Case BriefsSupreme Court

Supreme Court: In a significant case relating to an organized crime syndicate allegedly involved in funding underworld dons, the Division Bench of Dr Dhananjaya Y Chandrachud* and Surya Kant, JJ., upheld the impugned order of the Bombay High Court declining to quash FIRs against the accused persons.

The Court held that the stipulation under Section 18 of the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) that only the confessions made to a police officer, not below the rank of Superintendent of Police (SP) are admissible in evidence will not make the confessions made to Addl. SP inadmissible. The Court said,

“The expression “rank” must be understood as a class or category which encompasses multiple posts and that the posts of SP, Addl. SP, and DCP all fall within the same rank as they exercise similar functions and powers and operate within similar spheres of authority.”

Mumbai Matka

The prosecution alleged that the appellants are members of an organized crime syndicate which has engaged in a systematic course of activities for cheating members of the public by conducting the ‘Mumbai Matka1‘. The prosecution case was that what appeared to be a case of gambling at the outset, was an organized crime syndicate involved in funding underworld dons/criminal gangs by the proceeds from the Matka business.

Invocation of MCOCA

The Assistant SP, Kolhapur and a team of police personnel raided a gambling den controlled by one Salim Mulla. Consequently, an FIR was filed for offences punishable under Sections 143, 147, 149, 395, 307, 353, 332, 155, 109, 324, 323 and 427 of the Penal Code 1860, Sections 4 and 5 of the Maharashtra Prevention of Gambling Act 1887, Section 65(e) of the Maharashtra Prohibition Act 1949 and Sections 37 and 135 of the Bombay Police Act 1951.

Later on, with the approval of the competent authority Sections 3(1)(ii), 3(2), 3(4), and 3(5) the MCOCA was added to the FIR as the Investigating Officer opinioned that the accused were members of an organized crime syndicate.

Aggrieved thereby, the appellants approached the Bombay High Court with a petition for quashing the FIR, which was dismissed by the Court.

Issues

Assailing the impugned order of the High Court, the appellants raised the following questions:

a. Whether a confession recorded by an Addl. SP admissible under Section 18 MCOCA; and

b. Whether the provisions of MCOCA have been validly invoked.

Analysis and Findings

a. Whether confession made before Addl. SP are valid under Section 18 MCOCA

Section 18 MCOCA stipulates that the confessions made to — a police officer not below the rank of Superintendent of Police are admissible in evidence. The Section begins with a non-obstante clause overriding the Evidence Act because Section 25 of the Evidence Act stipulates that no confession made to a police officer shall be proved as against a person accused of an offence.

Relying on para 25 (2) of the Police Manual, the appellants contended that Addl. SP is not in the same rank as the SP; therefore, the confession made before the Addl. SP would not be admissible.

The Court opined that the reliance on para 25(2) of the Police Manual was misconceived because MCOCA is a special Act enacted with an overriding provision in Section 25. The tenability of the submission that an Addl. SP does not fit the description of an officer not below the rank of SP cannot be determined by reading into the MCOCA provisions for authorization contained either in the Police Manual (para 25(2) as noticed above) or in another statute (Section 8(2) of the Police Act). The answer to the challenge must turn on the interpretation of the provisions of Section 18(1) MCOCA itself.

Observing that Section 18(1) MCOCA uses the expression “rank” which cannot be conflated or equated with a designation or post, the Court opined that the true question should be whether the rank of the SP comprehends within it an Addl. SP?

The Court noted that a DCP is competent to record confessions under the MCOCA. Observing that if an SP or Addl. SP is transferred to the area of a Commissionerate, he/she is posted as a DCP and is competent to record the confession under the MCOCA, the Court opined that there is therefore no basis to conclude that an Addl. SP does not fulfil the description specified in Section 18(1) MCOCA as being — a police officer not below the rank of the Superintendent of Police. The Court further remarked,

“The authority which attaches to the post of a DCP to record a confession under Section 18(1) is not diluted when the posting is in a district either as an Addl. SP or, as the case may be, as an SP.”

The Court referred to Nyadar Singh v. Union of India, (1988) 4 SCC 170, wherein the Supreme Court observed that the expression “rank” in “reduction in rank” for purposes of Article 311(2) has an obvious reference to the stratification of the posts or grades or categories in the official hierarchy. It does not refer to the mere seniority of the government servant in the same class or grade or category.

Hence, the Court held that the expression “rank” must be understood as a class or category which encompasses multiple posts and that the posts of SP, Addl. SP, and DCP all fall within the same rank as they exercise similar functions and powers and operate within similar spheres of authority. The Court clarified that every person within a particular rank will not be of the same seniority. Officers of the same rank may have been in service for a different number of years. At times, this may even bear on the post to which they are appointed but their rank remains undisturbed. A difference in the seniority of a particular officer is not the same as a difference in their ranks.

b. Conditions for invocation of the MCOCA

Approval Order under Section 23(1)(a) MCOCA

The appellants contended that the provisions of the MCOCA had not been validly invoked since some of the appellants had not been named in the FIR and/or in the order granting approval under Section 23(1)(a) MCOCA.

