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.

Case BriefsSupreme Court

Supreme Court: In a case where the Trial Court had held that the offence under Section 63 of the Copyright Act is a cognizable offence but the Delhi High Court took a contrary view, the bench of MR Shah* and BV Nagarathna, JJ has reversed the finding of the Delhi High Court and held that the offence under Section 63 of the Copyright Act is a cognizable offence.

For the offence under Section 63 of the Copyright Act, the punishment provided is imprisonment for a term which shall not be less than six months but which may extend to three years and with fine. Therefore, the Court explained that the maximum punishment which can be imposed would be three   years. Therefore, the learned Magistrate may sentence the accused for a period of three years also.

Hence, considering Part II of the First Schedule of the Cr.P.C., if the offence is punishable with imprisonment for three years and onwards but not more than seven years the offence is a cognizable offence. Only in a case where the offence is punishable for imprisonment for less than three years or with fine only the offence can be said to be non-cognizable.

The Court, hence, held that the offence under Section 63 of the Copyright Act is a cognizable and non-bailable offence and that,

“Under the circumstances the High Court has committed a grave error in holding that the offence under Section 63 of the Copyright Act is a non-cognizable offence.”

[Knit Pro International v. State of NCT of Delhi, 2022 SCC OnLine SC 668, decided on 20.05.2022]


*Judgment by: Justice MR Shah


Counsels

For appellant: Advocate R.K. Tarun

For respondent: Senior Advocate Siddhartha Dave

Case BriefsSupreme Court

Supreme Court: The Division Bench S. Abdul Nazeer and Krishna Murari*, JJ., reversed the impugned order of the Calcutta High Court for being affected with the vice of forum shopping. The Bench expressed,

“The timeline of filing complaints clearly indicates the malafide intention of Respondent 2 which was to simply harass the petitioners so as to pressurise them into shelling out the investment made by Respondent 2.”

The entire origin of the dispute emanated from an investment made by Respondent 2, amounting to Rs. 2.5 crores in lieu of which 2,50,000 equity shares were issued in the year 25-03-2008, finally culminating into the MOU dated 20-08-2009. Based on the MOU, respondent 2 filed three complaints, two at Delhi and one at Kolkata. Thus, two simultaneous proceedings, arising from the same cause of action i.e. MOU dated 20-08-2009 were initiated, amounting to an abuse of the process of the law which is barred.

Power of High Court under S. 482 of CrPC

By the said judgment, the High Court exercised the powers under Section 482 as well as Section 401 of CrPC to dismiss the prayer for quashing of the proceedings and held that continuance of criminal proceedings against the present appellant/accused would not be an abuse of the process of the court. In G. Sagar Suri v. State of UP, (2000) 2 SCC 636, it had been observed that it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process, particularly when matters are essentially of civil nature. This Court has time and again cautioned about converting purely civil disputes into criminal cases.

In the instant case, respondent 2 alleged that the appellants were responsible for the offence punishable under Section 420, 405, 406, 120B IPC. The Bench opined that the High Court failed to examine the ingredients of the said offences and whether the allegations made in the complaint, read on their face, attract those offences under the Penal Code. The Bench remarked,

“…in order to attract the ingredients of Section of 406 and 420 IPC it is imperative on the part of the complainant to prima facie establish that there was an intention on part of the petitioner and/or others to cheat and/or to defraud the complainant right from the inception. Furthermore it has to be prima facie established that due to such alleged act of cheating the complainant had suffered a wrongful loss and the same had resulted in wrongful gain for the accused.”

Observing that the averments in the FIR and the allegations in the complaint against the appellant did not constitute an offence under Section 405 & 420 IPC, 1860, the Bench clarified that even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making promise being absent, no offence under Section 420 IPC can be said to have been made out. Therefore, the Bench rejected the findings of the High Court holding that there was no material to indicate that Appellants had any malafide intention against the Respondent.

Forum Shopping

Noticeably, the application under Section 156(3) CrPC filed before the Metropolitan Magistrate, Tis Hazari Court, Delhi was dismissed and there was no further challenge against the same. Instead, Respondent 2 chose to file a complaint with the same cause of action in Calcutta which was the exact reproduction of the complaint filed before Tis Hazari Court, New Delhi with the only difference or what may be termed as ‘Jurisdictional improvement’. The Bench noted that the jurisdiction had been created in Delhi as the Appellants used to visit Respondent 2 in order to persuade them to invest in their company and special emphasis can be laid on the fact that Respondent 2 himself accepted/agreed to the fact that all the transactions took place in Delhi. Therefore, the Bench observed,

“…registering a complaint in Kolkata is way of harassing the appellant as a complaint has already been filed in Delhi with all the necessary facts, apart from the jurisdictional issue at Kolkata.”

In Krishna Lal Chawla v. State of U.P., (2021) 5 SCC 435, it was observed that, “…permitting multiple complaints by the same party in respect of the same incident, whether it involves a cognizable or private complaint offence, will lead to the accused being entangled in numerous criminal proceedings. As such he would be forced to keep surrendering his liberty and precious time before the police and the courts, as and when required in each case.” Hence, the Bench observed,

“This Court has condemned the practice of forum shopping by litigants and termed it as an abuse of law and also deciphered different categories of forum shopping.”

The Bench observed that in spite of this Court condemning the practice of forum shopping, Respondent 2 filed two complaints i.e., a complaint u/s 156(3) CrPC before the Tis Hazari Court, New Delhi and a complaint which was eventually registered as FIR u/s 406, 420, 120B IPC in Kolkata i.e., one in Delhi and one complaint in Kolkata, which was abuse of process.

Findings

The Bench held that the order of the High Court was seriously flawed due to the fact that in its interim order it was observed that two complaints were filed on the same cause of action at different places but the impugned order overlooked the said aspect and there was no finding on that issue. Additionally, the Bench noted,

“…it is apparent that the complaint was lodged at a very belated stage (as the entire transaction took place from January 2008 to August 2009, yet the complaint has been filed in March 2013 i.e., after a delay of almost 4 years) with the objective of causing harassment to the petitioner and is bereft of any truth whatsoever.”

Accordingly, the impugned order was set aside and the FIR registered in Kolkata was also quashed.

[Vijay Kumar Ghai v. State of W.B., 2022 SCC OnLine SC 344, decided on 22-03-2022]


*Judgment by: Justice Krishna Murari


Appearance by:

For the Appellants: Menaka Guruswamy, Senior Advocate

For the Respondents: Anjana Prakash, Senior Advocate


Kamini Sharma, Editorial Assistant has put this report together

Case BriefsHigh Courts

“Posting & sharing unhealthy materials with unparliamentary language and remarks, etc. on social media without any solid basis cause a deleterious effect on society at large, ergo in order to protect reputation and character of individuals, it should be completely stopped.”

