Case BriefsHigh Courts

Allahabad High Court: Sanjay Kumar Singh, J. allowed the instant application in terms of compromise and quashed the chargesheet as well as the entire proceedings.

This instant application was filed for the quashing of the chargesheet. The applicant, Gomti Devi purchased a plot that it got in a dispute with Madhu Sharma, daughter-in-law of Opposite Party 2. An FIR was lodged against Madhu Sharma by Opposite Party 2 under Section 156(3) of the Code of Criminal Procedure, 1973, for wrongly and illegally executing a sale deed which is in dispute. Investigating Officer filed the chargesheet under Section 420 of the Penal Code, 1860.

Counsel for the applicants, Vinod Sinha, submitted that during the pendency of the trial both the parties entered in compromise and all things were settled outside the court. So an affidavit was filed for cancellation of sale deed dated 12-12-2011. Since the compromise was made the continuance of criminal proceedings pursuant to impugned charge-sheet against the applicants after compromise arrived at between the parties would be a futile exercise.

The issue before the Court was whether the Court can quash the proceedings of a non-compoundable offence under Section 482 CrPC.

This Court relied on the judgment of the Supreme Court in the case of State of M.P. v. Laxmi Narayan, (2019) 5 SCC 688  where it laid down the guidelines for exercising the inherent power of the court under Section 482 of Code of Criminal.

The Court after considering the facts and circumstances of this case observed that this is a fit case, where this Court can exercise its inherent power to secure the end of justice. Accordingly, the Court quashed the subject proceedings. [Gomti Devi v. State of U.P., 2019 SCC OnLine All 4269, decided on 30-10-2019]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of C.T. Ravikumar and V.G. Arun, JJ. dismissed a petition seeking quashing of disciplinary proceedings on the ground of inordinate delay. 

Disciplinary proceedings had been initiated against the petitioner, who was working as Additional Director Income Tax (Investigation), Mumbai, on the charge that he had abused his official position to leak the identity of a particular informant to the assessee, Mr Davinder Ahuja. The petitioner aggrieved by the decision of the Central Administrative Tribunal approached the Court with an application to quash the said proceedings on the grounds of inordinate delay and a second contention that the proceedings would amount to post-decisional hearing. 

The learned counsel for the petitioner, Mr Mohan Parasaran, relying on State of A.P. v. N. Radhakrishnan (1998) 4 SCC 154, submitted that there occurred an inordinate delay in the matter of initiation of disciplinary proceedings. The learned counsel further referred to imputations of misconduct and contended that it was indicative that the competent authority had already arrived at a conclusion on the guilt of the petitioner and hence no fair and impartial enquiry could be conducted thereafter. 

The learned counsel for the respondents, Mr Dinesh R. Shenoy, resisted the aforesaid contentions and submitted that the petitioner was only charge-sheeted and had not filed his written statement of defence, but instead approached the Tribunal. 

The Court after hearing the submissions of both the parties observed that the charge levelled against the petitioner was of a serious and grave nature and hence the authorities were justified in approaching the case with caution and patience. Thus the contention of the petitioner that there was an inordinate delay in initiation of proceedings was rejected by the Court. 

The Court upheld the Tribunal’s observation that the imputations incorporated in the said articles of charge only intended to explain the offending acts allegedly committed by the petitioner and to make the imputation specific and clear. In view thereof, the Court held that the verity of the imputations can only be proved or disproved at the final enquiry and merely because the imputations have been unhappily worded, it cannot be a reason to terminate the proceedings abruptly. It also observed that though the petitioner had attempted to establish the charges against him as baseless, merits of the case could only be established only after an appropriately conducted disciplinary proceeding. 

In view thereof, the Court did not find any compelling reason to interfere with the order passed by the Tribunal, and the petition was dismissed. The Court also directed the petitioner to cooperate with the authorities to complete the proceedings within six months. [Shantam Bose v. Union of India, OP (CAT) No. 205 of 2015, decided on 27-05-2019]

Case BriefsHigh Courts

Uttaranchal High Court: The instant petition was entertained by Ravindra Maithani, J. where the petitioner under Section 482 CrPC applied for quashing of the chargesheet and impugned cognizance order for offence under Section 420 IPC, which was pending before Civil Judge. 

Petitioner had stated that an FIR was lodged in 2016 against him, where the petitioner was accused of cheating 52 students. In the FIR it was stated that, the petitioner took the educational documents, photos, identity card as well as income certificate of all those students and got them admitted in more than one colleges and thereby received the scholarship. In the FIR name of 41 such students have been mentioned. After investigation charge sheet was submitted against the petitioner. The Investigating Officer found the allegations levelled in the FIR as true.