Considering that often, limited information is available to the investigating authorities at the time of recording information about the commission of an offence; and the involvement of persons other than those named initially might come to light during the course of investigation by the police, the Court said that the very purpose of an investigation is to determine whether a crime has been committed and if so, to shed light on the details of the crime including the identity of the perpetrators. The Court expressed,

Section 23(1)(a) MCOCA speaks of recording information about the commission of an offence of organized crime, and not of recording information about the offender.”

Therefore, the Court held that the approval order under Section 23(1)(a) MCOCA is with respect to the offence and not with respect to the offender and it need not name every accused person at the outset.

Whether Gambling an Organized Crime

Rejecting the contention of the appellants that gambling is punishable with a maximum sentence of 2 years and does not, therefore, fall within the scope of MCOCA (which requires the commission of a crime punishable with imprisonment of 3 years or more), hence the allegation of engaging in illegal gambling would not sustain invocation of the penal provisions of Section 3(2) MCOCA.

Section 2(1)(e) MCOCA indicates that persons are said to commit an organized crime when they are involved in continuing unlawful activity which means a prohibited activity which is a cognizable offence punishable with imprisonment of at least three years.

The Court noted that the accused of abetting the commission of organized crime need not themselves be charged with committing a cognizable offence punishable with imprisonment of at least three years. They need only be abetting those who are guilty of committing a cognizable offence punishable with imprisonment of at least three years, which offence amounts to an organized crime. The definition of “abet” in Section 2(1)(a) MCOCA would be applicable in such cases. The Court observed,

“Although gambling may not, by itself, constitute an organized crime, it may be the route through which the accused are abetting the commission of organized crime.”

Hence, the Court opined that the questions of whether the appellants were in fact abetting organized crime and whether offences under the IPC would attract MCOCA are to be determined at the stage of the trial.

Requirement of More than One Charge-sheet

Rejecting another contention of the appellants was that in the preceding ten years, more than one charge-sheet has not been filed in respect of each of them, the Court held that such submission did not hold water as it is settled law that more than one charge sheet is required to be filed in respect of the organized crime syndicate and not in respect of each person who is alleged to be a member of such a syndicate. Rather, charge-sheets with respect to the organized crime syndicate are sufficient to fulfil the condition in Section 2(1)(d) MCOCA.

Conclusion

In the backdrop of above analysis, the Court held that the appeals were without any merit. Accordingly, the appeals were dismissed with the following directions that the appellants will be at liberty to approach the High Court for release on bail; and the evidentiary value of confessions alleged to have been made by the appellants shall be considered by the Trial Court and the mere validation of their being recorded by an officer in the rank of Superintendent of Police shall not be construed as the approval of the contents or voluntary nature of the alleged confessions by the Supreme Court.

[Zakir Abdul Mirajkar v. State of Maharashtra, 2022 SCC OnLine SC 1092, decided on 24-08-2022]

*Judgment by: Justice Dhananjaya Y Chandrachud


Advocates who appeared in this case :

Senior Counsels Amit Desai, Siddharth Luthra, Abad Ponda, V. Giri, Pradeep Rai, and ANS Nadkarni, Advocates, for the Appellants;

Senior Counsel Raja Thakare, Advocate, for the State.


*Kamini Sharma, Editorial Assistant has put this report together.


1. Where those wishing to gamble bet on numbers/playing cards, at the end of the cycle, the results are to be declared based on a random draw of numbers/playing cards, and those who correctly guess the winning digits/playing cards win while the others lose.

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: V Sivagnanam J. directed the State police to add the offences under Sections 417 and 420 Penal Code, 1860 (‘IPC') on allegations that the accused husband has deceived the complainant- ex-wife and made her to marry him, wrongfully displaying that he is competent to consummate marriage.

The petitioner is the complainant whose marriage took place with the first accused took and after the marriage, the complainant found that he is not interested with his wife in the marriage life due to his impotency. Thereafter, the complainant came to know that due to his impotency, he got divorced from his first wife. Pursuant to this, the accused husband left the home on 04-01-2022 and the petitioner made a complaint on 15-02-2022 that got registered on 18-05-2022.

A perusal of the complaint given by the complainant clearly states about the non-disclosure of the impotency of the husband at the time of marriage and he made the complainant to believe that he is a competent person to live ordinary life as husband and wife without disclosing his incapacity and thereby, the accused-husband deceived the complainant and made her to marry him, claiming that he is competent to consummate the marriage. After the alleged deceit came to light, the accused-husband granted divorce to the wife by saying ‘talaq' and went to United States of America.

The case was registered under Sections 498-A and 406 IPC without including Sections 420, 417 and 379 IPC even though the allegation disclosed the fact of cheating committed by the accused persons. Thus, the instant criminal original petition was filed to direct the respondent police to alter the FIR by including Sections 420, 417 and 379 Penal Code, 1860 therein.

Relevant provisions of Penal Code, 1860

Section 417 Punishment for cheating —Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Section 420 Cheating and dishonestly inducing delivery of property. —Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Counsel for State submitted that the matter has been referred to the Social Welfare Department, Madurai, for the purpose of conducting a preliminary enquiry. After receiving the report from the Social Welfare Department, Madurai, they are ready to consider the alteration of F.I.R.