Allahabad High Court: Sanjay Kumar Singh, J., expressed that, 

“The internet and social media has become an important tool through which individuals can exercise their right to freedom of expression but the right to freedom of expression comes with its own set of special responsibilities and duties.”

On 28-11-2019, OP 2 had lodged an FIR against the applicant and two others, which had been registered under Section 67 of the Information Technology (Amendment) Act, 2008 and Section 500 of the Penal Code, 1860.

Additional Chief Judicial Magistrate took cognizance on 22-7-2020 and summoned the applicant to face trial under Section 67 Information Technology (Amendment) Act, 2008 and Section 500 IPC.

In the present application, the above-said charge sheet and summoning order were challenged.

Analysis, Law and Decision

High Court found that as per allegations levelled in the FIR, a morphed photo showing Hon’ble Prime Minister Narendra Modi shaking hands with dreaded and wanted terrorist Hafiz Saeed was posted on Facebook in the name of Anil Sharma and said objectionable post in question was shared by the applicant.

Similarly, another post (a morphed photograph), in the name of the supporter of Akhilesh Yadav, which was posted showing Hon’ble Prime Minister Narendra Modi and Cabinet Minister Amit Shah were feeding biscuits to dogs, on whom “Aaj Tak TV”, “Zee TV” and “India TV” was written was also shared by the applicant on his Facebook ID.

Bench opined that at the stage of summoning the accused, the lower court was not required to go into the merit and demerit of the case. The genuineness or otherwise of the allegations cannot be even determined at the stage of summoning the accused. The appreciation of evidence is a function of the trial court.

Further, the Court added that, this Court in the exercise of power under Section 482 CrPC cannot assume each jurisdiction and put an end to the process of trial provided under the law.

Court did not find the present matter to eb falling in categories recognised by the Supreme Court for quashing the criminal proceeding of the trial court at the pre-trial stage.

High Court in view of the facts and circumstances and nature of allegations found that the cognizable offence was made out. Therefore, Court did not find any ground to provoke inherent power under Section 482 CrPC by this Court.

Additionally, the Bench stated that Court is of the view that it is beyond the shadow of doubt that social media is global platform for the exchange of thoughts, opinions and ideas.

The Court remarked that there is an immediate need to check the exploitation of social media platforms that has political and societal reverberations that go well beyond hacked systems and stolen identities.

“Use of Cyberspace by some people to vent out their anger and frustration by travestying the Prime Minister, Key- figures holding the highest office in the country or any other individual is abhorrent and violates the right to reputation of others.”

It was also added that, High Courts are sentinels of justice with extraordinary and inherent power to ensure that rights and reputation of people are duly protected.

Lastly, the Bench held that in view of the gravity and nature of the offence as well as misuse of social media platforms, Court cannot shut its eyes. The Government is also not expected to act as a silent perpetrator.

Therefore Court directed the Government to take appropriate remedial measures in order to control and eradicate proliferating and booming devastating menace, to stop the misuse of social media platforms and to maintain a healthy atmosphere in the society, which is the most important and essential factor for a civilized society.

In view of the above, the application was disposed of. [Niyaz Ahmad Khan v. State of U.P., 2022 SCC OnLine All 105, decided on 21-2-2022]


Advocates before the Court:

Counsel for Applicant: Jitendra Kumar Srivastava

Counsel for Opposite Party: G.A.

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ. and G.S. Kulkarni, J. has directed the Central Bureau of Investigation (CBI) to conduct a preliminary enquiry into the complaints against the Home Minister of the State of Maharashtra, Anil Deshmukh. The Court’s order came after the former Commissioner of Mumbai Police, Param Bir Singh, and others moved the High Court seeking investigation into allegations of illegal money collection ordered by the Home Minister, Anil Deshmukh. While opining that the information furnished prima facie discloses commission of cognizable offence by Anil Deshmukh, and directing that preliminary inquiry be preferebly concluded within fifteen days, the Court held:

[Anil] Deshmukh is the Home Minister. The police department is under his control and direction. There can be no fair, impartial, unbiased and untainted probe, if the same were entrusted to the State Police Force. As of necessity, the probe has to be entrusted to an independent agency like the CBI.”

  1. Backdrop, Timeline and the Factual Matrix

In February, a vehicle laden with explosives was found parked at Altamount Road, Mumbai, near ‘Antilia’, the residence of Mukesh Ambani, the Chairman and Managing Direcotr of Reliance Industries Ltd. In this matter, on 25-2-2021, an FIR was registered with Gamdevi Police Station, Mumbai, and investigation was handed to the Anti-Terror Squad. Simultaneously, the National Investigation Agency (NIA) started conducting investigation. Soon thereafter, the owner of the vehicle died under mysterious circumstances. During NIA’s investigation, the role of one Sachin Vaze, a police officer attached to the Mumbai Crime Branch came under scanner and he was arrested.

On 17-3-2021, the incumbent Commissioner of Mumbai Police, Param Bir Singh was transferred. On 20-3-2021, Param Bir Singh, in a letter to the Chief Minister of Maharashtra, took exception to statements made against him by the Home Minister wherein he said that there were serious lapses committed by the Commissioner’s office, and Param Bir Singh’s transfer was not on administrative grounds.

In his letter to the Chief Minister, Param Bir Singh made some serious allegations stating that the Home Minister, Anil Deshmukh, had instructed Sachin Vaze to assist in collection of funds for the Home Minister, with a target of accumulating Rs 100 crores a month. As per further allegations, similar instructions were given by Anil Deshmukh to some other officers of the Mumbai Police. It was also alleged that Anil Deshmukh, on several occasions, called officers of the Mumbai Police to instruct them to adopt a specific course of action in police investigations. Param Bir Singh asserted that the Home Minister found his reservations and resistance undesirable and his transfer seem to be for extraneous and vindictive reasons.

On 21-3-2021, Param Bir Singh moved the Supreme Court under Article 32 of the Constitution seeking a writ of mandamus directing the CBI to conduct an impartial and fair investigation into the complaints against Anil Deshmukh, and to quash his transfer order. This writ petition was however withdrawn by Param Bir Singh with a liberty to approach the High Court. Availing such liberty, Param Bir Singh approached the High Court on 24-3-2021, filing a Public Interest Litigation (PIL).

On 21-3-2021 itself, one Dr Jaishri Laxmanrao Patil lodged a complaint with the Malabar Police Station and the Director, Anti-Corruption Bureau of the CBI in the same matter. No action was taken on the complaint, which prompted Dr Patil to file a Criminal Writ Petition in the present matter before the High Court seeking direction to CBI/ED to investigate the matter.

