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]