Thus, the Court directed the respondent Police to add the offences under Sections 417 and 420 IPC in the case and investigate and file the final report within four months, after receiving the report from the Social Welfare Department, Madurai.

[Irfana Nasreen v. The State, Crl. O P (MD) No. 11840 of 2020, decided on 20-07-2022]


Advocates who appeared in this case :

M. Radhakrishnan, Advocate, for the Petitioner;

R. Suresh Kumar, Government Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Rouse Avenue
Case BriefsDistrict Court

Rouse Avenue Court, New Delhi: While granting bail to the applicant Pramond Kumar Bhasin, Ajay Gulati, J. observed that the charge sheet has not even mentioned the role of the applicant in demanding the alleged bribe from NGO GOREF even though the employee of an NGO Ganga Orthopedic Research and Educational Foundation ‘GOREF’ who is said to have paid the bribe to the applicant through a Hawala operator, was arrested and subjected to custodial interrogation.

Ajay Gulati J granted bail to Pramod Kumar Bhasin who is a public servant accused and arrested for allegedly extracting bribe from NGO’s / institutions/ missionaries whose applications for renewal of eligibility to receive foreign grants and funds were pending in the FCRA Division, Ministry of Home Affairs. The bail was granted observing various irregularities in the investigation and in light of other accused(s) been granted bail subject to certain conditions.

Facts and legal trajectory:

The applicant is a public servant who was arrested for demanding and accepting bribes from NGOs. Allegedly, as per the FIR, the applicant demanded a bribe of Rs. 2 lakhs for processing the file of an NGO named GOREF, and received Rs. 1.5 lakhs from GOREF via its employee Mr. E. Vageesh, through a Hawala Operator. Additionally, it was also alleged in the FIR that the applicant used to handle all of his ill-gotten money through Hawala operators. In fact, during the alleged handing over of an instalment of a bribe of Rs. 4 lakhs from an alleged Hawala operator named Gajanand Sharma., one of his henchmen, Robin Devdass, was arrested red-handed by the CBI. Further, as alleged in the FIR, the applicant is said to have demanded bribes from several other NGOs as well.

It was detailed in the charge-sheet that an investigation has been conducted regarding the role of the applicant in contacting alleged Hawala operators for the handling of his ill-gotten money and also in accepting an alleged bribe of Rs. 1 lakh from a representative of Srijan Foundation- Swapan Manna, which was delivered to another Hawala operator named Vimal Tawaniya. The alleged Hawala operator Pawan Kumar Sharma was in turn handed over the said bribe by Vimal Tawaniya who is also a listed accused in the FIR

Analysis and findings:

In the Court, the Public Prosecutor for CBI strongly opposed the bail application on the ground that the role of the applicant is very serious in nature, and he is suspected to be the king-pin of the entire conspiracy involving illegal renewals of various NGOs/missionaries to receive foreign funding, for illegal monetary gains under Foreign Contribution (Regulation) Act, 2010 ‘FCRA’

The Court noted that neither the alleged hawala operators, Gajanand Sharma and Vimal Tawaniya nor the representative of Srijan Foundation, Swapan Manna have been arrested although they have been mentioned in the charge sheet along with the present applicant. Further investigation has been kept pending, as per the charge sheet.

The Court observed that although in the FIR, the role of the applicant has been highlighted for demanding bribes from various NGOs and routing the alleged bribe received through Hawala operators, the charge sheet mentions only one such foundation which is Srijan Foundation. Additionally, the charge sheet has not even mentioned the role of the applicant in demanding the alleged bribe from NGO GOREF even though Mr. E. Vageesh, an employee of GOREF who is said to have paid the bribe to the applicant through a Hawala operator, was arrested and subjected to custodial interrogation. The court noted that the role of the applicant regarding the case of NGO GOREF seems to have been completely forgotten by the investigating officer. The court also noted that the applicant has been in custody for a period of over two months as of the day of this hearing.

On a specific query by the Court, the Public Prosecutor for the CBI submitted that he has seized the FCRA files of NGO GOREF and Srijan Foundation. However, the Court observed that there was no explanation provided as to why was the representative of Srijan Foundation and the alleged Hawala operator who was asked to handle the alleged bribe paid by Srijan Foundation, have not even been arrested despite being mentioned in the charge sheet. The Court reiterated the observation that was made while granting bail to E. Vageesh who allegedly paid the bribe to the applicant on behalf of NGO GOREF that the CBI has been adopting double standards in regard to the accused persons having same set of allegations appearing against them.

Thus, the Court concluded that the alleged Hawala operators Pawan Kumar Sharma and Ramanand Pareek who have handled the ill-gotten money of the applicant, and Mr. Anish Selvaraj (private person) who was allegedly working in close conspiracy with the applicant to contact the NGOs who were ready to pay bribes for getting their pending FCRA files expedited, have already been granted bail. Consequently, the bail application was allowed subject to some conditions.

[Pramod Kumar Bhasin v. CBI, 2022 SCC OnLine Dis Crt (Del) 28, decided on 21-07-2022]


Appearance by:  

For Accused: Sumer Singh Boparai, Abhishek Pati, Nikhil Pahwa & Sidhant Saraswat

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Yashwant Varma J. categorically held that an allocation of coal cannot possibly be viewed as amounting to ‘proceeds of crime’ per se but the gains that may be obtained from criminal activity which are concealed or projected to be untainted that can form the subject matter of the offense under the Prevention of Money Laundering Act, 2002 (‘PMLA’/ ‘Act’).