  1. Analysis

2.1. Need for an FIR

There was much debate at the Bar in respect of the omission or failure to furnish information to/lodge a complaint before the police for the same to crystallize into an FIR, which could be investigated. According to the High Court, the issue paled into insignificance in view of the disclosure made by Dr Patil of she having lodged a complaint disclosing commission of cognizable offence on 21-3-2021 and that such complaint was not given the attention that it deserved. Had such disclosure been made at the inception of hearing, much of the early exchanges may not have been necessary at all and could be avoided.

2.2. Maintainability of Param Bir Singh’s PIL

The High Court refused to be drawn into the larger controversy raised by the respondent State on the aspect of maintainability of the PIL filed by Param Bir Singh and another PIL filed by another petitioner (there were a total of three PILs including that of Param Bir Singh and one Criminal Writ Petition of Dr Patil, which were heard together). The controversy, in the Court’s opinion, which was common to the petitions, could be taken care of within a narrow compass by deciding whether, if at all, and to what extent, if any, action on the complaint of Dr Patil should be directed to be taken.

2.3. Maintainability of Dr Patil’s Criminal Writ Petition

The High Court noted that registration of a case is a sine qua non for starting an investigation. The jurisdictional fact for setting the criminal law in motion in the present case was traceable in the Criminal Writ Petition of Dr Patil, who provided a crucial breakthrough by lodging a complaint in the matter.

2.3.1. Writ Petition versus Efficacious Alternate Remedy

The State’s objection to Dr Patil’s Criminal Writ Petition was primarily grounded on existence of an efficacious alternative remedy before the Magistrate under the CrPC, which she had not availed of.

The Court explored the answer to the question: The Criminal Writ Petition of Dr Patil raises an important issue of lack of enforcement of law by the police. Does this per se warrant entertainment of the Criminal Writ Petition?

In the context of the nature of the concern expressed in the Criminal Writ Petition, the Court considered that the restriction to be kept in mind in deciding the question of entertainability is, whether there exists any equally efficacious alternative remedy in a criminal court and even if such a forum of redress is available, should the writ court entertain the writ petition. The Court found answer to this stating that where the facts of any case are such that the remedy provided by the law is found to be inadequate or inefficacious to the judicial mind, a writ petition may be entertained and decided. Provisions in Section 23 of the Police Act, 1861 and the CrPC cast a duty on the police to prevent commission of offence and to bring an offender to justice. Where a person or authority is vested with a duty by specific statutory provisions, to compel such person or authority to perform such duty is certainly within the power and jurisdiction of a writ court.

[T]he courts shall not countenance violation of Constitutional principles by anyone, howsoever high an office he occupies, and hence while acting as the sentinel on the qui vive and being always there as a watch guard of the Constitution to repel any attack on it, the courts would ensure that the democratic values enshrined in the Constitution are respected and the ideals upheld.

On this point, the High Court relied on several decisions of the Supreme Court including, Municipal Council, Ratlam v. Vardichan, (1980) 4 SCC 162; Union of India v. R. Redappa, (1993) 4 SCC 269; and N. Kannadasan v. Ajay Khose, (2009) 7 SCC 1.

While finally deciding this point, the Court held that it is not unknown that despite the existence of a remedy, the remedy against the particular mischief complained of and the redress sought for, at times, might be of no avail. It would be opposed to Constitutional philosophy if relief is refused only on the ground of existence of an alternative remedy, which may not be equally efficacious. Therefore, if a case presented before a writ court appears to it to be extraordinary, which the Criminal Writ Petition of Dr Patil indeed is, there is no bar that could operate for entertaining the same. After all, the rule which requires exhaustion of an alternative remedy is a rule of convenience and discretion, rather than a rule of law.

[I]t is indeed unheard of and unprecedented that a Minister could be so openly accused of wrongdoings and corrupt practices by none other than a senior police officer attracting wide attention from all and sundry.”

2.4.  Cognizable Offence (prima facie)

The High Court perused the complaint of Dr Patil to consider whether it makes out a prima facie case of a cognizable offence. It was clarified that examination of the veracity and/or credibility of the allegations contained therein is not the Court’s task at this stage. Dr Patil annexed to her complaint, a copy of Param Bir Singh’s letter to the Chief Minister.

As per the Court prima facie opinion, the information furnished therein discloses commission of cognizable offences by Anil Deshmukh and should have been acted upon in the manner required by the CrPC, and as judicially interpreted by the Supreme Court in Lalita Kumari v. State of U.P., (2014) 2 SCC 1.

2.5. CBI Investigation

The High Court noted that a CBI inquiry cannot be ordered as a matter of routine or merely because a party makes an allegation. But, if after considering the materials on record, the Court concludes that such materials disclose a prima facie case calling for investigation by the CBI, the Court can make the necessary order. Reliance was placed on Common Cause v. Union of India, (1999) 6 SCC 667 and T.C. Thangaraj v. V. Engammal, (2011) 12 SCC 328, among others. The Court opined that w]hen high officials are likely to be involved and a question of public confidence in the impartial working of the State agencies arises, the writ court in exercise of its jurisdiction under Article 226 of the Constitution is certainly not powerless to order such inquiry and investigation by the CBI.

It was noted by the Court that Dr Patil had submitted her complaint to the Senior Police Inspector of the Malabar Hill Police Station on 21-3-2021; however, except for making an entry in the Inward Register, no action whatsoever, was initiated. The allegations made by Param Bir Singh in his letter dated 20-3-2021, which triggered Dr Patil to lodge the complaint are of a serious nature and against the highest functionary of the Government of Maharashtra, when it comes to the functioning of the police department. Prima facie, the issues are such that the very faith of citizens in the functioning of the police department is at stake. If there is any amount of truth in such allegations, certainly it has a direct effect on the citizens’ confidence in the police machinery in the State. Such allegations, therefore, cannot remain unattended and are required to be looked into in the manner known to law when, prima facie, they indicate commission of a cognizable offence

It is, hence, certainly an issue of credibility of the State machinery, which would stare at the face when confronted with the expectations of the law and when such complaints are received against high ranking public officials. This Court cannot be a mere spectator in these circumstances. There is certainly a legitimate public expectation of a free, fair, honest and impartial inquiry and investigation into such allegations which have surfaced in the public domain.

2.6. Preliminary Inquiry

While holding that to instill public confidence and safeguard the fundamental rights of the citizens, it is necessary that an inquiry and investigation is conducted by an independent agency, the Court also noted the caution in P. Sirajuddin v. State of Madras, (1970) 1 SCC 595, wherein the Supreme Court held that before a public servant is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The means adopted no less than the end to be achieved must be impeccable.

  1. Directions

Concluding the discussion, the High Court ordered the following:

3.1. Although there is no immediate reason to direct registration of an FIR by the CBI based on Dr Patil’s complaint, interest of justice would be sufficiently served if the Director, CBI is directed to initiate a preliminary inquiry into the complaint of Dr Patil which has the letter of Param Bir Singh addressed to the Chief Minister, as an annexure.

