Allahabad High Court
Case BriefsHigh Courts

   

Allahabad High Court: In application by Swami Chinmayanand Sarawati, former Union Minister for State, invoking extraordinary power of the Court under Section 482 of Code of Criminal Procedure (CrPC) assailing the legality and validity of the order passed by the Trial Court, whereby the Magistrate has declined to accord permission to the application under section 321 CrPC filed by the Public Prosecutor, Rahul Chaturvedi, J. upheld the rejection of the said application, and observed that Court must see that the application moved by the public prosecutor for withdrawal of the prosecution has been properly made in a good faith and in the interest of public tranquility and justice and not to just thwart or stifle process of law.

In this case the complainant, impressed by the spiritual and socio-political qualities of the applicant, developed affinity towards him and expressed her willingness and desire to turn as a ‘Sanyasini’, later she accused the applicant of establishing physical relationship with her by administering some intoxicants in her food and taking her obscene audio-visual videos and porn photographs. Moreover, during that time she was impregnated twice and was aborted. Thus, she accused the applicant under Sections 376 and 506 of the Penal Code.

The Court observed that the applicant by means of application under Section 482, had challenged the charge sheet as well the summoning order, and as soon as the said Section 482 application was rejected, an Under Secretary of the U.P Government wrote a letter to the District Magistrate (DM), whereby directing the Public Prosecutor to withdraw the prosecution against the applicant in the larger interest of public and the interest of justice.

The Court observed that the application given by the public prosecutor in the court of the Chief Judicial Magistrate clearly shows his non-application of mind and that he has applied an independent mind, and this is simply a farce hoax and mirage to cover up the mandatory requirement of the law, that the public prosecutor shall apply his judicial mind while filing application under section 321 CrPC. It was also viewed that this is the biggest misfortune, anomaly, ridiculousness and absurdity on the part of the public prosecutor dancing to the tune of the State Government, conveniently rushed to the court concerned within three days from receipt of the letter of the DM

The Court observed that any crime is said to be committed not against just any individual but against the entire society. Since the entire society is endangered by the offence of an accused, and the entire society cannot practically sue the accused, the State arrogates power and responsibility to initiate prosecution against the offender. Further, Section 321 CrPC enables the public prosecutor to withdraw from prosecution any person in respect of the offences for which he is tried, with the consent of the Court wherein he or she thinks that such withdrawal will lead to a larger public interest.

The Court referred to the ruling in Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288, wherein it was held “that the withdrawal should be in the interest of administration of justice, and it is the duty of the court to see that the public prosecutor applies his free mind and not just act as mere mechanical agent of the State Government”.

The Court while examining what constitutes public interest, viewed that an exhaustive definition of the public interest is difficult to prepare, however, it can be evaluated in the light of the facts and circumstances of the case. Further, if the public prosecutor concludes that the prosecution should be withdrawn, then it is incumbent upon him to apply in the court with adequate and tangible reasons spelled out in the application. Moreover, if he defers from the decision of the State Government and concludes that the case ought not to be withdrawn, then he has got two options:

(a) Either to ask the State Government to relieve him from a particular case, or least he shall have to resign.

(b) To forward the application by giving his own reasoning with the considered opinion that such application is not sustainable on the ground set out by him in the application.

The Court further observed that a public prosecutor is not supposed to dance to the tune of the State Government, nor he is supposed to act as a post office or act under the dictate and command of the State Government and he must act objectively as he is also an officer of the Court. Further, the Court is also free to assess, whether a prima facie case is made out or not and if the Court is satisfied then after assigning a reason, it can reject the same, but it cannot be said that the public prosecutor’s action will be illegal, if he receives a communication/instruction from the State Government.

The Court further took note of the rulings in Subhash Chander v. State (Chandigarh Admn.), (1980) 2 SCC 155, Abdul Karim v. State of Karnataka, (2000) 8 SCC 710, wherein it was held that “an application under section 321 CrPC could not be allowed only on the ground that the State Government has taken a decision for withdrawing the prosecution and such an order could not be passed after examining facts and circumstances of the case”, thus, observed that the Court must see as to whether the application has been made in good faith and in the interest of public policy and justice and not to thwart or stifle the process of law. Further, the Court, after considering the facts and circumstances of each case, must see whether the application suffers from improprieties or illegalities as would cause a manifest injustice, if consent was given.

The Court further cited Rajender Kumar Jain v. State, (1980) 3 SCC 435, wherein it was held that it shall be duty of the public prosecutor to inform the grounds for withdrawal to the Court, and it shall be duty of the Court to authorize a search of the reason, which prompt the public prosecutor to withdraw from the prosecution as both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resort to the provisions of Section 321 CrPC.

The Court also observed that before instructing a public prosecutor for withdrawal from the prosecution, the State Government should also consider the matter carefully.

Thus, the Court viewed that the Under Secretary while issuing the impugned letter to the DM has not spelled out a single good reason for the alleged withdrawal of the prosecution against the applicant.