Prakash Industries Limited (PIL -petitioners) installed a Sponge Iron Plant at Chotia in the State of Chhattisgarh which was apprised by the Ministry of Coal and permitted it to explore the Hasdeo-Arand coal block for captive development. Pursuant to this, the application for allocation of the Chotia coal block was allocated to PIL. On 07-04-2010, the first FIR was registered alleging misrepresentation with respect to its captive activity, submission of false and incorrect information in order to obtain allotment of the coal block and diversion of coal extracted from that block in the open market forming subject matter of the first charge sheet. Further allegations are based on the revenues generated as a result of the said criminal activity; various properties were purchased by PIL acting through its related and sister concerns. However, the impugned proceedings rest upon the allegations which form part of the second charge sheet. The second charge sheet restricts itself to events which occurred up to 4-09-2003 only, the provisional order of attachment takes cognizance of acquisition of properties which occurred prior to as well as after the allocation of the coal block itself. It is in the aforesaid backdrop that petitioners have laid a challenge to the initiation of proceedings by the instant petition.

As per the objective of PMLA, the entire edifice of a charge of money laundering is raised on an allegation of a predicate offense having been committed, proceeds of crime generated from such activity and a projection of the tainted property as having been legitimately acquired. However, once it is found on merits that the accused had not indulged in any criminal activity, the property cannot legally be treated as proceeds of crime or be viewed as property derived or obtained from criminal activity.

Issue 1: Whether allocation of coal is ‘proceeds of crime’ under Section 2 (1)(u) of Prevention of Money Laundering Act, 2002?

Placing reliance on Rajiv Chanana v. Dy. Director, Directorate of Enforcement, 2014 SCC OnLine Del 4889 and Directorate of Enforcement v. Gagandeep Singh, 2022 SCC OnLine Del 514, the Court observed that the expression ‘proceeds of crime’ creates an inextricable link between criminal activity and the acquisition of property and assets as a result thereof. If the charge of criminal activity ceases to exist in law, a charge of money laundering would neither sustain nor survive. Thus, once it is found by a competent court, authority or tribunal that a predicate offence is either not evidenced or on facts it is held that no offence at all was committed, proceedings under the Act would necessarily have to fall or be brought to a close.

Reliance was placed on Manohar Lal Sharma v. Principal Secretary, (2014) 9 SCC 614 wherein the Supreme Court has extensively reviewed the system of coal allocation of coal blocks by the Union Government and on perusal of the same it is manifest that the allocation of a coal block cannot stricto sensu be construed either as property or conferment of a right in property.

Thus, the allocation at best represents a right conferred by the Union enabling the holder thereof to apply to the concerned State Government for a grant of a mining lease. The allocation cannot per se be recognised as representing ‘proceeds of crime’. It would be the subsequent and consequential utilization of that allocation, the working of the lease that may be granted, the generation of revenues from such operations and the investment of those wrongfully obtained monetary gains that can possibly give rise to an allegation of money laundering falling within the net of Section 2(1)(u) of Act.

Issue 2: Whether Article 20 (1) has been violated?

The allocation of the coal block was made in favour of the petitioners on 04-09-2003 and at that time the PML Act was not in force and came to be promulgated much later on 01-07-2005. Further, Sections 420 and 120-B Penal Code, 1860 i.e., IPC came to be included as scheduled offenses only on 01-05-2009. Thus, Mr. Sibal contended that since at the time of allocation neither the Act was in existence nor Sections 420 or 120-B IPC included as scheduled offenses, the impugned action must be held to be in violation of Article 20(1) of the Constitution.

Placing reliance on Mahanivesh Oils & Foods Pvt. Ltd. v Directorate of Enforcement, 2016 SCC OnLine Del 475 , the Court noted that the predicate offense which gave rise to proceeds of crime was committed prior to 01-07-2005 or that it came to be included in the Schedule on 01-06-2009 would clearly not be determinative and in any case an action under the Act founded on the commission of that offense provided the act of money laundering is alleged to have been committed after the coming into force of the Act cannot be held or understood to be a violation of Article 20(1) of the Constitution. As long as the act of money laundering is alleged to have been committed post the enforcement of the Act, proceedings initiated in respect thereof would clearly be sustainable.

The Court further observed that the Act is aimed at the offense of money laundering. While the commission of a predicate offense may be a condition precedent for an allegation of money laundering being laid, it is the activities of money laundering alone which would determine the validity of proceedings initiated under the Act. Consequently, it must be held that the mere fact that the offenses of Sections 420 and 120-B of the Penal Code came to be included in the Schedule on 01-06- 2009, that factor would not detract from the jurisdiction of the respondents to initiate action in respect of acts of money laundering that may have taken place or continue post the enforcement of the Act itself.

Thus, the Court allowed the petition and quashed the impugned proceedings arising out of the order of attachment and show cause notice dated 13-01-2022 holding that the allocation of a coal block in itself will not give rise to any monetary gains. It was only when the same was utilized that the question of illegal gains would arise.

