Case BriefsHigh Courts

Delhi High Court: Yogesh Khanna, J., remarked that,

Once the Parliament steps in and cures the defect pointed out by a Constitutional Court, the defect appears to be cured and the presumption of constitutionality is to apply to such provision.

Instant petitions were for grant of bail to the applicants.

Factual Matrix

An enquiry under FEMA, 1999 was commenced on 1-07-2017 by the respondent at various places against Naresh Jain and others, it was alleged that the petitioners and others had appeared on numerous occasions before the Enforcement Directorate and the enquiry was conducted for 2 years under Section 47 of the FEMA.

Further, the ED registered FIR with EOW Cell for Scheduled Offences under the Prevention of the Money Laundering Act, 2002. Thereafter, the petitioners appeared before the ED on several occasions. Searches were conducted by the ED under PMLA at the residential premises of the petitioner Bimal Jain also.

Prosecution complaint was filed before the Special Judge, PMLA against eight accused persons, including the petitioners herein. Petitioner Bimal Kumar Jain also joined the investigation of FEMA as also PMLA on various occasions.

Senior Counsel for the petitioner submitted that:

a) while arresting Bimal Jain, the procedure under Section 19 PMLA was not followed.

b) the Enforcement Directorate cannot be the complainant and the Investigating Officer at the same time; and

c) effect of declaration of twin conditions under Section 45 of the PMLA have been declared unconstitutional and ultra vires in view of decision in Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1.

Analysis, Law and Decision

Non-Compliance under Section 19 of the PMLA

High Court stated that since the arrest of accused Bimal Jain was in execution of the NBWs therefore, the provision under Section 19 of the PMLA could not be adhered to.

Admittedly, Bimal Jain was arrested in execution of the NBW by the Special Judge, PMLA while taking cognizance of prosecution complaint filed by the Enforcement Directorate and thus there was no occasion to comply with the requirement of Section 19 of the PMLA.

Bench stated that, the very fact the complaint was filed by the Enforcement Directorate arraying petitioner Bimal Jain as accused 2, prima facie shows there were reasons to believe the person was guilty of offence punishable under PMLA as the complaint was filed only against a person who was presumed to be guilty.

The Complainant and the Investigating Agency cannot be the same

Court referred to the decision of Mukesh Singh v. State (NCT) of Delhi, (2020) 10 SCC 120.

Twin conditions of Section 45 of the PMLA

Supreme Court in Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1 declared Section 45 of the PMLA as it stood then, as unconstitutional and violative of Articles 14 and 21 of the Constitution of India, but the defects pointed out were cured by the legislature and an amendment to Section 45(1) was made vide Finance Act, 2018.

Supreme Court’s decision in P. Chidambaram v. E.D., (2019) 9 SCC 24 took judicial note of the above amendment.

High Court stated that the legislature has the power to cure the underlying defect pointed out by a Court, while striking down a provision of law and pass a suitable amendment. Bench referred to the decision of Supreme Court in State of Karnataka v. Karnataka Pawn Brokers Association, (2018) 6 SCC 363 it was held:-

“24. On analysis of the aforesaid judgments it can be said that the Legislature has the power to enact validating laws including the power to amend laws with retrospective effect. However, this can be done to remove causes of invalidity. When such a law is passed, the Legislature basically corrects the errors which have been pointed out in a judicial pronouncement. Resultantly, it amends the law, by removing the mistakes committed in the earlier legislation, the effect of which is to remove the basis and foundation of the judgment. If this is done, the same does not amount to statutory overruling.”

Adding to the above analysis, Court remarked that merely because the entire section was not re-enacted would be of no consequence since the provision even after being declared unconstitutional, does not get repealed or wiped out from the statute book and it only becomes unenforceable.

Therefore, High Court held that there is a presumption in favour of constitutionality since the amended Section 45(1) of the PMLA has not been struck down, Court referred to the decision of the Supreme Court in Nagaland Senior Govt. Employees Welfare Assn. v. State of Nagaland, (2010) 7 SCC 643.

If Section 45(1) of the PMLA is ignored, whether the petitioners are entitled to bail per parameter of Section 439 CrPC?

The investigation by EG revealed that Naresh Jain and Bimal Jain along with other accomplices hatched a criminal conspiracy to cause loss to the exchequer and banks by indulging in illegal foreign exchange transaction on the basis of forged/fabricated documents.

Naresh Jain also facilitated parking of funds abroad by Indian nationals through his international Hawala transaction structure created in India and in various other jurisdictions. Naresh Jain conducted international Hawala operation and domestic operation of providing accommodation entries to co-conspirators.

Investigation so far, revealed that Naresh Jain incorporated and operated 450 Indian entities and 104 foreign entities. These entities were incorporated by using original identity proofs and documents of dummy shareholders and directors as well by fabricating identity proofs and documents of these shareholders and directors. Fabricated documents were used to open bank accounts as well.

Further, it was alleged that the petitioners were well connected in India and abroad and there was an apprehension that they will flee from the country to evade trial in case they were enlarged on bail. It was also alleged that Bimal Jain had evaded the summons issued by the department and had refused to join investigation.

