Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: Rumi Kumari Phookan J. dismissed the criminal proceedings against Chief Minister of Assam, Dr. Himanta Biswa Sarma for violating the provision of the Model Code of Conduct during 2019 General Assembly Elections. The Court was further of the view that the provision mentioned under Section 126 of the Representation of the People Act, 1951 (RP Act) should be reexamined in the light of multi-phased elections and the expansion of digital and electronic media.

Facts of the case

A complaint was filed as per the direction of the Election Commission of India (ECI), against the petitioner who was an MLA in 2019, and the “news” channel, ‘News Live’, for telecasting a Live interview of the petitioner a day before the first phase elections were scheduled. In the complaint filed it was said before the trial court that cognizance under Section 126(1)(b) of the RP Act should be taken. Based on the documents submitted, the trial court took cognizance of the offence and imposed a fine of Rs 2000/- on the petitioner.

Therefore, the petitioner filed a criminal petition under Section 482 r/w Section 397 of the Criminal Procedure Code, 1973 (CrPC).

Analysis and Decision of the Court

Firstly, the court noted that the original complainant was neither present for the proceedings nor did he produce the relevant documents, as directed, therefore, such a complaint is liable to be dismissed for non-prosecution.

Therefore, the Court stated, “Being an officer of the justice delivery system, no one can conduct the affairs of the prosecution as an inquiry officer. As the original complainant did not pursue the matter nor produced the relevant documents, as directed, such a complaint is liable to be dismissed for non-prosecution u/s.203 CrPC and/or other relevant orders as to whether the complainant has been able to make out a prima facie case for proceeding etc. But a court of law is never assigned to undertake an inquiry to pursue the matter with higher authority as has been revealed by various orders of the court. Accordingly, all these orders suffer from serious illegality.

Secondly, the Court noted that when the interview was telecasted in Gauhati, no polling was scheduled for the next 48 hours, as per the notification poll schedule. The aforementioned fact was neither disclosed in the complaint nor did the trial court consider it while taking cognizance of the offence. Thus, the trial court had failed to discharge discretion while conducting proceedings.

Further, the Court opined that in the changing social scenario as well as the expansion of the digital era where the election commission itself has made arrangements to hold elections in phases in certain constituencies, it is time to revisit the provision enunciated in Section 126 of the RP Act which was enacted in the year 1951.

Hence, the Court held that continuation of the criminal proceedings would amount to an abuse of the process of court causing injustice, and quashing the proceeding would otherwise serve the ends of justice. Resultantly, the Court quashed the entire proceedings under Section 126(1)(b) of the RP Act and set aside the impugned order of the trial court.

[Himanta Biswa Sarma v. Election Commission of India, 2022 SCC OnLine Gau 927, decided on 10-06-2022]

Advocates who appeared in this case :

Mr. D. Saikia, Senior Advocate, for the Petitioner;

Mr. A. Sarma, Ms. P. Baruah, Advocate., Mr. R. Dubey, Advocate, Mr. A.I. Ali, Advocate, for the Respondent.

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Ananda Sen, J., while addressing the instant matter with regard to the application of Section 228A of Penal Code, 1860 and subsequently the provision of defamation expressed that:

“…publishing of newspaper report of facts of lodging of an FIR cannot be said to be defamatory, especially when the FIR has been lodged by the victim herself.”

Through this interlocutory application it was submitted that during the pendency of the case, lower court cancelled the bail bonds of the petitioners, which necessitated the filing of the instant interlocutory application.

The criminal miscellaneous petition under Section 482 of the Code of Criminal Procedure was filed by the petitioners to quash the order taking cognizance by which cognizance of offence under Sections 228 (A)/500/501/34 of the Penal Code, 1860 was been taken by the Judicial Magistrate.

OP 2 had filed a complaint against the petitioners who happen to be the Publisher, Chief Editor, Senior Editor and Resident Editor of a local newspaper and also against the newspaper itself and its publisher alleging therein that a newspaper report was published in the said newspaper with the following heading:

The said report contained that the victim was married and there was some dispute in relation to their residential house. She was subjected to sexual assault.