[Prakash Industries v. Directorate of Enforcement, 2022 SCC OnLine Del 2087, decided on 19-07-2022]


Advocates who appeared in this case :

Mr. Kapil Sibal, Senior Advocate with Mr.Ankur Chawla, Mr.Vijay Aggarwal, Mr. Gurpreet Singh, Mr. C.B. Bansal, Mr. Aamir Khan, Ms. Aparajita Jamwal and Mr. Bakul Jain, Advocates, for the Petitioners.

Mr. S.V. Raju, ASG with Mr. Zoheb Hossain, Mr. Anshuman Singh, Mr.Ankit Bhatia and Mr. Harsh Paul Singh, Advocates, for the Respondents.


*Arunima Bose, Editorial Assistant has reported this brief

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising B.R. Gavai and Hima Kohli, JJ., (Vacation Bench) reversed the order of the Gujarat High Court, by which the applicant was denied the benefit of bail under the Gujarat Control of Terrorism and Organised Crime Act, 2015 (GCTOC Act). The Court held that existence of more than one charge sheet against the accused is essential for invoking the provisions of GCTOC Act.

Issues Involved

The applicant contended that for invoking the provisions of the Gujarat Control of Terrorism and Organised Crime Act, 2015 (GCTOC Act) which is analogous to the Maharashtra Control of Organized Crime Act, 1999 (MCOCA), two requirements have to be satisfied, i.e. the activity undertaken is either singly or jointly as a member of an organized crime syndicate or on behalf of such a crime syndicate and that in respect of such an activity, more than one charge-sheet must have been filed in the preceding period of last 10 years.

However, the applicant claimed that in the instant case, the second requirement was not satisfied since the Chart indicating all the crimes registered against the applicant revealed that only FIR 64 of 2021 dated 26-07-2021 was in respect of an activity committed by two members of the syndicate.

Further, to strengthen his case, the applicant submitted that he had already been released on bail in respect of other FIRs and it was only on account of him being implicated in FIR 64 of 2021 under the GCTOC Act, that he was deprived of his liberty.

On the contrary, the State submitted that all the offences alleged in the FIRs which were given in the Chart, were directly or indirectly committed for the benefit of the crime syndicate of which the applicant is a member.

Analysis and Findings

The Court noted that only one offence, i.e., FIR 64 of 2021 was there which had been committed by seven accused out of which two were the members of the syndicate and in respect to offences at Serial Nos. 1 to 4 in the Chart, no members of the syndicate were arrayed as accused.

Considering the provisions of the GCTOC Act, the Court held that the following conditions will have to be fulfilled for invoking the provisions of the GCTOC Act:

  • Such activity should be prohibited by law for the time being in force;
  • Such an activity is a cognizable offence punishable with imprisonment of three years or more;
  • Such activity is undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate;
  • In respect of such activity more than one charge sheet must have been filed before a competent Court; and
  • The charge sheet must have been filed within a preceding period of ten years; and
  • The Courts have taken cognizance of such offences.

However, in the instant case, only one charge sheet was filed in respect of activity which could be said to have been undertaken by the applicant as a member of an organised crime syndicate on behalf of such syndicate.

Conclusion

In the backdrop of above, and considering the factum that the applicant had already been granted bail in respect of crime registered at Serial Nos. 1 to 5, the Court allowed the instant petition. Accordingly, the applicant was directed to be released on bail with the directions to report to the investigating officer every Monday between 10.00 a.m. to 1.00 p.m and not to attempt to influence the witnesses or tamper with the records.[Mohamad Iliyas Mohamad Bilal Kapadiya v. State of Gujarat, 2022 SCC OnLine SC 713, decided on 30-05-2022]


Appearance by:

For Petitioner(s): Mr. Mukul Rohatgi, Adv.

Ms. Diksha Rai, AOR

Mr. Ankit Agarwal, Adv.

For Respondent(s): Ms. Deepanwita Priyanka, AOR


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: Sreenivas Harish Kumar J. dismissed the petition being devoid of merits.

The facts of the case are such that the 1st petitioner is the husband of 2nd respondent. On certain allegations that the petitioners subjected the 2nd respondent to harassment in connection with demand for dowry, FIR was registered in relation to offences punishable under sections 323, 504, 506 and 498-A of IPC and sections 3 and 4 of the Dowry Prohibition Act r/w section 34 of IPC. Investigation was taken up and charge sheet was been filed. This instant petition was filed under Section 482 of CrPC for quashing the charge sheet.

Counsel for the petitioner Mr. Arjun Rego submitted that if the entire charge sheet which is based on statements of witnesses is considered, it can be said that no offence against the petitioners is made out.

The Court observed that though under Section 482 of Cr.P.C. charge sheet can be quashed, the said jurisdiction cannot be invoked for quashing the charge sheet by appreciating the evidence. It is a settled principle that while deciding the petition under Section 482 of Cr.P.C., evidence cannot be appreciated as it lies within the domain of the Trial Court.