ED alleged that the petitioners were involved in various criminal cases and even two Red Corner Notices were issued by Interpol against Naresh Kumar Jain.

Even the allegations were that the petitioners forged their medical certificates and Naresh Jain continues the criminal activities while in Jail and the investigation in the case is still going on and a large number of activities/fact accounts/witnesses /employees and beneficiaries are involved.

Adding to the above allegations, it was stated that if enlarged on bail there was every likelihood the petitioners may flee to Dubai or elsewhere to avoid the process of law and they were flight risks.

Hence, bail was not granted to the petitioners and the petitions were dismissed. [Bimal Kumar Jain and Naresh Jain v. Directorate of Enforcement, Bail Appln. 112 of 2021, decided on 30-07-2021]


Advocates before the Court:

For the Petitioner/s: Vikram Chaudhri, Sr. Advocate with Naveen Malhotra, and Harshit Sethi, Advocates.

For the Respondent: S.V.Raju, ASG, .Zoheb Hossain, Special Counsel, Amit Mahajan, CGSC, Aarushi Singh, Mallika Hiremath, Vivek Gurnani, and Agni Sen, Advocates

Case BriefsHigh Courts

Himachal Pradesh High Court: Jyotsna Rewal Dua, J., dismissed the petition being devoid of merits.

The facts of the case are such that the accused persons had connived with each other to hatch a conspiracy and misappropriated public funds. The State moved an application for addition of charge under Section 120B of the Penal Code, 1860 i.e. (IPC) as well as for alteration of charge under Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988 which was thereby allowed to the extent that charge for offence of criminal misconduct under Section 13(1)(c) of the Prevention of Corruption Act was altered/modified. Aggrieved by it, the petitioner challenged the said order.

Counsel for the petitioner submitted that when the other co-accused persons stood discharged, and then there is no point for framing charge under Section 120B IPC against the petitioner.

The Court observed that in view of the observations of the Trial Court, there is no reason for the petitioner to feel aggrieved. The amended charge in the petition also does not make any reference to Section 120B IPC.

The Court relied on judgment Nallapareddy Sridhar Reddy v. State of Andhra Pradesh, (2020) 12 SCC 467 wherein it was observed

“….Section 216 appears in Chapter XVII CrPC. Under the provisions of Section 216, the court is authorized to alter or add to the charge at any time before the judgment is pronounced….”

“….Section 216 provides that the addition or alteration has to be done “at any time before judgment is pronounced…”

The Court observed that the charge could be altered at any time before the pronouncement of the judgment subject to conditions set forth in Section 216 CrPC as elucidated above. It was also observed that in the instant case, charge under Section 13(2) of the Prevention of Corruption Act stood already framed against the petitioner. By allowing the application moved by the State under Section 216 CrPC, the learned Trial Court had only allowed alteration of charge to the extent that Section 13(1)(c) of the Prevention of Corruption Act was added.

The Court thus held “the present petition lacks merit and is accordingly dismissed”.[Jitender Kumar v. State of HP, 2021 SCC OnLine HP 4569, decided on 17-05-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

Counsel For the Petitioner: Mr. Dalip K. Sharma

Counsel For the Respondent: Mr. Anil Jaswal and Mr. Manoj Bagga

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Siddharth Mridul and Anup Jairam Bhambhani, JJ., granted regular bail to activist Devangana Kalita and Natasha Narwal in the Delhi-Riots case.

Appellant’s who were arrested for participating in protests against the Citizenship Amendment Act, 2019 and in custody since 29-05-2020, preferred the appeal under Section 21(4) of National Investigation Agency Act, 2008 impugning order of Special Court rejecting her bail application registered under provisions of Penal Code following to the addition of provisions of Prevention of Damage to Public Property Act, 1984 and Unlawful Activities (Prevention) Act, 1967.

Why was Devangana Kalita & Natasha Narwal in custody? | State against Devangana Kalita & Natasha Narwal. Why?

Larger Conspiracy

State essentially alleged that the appellant’s as a part of women’s rights group called Pinjra Tod and other activistic groups participated in a ‘larger conspiracy’ to commit certain offences which led to violence and rioting in the North-East Delhi between 22-02-2020 and 26-02-2020.

Findings and Analysis

  • Purported independent review of evidence by a purported independent authority; and the fact that the Central Government has, based thereupon, granted sanction of prosecution for offences under Chapters IV or VI of the UAPA, must never enter the consideration of the Court when deciding whether the ingredients of any offence under the UAPA are disclosed in the charge-sheet.
  • In Asif Iqbal Tanha v. State of NCT of Delhi in CRL. A. No. 39/2021, Court analysed the provisions engrafting ‘terrorist act’ and ‘conspiracy’ or ‘act preparatory’ to the commission of a terrorist act.
  • The phrase ‘terrorist act’ cannot be permitted to be applied in a cavalier manner to criminal acts or omissions that fall squarely within the definition of conventional offences.
  • Right to Protest: Contours of legitimate protest have been explained in the Supreme Court decision of Mazdoor Kisan Shakti Sangathan v. Union of India, (2018) 17 SCC 324. In the said decision it was expressed that: “legitimate dissent is a distinguishable feature of any democracy and the question is not whether the issue raised by the protestors is right or wrong or whether it is justified or unjustified, since people have the right to express their views; and a particular cause, which in the first instance, may appear to be insignificant or irrelevant may gain momentum and acceptability when it is duly voiced and debated.”
  • In the charge-sheet, Court did not find any specific or particularised allegation that would show the possible commission of a ‘terrorist act’ within the meaning of Section 15 UAPA or an act of ‘raising funds’ to commit a terrorist act under Section 17 or an act of ‘conspiracy’ or an ‘act preparatory’ to commit, a terrorist act within the meaning of Section 18 UAPA.
  • Bail Principles: The said principles were in detail discussed in the decision of Asif Iqbal Tanha v. State of NCT of Delhi in CRL. A. No. 39 of 2021, a brief reiteration of the same was done in the present matter.