3.2. Such preliminary inquiry shall be conducted in accordance with law and concluded as early as possible but preferably within 15 (fifteen) days from receipt of a copy of the instant order.

3.3. Once the preliminary inquiry is complete, the Director, CBI shall be at liberty to decide on the future course of action, also in accordance with law. Should the Director, CBI see no reason to proceed further, Dr Patil shall be duly informed of the same.

3.4. Param Bir Singh shall be at liberty to raise grievances, if any, in regard to transfers and postings of police officers and for enforcement of the directions in Prakash Singh v. Union of India, (2006) 8 SCC 1, before the appropriate forum in accordance with law, if so advised.[Param Bir Singh v. State of Maharashtra, 2021 SCC OnLine Bom 516, dated 05-4-2021]


Advocates who appeared in this case:

Mr. Vikram Nankani, Senior Advocate a/w Dr. Birendra Saraf and Mr. Sharan Jagtiani, Senior Advocates, a/w Mr. Subodh Desai, Mr. Chetan Kapadia, Mr. Sunny Punamiya and Mr. Akshay Bafna, Advocates for Petitioner.

Mr. A.K. Singh and Mr. Piyush Singh, Advocates for Applicant/Intervenor in I.A. St. No. 6356/2021.

Mr. A.A. Kumbhakoni, Advocate General a/w Mr. Deepak Thakare, Public Prosecutor, a/w Mr. Akshay Shinde, “B” Panel Counsel and Mr. Manoj Badgujar, Advocate for State.

Mr. Anil C. Singh, Additional Solicitor General a/w Mr. D.P. Singh, Mr. Amogh Singh and Mr. A.A. Ansari, Advocates for Respondent nos. 2 and 3.

Dr. Jaishri L. Patil, Petitioner-in-person.

Mr. A.A. Kumbhakoni, Advocate General a/w Mr. Deepak Thakare, Public Prosecutor, a/w Mr. Akshay Shinde, “B” Panel Counsel and Mr. Manoj Badgujar, Advocate for State.

Mr. Subhash Jha, Mr. Nilesh Ojha a/w Mr. Samir Vaidya, a/w Mr. Harekrishna Mishra a/w Mr. Siddharth Jha, Mr. Abhishek Mishra a/w Mr. Munish Hemani i/b Law Global for Petitioner.

Mr. A.A. Kumbhakoni, Advocate General a/w Mr. Deepak Thakare, Public Prosecutor, a/w Mr. Akshay Shinde, “B” Panel Counsel and Mr. Manoj Badgujar, Advocate for State.

Mr. Alankar Kirpekar and Mr. Shekhar Bhagat, Advocates i/b Maglegal for petitioner.

Mr. A.A. Kumbhakoni, Advocate General a/w Mr. Deepak Thakare, Public Prosecutor, a/w Mr. Akshay Shinde, “B” Panel Counsel and Mr. Manoj Badgujar, Advocate for State.

Case BriefsHigh Courts

Gujarat High Court: Ilesh J. Vohra, J., heard a matter related to offences alleged under Sections 376 (2) (n), 377, 406, 498(A), 323, 294(b), 506(2) and 114 of the Penal Code, 1860 and under Section 4 of the Dowry Prohibition Act which was filed seeking to quash and set aside the impugned FIR and consequential proceedings.

The wife in the FIR had alleged that her husband right from day one of their marriage indulged in sexual acts with her against her wishes and raped her. It was alleged that, her sister-in-law and her three daughters as well as another sister in law though residing outside the country or in other States in India, also harassed her on domestic issues and demanded dowry, as a result, the complainant came to her parental home at Ahmedabad.

The Court prima facie was of the view that it was a matrimonial dispute between the husband and wife and ingredients for the alleged offence were not made out qua the applicants. Even the allegations of dowry and harassment are also prima facie not established against the present applicants as the applicants are residing in their respective States and country since long considering the law laid down in Ravinder Singh v. Sukhbir Singh, (2013) 9 SCC 245 where it was held,

            “the inherent power of the court in dealing with an extraordinary situation is in the larger interest of administration of justice and for preventing manifest injustice being done. Thus, it is a judicial obligation on the court to undo a wrong in course of administration of justice and to prevent continuation of unnecessary judicial process. It may be so necessary to curb the menace of criminal prosecution as an instrument of operation of needless harassment. A person cannot be permitted to unleash vendetta to harass any person needlessly. Ex debito justitiae is inbuilt in the inherent power of the court and the whole idea is to do real, complete and substantial justice for which the courts exist. Thus, it becomes the paramount duty of the court to protect an apparently innocent person, not to be subjected to prosecution on the basis of wholly untenable complaint”.

The Court further opined that at the stage of investigation, the High Court cannot exercise its inherent jurisdiction to quash the proceedings unless it is found that, allegations do not disclose the commission of cognizable offence or the power of investigation is being exercised by the police mala fidely or where noninterference would result in miscarriage of justice as held in Jehan Singh v. Delhi Administration, (1974) 4 SCC 522. The Court granted interim relief making the matter returnable on 27-11-2020.[Steffi Waring v. State of Gujarat, 2020 SCC OnLine Guj 1531, decided on 09-10-2020]


Suchita Shukla, Editorial Assistant ahs put this story together

Case BriefsHigh Courts

Madras High Court: A Division Bench of M. Sathyanarayanan and P. Rajamanickam, JJ., while stating that it has already on the Judicial side taken up the matter with regard to the tragic demise of “Jayaraj and Bennicks” closed the matter seeking direction in adherence to the Supreme Court’s decision in Lalitha Kumari v. Government of U.P., (2014) 2 SCC 1.

Petitioner sought direction for issuance of writ of mandamus to ensure strict adherence to the law laid down by Supreme Court of India in Lalitha Kumari v. Government of U.P., (2014) 2 SCC 1 in cases of Police excesses and thereby ensure immediate registration of FIR in cases where police persons are the alleged offenders and issue any guidelines, directions or standard operating procedures to be followed by the respondents herein and his subordinates in cases of police excesses.

Offence of Murder

Public Interest Litigation alleged lapses as to the non-registration of the FIR, despite the complaint lodged by the close family members, prima facie disclosing the commission of cognizable offence of murder.

Petitioner’s counsel, A. Rajarajan submitted that the police officials concerned deliberately failed to perform their duties and did not adhere to the decision of Supreme Court’s Constitutional Bench in Lalithakumari v. Government of U.P., (2014) 2 SCC 1.