The Court held “I do not find any ground to entertain this petition. Accordingly, the petition is dismissed.” [Pradeep Moparthy v. State of Karnataka, Criminal Petition No. 2860 of 2021, decided on 15-12-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For respondent: Mr. Rohith BJ

Case BriefsSupreme Court

Supreme Court: In a major development in the Gauri Lankesh murder case, the bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ has set aside the Karnataka High Court order wherein it had quashed chargesheet filed against one Mohan Nayak.N regarding offences under Section 3(1)(i), 3(2), 3(3) and 3(4) of Karnataka Control of Organised Crimes Act, 2000.

Brief Facts

On 05.09.2017 in which Gauri Lankesh, who was a leading journalist, was shot dead by certain unknown assailants near her house at Rajarajeshwari Nagar, Bengaluru.

In absence of at least two chargesheets filed against the writ petitioner Mohan Nayak. N in respect of specified offences and of which cognizance had been taken by the competent Court as required to attract to offence of organized crime, the High Court noticed that he was not engaged in continuing unlawful activity. On this finding, the High Court concluded that Mohan Nayak.N cannot be proceeded further and thus, partly allowed the writ petition by not only quashing the order of the Commissioner of Police, Bengaluru City according approval for invoking Section 3 of the 2000 Act, but also the chargesheet filed against the writ petitioner-Mohan Nayak.N for offences punishable under Section 3(1)(i), 3(2), 3(3) and 3(4) of the 2000 Act.

Analysis

Finding the said order erroneous, the Supreme Court said that the High Court, without analysing the material presented along with chargesheet on the basis of which cognizance has been taken by the competent Court including against Mohan Nayak. N, concerning commission of organized crime by the organized crime syndicate of which he is allegedly a member, committed manifest error and exceeded its jurisdiction in quashing the chargesheet. 

It was further explained that the fact that the Investigating Agency was unable to collect material during investigation against Mohan Nayak.N for offence under Section 3(1) of the 2000 Act, does not mean   that the information regarding commission of a crime by him within the meaning of Section 3(2), 3(3) or 3(4) of the 2000 Act cannot be recorded and investigated against him as being a member of the organized crime syndicate and/or having played role of an abettor, being party to the conspiracy to commit organized crime or of being a facilitator, as the case may be. For the latter category of offence, it is not essential that more than two chargesheets have been filed against the person so named, before a competent court within the preceding period of ten years and that court had taken cognizance of such offence.  That requirement applies essentially to an offence punishable only under Section 3(1) of the 2000 Act.

As regards offences punishable under Section 3(2), 3(3), 3(4) or 3(5), it can proceed against any person  sans  such previous offence registered against him, if there is material to indicate that he happens to be a member of the organized crime syndicate who had committed the offences in question and it can be established that there is material about his nexus with the accused who is a member of the organized crime syndicate.

It is important to note that in Ranjitsingh Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294, the Supreme Court had held that

“…in order to invoke MCOCA even if a person may or may not have any direct role to play as regards the commission of an organised crime, if a nexus either with an accused who is a member of an “organised crime syndicate” or with the offence in the nature of an “organised crime” is established   that would attract the invocation of Section 3(2) of MCOCA.”

Explaining the law, the Court said that while considering the proposal for grant of prior approval under 25 Section 24(1)(a) of the 2000 Act, what is essential is the satisfaction of the competent authority that the material placed before him does reveal presence of credible information regarding commission of an offence of organized crime by the organized crime syndicate and, therefore, allow invocation of Section 3 of the 2000 Act.  As a consequence of which, investigation of that crime can be taken forward by the Investigating Agency and chargesheet can be filed before the concerned Court and upon grant of sanction by the competent authority under Section 24(2), the competent Court can take cognizance of the case.

At the stage of granting prior approval under Section 24(1)(a) of the 2000 Act, therefore, the competent authority is not required to wade through the material placed by the Investigating Agency before him along with the proposal for grant of prior approval to ascertain the specific role of each accused. The competent authority has to focus essentially on the factum whether the information/material reveals the commission of a crime which is an organized crime committed by the organized crime syndicate. In that, the prior approval is qua offence and not the offender as such.

“As long as the incidents referred to in earlier crimes are committed by a group of persons and one common individual was involved in all the incidents, the offence under the 2000 Act can be invoked.”

The prior sanction under Section 24(2), however, may require enquiry into the specific role of the offender in the commission of organized crime, namely, he himself singly or jointly or as a member of the organized crime syndicate indulged in commission of the stated offences so as to attract the punishment provided under Section 3(1) of the 2000 Act.  However, if the role of the offender is merely that of a facilitator or of an abettor as referred to in Section 3(2), 3(3), 3(4) or 3(5), the requirement of named person being involved in more than two chargesheets registered against him in the past is not relevant.

“Regardless of that, he can be proceeded under the 2000 Act, if the material collected by the   Investigating Agency reveals that he had nexus with the accused who is a member of the organized crime syndicate or such nexus is related to the offence in the nature of organized crime. Thus, he need not be a person who had direct role in the commission of an organized crime as such.”

Conclusion

It was, hence, held that the conclusion reached by the High Court in partly allowing the writ petition filed by Mohan Nayak.N, is manifestly wrong and cannot be countenanced.