Devangana Kalita | Conclusion

  1. Right to Protest is not outlawed and cannot be termed as a ‘terrorist act’ within the meaning of UAPA, unless ingredients of offences under Sections 15,17 and 18 of the UAPA are discernible from factual allegations.
  2. Shorn off the superfluous verbiage, hyperbole and the stretched inferences drawn from them by the prosecuting agency, the factual allegations made against the appellant do not prima facie disclose the commission of any offence under Sections 15, 17 and/or 18 of the UAPA.
  3. It appeared that in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the State has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity. If such blurring gains traction, democracy would be in peril.

Appellant in view of the above discussion was granted regular bail subject to conditions.[Devangana Kalita v. State, 2021 SCC OnLine Del 3255, decided on 15-06-2021]

Natasha Narwal | Conclusion

  1. No specific, particularised or definite act was attributed to the appellant, apart from the fact that she engaged herself in organising anti-CAA and anti-NRC protests when riots and violence broke out in certain parts of North-East Delhi.
  2. State cannot thwart grant bail merely by confusing issues.
  3. Opinion: Allegations relating to inflammatory speeches, organising of chakka jaam, instigating women to protest and to stock-pile various articles and other similar allegations, at worst were evidence that the appellant participated in organising protests, but no conclusion of a specific or particularised allegation that appellant incited violence, what to talk of committing a terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA.

The Appellant was granted regular bail subject to conditions.

[Natasha Narwal v. State (NCT of Delhi), 2021 SCC OnLine Del 3254, decided on 15-06-2021]


Advocates before the Court:

For the Appellant: Mr. Adit S. Pujari, Ms. Tusharika Mattoo & Mr. Kunal Negi, Advocates.

For the Respondent: Mr. Amit Mahajan, Mr. Amit Prasad and Mr. Rajat Nair, SPPs for the State along with Mr. Dhruv Pande & Mr. Shantanu Sharma, Advocates.


Also Read:

Del HC | Crucial aspects of ‘Terrorist Act’ and Right to Protest | Everything about Asif Iqbal Bail Order

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Siddharth Mridul and Anup Jairam Bhambhani, JJ., granted bail to Asif Iqbal, who was booked under provisions of the UAPA Act for his role in the Delhi Riots during the anti-CAA protest last year.

Asif Iqbal | Mastermind behind Delhi Riots?

Asif Iqbal Tanha, a 25-year old student filed the instant appeal under Section 21(4) of the National Investigation Agency Act, 2008 seeking bail as he was in judicial custody since 19-05-2020 under provisions of Penal Code, 1860, Prevention of Damage to Public Property Act, 1984 and Unlawful Activities (Prevention) Act, 1967.

Appellant was alleged to be one of the main conspirators as well as instigators behind the riots that occurred in North-East Delhi and played an active role in the conspiracy.

Section 15 of Unlawful Activities (Prevention) Act, 1967

The said section defines ‘terrorist act’ and Section 18 provides for ‘punishment for conspiracy for committing a terrorist act, including an attempt to commit or advocating, abetting, advising or inciting the commission of a terrorist act, as also of any act preparatory to the commission of a terrorist act’, the word ‘terrorism’ or ‘terror’ has nowhere been defined in the UAPA.

Right to Protest | Part of Fundamental Rights under Constitution of India

48. …Undoubtedly, holding peaceful demonstrations by the citizenry in order to air its grievances and to ensure that these grievances are heard in the relevant quarters, is its fundamental right.”

“…Question is not as to whether the issue raised by the protestors is right or wrong or it is justified or unjustified. The fundamental aspect is the right which is conferred upon the affected people in a democracy to voice their grievances. Dissenters may be in minority. They have a right to express their views.”

“31. The right of citizens to take out processions or to hold public meetings flows from the right in Article 19(1)(b) to assemble peaceably and without arms and the right to move anywhere in the territory of India.”

  • Ramlila Maidan Incident, In re [(2012) 5 SCC 1], the Court observed that the right to assembly and peaceful agitations were basic features of a democratic system and the Government should encourage exercise of these rights

Bench noted that in the present matter, there was nothing to show that Government prohibited the protest.

‘Terrorist Act’ under Section 15 UAPA

The said phrase must partake of the essential character of terrorism and the phrase ‘terrorist act’ cannot be permitted to be casually applied to criminal acts or omission that fall squarely within the definition of conventional offences.