Further, placing reliance on the decision in State of Kerala v. K. Ajit [Criminal Appeal No. 698 of 2021 decided on 28th July 2021, Aishwarya Chaudhary v. State of Uttar Pradesh (Application 482 No. 44691 of 2018 decided on 15.05.2019, Abdul Kareem (supra) and Rahul Agarwal v. Rakesh Jain, (2005) 2 SCC 377, it was observed that there is no quarrel to the legal preposition that under section 321 CrPC the consent of the Court connotes a supervisory and not adjudicatory manner, and the Court must see that the application moved by the public prosecutor for withdrawal of the prosecution has been properly made in a good faith and in the interest of public tranquility and justice and not to just thwart or stifle process of law. Further, normally the courts cannot question the decision of the public prosecutor under this Section unless it concludes that the public prosecutor has not applied his mind, or his decision is biased, coloured, tainted or motivated one and not sub-serving the public policy and the court has a special duty in this regard as it is an ultimate depository of legislative confidence in granting its consent to withdraw from the prosecution.

However, the Court considered the applicant’s old age and medical problems, and on humanitarian approach viewed that, if the applicant surrenders before the Magistrate on or before 30th October 2022 and applies for bail, his bail application shall be adjudicated and decided strictly in accordance with law and till the said date from today, no coercive action shall be taken against the applicant in the case.

[Swami Chinmayanand Saraswati v. State of UP, 2022 SCC OnLine All 670, decided on 30.09.22]


Advocates who appeared in this case:

Counsel for Applicant: – Advocate Rajrshi Gupta

Advocate Dileep Kumar

Advocate Manish Singh

Advocate Raj Kumar Singh Chauhan

Counsel for Opposite Party: – Advocate Anurag Kumar Pandey

Advocate Rafat Raza Khan

Advocate Sundeep Shukla

Advocate Veerendra Kumar Shukla

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In an application filed by the applicant who is a UP Police official, charged under Section 302, 120-B and 34 Penal Code, 1860 (‘IPC') seeking regular bail on the ground that the applicant was granted interim bail and never misused his liberty, Rajnish Bhatnagar J. denied bail clarifying that grant of interim bail and grant of regular bail on merits are two different aspects and simply because the petitioner was on interim bail for a certain period of time does not entitle him to grant of regular bail when the facts of the case speak otherwise. The Court also remarked “at the time of grant of interim bail to the petitioner, the merits of the case were not considered.”

The complainant, Ramesh Chand who is father of the deceased alleged that his son aged 25 years who was working as an LIC agent went to the house of Ajay Singh and his friend Sarvesh (‘bail applicant’) regarding policy on 19-07-2018 and went missing. An FIR was registered under Sections 364 and 34 Penal Code, 1860 (‘IPC'). The investigation was conducted and two were arrested, out of which the petitioner is employed in U.P. Police and his co-accused is employed in Reserve Police Forces (‘RPF'). The charges framed in the charge sheet were under Sections 302, 120-B and 34 IPC.

Thus, instant bail application was filed by the petitioner under Section 439 read with section 482 Criminal Procedure Code (‘CrPC').

Counsel for petitioner contended that the petitioner/accused who is on interim bail can be granted regular bail. The State, however, opposed the application by contending that the petitioner, despite being the member of a disciplined force, he, along with the co-accused have committed a heinous offence.

The Court, on perusing the evidence placed on record and examining the witnesses and their statements, noted that the allegations against the petitioner are grave and serious in nature and according to the prosecution, the petitioner who is employed in UP Police has killed and disposed of the body of deceased Prem Kumar aged around 25 years along with his co-accused one of whom namely Ajay Singh is also a constable in RPF.

The Court further noted that that grant of interim bail and grant of regular bail on merits are two different aspects and simply because the petitioner was on interim bail for a certain period of time does not entitle him to grant of regular bail when the facts of the case speak otherwise.

Placing reliance on Satish Jaggi v. State of Chhattisgarh, (2007) 11 SCC 195, the Court dismissed the bail application in view of the nature and gravity of the offence, its impact on society and severity of the punishment of the offence.

[Sarvesh Singh v. State NCT of Delhi, 2022 SCC OnLine Del 2651, decided on 31-08-2022]


Advocates who appeared in this case :

Mr. Gopal Jha and Mr. Umesh Kumar Yadav, Advocates, for the Petitioner;

Mr. Raghuvinder Varma, APP for the State with Inspector Rahul Raushan, Advocates, for the Respondent.


*Arunima Bose, Editorial Assistant has put this report together.

Case BriefsSupreme Court

Supreme Court: The vacation bench of AS Bopanna and Vikram Nath, JJ has issued notice returnable in 3 weeks in the matter where one Mohd. Naseer, who has been in custody since 14.02.2019 for being charged under the Prize, Chits & Money Circulation Schemes (Banning) Act, 1978.

Prior to this, the Petitioner had been arrested on 20.07.2009 and was granted bail on the same date. He was then not arrested till 14.02.2019 even though the charge-sheet was filed on 09.12.2016. It has hence been argued before the Court that the same is against the law laid down by the Supreme Court in Siddharth v. State of UP, (2022) 1 SCC 676 and Aman Preet Singh v. CBI, 2021 SCC OnLine SC 941, wherein it was held that if the accused has not been arrested during the course of the investigation and has cooperated with the investigation then there is not requirement of arrest post filing of charge-sheet.

Further, the petitioner had applied for bail before the Orissa High Court and the order was reserved on 12.06.2020. It has been argued that he is confined in jail awaiting adjudication of the case since then. Notably, the Petitioner has already been detained for more than 3 years where the total period of incarceration in case of conviction is maximum 7 years.