Decision

Bench stated that it has already taken up the matter suo motu and is dealing with the aspects of the tragic demise of “Jayaraj and Bennicks”, hence the present petition is to be closed. [L. Vasuki v. Director General of Police, State of T.N., 2020 SCC OnLine Mad 1457 , decided on 09-07-2020]


Also read:

TN Custodial Deaths | Madras HC appeals to Print, Visual and Social Media not to misinterpret observations made during hearings & not to conduct media trial; CBCID to file a status report in a sealed cover

TN Custodial Deaths | Madras HC passes slew of directions for conducting of enquiry by the Judicial Magistrate in the brutal killing of father-son duo

TN Custodial Deaths | Madras HC directs preservation of clue materials; Issues directions on premise that case be transferred to CBI

Case BriefsCOVID 19High Courts

Delhi High Court: C. Hari Shankar, J., granted an ad-interim injunction and restrained police from making any investigation against Ganga Ram Hospital in an FIR filed against the hospital by the Delhi Government.

Ganga Ram Hospital — Petitioner sought interim stay of all proceedings consequent to FIR alleging commission of offence under Section 188 of Penal Code, 1860.

Background

Petitioner submitted that a reading of guidelines issued on 18th May, 2020 by ICMR revealed that it was only by the said guidelines that a specific requirement was incorporate, to the effect that all testing of COVID-19 suspected cases, whether symptomatic or asymptomatic were to be conducted by “real -time RT-PCR test only”.

On April, 20th, 2020, GNCTD issued an Order wherein following was informed:

GNCTD had created a COVID App, in which all Government/private COVID testing labs and COVID hospitals were required to fill the requisite data, to ensure proper follow-up of COVID-19 cases.

The Order required all concerned government/private hospitals to get the requisite data filled on the COVID App immediately on regular basis to supplement efforts for checking the spread of COVID-19, and also directed all government/private labs to update the COVID App on regular and immediate basis, after submission of each and every sample for testing.

On April, 30th, 2020, an Order was issued by GNCTD, wherein concern was expressed with regard to the pendency of test samples sent by districts in hospitals to various labs for COVID-19 testing, multiplicity in reports, resulting in difficulties and reconciliation of data and assessment of the number of people getting infected with COVID-19 virus.

Fulcrum of Controversy

RT-PCR App is the fulcrum of controversy in the present matter. This app was aimed at streamlining data flow of tested persons, reducing data entry at labs, speeding up declaration of results and enabling data flow of suspected cases into the system for further action at the district level.

Specimen Referral Form and the above-stated app are similar except for the fact that the app is an electronic version of the said form.

Standing Counsel, Rahul Mehra was also unable to pick out the difference between the RT-PCR app and Specimen Referral Form.

Further on 7th May, 2020 it was issued by Nursing Home Cell of the Directorate General of Health Services, GNCTD (DGHS) that no manual Sample Requisition Form will be accepted and private lab concerned would receive samples only after conforming that the details had been entered on the RT-PCR App.

Show Cause Notice to Ganga Ram Hospital

Petitioner was issued — with following of the ICMR testing protocol for testing of asymptomatic patients.

On 3rd June, 2020, an Order was issued by the DGHS observing that, in apparent disobedience of the office order dated 6th May, 2020, proscribing use of manual/physical SRFs at sample collection centres with effect from 8th May, 2020 and usage, instead of the RT-PCR App, petitioner was still not using the said App.

Petitioner was directed to explain, within two days, why it had not started using the RT-PCR App. The petitioner was also directed to stop RT-PCR sampling of COVID-19 suspects/contact cases, with immediate effect.

Petitioner informed the Court that it had identified a Data Entry Operator, for registration of the RT-PCR App as well as nine phlebotomists, whose details were annexed. Once the Data Entry Operator was registered, the petitioner undertook to enter all past entries in the RT-PCR App and to ensure compliance, with the said requirement, in future.

On 5th June, 2020 an FIR was registered against the petitioner from the office of the Deputy Secretary, health, GNCTD, alleging commission of offence under Section 188 IPC (Disobedience to order duly promulgated by public servant).

Why has the present petition been filed?

By the present petition, petitioner prays for quashing of the above-stated FIR, issuance of an appropriate write, Quashing of the Order wherein the petitioner has been prohibited from conducting RT-PCR sampling for COVID-19 suspects/contact cases, has become infructuous, as the said order has been withdrawn and the petitioner has been permitted to conduct sampling.

R. Suri and Sidharth Luthra, Senior Counsel for the petitioner and Rahul mehra, Senior Standing Counsel (Criminal) for GNCTD/State.

Decision 

Bench stated that the only allegation in the impugned FIR was clearly in violation by the petitioner with regard to the orders requiring collection of samples for COVID-19 testing, to be done only through RT-PCR App.

Further the Court stated that, there is no reference in the FIR, to this infraction, on the part of the petitioner,  in collecting samples through the RT-PCR app, having caused or obstruction, annoyance or injury, or risk of obstruction, annoyance, or injury, to any person lawfully employed, or having caused, or attempted to cause, danger to human life, health or safety, or riot or affray.

Disobedience of an order, promulgated by a public servant, is, clearly, by itself not an offence under Section 188 of the IPC.

Consequently, it has to be held that the allegations in the FIR do not disclose the commission of a cognizable offence.

An FIR need not be an encyclopaedia or contain, within it, all minute factual details, regarding the incident, which is alleged to amount to an offence. Even so, the facts, stated in the FIR, and the allegations contained therein, must disclose the commission of a cognizable offence. Else, the very registration of the FIR would be unjustified.

In Court’s opinion, the impugned FIR did not allege any impediment to human health, or loss to human life, having resulted as a consequence of the default, on the part of the petitioner, in complying with the requirement of using the RT-PCR App.

Court is aware of the fact that Regulation 18 of the 2020 COVID Regulations contains a warning, to the effect that any person/institution/organization found violating any provision of the said Regulations would be deemed to have committed an offence punishable under Section 188 of the IPC.

In the present case, violation, by the petitioner is alleged, not directly of the 2020 COVID Regulations, but of governmental Office Orders, issued thereunder.

“…criminal process cannot be initiated, against an institution, merely on the ground that such violation has taken place, sans any allegation that it has led to one of the consequences statutorily engrafted in Section 188 of the IPC.”

Thus, in view of the above terms, an ad-interim injunction, restraining the Police from investigating, consequent in the impugned FIR seems to be justified.

Petitioner-hospital is a frontliner in the war against COVID-19 pandemic.

Balance of convenience would also be in favour of interdicting, for the present, any investigation, consequent to the impugned FIR. As and when the present petition is finally decided, if it is found that no case, for quashing the impugned FIR, or the investigation following thereupon, is made out, the Police could always resume its investigation.