Where the court finds that an act or omission is adequately addressed and dealt with by the ordinary penal law of the land, the court must not countenance a State agency ‘crying wolf’.

State’s attempt to show accusation against appellant prima facie true: Fail. How?

  • No allegation leading to appellant being the leader of all the co-conspirators.
  • Appellant was stated to be a member of SIO and JCC, both are not banned organisation or terrorist organisations listed in First Schedule of UAPA.
  • The anti-CAA protest did not extend to the whole of NCT of Delhi, therefore it would be a stretch to say that the protest affected the community at large for it to qualify as an act of terror.
  • No arms, ammunition and other articles used as weapons were recovered from or at the instance of the appellant.
  • Foundations of nation stand on surer footing that to be likely to be shaken by a protest, however vicious, organised by a tribe of college students or other persons, operating as a coordination committee from the confines of a University situate in the heart of Delhi.
  • State’s submission based upon inferences drawn by the prosecuting agency and not upon factual allegations.
  • Protest in which the appellant participated was neither banned nor outlawed and the same was monitored by law enforcement agencies.

High Court found absolutely nothing in the subject charge-sheet, by way of any specific or particularised allegation that would show the possible commission of a ‘terrorist act’ within the meaning of Section 15 UAPA; or an act of ‘raising funds’ to commit a terrorist act under Section 17; or an act of ‘conspiracy’ to commit or an ‘act preparatory’ to commit, a terrorist act within the meaning of Section 18 UAPA.

Bench opined that no offence under Sections 15, 17 or 18 UAPA was made-out against the appellant on a prima facie appreciation of the subject charge-sheet and the material collected and cited by the prosecution, the additional limitations and restrictions for grant of bail under Section 43D(5) UAPA do not apply.

With regard to outlining the consideration for bail, Court referred to the following significant decisions of the Supreme Court in:

Therefore, applying the well-worn principles of bail, Court held that it is not prima facie convinced of the veracity of the allegations so made and hence granted regular bail subject to conditions.[Asif Iqbal Tanha v. State (NCT of Delhi), 2021 SCC OnLine Del 3253, decided on 15-06-2021]


Advocates before the Court:

For the Appellant: Mr. Siddharth Aggarwal, Advocate with Ms. Sowjhanya Shankaran, Mr. Siddharth Satija, Mr. Abhinav Sekhri & Ms. Nitika Khaitan, Advocates

For the Respondent: Mr. Aman Lekhi, ASG alongwith Mr. Amit Mahajan, Mr. Rajat Nair and Mr. Amit Prasad, SPPs with Mr. Ujjwal Sinha, Mr. Aniket Seth, Mr. Ritwiz Rishabh, Ms. Riya Krishnamurthy and Mr. Dhruv Pande, Advocates.

Sh. P. S. Kushwaha, DCP with Sh. Alok Kumar, Addl. DCP, Special Cell, Insp. Lokesh Kumar Sharma and Insp. Anil Kumar.

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Bureau of Investigation (CBI): The Court of Shivank Singh, Special Judicial Magistrate (CBI) while convicting the accused of the offences under Sections 120B, 420 of Penal Code, 1860 acquitted the accused of the offences under Sections 467, 468, 471 of Penal Code, 1860.

In the present matter, Alishan Khan with Asad Ali (accused in the present matter) were accused of criminal conspiracy with each other for dishonestly and fraudulently availing the benefit of wrongful gains to themselves and subsequently causing wrongful loss to the Department of Customs. In that process, evasion of the payment of customs duty, act of falsely claiming themselves as Manufacturer Exports with the support of forged documentation was carried out. Further the facilities otherwise available to firms were availed, again with forged documents, to waive off the condition to deposit bank guarantee. Subsequently, they again approached the office of Jt. Directorate General of Foreign Trade (DGFT) for issue of an advance import licence for a Cost Insurance and Freight (CIF) value of Rs. 2.02 Crores which was almost 20 times the value of the earlier licence. It was during investigation, that the exports claims so made were also found to be false. Interestingly, the firm or the unit from where they supposedly functioned was also found to be non-existent.

Therefore, the substantial question was of the role of the accused in the entire criminal transaction and involvement in the affairs of the non-existent firm.

The prosecution examined 25 witnesses, and intriguingly, the defence had no witness in support.

The Court while taking note of the testimonies of the witnesses so put forth, arguments advanced and charges levied, considered it appropriate to deal with the provisions of all substantive offences one by one.

While acquitting under Section 467 of IPC, the Court referred to, Sheila Sebastian v. R. Jawaharaj, (2018) 7 SCC 3, wherein it was held that the charge of forgery cannot be imposed on a person who is not the maker of the same. For Section 468 of IPC, the court was firm that use of the forged shipping bills, rent receipts, etc. were not proved beyond reasonable doubt. And further for Section 471 read with 467 of IPC, was of the opinion that, the evidence on record revealed that the accused was the beneficiary of the forged documents “…but it is not established by the prosecution that accused had used the very ‘forged documents’ in question as genuine. Law is settled on this point, that however strong the suspicion maybe, it cannot take place of proof…”.