“In any case, the High Court has completely glossed over the crucial fact that the writ petition was filed only after the sanction was accorded by the competent authority under Section 24(2) and more so cognizance was also taken by the competent Court of the offence of organized crime committed by the members of organized crime syndicate including the writ petitioner — to which there was no challenge. The High Court has not analysed the efficacy of these developments as disentitling the writ petitioner   belated   relief claimed in respect of prior approval under Section 24(1)(a) of the 2000 Act.”

It was held that the High Court has clearly exceeded its jurisdiction in quashing the chargesheet filed against Mohan Nayak. N for offences punishable under Section 28 3(2), 3(3) and 3(4) of the 2000 Act at this stage [of prior approval under Section 24(1)(a)].

[Kavitha Lankesh v. State of Karnataka, 2021 SCC OnLine SC 956, decided on 21.10.2021]


Counsels:

For appellant: Senior Advocate Huzefa Ahmedi

For State: Advocate V.N. Raghupathy

For Respondent: Senior Advocate Basava Prabhu S. Patil


*Judgment by: Justice AM Khanwilkar

.https://www.scconline.com/blog/post/2020/07/30/know-thy-judge-justice-am-khanwilkar/

Case BriefsDistrict Court

Delhi Court: Vinod Yadav, J., held that Umar Khalid cannot be permitted to remain behind bars in the present case on the basis of such a sketchy material against him and added that he cannot be made incarcerate in jail for infinity merely on account of the fact that other persons who were part of the riotous mob were to be identified and arrested in the matter.

Prima facie, the applicant appears to have been roped in the matter merely on the basis of his own disclosure statement and disclosure statement of co-accused Tahir Hussain.

On the statement of Constable Sangram Singh, an FIR was registered wherein he stated that he was on duty when a large crowd gathered on the road near Chand Bagh Pulia and started pelting stones.

When the constable went to save himself into a parking lot, a mob broke the shutter and thrashed all the persons present inside. Vehicles that were lying were set on fire and the complainant’s motorcycle was also burned by the rioters.

During the inspection of the building of principal accused Tahir Hussain, it was found that the said building was used by rioters/miscreants/accused persons for brick batting, stone pelting, pelting of petrol bombs and acid bombs. A lot of stones, bricks, glass bottles containing petrol with neck stuffed with clothes and other material, including catapults were found lying on the third floor and on the rooftop of the principal accused Tahir Hussain’s house.

Analysis, Law and Decision

Bench noted that it was not prosecution’s case that the applicant was physically present at the scene of crime on the date of incident.

It was also recorded that the applicant was not visible in any CCTV footage/viral videos pertaining to the incident and no identification of the applicant either through independent public witness or any police witness of he being at the scene of crime on the date of incident.

“…applicant has merely been roped in the matter on basis of his own disclosure statement, fourth disclosure statement of co-accused Tahir Hussain and disclosure statement of co-accused Khalid Saifi.”

Bench added that the argument that the applicant was in regular contact with co-accused Tahir Hussain and Khalidi Saifi over the mobile phone is hardly of any consequences, as prima facie that does not in any way go on to establish the criminal conspiracy alleged against the applicant in the matter.

Court stated that it is aware of the fact that besides the present matter, the applicant was also accused in the case of FIR No. 59 of 2020.

Reliance was placed on the decisions cited by the applicant as the said judgments duly apply to the facts of the present case.

High Court quoted the Judgment of Delhi High Court in Devangna Kalita v. State, 2020 SCC OnLine Del 1092, wherein bail was granted to Devangna Kalita in the case of murder and rioting, primarily on the ground that the material against her was the disclosure statement of co-accused Shahrukh recorded in the case of a larger conspiracy and her presence at scene of crime.

Bench expressed that the present case was at better footing than Divangna Kalita’s case as in the present case the statement of co-accused Tahir Hussain did not lead to any recovery of fact, except for the recording of disclosure statements of co-accused Khalid Saifi and applicant.

In Court’s opinion, it did not find any rationale in the act of police in involving the applicant in this solitary case for the offence of conspiracy and police has unnecessarily brought in the material of FIR No. 59 of 2020 in the present matter.

On perusal of charge sheet, it was clear that the role assigned to the applicant in the matter was categorically different and distinct from the role attributed to aforesaid co-accused persons, as:

  • Firstly, it had nowhere been the case of prosecution that applicant was physically present at the scene of crime on the date of the incident.
  • Secondly, the applicant was nowhere captured in any CCTV footage/viral video
  • Thirdly, neither any independent witness nor any police witness identified the applicant to be present at the scene of crime.

Bench failed to understand from the statements recorded as to how a lofty claim of conspiracy could be inferred.

Charge sheeting the applicant on the basis of insignificant material was unwarranted.

 Special PP failed to establish that the role assigned to the applicant was not similar to the role attributed to the c-accused Khalid Saifi.

Bench held that the applicant deserves bail on ground of parity with co-accused Khalid Saifi.

Applicant shall furnish a bond of sum Rs 20,000 with one surety in the like amount to the satisfaction of the Court and subject to the condition that he shall not tamper with the evidence or influence any witness in any manner and shall maintain peace and harmony in the locality. Aarogya Setu App to be installed in his phone.

