complaint

Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. quashed criminal proceedings filed under the Prevention of Corruption Act, 1988 against a Panchayat Secretary, on the ground that the same lacked proper sanction of the competent authority.

Petitioner moved the Court under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of complaint case registered for offences under Sections 420 and 406 of the Penal Code, 1860 and Sections 13(2) and 13(1) (d) of PC Act. Petitioner, who at the relevant time was posted as Panchayat Secretary, was alleged to have committed irregularity in the purchase of solar panels.

Counsel for the petitioner Mr S. R. C. Pandey submitted that a complaint filed by a private person under PC Act against a public servant cannot proceed unless there is proper sanction by the competent authority. Petitioners, being Panchayat Secretary, were public servants under Section 2(c) of the Act, and were thus protected from prosecution without the previous sanction of the State Government in terms of Section 19(1)(b) of the Act.

Counsel for the respondent Mr Anjani Kumar agreed with the petitioner’s submission and submitted that both for preliminary enquiry as well as for lodging of FIR under the PC Act, prior sanction of the Competent Authority is required.

In view of the above, the instant application was allowed. [Rama Prasad Singh v. State of Bihar, 2019 SCC OnLine Pat 423, Order dated 29-03-2019]

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Delhi High Court: Observing that the trial court, in the present case, did not seem to be alive to realities, Sanjeev Sachdeva, J. quashed an order whereby the accused-respondent (father of the prosecutrix) was discharged of the offence punishable under Sections 354 (outraging modesty of a woman) and 376(2)(f) (punishment for rape committed by a relative, guardian, teacher or person in position of trust or authority of a woman) IPC.

The trial court discharged the accused as he was blind and the allegations made against him were not specific. Also, the prosecutrix did not raise alarm when she had opportunities and did not file any complaint all this while. It is pertinent to note that the parents of the prosecutrix were divorced and as per the prosecutrix, she did not even remember as to when sexual assaults started to be committed upon her by her father. In the present complaint, she mentioned about incidents which happened when she was the age of 6 years old upto the age of 13-14 years old. She was 18 years old at the time of filing of the complaint. She mentioned that it was only when she was taught sex-education in her hostel, that she came to realise that she was being sexually assaulted. She then talked about it to her friend, who advised her about her options and thereafter they got in touch with an NGO.

The High Court noted that the prosecutrix had given a detailed description of the manner in which she was assaulted by the accused. It was observed: “A child who is subjected to sexual abuse and assault from a tender age of 6 and which assault continues till she is 14 years of age, would not even be aware that she is being abused or any offence is happening. The prosecutrix in her statement has stated that she was not aware of the abuse and became aware only when she grew up.”

Commenting on the flawed approach of the trial court, it was stated: “Trial court has erred in not appreciating that the accused is the father of the prosecutrix and was in a dominating position and keeping in the view the relationship, it would not be abnormal for the prosecutrix not to make a complaint against her own father. The reasoning given by the Trial Court is completely perverse and contrary to record.”

Satisfied that the allegations raised gave suspicion against the accused of having committed the alleged offence, the High Court allowed the present petition of the State which was filed after elucidating opinions from the Additional Public Prosecutor, the Chief Prosecutor, the Director of Prosecution, the Principal Secretary (Law and Justice) and also the Law Minister. The matter was remitted to the trial court for framing of appropriate charges against the appellant. [State (NCT of Delhi) v. X, 2019 SCC OnLine Del 7913, decided on 02-04-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Three petitions were clubbed together dealing with regular bail in an FIR registered under Section 395 IPC, registered at Police Station Sadar Ludhiana.

The facts leading to this case were that complainant along with five others was having dinner, when the complainant was threatened by petitioner to hand over the amount which they had in their possession. Since then the petitioner were in custody. It was submitted that complainant before giving complaint to the police had allegedly gone out. It was brought before the Court that investigation was complete, challan was presented and charges were framed but the conclusion of the trial would take time.

High Court viewed that State counsel could not dispute the factual position without commenting on the merit of the case. Therefore, these petitions were allowed and they were directed to be released on regular bail. [Saroop Ali v. State of Punjab, 2019 SCC OnLine P&H 290, decided on 25-03-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of Sanjeev Sachdeva, J. allowed a petition filed against order of the trial court whereby it has taken cognizance of offence under Section 188 IPC (disobedience to order duly promulgated by public servant) against the petitioner.

The District Disaster Management Authority carried out an inspection of “M Cinemas” of the petitioner and identified certain shortcomings. The premised was directed to be closed for visitors. On petitioner’s failure to comply with the directions, CEO of the Authority filed a complaint with SHO of the police station concerned. An FIR was registered and chargesheet was assailed by the police, based on which cognizance was taken by the Magistrate vide the impugned order. Aggrieved thereby, the petitioner was before the High Court.