For conviction under Section 420 of IPC, after a conjoint reading of the testimonies of the witnesses and the corroborating evidences, the Court very firmly stated that, “the prosecution has very clearly manifested Asad Ali’s role in the entire chain of transaction and has proved that it was Asad Ali who had acted upon, manoeuvered and operated the affairs of M/s United Exports sub rosa…”. For Section 120-B, the Court mightily opined that, “…it is settled law that in the case of conspiracy there cannot be any direct evidence. Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view…”. “…the circumstances proved before, during and after the concurrence have to be considered to decide about the complicity of the accused…”. “…It would have been difficult for any of the accused, to execute alone such conspiracy or cheating. But with the combined efforts they were able to do the same…”.

Therefore, the Court after considering the entire facts and circumstances, convicted the accused for the offence under Section 120-B of IPC, to undergo rigorous imprisonment of 3 years and pay fine of Rs. 10,000/- and for the offence under Section 420 of IPC, to undergo rigorous imprisonment for 03 years and pay fine of Rs. 10,000/- which shall run concurrently. Also, the accused was entitled to set off under Section 428 of the Criminal Procedure Code, 1973 for the period already undergone in judicial custody, if any.[CBI v. Asad Ali, 5103092/2005 decided on 01-04-2021]

Case BriefsHigh Courts

Andhra Pradesh High Court: A Division Bench of M. Satyanarayana Murthy and Lalitha Kanneganti, JJ., ordered an enquiry into a conversation contained in pen-drive disclosing some material about designing a plot against the Chief Justice of Andhra Pradesh and another sitting Judge of the Supreme Court.

Court stated that,

“Unfortunately, today it is an unpleasant or gloomy day in the history of High Court of Andhra Pradesh, because the High court itself has to ward-off the brazen onslaught from the third parties to demean the prestige of the pristine judicial institution in the eye of litigant public.”

Audio conversation contained in the pen drive disclosed that it was a serious conspiracy against the Chief Justice of Andhra Pradesh High Court by designing a plot and sent a petition by the person who had a conversation with a person named S. Ramakrishna allegedly, but signed by Secretary of BC/SC/ST Association.

The said person insisted on Sri S. Ramakrishna to collect material against another senior most sitting Judge of the Supreme Court to mar his future career.

Bench stated that since the plot is designed against the Chief Justice of Andhra Pradesh High Court with malafide intention unless the authenticity of the contents is established, Court cannot proceed against anyone.

Further, the Court observed that the way as to how the conversation between the two persons took place, would prima facie establish that there was a conspiracy against the Chief Justice of Andhra Pradesh and Senior-most Judge of Supreme Court, pernicious acts of the person who made such allegation to be discouraged. Otherwise, the public may lose faith in the Courts.

Conversation discloses use of intemperate language against two senior most sitting Judges of the Supreme Court and it is a matter of serious concern.

Such conversation will certinly crumble the confidence of the public on Courts and system itself.

Further, the Court added that in the judicial process, it is the solemn duty of the Court to unravel the truth. In the present matter, only way to unravel the truth is to order necessary enquiry.

Truth should be the Guiding Star in the entire judicial process.

Hence, Court found the present case to be appropriate for ordering enquiry to find out the authenticity of the conversation contained in the pen-drive.

Therefore, Justice Raveendran, retired Judge of the Supreme Court of India is requested to hold an enquiry to find out the authenticity of the conversation, with regard to the plot designed against the Chief Justice of Andhra Pradesh and being designed against senior most sitting Judges of the Supreme Court and undisclosed interest of the third parties.

Director of CBI and Director of Intelligence Bureau are directed to depute responsible officers of the department to collect information from the agencies pertaining to the conversation contained in the pen-drive and other material collected from the Registry and submit the same to Justice R.V. Raveendran, retired Judge of Supreme Court of India.

Matter to be listed in 4 weeks.[BC, SC, ST Minority Student Federation v. Union Of India, 2020 SCC OnLine AP 652, decided on 13-08-2020]

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J. dismissed an application filed under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of cognizance taken against petitioner, in a case pertaining to demand of dowry and torture therefor.

Petitioner, along with eight others, was charged with offence of torture, assault, demand of dowry and conspiracy to kill the opposite party 2 (daughter-in-law of the petitioner herein). In a complaint case filed by opposite party 2, the learned Sub-Divisional Judicial Magistrate passed an order taking cognizance of offences under Sections 323, 498-A of Penal Code, 1860 and Sections 3 and 4 of Dowry Prohibition Act, 1961. Aggrieved thereby, the instant application was filed praying for quashing of the said order.   

Learned counsel for the petitioner, Sanjay Kumar Ojha, contended that the opposite party 2 did not reside in the matrimonial home and she had got divorced from the petitioner’s son in 2011.

Learned Assistant Public Prosecutor, Jharkhandi Upadhyay contended that the matrimonial case wherein divorce was granted to opposite party 2, was filed in the year 2010 while the complaint case in question was filed in 2004. Thus, the opposite party 2 was still the petitioner’s daughter-in-law when the complaint case was filed. Hence, the petitioner’s main contention of divorce was of no relevance. Further, the cognizance order in complaint case, was passed in the year 2003, i.e., ten and a half years ago, which made the application unfit for consideration. 