“The Petitioner has already been in custody for more than 3 years post filing of charge-sheet, wherein the Trial against the Petitioner has already begun and there is hardly any possibility of early conclusion of the Trial.”

The petitioner, who suffers from a permanent disability of blindness by birth, has submitted before the Court that the prolonged detention is against the fundamental rights of the Petitioner under Article 21 of the Constitution of India.

[Mohd. Naseer v. Directorate of Enforcement Government of India, 2022 SCC OnLine SC 767, order dated 13.06.2022]


Counsels

For petitioner: Sr. Adv Siddharth Bhatnagar, AORs Swarnendu Chatterjee and Gaurav and Advocates Yashwardhan Singh, Himanshu N and Raman Yadav

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and N.R. Borkar, JJ., upheld the decision of the Trial Court in a case of causing grievous injury voluntarily.

An appeal was preferred by the State on being aggrieved by the decision passed by JMFC, thereby acquitting accused’s 1 to 3 for the offences punishable under Sections 326, 504 read with 34 of the Penal Code, 1860 (IPC).

Factual Matrix

Complainant and his family members were cultivating the land known as “Talicha Bambar” of Polgaon. The said land of Mahadev Ramu Takkeka and Shankar Ramu Takkekar was adjacent to his land.

The complainant and his family members were having a way to go to their field for agricultural work from the land of Takkekar. However, said persons were not allowing them to go in their land from the land of Takkekar, and on that ground for the last 4 to 5 years, there was a dispute between the complainant and accused persons.

Though the above-said dispute was settled at village level.

On 15th July, 1998 the accused persons came on the field of the complainant and started abusing him, they said that if the complainant doesn’t run away they will not leave him and at the same time they started beating him and causing injury.

The complainant was taken to the Government hospital and Police Station Officer went there to record the complainant’s statement.

After completion of the investigation, charge-sheet was filed against the accused persons for offences punishable under Sections 326,325, 324, 323, 504 read with 34 of IPC.

Since it was noted that, the accused did not come prepared to assault PW1, as khurpi was something which was used in the agricultural field for removing grass and other accused persons were not holding sickle.

The trial Court after perusal of entire evidence on record and in particular medical evidence reached the conclusion that ingredients of Section 326 of IPC were not attracted rather ingredients of Section 325 gets attracted in the facts of the case, and accordingly convicted the accused of the offences punishable under Section 325, 324, 323 read with 34 of IPC.

PW1 admitted that the main accused had given one blow by sickle on his left arm and also stated that sickle is same as ‘Khurpi’ which was commonly used for removing/cutting grass in the agricultural field.

Further, the PW1 stated that the main accused had given only one blow of sickle and multiple blows.

It is true that the trial Court passed the impugned judgment and order in the year 2000 and this appeal is taken up for hearing in the year 2022.

Therefore, High Court held that, Trial Court’s opinion was plausible, reasonable and in consonance with the evidence.[State of Maharashtra v. Mahadev Ramu Takkekar, 2022 SCC OnLine Bom 274, decided on 9-2-2022]


Advocates before the Court:

Mr. S.S. Hulke, APP for State.

Mr. Manish Mazgaonkar for Respondent 3.

Case BriefsHigh Courts

Delhi High Court: Chandra Dhari Singh, J., granted bail while referring to a catena of Supreme Court decisions with regard to the law on bail.

An application under Section 439 of the Code of Criminal Procedure, 1973 was filed seeking regular bail in an FIR registered for the offences punishable under Sections 406/420/120B of the Penal Code, 1860.

Factual Matrix

In 2014, Auto Web approached the complainant at the office of HDFC Bank Limited for the grant of Credit Facilities in the nature of Inventory Funding and Cash Credit Facilities by the complainant. It was represented that Auto Web was the ‘Authorized Dealer’ of Hyundai and engaged in the business of ‘sales’ and ‘service’ of vehicles manufactured by Hyundai since the year 2013.

Complainants processed and sanctioned the credit facilities on the basis of the request and representation made by the director of Auto Web. Consequent thereto, the loan agreement was executed between the complainant and Auto Web, in relation to the credit facilities.

The stocks of the vehicles (inventory) were the primary security of the complainant, in addition to the cross collateral. Accordingly, from time to time, on the request of Directors, existing facilities were modified/enhances/renewed and other facilities were granted on the basis of the documents. In the balance sheets of Auto-Web, it was shown that the company was generating profits.

As per the last enhancement/renewal, the complainant had sanctioned an amount of Rs 15 Crores towards Inventory funding, Rs 1.50 crores as CC Limit and adhoc limits of Rs 3.50 crore to Auto Web duly utilized said limits sanctioned by the complainant.

Based on the request of the accused persons for disbursal of funds, the complainant used to disburse the amounts directly into the account of manufacturer, whereupon the stocks (cars) got released to the dealer, which stock was hypothecated to the complainant.

Further, in terms of the arrangement between the complainant and Auto Web, proceeds from the sale of the inventory (Cars) were to be credited into the inventory funding account of the dealer for the purposes of repayment of the limits utilized by the dealer.

In 2019, the officials of the Bank noted stress in the accounts of Auto Web and certain gaps in the stock audit report.

After a point of time, the directors of Auto Web failed to regularize the accounts and remained evasive and thereafter started avoiding contact with the bank officials.