In view of the above, application was disposed off. [State v. Umar Khalid, Bail Application No. 506 of 2021, decided on 15-04-2021]


Advocates before the Court:

Shri Manoj Chaudhary, Ld. Special PP for the State alongwith IO, Inspector Sunil Kumar.

 Shri Trideep Pais, Sr. Advocate alongwith Ms Sanya Kumar and

 Ms Rakshanda Deka, Ld. Counsel(s) for accused Umar Khalid/applicant.


Image Credits: India Today

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: Akil Kureshi CJ., while directing respondents to release the due payments, observed that departmental proceedings cannot be kept pending merely on account of internal administrative issues.

Petitioner has prayed for quashing and setting aside a memorandum dated 19-03-2015 under which the department has issued a chargesheet to the petitioner levelling certain allegations of misconduct. The petitioner has also prayed for a direction to the respondents to release the benefits of the pay revision to the petitioner which have been withheld on account of the said pending departmental inquiry. According to the petitioner after issuance of the chargesheet, no progress has been made for years together and in the meantime the petitioner suffers from stigma of a pending departmental inquiry and has also not been granted the benefit of pay revision.

Court observed, “At all stages thus the department had shown total lack of seriousness in conducting and completing the departmental proceedings. Every Government servant must answer to the allegations of misconduct which may be made against him or her. The Government official, however, also have a right to be informed about the outcome of such proceeding which would give a range of factors and circumstances, must be completed with due promptitude. A pending departmental inquiry is by itself a stigma and is attached with several adverse consequences such as, suspension in some cases, withholding of benefits of pay revision and denial of promotion when due. If the Government servant in the meantime retires, the pension would not be finalized and gratuity would not be released in full. The departmental proceedings, therefore, cannot be kept pending for no reason at all only on account of internal administrative issues.”

 Quashing the chargesheet and directing to release all benefits of the petitioner, Court said, “I find it absolutely inequitable and unjust to permit the department to now carry on the departmental proceedings at this belated stage when for about five years the department has shown no seriousness in pursuing the inquiry.”[Dr Sukhen Das v. State of Tripura, 2021 SCC OnLine Tri 41, decided on 21-01-2021]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Karnataka High Court: Ashok G. Nijagannavar, J., allowing the present petition, quashed the chargesheet filed and made significant observations with respect to Court’s power under Section 482 Criminal Procedure Code.

Brief Facts

The complainant Police Inspector received credible information about illegal activities regarding prostitution by supplying foreign and Indian girls by contacting customers through an international website. The said information was confirmed by sending a decoy. Thereafter, upon receiving the reply regarding the supply of the girls for prostitution at a place called the Kaisar Service Apartment, the complainant and his staff conducted a raid and arrested three accused namely two girls and a man who allegedly supplied the said girls for the illegal act of prostitution. Upon the information gathered from accused 1, it is learned that he solicited the customers through a website designed by accused 4, the present petitioner; Gavin Mendes. After completion of the investigation, the police have submitted the chargesheet arraying the petitioner as accused 4. 

Contentions

It was submitted by the counsel for the petitioner that the accused is a professional software developer and the website made by him was only a fulfillment of a contract that he entered into without knowing the purpose of the other accused. It was further insisted that the name of the petitioner is nowhere found in the FIR and has been later arrayed as an accused in the chargesheet only on the basis of unfound reasons. Another ground urged by the learned counsel for the petitioner is that when there are allegations for an offence under Section 67 of the Information Technology Act, the investigation must be conducted by the concerned Cyber Crime Branch and not by the respondent police, as they have no jurisdiction to do so. Lastly, it was insisted that no prima facie case exists against the petitioner and the charges be quashed accordingly.

The testimony of accused 1 mainly relied on the submissions made by the Prosecution. Moreover, the existence of mala fides and collusion behind designing the website was vehemently insisted.

Observations

The Court making significant observations with respect to the Inherent power of the Court under Section 482 CrPC, cited, Vineet Kumar v. State of U.P, (2017) 13 SCC 369, where the Supreme Court held, “Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of court is sought to be abused by a person with some oblique motive, the court has to thwart the attempt at the very threshold. The court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal

State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, para 102 which illustrates 7 categories of cases where power under Section 482 CrPC can be rightfully exercised, namely: (i) No prima facie case (ii) no cognizable offence disclosed (iii) allegations in FIR and evidence fails to disclose any offence (iv) non-cognizable offence committed which can be investigated only by an order of Magistrate (v) allegations made are absurd or improbable (vi) express legal bar to the continuance of proceedings (vii) proceeding is manifestly attended with mala fides

 Decision

Allowing the present petition, the Court quashed the case against the accused of the offences punishable under Sections 4, 5 and 7 of the Immoral Traffic Prevention Act, Section 370, 370 A (2), 292 of the Penal Code, Section 67 of Information Technology Act and Section 14 of Foreigners Act. It further held that no prima facie case appeared against the petitioner and that the reasons for arraying him later are not well-founded.[Gavin Mendes v. State of Karnataka, 2020 SCC OnLine Kar 1497, decided on 23-09-2020]

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]

Kerala High Court
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]

Uttarakhand High Court
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]

Kerala High Court
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]

Jammu and Kashmir and Ladakh High Court
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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]