. In the instant case, having found that there was a prima facie case, the Court declined to interfere with the proceedings impugned. [Promod Adhikari v. State of Assam,2018 SCC OnLine Gau 822, dated 27-07-2018]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Aditya Kumar Trivedi, J. allowed a criminal appeal and set aside the conviction and sentence of the appellant under Section 307, 333 and 34 IPC along with Section 27(1) of Arms Act.

The appellant was accused of firing gunshot at the injured Assistant Sub-Inspector (informant) while he was returning from election duty. It was alleged that the appellant came on a motorcycle from behind along with the co-accused and fired gunshot at the petitioner thereby injuring him. The FIR was registered in the case, the appellant was apprehended, charge sheet filed, and he was tried, convicted and sentenced as mentioned above. The appellant challenged the order of the trial court in the instant appeal.

The High Court, on a careful consideration of the record, inter alia observed that the informant saw the appellant who came from behind, only after the gunshot had been fired. As there was no other person to be seen on the road, the informant inferred that it was the appellant who had injured him. The conviction was based on the fardbeyan of the informant, and such inference as was made by the informant could not be made a basis for conviction of the appellant. Further, identification of the appellant was done by the informant while he was in the police station in another case, and no proper test identification parade was conducted which was another irregularity which demanded consideration while deciding the case. In such circumstances, the High Court allowed the appeal and set aside the order of conviction and sentence passed against the appellant. [Santosh Yadav v. State of Bihar,2018 SCC OnLine Pat 955, dated 29.05.2018]

Case BriefsSupreme Court

Supreme Court: The bench of SA Bobde and L Nageswara Rao, JJ defined the scope of the words ‘competent Court’ in Section 2(d) of Maharashtra Control of Organised Crime Act, 1999 (MCOCA) and held that the meaning of the term is not restricted to Courts in Delhi and charge sheets filed in Courts in other States can be taken into account for the purpose of constituting continuing unlawful activity. It was also held that there cannot be a prosecution under MCOCA without an organised crime being committed within Delhi.

The Court was hearing the issue relating to conviction of the respondent who was involved in in committing unlawful activities along with other members of a crime syndicate since 1985 in an organized manner, apart from being involved in 20 cases of attempt to murder, murder, extortion, rioting, cheating, forgery and for offences under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. The competent criminal Courts in and outside Delhi had taken cognizance of 8 crimes. Considering the nature of the crimes committed by the respondent, it was deemed proper to invoke MCOCA.

Senior Advocate Siddharth Luthra, appearing for the State of Delhi submitted before the Court that:

“organized crime is a serious threat to the society and that statement of objects and reasons have to be taken into account for interpretation of the provisions of the Act.”

He said that criminal cases in which cognizance was taken by Courts outside Delhi are relevant for the purpose of proceeding against the respondents under MCOCA. He added that organized crime is not restricted to territory within a State and a restrictive reading of the word ‘Competent Court’ would defeat the purpose for which the statute was enacted.

Respondent’s counsel, Senior Advocate UU Lalit, on the other hand, argued that MCOCA operates only within the territorial limits of National Capital Territory of Delhi and said:

“MCOCA is a special legislation which deals with organized crime and unless the essential ingredients of the offences under Sections 3 and 4 are made out, a case under the said statute cannot be registered.”

He further supported his argument by the fact that 6 out of 8 charge sheets filed against the respondents were filed in the State of Uttar Pradesh and had no nexus with the charge sheets filed in Delhi.

Agreeing with the arguments of the State, the Court said:

“Organised crime is not an activity restricted to a particular State which is apparent from a perusal of the Statement of Objects and Reasons. A restrictive reading of the words “competent Court” appearing in Section 2 (1)(d) of MCOCA will stultify the object of the Act.”

The Court further said that if members of an organised crime syndicate indulge in continuing unlawful activity across the country, it cannot by any stretch of imagination said, that there is no nexus between the charge sheets filed in Courts in States other than Delhi and the offence under MCOCA registered in Delhi.

The Court, however, agreed with the respondents on the argument that an activity of organized crime in Delhi is a sine qua non for registration of a crime under MCOCA. In the absence of an organized crime being committed in Delhi, the accused cannot be prosecuted on the basis of charge sheets filed outside Delhi. Noticing that there was no organised crime committed by the Respondents within the territory of Delhi, the Court held that there was no cause of action for initiation of proceedings under MCOCA in the present case and that the case should be heard by the competent court that has the territorial jurisdiction. [State of NCT of Delhi v. Brijesh Singh,  2017 SCC OnLine SC 1206, decided on 09.10.2017]