In 2020, upon reconciling accounts, it was found that Auto Web utilized a major portion of the credit facilities granted by the complainant towards the purchase of 143 vehicles amounting to Rs 11,40,75,861 from Hyundai.

The Bank found that the vehicles available in stocks was much less than the inventory received from the manufacturer, pursuant to the disbursals made by Complainant. Hence, there was a gap of about Rs 11.45 crores which was not accounted for.

The stock of only 34 Vehicles at 2.35 Crores was found available with accused persons and Vehicles amounting to Rs. 11.45 Crores had been found to been fraudulently misappropriated.

Therefore, the vehicles worth more than 11 crores which were purchased from the funds made available by the complainant had been sold by the accused without crediting the sale proceeds into the inventory funding account of the Bank.

It was clear that the vehicles purchased from the funds of the complainant had been illegally sold without crediting the payments to the complainant and the sale proceeds had been criminally misappropriated.

Accused/borrower illegally removed all the hypothecated vehicles and misappropriated an amount of Rs 13,60,72,600.

The petitioner/applicant was arrested on 5-8-2021, therefore the bail application before the Additional Sessions Judge and the same was dismissed.

Analysis, Law and Decision

In the present matter, the wife of the petitioner/applicant filed an affidavit in pursuance of the order of this Court and disclosed the mode of repayment to the financial institutions at his place/address of residence once he was enlarged on bail.

The investigation had been completed, charge sheet had been filed and the petitioner languished in jail since 5-8-2021.

All the incriminating evidences/materials against the Petitioner/Applicant were documentary in nature and had already been seized by the investigating agency. As per the statutory provisions, the maximum sentence for the offence punishable under Section 420 of the IPC was upto seven years.

Supreme Court in Joginder Kumar v. State of U.P., (1994) 4 SCC 260, had dealt with the contours of Article 21 of the Constitution of India with regard to the arrest of an accused to the effect that the power to arrest cannot be exercised in isolation, and that it must have justification for the exercise of such power, as no arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person, without reasonable satisfaction reached after some investigation as to the genuineness and bonafides of a complaint and a reasonable belief qua the person’s complicity and the need to necessitate such arrest.

Further, in Arnab Manoranjan Goswami v. State of Maharashtra, (2021) 2 SCC 427, Supreme Court reiterated the value of the personal liberty enshrined under Article 21 of the Constitution of India. The Supreme Court further emphasized that the basic rule behind bail jurisprudence is “to bail not jail”. The Court went on to observe that it is our earnest hope that our courts will exhibit acute awareness of the need to expand that footprint of liberty and use our approach as a decision-making yardstick for further cases for the grant of bail.

High Court observed that the consequences of pre-trial detention are grave and keeping an under trial in custody would necessarily impact his right to defend himself during the trial in as much as he will be clearly denied the right to a fair trial, which was guaranteed under Article 21 of the Constitution.

Settled Law

The fraudulent and dishonest intention should be present since inception for an offence of Cheating.

In the present case, a non-payment of miniscule amount in comparison to the huge amounts paid over the years had been deliberately given a criminal colour.

Further, it was stated that since the investigation was complete, there was no apprehension of tampering with any documents, influencing witnesses or absconding from the trial. Hence, Court satisfied the triple test laid down by the Supreme Court in P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791.

Bench noted that it was an admitted fact that the evidence to be adduced in the instant case was substantially documentary in nature, which were already in the custody of the Investigation Agency. The petitioner had been languishing in jail for more than five months.

Conclusion

High Court opined that the petitioner should be enlarged on bail.

The Bench held that,

Let the petitioner be released on regular bail pending trial on his furnishing of personal bond in the sum of Rs. 1,00,000/- (Rupees One Lacs only) with two solvent sureties of like amount to the satisfaction of the Trial Court, subject to the further conditions as follows:-

(a) he shall surrender his passport, if any, to the Investigating Officer and shall under no circumstances leave India without prior permission of the Trial Court;

(b) he shall cooperate in the trial and appear before the Trial Court of the case as and when required;

(c) he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case;

(d) he shall provide his mobile number(s) and keep it operational at all times;

(e) he shall drop a PIN on the Google map to ensure that his location is available to the Investigating Officer;

(f) he shall commit no offence whatsoever during the period he is on bail;

(g) In case of change of residential address and/or mobile number, the same shall be intimated to the Investigating Officer/Court concerned by way of an affidavit.

[Vikas Chawla v. State of NCT of Delhi, 2022 SCC OnLine Del 382, decided on 7-2-2022]


Advocates before the Court:

For the petitioner:

Mr Vikas Pahwa, Sr. Advocate with Mr Sumer Singh Boparai, Mr Abhishek Pati, Mr Sidhant Saraswat and Mr Shadman Siddiqui, Advocates

For the Respondent:

Ms Kusum Dhalla, APP for State Mr Tushar Jarwal, Mr Rahul Sateeja, Mr Ambar Bhushan and Mr Anurag Soan, Advocates for BMW Finance/Complainant

Mr Kunal Tandon and Mr Chetan Roy, Advocates for HDFC Bank/ Complainant

Case BriefsHigh Courts

Allahabad High Court: Dr Y.K. Srivastava, J., while examining the ambit and scope of Section 319 of the Code of Criminal Procedure, 1973 explained that,

“…broad principles which have been laid down for exercise of powers under Section 319 of the Code underline the object of the enactment that the real perpetrator of the offence should not get away unpunished and in a situation where the investigating agency for any reason does not array any culprit as an accused the court would not be powerless in calling the accused to face trial.”