Learned counsel for the petitioner argued that the allegations were not believable; It was categorically averred that one person cannot do such an act on his own; what was requested was that direction may be issued that bail application of the petitioner may be considered on the same day when it was presented before the court. 

The Court observed that the petitioner had filed the present application under Section 482, material that was also available at this stage before the Court was an FIR, which definitely discloses the commission of cognizable offence and a charge sheet, which stated that in fact, the offence as alleged in the FIR has been proved. In the absence of any other material, the Court didn’t presume that the story was not believable. Investigating Officer had found that the offence was committed. Therefore, there was no reason to make any interference and the petition deserved to be dismissed.[Chandra Kiran v. State of Uttarakhand, 2019 SCC OnLine Utt 506, decided on 29-05-2019]

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A.M. Shaffique and Ashok Menon, JJ. hearing 6 criminal appeals clubbed together, acquitted five persons who were convicted by National Investigation Agency (NIA) Special Court in 2016 for organizing a meeting of the banned outfit Students Islamic Movement of India (SIMI) in 2006.

Factual background of the case was that 17 people had assembled and organized a secret meeting in ‘Happy Auditorium’ at Panayikulam on Independence Day in 2006. Allegedly, they carried books and pamphlets of Students Islamic Movement of India (SIMI) – a banned organization – containing seditious, anti-national and inflammatory writings, and advocated for cession of Kashmir through jihad and for bringing back Muslim rule in India. It was alleged that they entered into a criminal conspiracy and committed an act of sedition with the intention to bring hatred and contempt against the Government of India. They were charged for offences under Sections 120B (criminal conspiracy) and 124A (sedition) of the Penal Code, 1860 and Sections 10 and 13 of the Unlawful Activities (Prevention) Act, 1967 (membership of unlawful organization and taking part in unlawful activities).

The case was initially investigated by local police, but taken over by NIA in 2008. A charge sheet was filed in 2011 against 16 accused. NIA Special Court sentenced Abdul Rasik (2nd accused) and Ansar (3rd accused) to 14-years rigorous imprisonment, while other three accused – P.A. Shaduly (1st accused), Nizamudeen (4th accused) and Shammi (5th accused) – were sentenced to 12 years of jail. Chargesheet against one juvenile-accused was filed in the Juvenile Justice Board. Rest of the 11 accused were acquitted. The six criminal appeals herein are – appeal filed by NIA through State challenging acquittal of the 11 accused; 4 appeals filed by accused challenging their conviction and one appeal filed by the juvenile-accused.

Main contention advanced by the learned counsel on behalf of the accused was that there was no evidence to prove that any of the accused had committed any seditious act warranting a crime under Section 124A IPC. Further, they were not even members of SIMI. The alleged conspiracy had not been proved and there was no corroboration to the approver’s evidence. The only evidence was that of police officers who had allegedly heard their speech, and the documents alleged to have been seized were fabricated.

On the other hand, the learned Special Public Prosecutor Mr M. Ajay submitted that the arrest, body search, and recovery of publications had been made after registration of the crime. The case was largely built on the evidence of an Imam of Panayikulam Salafi Masjid (PW1) whose testimony was corroborated by the police officers. Therefore, it was submitted that there was no reason to doubt his testimony.

Delay in filing FIR and conducting body search

The Court stressed the importance of registering FIR at the earliest opportunity by relying on Thulia Kali v. State of Tamil Nadu, (1972) 3 SCC 393 and noted that while the accused were apprehended at around 1 p.m., the FIR was registered only at 8:15 p.m. and the said FIR reached the learned Magistrate only around 8:30 p.m. the next day. There was no explanation for the said delay. Though the accused were in the police station on 15-08-2006 since 2 p.m., their body search was conducted only at 9:30 p.m. that day. The publications of SIMI were seized from the accused but seizure mahazar was sent to court three days later.

The Bench refused to place reliance on the seized documents observing that “Defence has a case that most of documents had been produced subsequently and it was later planted on the accused and made it appear that it was the accused who brought it. In fact, there is no explanation for the prosecution regarding the delay in sending the seizure mahazar to Court which is also one of the reasons for not placing reliance on these documents.”

No evidence corroborating making of speech and of criminal conspiracy

The Court noted that when NIA took over the investigation from the local police, PW1 was the prosecution witness, then he was made an accused, and later he was made an approver. PW1 deposed that accused 2 and 3 had made the following statements:

  • “Indian army are killing Muslims in Kashmir who are doing Jihad in Kashmir. Other Muslims in India are being tortured with oppressive law like TADA, NSA, etc against which all of us should fight under the leadership of SIMI”; and that
  • “Present India was made by Britishers. Earlier we were ruled by Nizams and Mughals. We should go back to that old India for which we have to fight through SIMI and no one else can destroy SIMI”.