Hence, the stay application was allowed. [Ganga Ram Hospital v. State, 2020 SCC OnLine Del 662 , decided on 22-06-2020]

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: A Full Bench of Prashant Kumar Mishra, Rajendra Chandra Singh Samant and Gautam Chourdiya, JJ., has held that the prospective accused is neither necessary nor a proper party in a writ petition seeking direction for registration of FIR and investigation into a cognizable offence. The Court was answering the question formulated by the Single Judge.

The daughter of the petitioner was married to one Mithilesh Kumar. The petitioner alleged that on account of ill-treatment and demand of dowry, his daughter committed suicide by hanging. He filed an application before the police against Mithilesh and his family members. Since no action was taken by the police, the petitioner filed the writ petition seeking a direction to the police authorities to register FIR and arrest Mithilesh and his family members for committing offences punishable under Sections 498-A and 304-B IPC. The Single Judge before whom the petition was placed, referred the following question for an effective pronouncement by the Full Bench:

“Whether in a writ petition preferred under Article 226, 227 of the Constitution of India seeking direction for registration of FIR and investigation against the accused persons alleged to have committed the cognizable offence(s), the said accused persons are necessary or proper party and they are required to be noticed and heard before issuing any such writ/direction, if any?”

Relying on a catena of decisions including Lalita Kumari v. State of U.P., (2014) 2 SCC 1Union of India v. WN Chadha, 1993 Supp (4) SCC 260Anju Chaudhary v. State of U.P., (2013) 6 SCC 384; etc., the High Court observed: “In the above view of the matter, it is an absolutely settled legal position that a prospective accused has no right of hearing before registration of FIR and investigation by the police officer or before the Court including the writ court, therefore, in a writ petition seeking direction for registration of FIR and investigation into a cognizable offence, the prospective accused is neither necessary nor a proper party.”

The Full Bench answered the reference accordingly and directed the matter to be placed before the appropriate Bench for further proceedings. [Dhananjay Kumar v. State of Chhattisgarh, 2020 SCC OnLine Chh 4, decided on 30-01-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Z.A. Haq and M.G. Giratkar, JJ., partly allowed a criminal writ petition filed against the alleged illegal and high-handed action by the Police Inspector and Police Constable (respondents).

The matter related to 2013-2014 when disputes arose about the trusteeship of Shri Mirannath Maharaj Deosthan, Deoli. There was a dispute about whether Petitioner 1 was the Secretary of the Executive Committee of the public trust. FIRs were filed against the petitioners. However, after enquiry, the police authorities found that no cognizable offences were made out against the petitioners. But surprisingly, on 5-2-2014, action under Section 151 (1) CrPC (arrest to prevent the commission of cognizable offences) was taken against the petitioners and they were detained at the police station. They were later released on the orders of the Executive Magistrate. The petitioners claimed to be reputed citizens. They alleged that their detention was totally illegal and a result of abuse of power by the Police Inspector and Constable.

On behalf of the Police Inspector and Constable, it was submitted that the said action became necessary under Section 151 (1) CrPC as FIRs had been lodged against the petitioners. The High Court was of the opinion that this justification was misleading and was an attempt to cover up the illegal act.

The Court observed: “The police officer may take action as per Section 151 (1) of the Code of Criminal Procedure against a person, only if he has knowledge of a design of commissioning of any cognizable offence, or if it appears to him that commission of cognizable offence cannot be prevented unless preventive action is taken against the person who may commit cognizable offence.”

It was further stated: “Knowledge to the police officer of a design to commit any cognizable offence and formation of opinion by the concerned police officer that commission of cognizable offence cannot be prevented unless preventive action is taken against the proposed offender is sine qua non for taking preventive action as per Section 151 (1) of the Code of Criminal Procedure. Depriving a person of his liberty guaranteed by Article 21 of the Constitution of India cannot be left to the whims and wishes of the police officer, and if it is permitted it would be conferring arbitrary and unbridled powers on the police officers/authorities.”

The High Court held that the petitioners had suffered due to the illegal and high handed actions of the Police Inspector and, therefore, ordered him to pay a compensation of Rs 1 lakh each to the two petitioners, in addition to the costs of Rs 10,000 each payable to the petitioners. However, petitioners’ prayer for directing the State to conduct enquiry against the Police Inspector and Constable was rejected. [Kishor v. State of Maharashtra, 2019 SCC OnLine Bom 6639, decided on 17-12-2019]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Rajbir Sehrawat, J., addressed the petition filed under Sections 482 and 483 of CrPC for quashing of FIR registered under Sections 406, 420 & 120-B Penal Code, 1860 and the orders whereby the warrants of arrest were issued against the petitioner.

Contentions

Petitioner’s counsel submitted that the petitioner has instructed him to restrict the petition only qua challenge to the warrants issued by the Magistrate against the petitioner in the said FIR. Adding to his contentions, counsel for the petitioner stated that the Magistrate had issued warrants in a mechanical manner.

Magistrate had no reason to exercise his discretion to decide whether the petitioner was evading his arrest or not. The exercise of discretion by the Magistrate stands vitiated, being in the negation of law as is laid down by the Supreme Court in State v. Dawood Ibrahim Kaskar, (2000) 10 SCC 438.

He further stated that since, the police had not disclosed any reason even in their application, therefore, the arrest of the petitioner would be in violation of the provisions of Section 41(1)(b)(ii) of CrPC. If the Magistrate could not have authorized police custody, due to absence of valid reasons then the Magistrate could not have been issued warrant authorizing arrest of the petitioner.

Respondent’s counsel stated that the petitioner is involved in a heinous crime of huge fraud. Since the police was unable to arrest the petitioner despite repeated attempts and the raids at the known addresses of the petitioner, therefore, the investigating officer had rightly applied for the arrest warrant against the petitioner.

Further, he stated that, Magistrate is not required to record any reasons for issuing warrants of arrest against an accused. Hence, the Magistrate has not committed any illegality.

Court’s Analysis & Decision

On a bare perusal of the provisions of CrPC, the Court stated that the police officer has almost omnipresent power to arrest. He can arrest a person even on having a suspicion that such person has committed a cognizable offence.

Adding to the above point, the Court stated that, in certain circumstances, the police officer is required to record reasons for arresting a person or is required to have a satisfaction qua the necessity of arrest, however, all these requirements are intrinsic to the arresting officer.

Thus for the purpose of arresting police officer has all-pervasive powers without any assistance from the Court or Magistrate.

Limiting factors for the above said the power of arrest without warrant is the existence of some reasons for the exercise of such power.

Chapter XII of CrPC which deals with Investigation of Crime also does not contemplate any assistance of a Magistrate or a court; to the police officer, qua investigation of a crime.

Section 167 CrPC requires that after arrest if investigation is not conducted within 24 hours then the person shall be produced before the Magistrate. Even the Magistrate is prohibited from permitting police custody for more than 15 days in all.

Section 73 of CrPC confers a power upon the Chief Judicial Magistrate and a Magistrate of First Class to issue warrants against any person who is ‘evading arrest’.