Instant criminal revision had been filed seeking to set aside the decision passed by Additional Sessions Judge under Sections 307, 504 of Penal Code 1860 arising out of a case on the application of OP 2 filed under Section 319 of the Code of Criminal Procedure, 1973.

Ambit and Scope of Magistrates’ powers

Scope and the ambit of the powers of the Magistrate under Section 319 of the Code were considered in the Constitution Bench judgment of the Supreme Court in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92. Referring to the object of the provision it was held that the object of the provision was that the real culprit should not get away unpunished and in a situation where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial.

Further, with regard to the degree of satisfaction required for invoking the powers under Section 319 of the Code, it was held that the test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, is goes unrebutted, would lead to conviction.

The question as to what situations power under the Section 319 of the Code of Criminal Procedure, 1973 can be exercised in respect of persons not named in the FIR or named in FIR, but not charge-sheeted or discharged was also considered, and it was held that a person whose name does not appear even in the FIR or the charge-sheet or whose name appears on the FIR and not in the charge sheet, can still be summoned by the Court provided the conditions under the said Section stand fulfilled.

Elaborating further, power to proceed against persons named in FIR with specific allegations against them, but not charge-sheeted, was reiterated in Rajesh v. State of Haryana, (2019) 6 SCC 368 and it was held that persons named in the FIR but not implicated in charge- sheet can be summoned to face trial, provided during the trial some evidence surfaces against the proposed accused.

The court below had taken note of the fact that the revisionist was not only named in the F.I.R. but was also assigned a role in the incident.

Upon considering the settled legal position with regard to exercise of powers under Section 319, the court below passed the order summoning the revisionist.

Moving further, the Bench expressed that Section 319 (1) of the Code envisages that where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

High Court held that power under Section 319 of the Code to summon even those persons who are not named in the charge-sheet to appear and face trial, being unquestionable and the object of the provision being not to allow a person who deserves to be tried to go scot-free by being not arraigned in the trial inspite of possibility of his complicity which can be gathered from the evidence during the course of trial, the order passed under Section 319 of the Code summoning the revisionist does not contain any material error so as to warrant inference.

Applicant’s counsel stated that it would not dispute the aforementioned legal position with regard to the exercise of powers under Section 319 of the Code and stated that the applicant would submit to the jurisdiction of the court below and seek bail.

In view of the above discussion, the revision stood dismissed. [Mishri Lal v. State of U.P., 2021 SCC OnLine All 839, decided on 4-12-2021]


Advocates before the Court:

Counsel for Revisionist: Kamal Dev Rai

Counsel for Opposite Party: G.A.

Case BriefsHigh Courts

Delhi High Court: Rajnish Bhatnagar, J., while addressing the allegations of forged agreement, stated that the effect of the same would be considered during trial and no comments to reach any conclusion could be stated at this stage.

Instant anticipatory bail was sought under Sections 420/406/120-B of Penal Code, 1860.

Background

A complaint was lodged by a 90-year-old person against the petitioner and her husband alleging that he practices Vaidacharya and runs a manufacturing unit of some Ayurvedic medicines.

It was alleged that he used to propagate his advice about benefit of Ayurveda on various TV channels. Further, he came in contact with co-accused Sunil Kumar Jha, who introduced himself as channel head of Katyani Devotional TV channel and the complainant started telecasting his programs on the said channel in the year 2010-2011.

Complainant also said that Sunil Kuma Jha introduced the petitioner as his wife by saying that she is an expert having all technical knowledge to run TV channel, broadcasting etc.

Husband/co-accused of the petitioner also apprised the complainant that he had worked in Doordarshan and he alongwith the petitioner is the Director of a company namely M/s Viceroy Engineering Pvt. Ltd. It is alleged that after gaining the trust of the complainant, both the accused persons i.e. the present petitioner and her husband gave a proposal about establishing his own TV channel by purchasing majority shares of M/s Express Broadcasting Pvt. Ltd., which runs a channel namely “Zonet Zawlbuk” (earlier ENTV) and assured the complainant to create all the required infrastructure for establishment of TV channel.

Primary allegation was that the accused person trapped the complainant in the year 2016-17 and the complainant thereafter transferred Rs 2.21 Crores to the bank account of M/s Viceroy Engineering and also gave cash of Rs 25 lacs.

Further, it was added that the accused persons started promotion/ advertisement of complainant’s programme on a channel namely “Sanskriti TV” on which accused persons used content/programme of the complainant and sometimes it was live and sometimes recorded tapes were played.

In 2017, the telecast of the complainant’s programme was stopped and he was neither given payment for telecasting his programme nor he was returned the amount given for the purchase of the channel.

It was also alleged that on the advice of the accused persons, the complainant through bank transferred Rs 19,83,375/- to AV Edit Solution, Rs 27,01,542/- to Planet Cast Media Services Ltd. and Rs 1,50,50,000/- to Dish TV India Ltd. but later on the complainant came to know that the accused persons purchased the channel Sanskriti TV through shareholding of M/s Express Broadcasting Pvt. Ltd. in the name of Bindu Jha (petitioner herein) and not in the name of complainant as promised.