The petitioner was represented by Nina R. Nariman with Vrinda Bhandari and Geetika Kapur, Advocates. It was submitted that in terms of Section 195 CrPC, no Court can take cognizance of an offence under Section 188 IPC except on complaint of public servant concerned. It was contended that no complaint satisfying requirements of Section 2(d) CrPC was filed in the present case. As per Section 2(d), a “complaint” has to be in writing to the Magistrate.

The High Court held that the complaint made by CEO of the Authority was a complaint made to SHO which could not be treated as a complaint to the Magistrate so as to satisfy the requirements of Section 195 (1)(a)(i) CrPC. It was observed, “Non-compliance of Section 195 is a defect which cannot be cured subsequently as was sought to be done by the prosecution by filing a supplementary chargesheet or by way of a complaint given by the public servant after cognizance has been taken.” Holding that the present proceedings suffered from infraction of Section 195, the Court allowed the petition and quashed the impugned order. [Mohan Kukreja v. State (NCT of Delhi), 2019 SCC OnLine Del 6398, decided on 08-1-2019]

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Kerala High Court: A Single Judge Bench comprising of B. Kemal Pasha, J. drew a nexus between the act and the discharge of the official duty of the inspector.

Petitioner who was Sub Inspector of Police was accused under Sections 342, 323, 324, 294(b) and 506(ii) IPC under a private complaint.

The complainant has contended that he was unnecessarily taken into custody by the Police while he along with his friend was in the car which allegedly was being driven in a drunken state. Further, while in custody the complainant attacked another sub-inspector on duty when taken into custody. The petitioner police officer through his counsel Chandrasekharan Nair stated that the complainant pleaded guilty by voluntarily appearing before the Court wherein it clearly states his faulty complaint and thus the version of the petitioner cannot be rebutted.

The Court was of the view that it was evident that it was in discharge of his official duty that the petitioner took the complainant into custody and the offence committed was proved by his acts. Therefore the complaint as such cannot be proceeded with for want of sanction following which the petition stood allowed. [Sajikumar v. V. Sasikumar, 2018 SCC OnLine Ker 6014, decided on 05-02-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench comprising of Sanjay Kumar Gupta, J., dismissed the petition of the husband as he failed to provide any ground that the cases filed by wife were frivolous and were only to harass him.

The petition was filed under Section 561-A CrPC for quashing of complaint that was pending in the Court of Munsiff, a complaint/petition under Section 12 of J&K Protection of Women under Domestic Violence Act, 2010 that was pending in the Court of Excise Magistrate Jammu; petition under Section 488 CrPC that was pending in the Court of Munsiff JMIC, Jammu; and FIR registered at Police Station, Jammu for offence under Sections 498-A and 323 RPC.

The facts of the case are that the marriage between petitioner and respondent was solemnized 25 years back. Their married life remained peaceful for almost 20 to 21 years and thereafter there arose problems which led to the current petition.

The court dismissed this petition stating that all the petitions and Criminal complaint were filed by the respondent under the statutory provisions of law and petitioner was not able to make out any grounds for quashing the aforesaid proceedings.[Sobat Ali v. Hamida Bibi,2018 SCC OnLine J&K 959, Order dated 14-12-2018]

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Bombay High Court: A Single Judge Bench comprising of Mangesh S. Patil, J. dismissed a writ petition filed against the order of the Magistrate recalling his earlier order.

Brief facts of the case are that the Magistrate concerned, on an earlier occasion, had ordered investigation under Section 156 CrPC in a criminal case. Subsequently, the same Magistrate, vide the order impugned, recalled his earlier order. The petitioner submitted that the subsequent order was passed without jurisdiction as CrPC does not empower a Magistrate to recall his earlier orders. Reliance was placed upon Supreme Court decisions in Subramanium Sethuraman v. State of Maharashtra, (2004) 13 SCC 324 and Iris Computers Ltd. v. Askari Infotech (P) Ltd., (2015) 14 SCC 399.

The High Court, at the outset, observed that the principle laid down in the cases mentioned hereinabove does not cover a case of the instant nature. A trite principle was laid down in the said cases that a Magistrate does not have any power under CrPC to recall, review or reconsider his own order, howsoever illegal it might be. However, in the present case, it was not a matter of legality or otherwise of the order passed by the Magistrate but the manner in which the order was procured by misleading the Court by suppression of material facts and circumstances. Fraud vitiates everything, observed the Court. It was noted that the petitioner failed to disclose the fact of filing a complaint with the police; he misused the process by approaching a different Magistrate and had solicited the order which was subsequently set aside by the order impugned. Such and additional facts were serious matters which constitute fraud on the court. The Court was of the view that there was no illegality committed by the Magistrate in recalling his own order. The writ petition was accordingly dismissed. [Deepak v. Shriram,2018 SCC OnLine Bom 2199, dated 20-08-2018]

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Bombay High Court: The Division Bench of Bharati H. Dangre and S.C. Dharmadhikari, JJ., addressed a petition concerning the cancellation of an MBA degree holder of NMIMS, Mumbai, on grounds of attaining the admission through fraudulent means. The Bench also explained the principle of ‘Natural Justice’ on the lines of the present case.