The Court noted that the complaint case was of the year 2004 and the order of cognizance was also of the same year. Thus, the present application, filed in the year 2015, challenging cognizance order of the year 2004 was clearly unfit to be entertained on the ground of gross delay and laches. Further, the main contention of the petitioner that her son and opposite party  2, were already divorced, was of no consequence, as the matrimonial case (for divorce) was filed in the year 2010 by opposite party 2; and that itself was proof of the fact that she was tortured in the matrimonial home. 

In view of the above, it was held that the cognizance order did not suffer from any infirmity, and it did not warrant any interference by the Court in exercise of its inherent power under Section 482 CrPC.[Sushila Devi v. State of Bihar, 2019 SCC OnLine Pat 653, decided on 13-05-2019] 

Case BriefsHigh Courts

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

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

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

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

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

Delay in filing FIR and conducting body search

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

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

No evidence corroborating making of speech and of criminal conspiracy

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

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

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

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

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

Impugned speech might be malicious, but is not seditious

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

Prior membership of SIMI is not an offence

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

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

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

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

Case BriefsHigh Courts

Kerala High Court: The Bench of R. Narayana Pisharadi, J. quashed criminal proceedings against a person accused of cheating a bank holding that the case against him would be an abuse of process of the Court.

Petitioner herein was a customer of Bank of Baroda for many years. He introduced accused’s 1 to 3 to the said bank to enable them to open an account therein. Subsequently, the accused used credit/purchase facility given to them by the bank and obtained approximately Rs 1 crore from it. It was alleged that the accused had hatched a conspiracy to cheat the bank and cause loss to it. A case was registered against the accused and the petitioner under Section 120B, and Sections 420 and 406 read with Section 34 of the Penal Code, 1860. The instant petition was filed under Section 482 of the Code of Criminal Procedure, 1973 requesting quashing of proceedings against petitioner.

The Court noted that the only allegation against the petitioner was that he introduced accused to the bank to enable them to open an account. He did not falsely misrepresent the bank; there was no material indicating any transaction between the petitioner and other accused. No material was produced by the prosecution to prove that the introduction of accused to the bank, by the petitioner, was part of a conspiracy to cheat the bank. Therefore, no question of dishonest misappropriation of any amount by him arose.

It was held that it is a normal banking practice that a person who wants to open an account in a bank will have to get himself introduced by another account holder in the same bank. The mere act of introducing a person to a bank to enable such person to open an account in the bank, without anything more, does not attract the offence of cheating punishable under Section 420 IPC against the person who makes the introduction, even when the person introduced by him subsequently commits an act of cheating against the bank. Reliance in this regard was placed on Manoranjan Das v. State of Jharkhand, (2004) 12 SCC 90.

In view of the above, the petition was allowed. [K.J. Hubert v. Sub Inspector of Police, 2019 SCC OnLine Ker 1122, Order dated 04-04-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. quashed the criminal proceeding initiated against Bihar Chief Minister Nitish Kumar by a lower court in a 28-year-old murder case holding that the prosecution against him was mala fide, untenable and solely intended to harass him. With opposition parties, especially Rashtriya Janta Dal (RJD) targeting Mr Kumar over his name figuring in the case, the present judgment came as a huge relief to the Bihar CM.

The present case related to murder of a Congress worker, Mr Sitaram Singh, on 16-11-1991, during by-elections for the Barh Parliamentary constituency in Patna. The next day, a First Information Report was lodged by one Raja Ram Singh, brother of Sitaram, in which he accused Janata Dal candidate and incumbent Chief Minister of Bihar – Nitish Kumar (petitioner herein) – and several others of hatching a conspiracy to kill Sitaram. It was alleged that the petitioner fired at his brother with the intention to kill and Sitaram died on the spot.

A timeline of the facts of the case is mentioned below:

  • Police case was instituted under Sections 147, 148, 149, 302, 307 of the Penal Code, 1860 and Section 27 of the Arms Act, 1959.
  • As soon as the petitioner came to know about the FIR, he filed an application before the Investigating Officer stating that, at the relevant time, he was with the District Magistrate and Superintendent of Police, Nalanda and, thus, could not have been present at Barh.
  • 30-01-1993: After investigating the case, police filed a final form exonerating the petitioner stating that there was no evidence as to his involvement in the said crime (RJD Chief Lalu Prasad Yadav was the then CM).
  • 05-08-2008: After several adjournments in the matter, Additional Chief Judicial Magistrate (ACJM) of Barh accepted the final form submitted by police by which time petitioner had become the Chief Minister.
  • 20-01-2009: A Protest-cum-Complaint Petition was filed in ACJM’s Court, challenging petitioner’s exoneration.
  • 22-04-2009: Patna High Court ordered a stay on further proceedings in the case at the ACJM’s court, following an appeal by one of the charge-sheeted accused.
  • 31-08-2009: Learned ACJM took cognizance against petitioner directed him to appear before the Court on 09-09-2009.
  • 08-09-2009: Instant petition was filed by Mr. Kumar before this Court seeking quashing of cognizance order passed by the ACJM; and he succeeded in securing a stay on the lower court’s order on proceedings in the Protest-cum-Complaint Petition.
  • 28-10-2009: This Court issued a show cause notice to the ACJM to explain why the order of stay passed by this Court earlier was violated.
  • 15-05-2010: Patna High Court admitted an application by Radha Krishna Singh, who claimed to be Sitaram’s brother, challenging this Court’s order dated 08-09-2009 whereby cognizance stayed against petitioner.
  • 31-01-2019: This Court reserved its judgment on the instant petition.