Complainant had also paid a sum of Rs 1.50 Crore in cash additionally for the development of the studio in the premises of the accused persons situated at Chander Nagar, Ghaziabad.

Analysis, Law and Decision

High Court noted that the matter was sent for mediation for settlement but the same could not be settled between the parties.

Court stated that as of now since the charge sheet was already filed without the arrest of the petitioner, all the material evidence and documents were collected, the petitioner was also granted interim protection and there were no allegations that during the period of interim protection she ever tried to influence the witnesses or tamper with the evidence, in the said circumstances, the bail application was allowed and the petitioner was admitted to bail.

In view of the above discussion, bail application was disposed of. [Bindu Jha v. State, 2021 SCC OnLine Del 5194, decided on 2-12-2021]


Advocates before the Court:

For the Petitioner:

Mr Mohit Mathur, Sr. Advocate with Mr Vipul Wadhwa, Advocate.

For the Respondent:

Ms Rajni Gupta, APP for the State with SI Vikram Singh, EOW.

Mr Chirag Mudgal, Advocate for the complainant.

Case BriefsDistrict Court

Karkardooma Courts, New Delhi: On finding no sufficient evidence, Virender Bhat, ASJ-03, granted bail to the accused persons who looted a medical shop and three houses during the Delhi Riots.

Accused have been charge-sheeted by the police for having committed offences under Sections 147, 148, 149, 188, 120-B, 436, 380, 455 of Penal Code, 1860.

It is alleged that in February 2020 a mob consisting of several 100 rioters who were armed with rods, pipes, stones, petrol bottles, etc. and raising slogans “Jair Shree Ram”, were coming from Ghonda Road towards New Usmanpuri where the complainant Firoz Khan resided and used to run a medical store.

Upon seeing the mob, the complainant locked the main gate of the house and went alongwith his family to the house of his uncle which was in front of his house.

Later, the mob broke open the shutter of the complainant’s medical store and also the main gate of his house and looted the medical store as well as the house and the mob left after vandalizing his house, three adjacent shops and some other adjacent houses.

Two accused were arrested and had admitted their involvement in the incident involved. On the basis of their statement, other accused persons were also arrested.

Analysis, Law and Decision

Bench stated that it needs to be noted that at the time of deciding the charges against the accused, Court was not expected to go deep into the probative value of the material on record.

Court stated that,

What is required to be seen at this stage is whether, the conviction of the accused is reasonably possible if the material on record remains unrebutted or whether there is strong suspicion which may lead the Court to think that there is ground for presuming that the accused has committed the offence.

Since the present matter was the outcome of the riotous incident in which a large number of persons were involved, observation of Supreme Court in Masalti v. State of U.P., AIR 1965 SC 202 become relevant in which the principle was to how a criminal Court should deal with the evidence pertaining to the commission of offence involving in a large number of offenders and large number of victims, had been laid down.

In the present matter, it was evident that from the perusal of the entire charge sheet that there was only one witness who identified the accused as the assailants who were part of the mob.

Charges cannot be framed against the accused upon taking into account the material annexed with the chargesheet on the basis of which there is no possibility of the conviction of the accused at the final stage.

Therefore, there was not sufficient evidence on record on the basis of which charges can be framed against the accused. In view of the said reasoning, bail was granted.

Before parting, Court expressed that,

“Court is not insensitive towards the mental agony and the financial loss suffered by the complainant due to this incident. However, the sensitivity or the emotions alone are not the factors to be taken into consideration by the court while deciding the fate of any accused. These cannot take place of evidence. There should be sufficient and legally admissible evidence on the basis of which charges can be framed against an accused, which is lacking in the instant case.”

Direction

In view of the above-stated facts and circumstances of the case, where accused are being let off not because the incident in question had not happened or the accused appear to have been falsely implicated but merely for the reason that there is no sufficient evidence produced against them, Court directed the DCP North­ East District conduct an enquiry into the manner in which the investigation was conducted by the IO, in this case, to find out whether or not there had been any deliberate attempt to shield the offenders and submit a report to this Court on the next date of hearing.[State v. Raj Kumar, Sessions Case no. 284 of 2021, decided on 22-11-2021]

Case BriefsDistrict Court

District Court Complex, Rouse Avenue: Anuradha Shukla Bhardwaj, Spl. Judge (PC Act) CBI-21 allowed applications filed under Section 167(2) CrPC and granted bail to the accused persons for failure of the Central Bureau of Investigation to file charge sheet within the permissible period of 60 days.

Instant bail applications under Section 167(2) CrPC were filed primarily on the ground that a right accrued in favour of the accused persons on account of non-filing of charge sheet under the provisions of Official Secrets Act. It was pleaded that the fact that offences under Sections 3 and 5 of the Official Secrets Act, 1923 were being investigated came to the knowledge of accused persons for the first time during the hearing of their first bail applications under Section 167(2) CrPC, which were dismissed. CBI submitted that the said offences were being investigated and a supplementary charge sheet was to be filed.

Factual Matrix

The accused persons were arrested on the allegations of leaking internal information regarding tender related documents on considering illegal gratification. The police custody and judicial custody of the accused persons were taken from time to time and on every occasion, a request was made to the court to keep the documents in sealed cover in view of the sensitivity of the matter since the investigation indicated leakage of sensitive material pertaining to Defence of the country. The applications filed for extension of police custody and judicial custody reflected that at no occasion the extension was sought on the ground that investigation was pending under the Official Secrets Act.