It was opined that at best, accused 2 and 3 only could be booked for offence of sedition for making the aforesaid speech. However, the NIA Court had punished them, along with accused 1, 4 and 5, for other offences under Sections 120B and 124A IPC.

Further, it was noted that PW1’s statement was recorded 4 years after the occurrence of the incident, and hence it could not be treated as substantive evidence without corroboration. Corroboration sought to be achieved through the evidence of another witness (a police officer) was not considered as had not heard the impugned speech directly.

The Court observed that in order to prove conspiracy, the prosecution must prove that there was an agreement to do an illegal act or to do an act which was not illegal, by illegal means. However, in the present case, there was no direct or circumstantial evidence to prove that there was a conspiracy to commit an illegal act.

Impugned speech might be malicious, but is not seditious

The Court relied on Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 and opined that merely making a statement against Government of India or its military will not become sedition. In addition to making a statement, the person making such speech should have intention to create hatred or contempt or attempt to excite disaffection. It was observed that the impugned statements might amount to malicious speech, but even if read as a whole, there was nothing stated against the Government of India. Accused were, through their narrow-angle as saviours of Muslims community, were projecting the plight of Muslims. While they may be wrong in making such statements, they could not be charged with the offence of sedition.

Prior membership of SIMI is not an offence

SIMI was declared as a terrorist organization under UAPA with effect from 01-02-2013.

The Court observed that though the speech was a call to co-operate with SIMI and project their views despite all odds, the said act did not amount to ‘unlawful activity’ and hence offence under Section 13 UAPA was not made out.

Further, the mere fact of SIMI publications being available with the accused, which were printed before SIMI was banned, could not be construed to mean that the accused had continued to be members of SIMI. Reliance was also placed on Arup Bhuyan v. State of Assam, (2011) 3 SCC 377 where it was held that mere membership of a banned organization does not make a person criminal unless he resorts to violence or incitement of violence. The Court opined that other than the fact that the accused made a speech, even according to the prosecution, there was nothing to imply that they had continued as members of SIMI. The only evidence was that of PW1, which is not corroborated by any other materials or evidence. Thus, offence under Section 10 UAPA was also not made out.

In view of the aforesaid findings, the Court dismissed the appeal filed by State, allowed the appeal filed by 5 convicted accused acquitting them, and also allowed the appeal of juvenile-accused quashing the chargesheet filed against him in Juvenile Justice Board.[Union of India v. Shameer, 2019 SCC OnLine Ker 1352, Order dated 12-04-2019]

Case BriefsHigh Courts

Meghalaya High Court: The Bench of H.S. Thangkhiew, J. hearing a bail application filed by an accused under Protection of Children from Sexual Offences Act, 2012, denied grant of bail opining that the accused was a threat to the victim.

First Information Report was lodged against the accused for committing offence punishable under Section 8 of the POCSO Act, 2012. He was in custody since the date of his arrest as successive bail applications filed by him were rejected by the Special Judge.

Learned counsel for the applicant submitted that the investigation against accused had been completed and hence his further detention was not necessary. Whereas, learned counsel for the respondent submitted that bail should be denied as there were no new facts or materials warranting consideration of grant of bail. Also, the accused was trying to cast undue influence and harassment on the victim by coercing her to enter into a compromise. The said fact of coercion was also recorded in the Special Judge’s order rejecting bail.

The Court opined that normally, after chargesheet is filed, custody of the accused is not needed as the investigation is complete, and since evidence is already collected by the police, there are fewer chances of destruction or concealment of evidence. However, chances of threatening of witnesses may still exist. In the instant case, there was a reasonable apprehension of the witness being tampered with as there were threats to the complainant and the minor victim girl.

It was held that the nature and gravity of circumstances of the offence which involved a minor victim girl under the POCSO Act, and the conduct of accused towards the victim and witnesses weighed against the grant of bail. Accordingly, the present application was rejected.[Sumanta Deka v. State of Meghalaya, 2019 SCC OnLine Megh 1, Order dated 07-01-2019]

Case BriefsHigh Courts

Bombay High Court: The Bench of Mangesh S. Patil, J. dismissed a revision petition filed against the order of Additional Sessions Judge rejecting petitioner’s application under Section 319 CrPC for adding husband and in-laws of the deceased co-accused.

Petitioner was the father of the deceased– Sumitra. Sumitra was found murdered with a bullet injury on her head. An FIR was lodged and criminal law was set into motion. It was alleged that Sumitra came to know about the illicit relationship between her sister-in-law and brother-in-law Vilas as a consequence of which he murdered Sumitra. At the conclusion of the investigation, Vilas was chargesheeted in the crime. The petitioner was examined as the first witness. It was thereafter, that he submitted an application under Section 319 CrPC to array Sumitra’s husband and in-laws as co-accused. The application was rejected by the trial Judge. Aggrieved thereby, the petitioner was before the High Court.