Ms Ritika Rani, learned counsel for Radha Krishna Singh, submitted that her client be allowed to be made opposite party no. 3 to oppose petitioner’s prayer. The Court noted that despite its specific order in 2010 directing an application to be filed for being added as a party, the same was not done until 2018. The timing of filing Radha Krishna Singh’s application casted doubts on his real intention, and thus his application lacked bona fide. It was opined that besides there being very limited scope of a third party to interfere or intervene in a criminal matter, the prominent factor militating against the Radha Krishna Singh was his conduct of conveniently remaining dormant from 2010 to 2018.

The Court also took note of its order passed in 2010 wherein repeated filing of applications through one counsel Mr Dinu Kumar was frowned upon by Court, after which he withdrew from the case. However, despite his withdrawal from the matter all applications for intervention or opposing the petitioner’s prayer, were filed or routed through his office. It was opined that once the said Advocate had himself withdrawn from the case, it was not appropriate for him to be associated in any manner and persist with appearing in the matter by changing the persons by whom various petitions were filed. This act was indicative of a personal vendetta to target the petitioner as well as misuse of process of the Court for oblique reasons, which totally lack any element of bona fide whatsoever.

The Court noted that proceedings had been initiated at the instance of opposite party 2, who had filed the Protest-cum-Complaint Petition. However, later he categorically denied having seen the alleged killing of Sitaram. He also admitted to having made false statements in complaint case under influence and persuasion to secure compensation for the deceased. Thus, all the averments made in the Protest-cum-Complaint Petition automatically lost their sanctity and ceased to have value, much less for proceeding against any person in a criminal case, that too, under grave sections of IPC.

Conduct of the applicants was deprecated by the Court stating: “it appears the Court is being taken for a ride and a game is being played in the Court proceedings where one after the other, persons are trying to intervene in the matter, without any legal or justifiable reason, as if it is a kind of race where one person passes the baton to another once his game stands exposed and he is ousted from the race. Such conduct not only needs to be thoroughly deprecated but is also required to be effectively and strictly dealt with so as to prevent such blatant and clear misuse and abuse of the process of the Court, as has been attempted by all the persons who have tried to unnecessarily and clearly with hidden agendas endeavoured to interfere in the present proceeding and in which they have been more than actively encouraged and supported by forces operating in the shadows.”

 The Court also took note of the gross judicial impropriety on the part of the then ACJM and opined that taking up of Protest-cum-Complaint Petition was wholly illegal in view of there being an order of stay of further proceedings by this Court. Further, after taking cognizance under Sections triable by a Court of Sessions, non-committal of the case to the Court of Sessions, was highly improper on the part of learned ACJM. Both these acts of ACJM raised a serious question with regard to fairness, propriety and purity of judicial proceedings, and directly pointed a finger at the concerned Presiding Officer.

Further, there were over-writings/scribblings in the Protest-cum-Complaint Petition where names of witnesses were struck-off from the original typed version and names of other persons were, handwritten, as witnesses. Further, it was also noted that one of the witnesses admitted that he was forced to make false statements and depose against petitioner to the effect that he had seen him with rifle in his hand at the time of killing of Sitaram Singh.

In view of the aforesaid, the Court concluded that petitioner was “a victim of false allegations which primarily appeared to have stemmed from him having reached a very high position in public life by virtue of holding Constitutional office and, thus, for damaging him, a concerted and sustained campaign had been orchestrated by elements, who by their own conduct had made themselves totally unreliable for any Court to attach any shred of credence to their evidence.”

Statement of Mr Rajiv Gauba, IAS, the then District Magistrate, Nalanda was considered and it was noted that on the day of polling, i.e., 16-11-1991, when he was in the Control Room, the petitioner had come and met him and complained with regard to some disturbances at a booth upon which he had sent the Magistrate. He further stated that according to his knowledge, petitioner had gone to Biharsharif from Harnaut and met administrative officers during the period when the alleged incident of the present case is said to have taken place.

In view of the aforesaid facts and evidence, it was held that the Protest-cum-Complaint Petition itself was malafide, frivolous, mischievous, without any basis and in fact, totally false and fabricated; and thus the instant petition was allowed. Relying on State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, criminal proceedings against the petitioner were quashed under Section 482 of the Code of Criminal Procedure, 1973.[Nitish Kumar v. State of Bihar, 2019 SCC OnLine Pat 331, decided on 15-03-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: This petition was filed before a Single Judge Bench of Rajbir Sehrawat, J., in order to quash an FIR registered under Sections 120-B, 406, 420 of Penal Code and other subsequent proceedings arising therefrom.