Further, CBI replied that the investigation was being conducted under the Official Secrets Act, the Ministry of Defence has been requested to file a formal complaint as per law and a supplementary charge sheet would follow.

Analysis, Law and Decision

The Court noted that there was no dispute that the attracted provisions of the Official Secrets Act prescribing the punishment upto 14 years with no lower limit of the sentence are covered by proviso (a)(ii) of Section 167(2) CrPC.

Chargesheet in the matter as such ought to have been filed within 60 days in the matter. 

In the present matter, though there was no denial that two charge sheets had been filed within the prescribed time period of 60 days, but the applicants argued that the charge sheets were incomplete.

Considering the timeline and progress of the investigation as also the proceedings before the Court, it found that at no point did CBI inform the Court that an investigation under Official Secrets Act was also taken up, although the investing agency knew that a case under the Official Secrets Act is made out against the accused persons. The prosecution admitted that no separate FIR was registered under the Official Secrets Act and that the investigation for the offences under the provisions of Official Secrets Act was taken up. Thus, it was not the case of the prosecution that the offences under the Official Secrets Act were being investigated in a different case. Two different charge sheets were filed under the provisions of PC Act and IPC, but in no charge sheet, there was any mention of the Official Secrets Act.

Applying the judgments in State of Maharashtra v. Bharati Chandmal Varma, (2002) 2 SCC 121 and Tunde Gbaja v. CBI, 2007 SCC OnLine Del 450 to the facts of the case, the Court held that the investigation qua the Official Secrets Act having been taken up in the same case, the limitation of 60 days would apply for completion of investigation in respect of all the offences including the Official Secrets Act from the date of arrest of the accused persons.

It was mentioned by the agency in the reply to the earlier bail application that to attract the provisions of Sections 3 and 5 of the Official Secrets Act, a written complaint was required to be made and the investigating agency has requested by way of proposal to the Ministry of Defence regarding filing of the complaint and that the process was pending. In this regard, the Court noted that although a complaint is required where it was held that although a complaint is required from the concerned Ministry for the offences under Official Secrets Act, the investigating agency is obliged to file a report under Section 173 CrPC alongside putting on record the investigation conducted by it.

Investigation in the cases of Official Secrets Act is conducted by the agency whichever registers the FIR and the Department whoever accords the sanction by way of authorizing a person to file the complaint act only on the basis of investigation conducted by such agency.

The Court found that in view of the decision of Tunde Gbaja v. CBI, 2007 SCC OnLine Del 450, it was incumbent upon the investigating agency to have filed the charge sheet within 60 days under Section 173(2) CrPC mentioning that the investigation on their part was complete and that the reference was made to the Ministry concerned for filing complaint under the relevant sections. It was concluded that:

[T]he charge sheet filed before the court is incomplete in as much as there is no mention regarding the investigation being carried under the Official Secrets Act, though the same was being carried in this case itself. The charge sheet thus is incomplete for the purposes of Section 167(2) of CrPC.

 A lot of stress was laid on the fact that the offences alleged against the accused were very serious in nature. But the Court negated such argument stating that the fact remains that the provisions of Section 167(2) CrPC do not permit the court to consider the gravity of offence or seriousness thereof. Reliance was placed on the Supreme Court decision in M. Ravindran v. Directorate of Revenue Intelligence,(2021) 2 SCC 485.

In such view of the matter, the applicants were admitted to bail under Section 167(2) CrPC on furnishing personal bond in the sum of Rs 1 lakh with one surety.

Lastly, the Prosecutor submitted that the bail was being granted to the accused persons in two charge sheets and a third charge sheet is intended to be filed. The bail order will be required in third charge sheet also. On this, the Court noted that:

[T]he accused were not arrested thrice in three different charge sheets. The two charge sheets are culmination of investigation in the same FIR. The accused were arrested in one FIR and therefore, are to be granted bail in one FIR only and the release will also be in one FIR only. There being no three instances of arrest the accused will be considered on bail in the FIR in which they were arrested. Separate bail under Section 439 CrPC might be required only after the accused are summoned by the court in different charge sheets.

The applications were disposed of in the above terms. [CBI v. S.J. Singh, CBI No. 58 of 2021, decided on 18-11-2021]


Advocates before the Court:

Mr. Raman Kumar, Ld. PP for CBI.

Mr. Kumar Bhaskar, DSP from CBI.

Mr. Meenesh Dubey and Mr. Abdhesh Chaudhary, Ld. Advocates for accused Satwinder Jeet Singh.

Mr. Bharat Chugh, Mr. Yashpreet Singh, Mr. Ekjot Bhasin, Ld. Advocates for accused Randeep Singh.

Mr. Sumit Kumar, Ld. Adv. for T. P. Shastry.

Mr. Naveen Kumar, Ld. Adv. for accused Ajit Kumar Pandey.

Case BriefsSupreme Court

Supreme Court: In a case where the Gujarat High Court had quashed criminal proceedings at the behest of persons who were not named in the FIR purely on the basis of their names appearing in the draft charge-sheet, the bench of Dr. DY Chandrachud* and BV Nagarathna, JJ has found it to be a “clear abuse” of High Court’s jurisdiction under Section 482 of the CrPC. The Court noticed that the High Court cannot place reliance on a “draft charge-sheet” which is yet to be placed before the Magistrate to quash the criminal proceedings under Section 482.