Under the above-said Section, the Magistrate can issue warrants of arrest against a person:-

(a) Who is an escaped convict
(b) Proclaimed offender
(c) Person accused of ‘non-bailable’ offence and is ‘evading arrest’.

Decision

High Court noting the above observations along with the contentions of both the counsels for the parties found the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, to be befitting in the facts of the present case, in the cited case following was held by the Supreme Court,

“…before arresting the accused, alleged to have committed a cognizable and non-bailable offence punishable with imprisonment up to seven years, the police officer has to record reasons qua his satisfaction that the arrest of the said person is necessary for the purpose mentioned in the Section.”

“…even at the time of authorizing detention of a person, who has already been arrested by the police, Magistrate would not go by ipse dixit of the language, which might be reproduced in the record of the police. He has to apply his independent mind as to whether the reasons are sufficient to sustain the satisfaction qua requirements of getting such person arrested. Only if the reasons are found sufficient, the person arrested by the police can be authorized to be put in further custody of the arresting officer.”

High Court also observed and stated that, before the Magistrate had taken cognizance of any offence, power of issuance of arrest warrants under any provision of CrPC, on an application of a police officer, cannot be invoked by the Magistrate as a routine manner.

It is clear from the above-said analysis that,

 “only for arresting a person; the police do not require any warrant as such. Hence, it would not lie in the mouth of the police to allege before the Magistrate, without there being any specific reasons or any barrier in their way, that the accused is evading arrest.”

Thus, the application moved by the police officer is silent qua any reason, which requires assistance from the court for arresting the petitioner.

No reason, whatsoever, has been spelt out in the application, even qua the requirements of arrest as mentioned in Section 41 CrPC, to justify the arrest of the petitioner, except to say that the petitioner is evading arrest. It is upon this application that the impugned warrants of arrest have been issued against the petitioner.

Hence, nothing has been noted either in the order passed by the Magistrate, from which it can be discernible that the Magistrate has some reasons or material to justify the discretion exercised by him.

Court found the impugned warrant issued by the magistrate not sustainable. Hence the present petition is found to be partly allowed by quashing the warrants of arrest and consequent order impugned in the petition. [Gurjeet Singh Johar v. State of Punjab, 2019 SCC OnLine P&H 2606, decided on 08-11-2019]

Patna High Court
Case BriefsHigh Courts

Patna High Court: Ashwani Kumar Singh, J., dismissed the application for quashing of FIR as the FIR clearly stated the incidence of tampering of the meter which would constitute a cognizable offence and hence the investigation is necessary.

In the pertinent case, the petitioner filed the application for the quashing of an FIR registered under Section 135 of the Electricity Act. The Petitioner had, in spot billing of the month of December, 2017, an electric bill for an amount of Rs 1,55,089 showing meter reading as 27678 was issued. The consumption in two days was of 24110 units. Thereafter, he made a complaint on 12-02-2018 through the online portal of South Bihar Power Distribution Company Limited. An electrician came and inspected the said meter was defective and would be reinstalled after repairing. Subsequently, he came back and reinstalled a meter. Thereafter, on 23-02-2018, some officials of the Electric Supply Sub- Division, Jamui came at his house and made an allegation that the petitioner had tampered the meter.

The counsel for the opposite party contended that in the FIR, there is a specific allegation against the petitioner that on 23-02-2018, when the meter installed at the house of the petitioner was inspected, it was found that the body of the meter on the right side tampered and the seal was broken. Further, the meter number on the body and the screen did not match. It was also noticed that the past reading of the meter was reduced. They contended that the allegations made in the FIR clearly attract the ingredients of the offence punishable under Section 135 of the Electricity Act, 2003.

The Court observed that there is specific allegation in the FIR regarding tampering of the meter installed at the house of the petitioner. The seal of the meter was found broken. The aforesaid allegations are sufficient to attract the ingredients of the offence alleged, which is classified as a cognizable offence. In case of a cognizable offence, the police has a statutory right to investigate. Therefore, the Court held that neither the institution of the FIRnor its investigation can be held to be bad. [Bijay Kumar v. State of Bihar, 2019 SCC OnLine Pat 1870, decided on 23-10-2019]

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Prashant Kumar Mishra and Goutam Chourdiya, JJ. dismissed an application filed by the State seeking leave to appeal against the order of acquittal rendered by the Judicial Magistrate, 1st Class, as not maintainable.

The application by the State sought leave to appeal against the order of acquittal rendered by the Judicial Magistrate, 1st Class, whereby the accused was acquitted of the charges under Section 409 IPC (criminal breach of trust by public servant or by banker, merchant or agent).

The High Court was of the opinion that instead of preferring the instant application in the High Court, the State should have preferred an appeal before the Sessions Court under Section 378(1)(a) CrPC. Reliance was placed on Subhash Chand v. State (NCT of Delhi), (2013) 2 SCC 17, wherein the Supreme Court laid down the law thus:

If we analyse Section 378(1)(a) & (b), it is clear that the State Government cannot direct the Public Prosecutor to file an appeal against an order of acquittal passed by a Magistrate in respect of a cognizable and nonbailable offence because of the categorical bar created by Section 378(1)(b). Such appeals, that is appealed against orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence can only be filed in the Sessions Court at the instance of the Public Prosecutor as directed by the District Magistrate. Section 378(1)(b) uses the words “in any case” but leaves out orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence from the control of the State Government. Therefore, in all other cases where orders of acquittal are passed appeals can be filed by the Public Prosecutor as directed by the State Government to the High Court.”

In such view of the matter, the instant application filed by the State was dismissed as not maintainable, reserving the liberty in favour of the State to prefer acquittal appeal before the Sessions Court within a period of 30 days from the date of the instant order.[State of Chhattisgarh v. Mohanlal Bagde, 2019 SCC OnLine Chh 102, decided on 25-09-2019]

Patna High Court
Case BriefsHigh Courts

Patna High Court: Ashwani Kumar Singh, J. dismissed an application for the quashing of FIR by the petitioner under Articles 226 and 227 of the Constitution of India.

An FIR was registered under Section 366 read with Section 34 of the Penal Code, 1860 against the petitioner where it was alleged that he took the daughter of one Ram Narayan Pandey, who was aged about 18 years, when she was going to the Durga Mandir with her mother on 18-04-2019 at about 5.30 p.m. to offer her prayers. The petitioner along with others came there on a Bolero jeep and assaulted his daughter. When his wife protested, the accused pushed aside the informant’s wife and put his daughter in the vehicle and sped away.

The counsel for the petitioner Shubhesh Pandey submitted that the allegations made in the FIR were false and that the alleged victim had attained the age of majority, who out of her own sweet will, went with the petitioner and voluntarily married him.