Facts of the case were such that petitioner wanted to receive distributorship from “Bombay Dyeing” from alleged and was assured of the same but since the alleged refused, petitioner filed a complaint about cheating against the alleged. Petitioner was charged for conspiring under the registered FIR. It was contended by petitioner that Section 138 of Negotiable Instruments Act and Sections 420, 406 of IPC are mutually exclusive thus if the complaint has been filed under Section 138 then FIR under Sections 420 and 406 of Penal Code cannot be lodged for the same cause of action and hence liable to be quashed.

High Court stated that there is no such concept as “same cause of action” or “cause of action” in criminal jurisprudence. Once material against petitioner was found for involvement in a conspiracy then per se FIR cannot be quashed. On the contention of the offences being mutually exclusive, the court was of the view that an accused is liable to be punished from the stage of an attempt to commission of the offence and various offences like this can be charged together. It was discussed that Section 138 has a limited scope of trial and punishment for the offence and if the plea of the offences being exclusive to each other is taken then that would mean that other offences not covered under Section 138 cannot be filed. The Court found no application of Section 300 of Criminal procedure code and Article 20 of the Constitution of India. Therefore, the petition was dismissed as no ground to quash the FIR was found. [Sazid Khan v. State of Haryana,2018 SCC OnLine P&H 1733, decided on 27-07-2018]

Case BriefsSupreme Court

Supreme Court: In the Swami Gadadharanand murder case, the bench of Kurian Joseph and A.M. Khanwilkar, JJ upheld the conviction of 2 Assistant Kotharis and one disciple of the Board of Trustees of the Swami Narayan sect of Vadtal Gadi Temple who killed the chairman of the Trust in the year 1998 when he proposed to transfer the Kotharis away from the Vadtal Temple as they feared being exposed of their misdeeds and maladministration.

Apart from the strong motive for committing the murder of Gadadharanandji and the criminal conspiracy hatched in that behalf and executed, the following factors led to the conviction of the accused persons in the present case:

  • the presence of Gadadharanandji at Vadtal Temple complex on the day of incident, the evidence that he was last seen together with Accused No.3, who hasn’t filed an appeal against the order of the High Court, going from Vadtal Temple complex in a car,
  • the recovery of a dead body in village Barothi in the neighboring state of Rajasthan on the next day of disappearance of the deceased,
  • the disclosure made by Accused No.3 about the location as to where the dead body was dumped by him in a village at Barothi,
  • the discovery of the fact after subsequent medical examination that the dead body so recovered was of none other than that of the deceased,
  • the disclosure made by Accused No.5 of the location where the deceased was strangled at Navli Temple complex, the conduct of Accused No.3 in misleading the investigating agencies,
  • the burning of the vehicle used in the commission of the crime and then filing of a false insurance claim which was rejected by the insurance company,

The Court said that the aforementioned factors leave no manner of doubt about the involvement of the appellants in the commission of the crime and hence, the life imprisonment awarded by the High Court does not warrant any intereference. The Court said that there need not be any direct evidence to establish the kind conspiracy involved in the present case. It can be a matter of inference drawn by the Court after considering whether the basic facts and circumstances on the basis of which inference is drawn have been proved beyond all reasonable doubts and that no other conclusion except that of the complicity of accused to have agreed to commit an offence is evident. The Court said that there is no legal evidence, in the present case, to give benefit of any doubt to the Appellants. [Charandas Swami v. State of Gujarat, 2017 SCC OnLine SC 361, decided on 10.04.2017]

 

Case BriefsSupreme Court

Supreme Court: The Bench of V. Gopala Gowda and Arun Mishra, JJ gave a split decision on the question as to whether a person can be convicted under Section 109 IPC for abetment if the charges of conspiracy under Section 120-B IPC fail.

As per V. Gopala Gowda, J, for Section 109 of IPC, it is not enough to show a conspiracy as it has to be taken a step further. He said that it needs to be proved that an act is committed in furtherance of that conspiracy. Once the charge under Section 120-B of IPC falls, in order to convict the accused under Section 302 read with Section 109 IPC, or Section 365 read with Section 109 IPC, what is needed to be established is the happening of some overt act on the part of the accused.

However, on the other hand, Arun Mishra, J disagreed with the abovementioned view and said that under section 109 IPC, the abettor is liable to the same punishment which may be inflicted on the principal offender if the act of the latter is committed in consequence of the abetment. The offence of conspiracy under section 120-B IPC is different. Section 120-A is bare agreement to commit an offence which has been made punishable under section 120B. The punishment for these two categories of crimes is also quite different. Section 109 IPC is concerned only with punishment of abetment for which no express provision has been made in the IPC. An offence of criminal conspiracy on the other hand is an independent offence which is made punishable under section 120-B IPC for which a charge under section 109 is unnecessary and inappropriate. He, hence, said that when charge under section 109 IPC has been found established, mere acquittal under section 120-B is of no avail to the accused. Charges which were framed were specific ingredients of section 109 IPC and the acquittal under section 120-B of IPC cannot help the accused as offences of both sections are separate. [Somasundaram v. State, 2016 SCC Online SC 1006, decided on 28.09.2016]