In a dispute over the title of a land, a sum of money running into crores of rupees is alleged to have been demanded from the appellant, stating that the lands had been sold to land mafias. While the sixth and seventh respondents were named in the FIR, the eighth and ninth respondents were arraigned as accused in the draft charge-sheet. The allegations against the sixth to ninth respondents are that as a part of a criminal conspiracy, they colluded to execute false powers of attorney and MoUs to jeopardize the right and title to the land belonging to the appellant and were party to the extortion of money from him. It is alleged that sixth, seventh and ninth respondents executed champertozus agreements with the legal heirs of the land owner and were alleged to be involved in the extortion of money from the appellant. The eighth respondent, who is an advocate, is alleged to have helped the other accused in drafting the powers of attorney and MoUs.

While the High Court permitted the continuation of investigation in the allegations against the fourth and fifth respondents under Section 385 of the Penal Code 1860 for extortion, it quashed an FIR which was registered against the private respondents under Section 482 of the Code of Criminal Procedure 1973

Not only this, but in its interim order, the High Court allowed the investigation to continue against the accused but directed that the final report cannot be submitted to the Magistrate without its permission. The direction was not supported by any reasoning whatsoever.

The Supreme Court noted that,

“Even at the interim stage, the High Court must demonstrate an application of mind and furnish reasons for issuing any interlocutory direction, which is capable of being tested before this Court in an appropriate case. The interim direction amounted to an unnecessary interference in the investigative process envisaged under the CrPC. The High Court transgressed the scope of the powers conferred upon it by restricting the police from submitting the charge-sheet before the Magistrate and by further perusing the contents of the “draft charge-sheet” in the proceedings before it.”

The Court, however, clarified that a distinct position arises when the chargesheet has been filed before a Magistrate and proceedings under Section 482 are pending before the High Court. In such cases, the High Court must take into consideration the material collected during the investigation. However, the High Court cannot place reliance on a “draft charge-sheet” which is yet to be placed before the Magistrate to quash the criminal proceedings under Section 482.

Further, the police have a statutory right to investigate a cognizable offence under Sections 154 and 156 of the CrPC. Sub-Section 2 (i) of Section 173 of the CrPC provides that after the completion of investigation, the police officer in charge of the police station shall forward the final report to the Magistrate who is empowered to take cognizance of the offence alleged in the report. Before taking cognizance of the offence, the Magistrate has to apply their own mind and is not bound by the conclusions drawn by the police.

In Pratibha v. Rameshwari Devi, (2007) 12 SCC 369 a two-judge Bench of this Court has held that the High Court can neither direct an investigating agency to submit the investigation report before it nor can it quash a criminal proceeding under Section 482 relying on such a report when the report has not been submitted to the Magistrate.

In the impugned judgment, while the High Court has held that the allegations on their face disclose that the fourth and fifth respondents committed the offence of extortion under Section 385 of the IPC and directed that the investigation be continued against them, it has completely failed to examine the allegation of criminal conspiracy qua the other accused where it has been alleged that they were also privy to such extortion. Thus, in such circumstances, when a specific role was attributed to the accused, the High Court could not have quashed the FIR under Section 482 of the CrPC.

Following an unusual, if not extraordinary course, the High Court proceeded to entertain petitions for quashing under Section 482 at the behest of persons who were not named in the FIR purely on the basis of their names appearing in the draft charge-sheet. A draft charge-sheet was placed before the High Court by the investigating officer only in order to seek its permission, pursuant to the interim order, for submitting the charge-sheet to the competent court. Knowledge in regard to what has transpired during the course of the investigation is obtained by the accused once a copy of the charge-sheet is made available under Section 207 of the CrPC.

It is important to note that even before the charge-sheet was brought to the notice of the High Court, petitions for quashing had already been filed. The High Court ought to have taken note of these developments. The appellant has submitted both in the course of the oral and written submissions that these developments indicate that the accused were complicit with the police. The High Court should have been alive to the abuse of its process.

Also, during the course of the investigation, the sixth to ninth respondents, who were apprehending arrest, moved an application for anticipatory bail, which was allowed by the Sessions Judge.

“While the apprehension of arrest may have led to the filing of an application for anticipatory bail before the Sessions Judge, this could not furnish the basis of a petition for quashing under Section 482 at the behest of persons who were not named in the FIR and who, as stated earlier, had instituted proceedings for quashing even before the draft charge-sheet came to be submitted before the High Court.”

The judgment of the High Court indicates that while analyzing the case set up before it by the applicants in various quashing petitions, it has proceeded to quash the FIR and the draft charge-sheet in respect of applicants who were not even arraigned as accused in the FIR. Hence, the interference by the High Court in the investigation against the eighth and ninth respondents was at a premature stage and was not warranted.

[Jitul Jentilal Kotecha v. State of Gujarat, 2021 SCC OnLine SC 1045, decided on 12.11.2021]


Counsels:

For appellant: Advocate Nikhil Goel

For respondents: Advocates Karan Bharihoke and Khilan Chandrani


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

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

Uttarakhand High Court
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

Uttarakhand High Court
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]