After a careful perusal of the records, the Court held that the allegations made in the FIR were quite serious and they attracted the ingredients of a cognizable offence. To hold an investigation into a cognizable offence is the statutory right of the police. The defense taken by the petitioner that the victim went together with him out of her own sweet will and married him was to be examined by the police in the course of the investigation. At the stage of the investigation, the court would not come to any conclusion regarding the veracity of allegations made in the FIR. It is a well-settled principle of law that at this stage, the Court has no role to play. The role of the Court would start only after the investigation is completed and a report under Section 173(2) of the Code of Criminal Procedure is filed.

In view of the above-noted facts, the instant application was dismissed since the allegations made in the FIR attracted the ingredients of a cognizable offence, and there was no reason to quash the FIR.[Benkatesh Kumar v. State of Bihar, 2019 SCC OnLine Pat 1355, decided on 22-07-2019]

Case BriefsHigh Courts

Allahabad High Court: Dinesh Kumar Singh, J. disposed of the petition on the ground that no substantial ground was made for exercising the power under Section 482 of Code of Criminal Procedure, 1973.

A petition was filed in order to quash the summoning order passed by 1st Additional Chief Judicial Magistrate under Section 498-A, 323, 504 and 506 of the Penal Code, 1860.

Rajendra Prasad, counsel for the petitioner submits that First Information Report had been lodged against the petitioner on the basis of false and fabricated facts. It was also submitted that the petitioner was ready to surrender before the court below and some protection may be granted to him.

The Additional Government Advocate had opposed the petition. It was discussed that the  power under Section 482 of the Code of Criminal Procedure, 1973 was not to be exercised in a routine manner, but it is for limited purposes, namely, to give effect to any order under the Code, or to prevent abuse of process of any Court or otherwise to secure ends of justice. It was reiterated that according to the precedents the power under Section 482 of Code of Criminal Procedure, 1973 should not preempt a trial and cannot be used in a routine manner so as to cut short the entire process of the trial before the courts below.

Case of  Lee Kun Hee v. State of U.P., JT 2012 (2) SC 237, was brought in light,  in which it was held that “Court in exercise of its jurisdiction under Section 482 CrPC cannot go into the truth or otherwise of the allegations and appreciate evidence, if any, available on record. Interference would be justified only when a clear case of such interference is made out. Frequent and uncalled interference even at the preliminary stage by High Court may result in causing an obstruction in the progress of inquiry in a criminal case which may not be in public interest”

High Court after perusal of matter on record opined it cannot be said that a cognizable offence was not made out and thus there was no sufficient ground to quash the impugned proceedings, although it was directed that if the petitioner surrenders before the court within ten days with an application for bail the same shall be considered and disposed of expeditiously in accordance with the law.[Anil Kumar Srivastava v. State of U.P, 2019 SCC OnLine All 2299, decided on 01-04-2019]

Case BriefsHigh Courts

Allahabad High Court: Dinesh Kumar Singh, J. quashed the application under Section 482 of Code of Criminal Procedure, 1973 on the ground that as the evidence cannot be scrutinized it cannot be said that no cognizable offence was made out against the applicant.

An application was made to quash the charge sheet made under Sections 323, 506, 452, 354-A of the Penal Code.

Aushim Malhotra, advocate for the applicant submits that the applicant has been falsely implicated. The victim had suffered not any serious injury except that she was having a complaint of pain. There was also the delay of 9 days in lodging the FIR.  It was further submitted that the accused had no criminal history, hence prayed for quashing the FIR.

Vimal Kumar Pandey, AGA vehemently opposed the prayer for quashing the same.

The Court after going through the matter on record held that opposite party was attempted to be molested by the accused-applicant and when she tried to defend herself, she was beaten with fists & kicks and when the mother-in-law of the victim had arrived, she was also pushed off.  It was further submitted that “From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings under Section 482 CrPC.”  The disputed defense of the accused cannot be considered at this stage. Thus the prayer for quashing the proceedings was refused. But the Court on the settled principle of the law in the case of Amrawati v. State of U.P., 2004 (57) ALR 290 held that if the applicant appears and surrenders before the Court below within 30 days from today and applies for bail, his prayer for bail may be considered. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.[Ram Vilas v. State of U.P., 2019 SCC OnLine All 2272, decided on 14-06-2019]

Case BriefsHigh Courts

Gujarat High Court: A Bench of Sonia Gokani, J., while hearing the grievance of the petitioner regarding non-filing of FIR, ordered the authorities to do a necessary investigation after lodging FIR.

A writ petition was made by the petitioner who was aggrieved by non-registration of the first information report on the basis of complaint given in writing. S.D. Mansur, learned counsel for the petitioner contended that the offence being a cognizable offence doesn’t take away his right to lodge the FIR. Thus an application for appropriate order of the court was made by the petitioner.

Jirga Jhaveri, the learned counsel for the respondent, on the other hand, submitted that though a cognizable offence is made out, his first information report was not registered.

The Court after hearing the party relied on the Judgment of Lalita Kumari v. State of U.P., (2014) 2 SCC 1, which mandates that registration of FIR is mandatory under Section 154 of Code of  Criminal Procedure, 1973.  The Court held that the police officer cannot avoid his duty of registering the offence if the cognizable offence is disclosed and the action should be taken against erring officer who does not register the FIR. The court further held that in order to ascertain the information regarding the cognizable offence it was important to conduct the preliminary inquiry. The court thus instructed the respondents to lodge the report and conduct the preliminary inquiry within one week and further instructed the petitioner that if the action is not taken, it shall be open to him to approach the higher officials, as provided under Section 154(3) of the Code of Criminal Procedure, 1973.[Avdhesh Bhawaniprasad Yadav v. State of Gujarat, Special Criminal Application No. 930 of 2019, Order dated 07-02-2019]

Case BriefsHigh Courts

Gujarat High Court: The Bench of Sonia Gokani, J. disposed of a petition with the direction to lodge the FIR if any cognizable offence is made out; and if not, reasons to be mentioned for not lodging an FIR to the complainant at the earliest but not later that one week.

The facts of the case are that the petitioner was aggrieved by non-registration of the FIR on the basis of the complaint given in writing by him. He contended that a cognizable offence was made out and still his FIR was not registered.

The Court while relying on the case of Lalita Kumari v. State of U.P., (2014) 2 SCC 1, held that registration of FIR is mandatory under Section 154 CrPC if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. For the purpose of knowing as to whether any cognizable offence was revealed, a preliminary inquiry should be conducted. Still, if it is not made out, reasons are to be mentioned for not lodging an FIR to the complainant at the earliest but not later that one week in a cognizable offence. [Haripriyaben Sanjaykumar Shah v. State of Gujarat, 2019 SCC OnLine Guj 239, Order dated 06-02-2019]