In the instant case, the petitioner-aggrieved had attained a degree of MBA (Pharmaceutical Management) by following the due process of selection. The petitioner was working at a company in which he got placed through the college itself after completing the course. After a lapse of 3 years on completion of the degree, a show cause notice in regard of cancellation of the degree was sent stating that the petitioner had secured the admission through unfair means for which a complaint was filed by Respondent-1: NMIMS with the Crime Branch, Mumbai

It has been alleged that the petitioner engaged a ‘dummy candidate’ to appear on his behalf for the stated entrance test. Petitioner also contended that he was not supplied with the documents on which the show cause notice was relied upon which clearly did not give the petitioner an opportunity to deal with the documents which further if resulted into the cancellation of his degree would amount to the violation of principles of natural justice.

On complete analysis of the facts and contentions of the present case, the Hon’ble High Court concluded by stating that although the fraud was detected and a show cause notice was served to the petitioner, no material was supplied to deal with the allegations. One of the prominent observations made was that, the institute was a State recognised institute and any of its administrative decisions or actions resulting into civil consequences are liable to be judicially reviewed on the anvil of principles of natural justice, therefore, in the present case the impugned order was rendered as null and void due to violation of principles of natural justice. [Shiva Dhawan v. SVKM’s Narsee Monjee Institute of Management Studies,  2018 SCC OnLine Bom 1272, order decided on 20-06-2018]

Case BriefsHigh Courts

Chhattisgarh High Court: The Single Judge Bench comprising of Arvind Singh Chandel, J., granted regular bail to an offender charged under Sections 366, 376(2) (n), 342/34 of the Penal Code.

The brief facts of the case are that the prosecutrix had lodged a complaint against the applicant who had forcibly asked her to marry him and later when the prosecutrix went to complain about the same, she was taken by her brother-in-law (co-accused) to a lodge where she stayed along with him where he committed rape with her and it continued. Later on, it was discovered on collection of some information that the applicant was already married.

The submissions of the learned counsel for the applicant states that the applicant was falsely implicated in the case as the prosecutrix was a consenting party in the present case and taking due reference through these submissions he has prayed for bail of the applicant.

Therefore, the Hon’ble High Court on taking due consideration from the facts and circumstances of the case along with the contention of the applicant’s counsel, observed that the prosecutrix being a major girl had on her own will stayed with the applicant at the lodge and the crux of the case is that she took 3 months to lodge the complaint against the same, Court concluded its order on the same by granting bail to the applicant as trial would take some time and till that time he is allowed to be released on bail. [Bandhan Jagte v. State of Chhattisgarh,  2018 SCC OnLine Chh 390; dated 05-04-2018]

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Karnataka High Court: A Single Judge Bench comprising of Budihal R.B., J., decided a criminal petition filed under Section 438 of CrPC, wherein the petitioner was granted anticipatory bail holding that the offence under SC/ST Act as alleged against the petitioner were not constituted.

The petitioner was an accused in criminal case registered under Sections 324, 504 and 506 of IPC along with Section 3(1)(ix) of the SC/ST (Prevention of Atrocities) Act. Petitioner submitted that the FIR in the case was not regard to the offence under SC/ST Act but only to those under IPC. He submitted that it was only after a gap of few days that the Police in collusion with the complainant created another complaint in respect of the very same crime wherein the allegations regarding the offence under SC/ST Act were made. The petitioner prayed that he may be allowed an anticipatory bail by imposing reasonable conditions.

The Court perused the evidence on record and found that two complaints were field by the complainant in the case. Both related to the same incident. In the first complaint, no allegations against the petitioner regarding the offence under SC/ST Act were made. It was only in the second complaint which was filed after three days, that such allegations were made. The Court was of the opinion that there can not be two complaints by the same person regarding the same incident; if anything is left out while mentioning in the first complaint, the complainant could have made further statement under Section 161 of CrPC. Further, the Court held that, at the time of granting bail, even under Section 18 of the SC/ST Act, Court has to examine the material on record to see whether the offence under provisions of the said Act is made out. The Court perused the material and held that it was not sufficient to make out a case under the alleged section of the Act.