K.H. Surve, Advocate for the husband and in-laws submitted that petitioner moved the application without any basis relying on whatever material was collected by the Investigating Officer.

The High Court stated, “power under Section 319 is to be invoked under special circumstances where during the course of trial some additional evidence comes on record which reveals involvement of some more persons in commission of the crime.” Referring to Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, the Court observed that power under Section 319 can be exercised by trial court at any stage of the trial provided there is some “evidence” which is interpreted to mean material brought before the court during the trial. Material collected by IO during inquiry can be utilised to corroborate such evidence. In the present case, no such additional material or evidence came on record during the trial so as to reveal complicity of husband and in-laws in the crime. Resultantly, the petition was dismissed. [Vishwambhar v. State, 2019 SCC OnLine Bom 9, dated 03-01-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Mukta Gupta, J. allowed a bail application holding that the petitioner was entitled to default bail as the investigating agency failed to file chargesheet within 60 days.

The petitioner was alleged to be driving a white colour car at high speed without a license in an intoxicated state. On the fateful night, he lost control and rammed his car over the footpath. The car hit a tree and turned upside down. Four people, including the complainant and three other sleeping on the footpath, were injured. They were taken to hospital where two them were declared brought dead. The petitioner was arrested on 9-9-2018 and has been in custody since then. He filed an application seeking bail before the trial court. Besides the merits, he urged additional ground that he was entitled to default bail as chargesheet was not filed in the case. However, the trial court dismissed the application on the ground that it could not at that stage from an opinion whether the offence committed was under Section 304-I or 304-II IPC. Offence under Section 304-II IPC being punishable upto life imprisonment and 90 days from the date of arrest having not elapsed, the petitioner was not entitled to default bail. Aggrieved thereby, he filed the present petition.

The petitioner who was represented by R.K. Wadhwa, Vishesh Wadhwa and Meena Duggal, Advocates submitted that on the face of allegations, it could not be held that he committed the offence with any intention and at best knowledge could be attributed to him.

The High Court perused the record and observed that the facts of the case spoke for themselves that at best what was attributable to petitioner was the knowledge that his act was likely to cause the death of people sleeping on the footpath, in which case the offence was under Section 304-II. Such offence is punishable with imprisonment which may extend to 10 years. After referring to Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67, the Court held that since a period of 60 days has elapsed from the date of arrest of the petitioner and no chargesheet was filed by the investigating agency, he was entitled to default bail. Consequently, the petitioner was granted bail subject to the conditions imposed. [Devesh Kumar v. State, 2018 SCC OnLine Del 13073, dated 21-12-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge bench comprising of Sanjay Kumar Gupta, J. dismissed the petitions filed by the accused petitioner and his brother under Section 561-A CrPC, seeking quashing of charges filed against them under Sections 304-B and 498-A of the RPC.

The accused petitioner Rohit Singh married one Radha Sharma, according to Hindu rites and ceremonies on 07-03-2014. Within one year of their marriage, there arose matrimonial disputes which resulted in Radha (hereinafter referred to as the “deceased”) committing suicide by hanging herself at her in-laws’ house on 18-03-2016. Proceedings were initiated and after investigation, chargesheet was filed under Sections 304-B, 306 and 498 of RPC. The basis for filing of the aforesaid petitions was that pursuant to a deed of disinheritance executed by the accused’s father, the accused petitioner and the deceased had been living separately from her in-laws and therefore, there was no proximity between the demand of dowry and cause of death of the deceased.

The Court observed that the death in case at hand had taken place “otherwise than under normal circumstances” within two years of the deceased’s marriage at her in-laws’ house. There was evidence that the accused were demanding dowry in the form of plot and other articles from the deceased; her dead body was found hanging at her in-laws’ house; there were witness accounts seeing the accused entering and leaving the house where dead body was found; post-mortem report of deceased suggested death by asphyxia due to hanging, and ligature mark was found around her neck.

The High Court, relying on Umesh Kumar v State of Andhra Pradesh, (2013) 10 SCC 591, held that while framing of charges, the Court has to evaluate as to whether on the basis of materials and documents on record, there is a prima facie case to proceed against the accused. At this stage, the Court is not required to appreciate whether the material produced is sufficient or not for convicting the accused.

In view of the incriminating circumstances, the Court refused to quash the charges against accused. [Rohit Singh v State of Jammu & Kashmir, CRMC No. 607 of 2017, dated 14-09-2018]