In view of the above, the High Court was of the opinion that it was a fit case to exercise discretion in favor of the petitioner; and hence, the petitioner was granted anticipatory bail. [Maladri Reddy v. State of Karnataka, Crl. Petition No. 766 of 2018, dated February 21, 2018]

Case BriefsHigh Courts

Karnataka High Court: While deciding a criminal petition filed under Section 439 of CrPC, a Single Judge Bench of Budihal R.B., J. held that even if the specific overt act is not alleged against the accused in the complaint itself, a prima facie case can be made out against him considering all other prima facie material along with the complaint.

The background of the case was set in the dispute relating to construction of a house. In connection with the same dispute the petitioner is alleged to have assaulted the daughter of the complainant that resulted in her death.

Learned counsel for the petitioner submitted that the complaint averments only go to show that the petitioner assaulted the deceased on her cheek/neck and she fell down unconscious. He submitted that there was no prima facie case against the petitioner that he was the main cause for the death of the deceased. Hence, he prayed that the petitioner be enlarged on bail.

The High Court perused the petition, the FIR, the complaint, and the charge-sheet produced. The Court was of the opinion that it was no doubt true that there was no mention in the complaint about the petitioner assaulting the deceased with a stone, however, a complaint is not an encyclopedia. The eyewitness in her statement had categorically stated that the petitioner assaulted the deceased with a stone. The Court also perused the medical opinion given by the doctor as to the cause of death of the deceased; and held that the material on record goes on to make out a prima facie case against the accused. Accordingly, the Court declined to exercise discretion in favor of the petitioner and the petition was rejected. [Balaraj v. State, 2017 SCC OnLine Kar 2451, order dated 9.10.2017]

Case BriefsHigh Courts

High Court of Rajasthan: While deciding the validity and legality of the criminal miscellaneous petition filed under Section 482 CrPc, by the petitioners, the Bench comprising of P.K.Lohra, J., while exercising its power under Section 482 Cr PC, held that the criminal complaint filed against the petitioner, under Sections 498-A, 323, 406 & 504  IPC and Section 12 of the Domestic Violence Act, 2005 if allowed to be continued before the trail court, would obviously result in abuse of the process of the court since the complaint lacks mentioning of specific instances of domestic violence directed towards the complainant.

The complainant is the respondent/wife of the deceased husband, who died while the proceedings were taking place in the trial court on account of complaint lodged by the her under DV Act and IPC against the deceased husband, his parents and her sister-in-law. The learned counsel for the petitioner submitted that since the acrimony started between the deceased husband and respondent wife since then the latter is not living with the former hence there is no iota of evidence to indicate that she has been subjected to domestic violence by the petitioners therefore, the complaint has been designed to harass the petitioners, which is a glaring example of abuse of the process of the Court.

The Court allowing the instant petition held that the bare reading of the complaint makes it abundantly clear that it does not disclose any specific instance of domestic violence against the petitioners hence in the absence of concrete proof relating to the instance of domestic violence a casual reference of the name of the family members i.e. petitioners in the complaint without there being any allegation of their active involvement in the matter is sufficient to conclude that complaint is in fact designed to harass the petitioners and if the criminal complaint is allowed to be proceeded in the trial court it would obviously result in abuse of the process of the Court. [Sudama Dutt Sharma v. State Of Rajasthan, Criminal Misc. (Pet.)  No. 1524 of 2011, decided on 8th November, 2016]

Case BriefsHigh Courts

Punjab and Haryana High Court: While deciding upon the issue that whether a complaint under the Domestic Violence Act is maintainable even after a decree of divorce has been passed, the bench of Anita Chaudhry, J., held that the provisions of the Domestic Violence Act can only be invoked if the marital relationship is in existence, therefore once a marital relationship is ended by a decree of divorce, a complaint under Domestic Violence Act cannot be filed at all.

The present case was filed seeking the quashment of complaint filed under the Domestic Violence Act. It is to be noted that the marital relationship between the petitioner and his wife had ended by an exparte divorce decree. The counsel for the petitioner, Sukhbir Singh contended that, since the marriage of the petitioner and his wife has ended therefore the complaint under the Domestic Violence Act is not maintainable.

The Court perused the relevant provision of the Domestic Violence Act, namely Section 2(a) and 2(f) while answering the accompanying question that whether a divorced woman is included in the definition of an ‘aggrieved person’. It was observed by the Court that the language of the concerned provision uses ‘who is’ and ‘has been’, both of which have been used in the present tense, clearly establishing that there has to be a marital relationship in existence. Similarly, Section 2(f) stresses about the existence of a relationship by marriage or a relationship in the nature of marriage at the time. The expression used is ‘are related’ by marriage, which again is in present tense. The relevant provisions indicate the legislative intent to protect women who are living in a domestic relationship. Therefore for a complaint under the Domestic Violence Act to sustain, it is necessary that the marriage between the aggrieved person and the respondent is in existence. [Amit Agarwal v. Sanjay Aggarwal, 2016 SCC OnLine P&H 4200, decided on 31.05.2016]