Complainant lodged a criminal complaint against the petitioners who happen to be the Editor and other officials of the newspaper alleging therein that as a result of the reporting of the FIR and incident, the victim was being harassed daily and sustained mental torture hence the said report amounts to be defamatory in nature.

Lower court on taking cognizance of the above incident issued summons to the petitioners.

Analysis and Decision

Bench noted that the said newspaper as stated above published a report about a lady, who had filed an FIR alleging that she was sexually assaulted after being administered with some narcotics. Though the sum and substance of the FIR was mentioned in the report no identity disclosure of the victim was reported.

Further, the Court added that only because the petitioners were Publisher, Chief Editor, Senior Editor and Resident Editor of the newspaper, they were named as accused.

In the complaint submitted it was nowhere mentioned that the fact reported was false, rather it was admitted that the fact, which was reported was true and the FIR had already been lodged by the victim under Sections 376/328 of the IPC.

In view of the above, Court stated that on perusal of the newspaper report it was found that name of the victim was not disclosed and since nothing was found in the newspaper report, which could suggest that the identity was made known, no application of Section 228 A IPC was made out.

Hence the Court held that in the present case it was a news which was admitted to be not false, thus not amounting to the application of Section 500 or 501 of the Penal Code, 1860.

High Court allowed the present criminal miscellaneous petition in view of the above discussion. [Ashutosh Choubey v. State of Jharkhand, 2019 SCC OnLine Jhar 2484, decided on 24-10-2019]

Telangana High Court
Case BriefsHigh Courts

Telangana High Court: K. Lakshman, J., addressed an issue in the criminal petition in light of Section 41-A of the Criminal Procedure Code, 1973 and the essence of quashing criminal proceedings was thrown light upon by citing the Supreme Court decision in Kamal Shivaji Pokarnekar v. State of Maharashtra, (2019) 14 SCC 350.

The present application sought to quash proceedings pending against the petitioners wherein they were accused of the offences alleged under Sections 498-A, 406 and 420 read with Section 34 of Penal Code, 1860 and Sections 3 and 4 of the Dowry Prohibition Act, 1961.

Petitioners Counsel submitted that petitioner 1 and daughter of respondent 2 — de facto complainant married in the USA and registered their marriage. Petitioner 2 is the father of petitioner 1. Petitioner 3 is the mother of petitioner 1.

It has been stated that the de facto complainant implicated the petitioners herein in this false case due to matrimonial disputes between his daughter and accused 1. 

Adding to the above, counsel stated that the punishment prescribed for the offences alleged against the petitioners is seven years and below seven years and the police without following the procedure laid down under Section 41-A of CrPC, is trying to apprehend the petitioners. In the said course of action, the police have been calling petitioners 2 and 3 who are other aged parents of petitioner 1-accused 1, suffering from various old-age ailments.

In view of the above, petitioners sought to quash the same.

In Supreme Court’s decision of Kamal Shivaji Pokarnekar v. State of Maharashtra, (2019) 14 SCC 350, it was held that:

“…quashing of criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same.”

“It was further held in the very same judgment that on perusal of the complaint, if discloses prima facie offences that are alleged against the respondents, it is sufficient. The correctness or otherwise of the said allegations has to be decided only in the trial. At the initial stage of issuance of process, it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused.”

Bench stated that in the present case, certain aspects need to be investigated by the investigating officer.

It is trite to note that the punishment prescribed for the offences alleged against the petitioners is imprisonment of seven years or below seven years.

Court disposed of the criminal petition directing the Station House Officer to follow the procedure laid down under Section 41-A of the CrPC and also the guidelines issued by the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.[Prudhvi Nallamanikaluva v. State of Telangana, 2020 SCC OnLine TS 1291, decided on 19-10-2020]

Op EdsOP. ED.

“Quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest.” [1]

Section 482[2] of the Code of Criminal Procedure, 1973 (“CrPC/Code”) saves the inherent power of the High Court(s). As per the said provision, “Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

A bare perusal of the provisions of Section 482 CrPC would clearly demonstrate that the said section does not confer any new power on the High Court[3]. In fact, it only saves the inherent power, which every High Court possessed before the enactment of the Code. Further, the provision envisages three circumstances under which the inherent jurisdiction may be exercised, namely: to give effect to an order under the Code; to prevent abuse of the process of court and to otherwise secure the ends of justice.

As per the Supreme Court[4], “The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution.” Pertinent to mention here that the Courts have consistently cautioned[5] that though, the inherent jurisdiction under Section 482 CrPC is wide, however, the same must be “exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist.”

Under the Code of Civil Procedure, 1908 (“CPC”), provision[6] for saving the inherent power of the Courts, including that of the trial courts, exists, however, no provisions for saving of inherent powers of the courts, subordinate to the High Court, exist under the Code/CrPC. Despite this, the subordinate courts, even in criminal proceedings are not handicapped to exercise their ancillary/auxiliary powers to do what is absolutely necessary for dispensation of justice. It is trite law[7], “[u]nder such circumstances in order to do what is absolutely necessary in the ends of justice or prevent prejudice or miscarriage of justice what is not prohibited could be taken as permitted because the Code of Criminal Procedure cannot be taken to have contemplated and provided for every contingency by making exhaustive provisions to meet the situations”.

As per the  Supreme Court[8], “All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice.” Clearly, despite the existence of an express provision under the Code/CrPC, saving the inherent powers of trial courts, all criminal courts are possessed of an “auxiliary power subject to restrictions which justice, equity, good conscience and legal provisions demand, provided it will not unnecessarily prejudice somebody else.”[9]

The inherent powers of the High Court(s) have, time and again, been invoked, inter alia, for seeking quashing of criminal complaint(s)/FIR(s) and proceedings, inter alia, in the instances where; criminal cases have a predominant and an overwhelming element of civil dispute, which the victim and the offender have settled[10]; continuance of prosecution will be a futile exercise which would serve no purpose[11]; allegations made in the first information report or the complaint, even if they are taken on their face value and accepted in their entirety, do not prima facie constitute any offence[12] or make out a case against the accused; allegations made in the FIR or complaint are so absurd and inherently improbable[13] on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; quashing of orders of issuance of summons/process[14]; etc.

Another instance where the inherent powers of the High Court(s) is often invoked is for the restoration of criminal complaint[15], dismissed for non-prosecution. However, no such power of restoration of criminal complaint, dismissed for non-prosecution, or power of review exists with the trial/Magistrate’s Court. In fact, it is trite law[16], under the Code/CrPC no power is conferred on the Magistrate to review or recall the order passed by him[17]. Accordingly, the only remedy available with the complainant under such an event is the invocation of the inherent powers of the High Court.

In this regard, the Supreme Court in A.S. Gauraya v. S.N. Thakur[18], observed, “[b]ut the question remains whether a Magistrate can restore a complaint to his file by revoking his earlier order dismissing it for the non-appearance of the complainant and proceed with it when an application is made by the complainant to revive it…..The Criminal Procedure Code does not contain any provision enabling the criminal court to exercise such an inherent power.”

These principles were reiterated by the Punjab and Haryana High Court[19] to the effect, “The Code of Criminal Procedure does not confer any power to review/recall an order. The only situation, in which a court may legitimately alter its order is, where it proposes to correct clerical and/or arithmetical errors. A complaint, once dismissed for failure of the complainant to put in appearance, therefore, cannot be restored.”

Pertinently, under CPC, the provisions for restoration of suit[20] dismissed for failure of service of summons[21] and non-appearance of parties[22]; setting aside of an order of ex parte proceedings[23] and setting aside of ex parte decree[24], exist. However, under the Code/CrPC, once a complaint is dismissed for non-prosecution and/or the accused is discharged or acquitted, in terms of the provisions of Sections 249[25] and 256[26]  CrPC respectively, the Magistrate cannot be approached by the complainant for the purpose of restoration of such complaint/ proceeding, even for the reasons of “sufficient cause” or otherwise. In fact, as aforementioned, under such circumstances, the only remedy available with such a complainant would be to invoke the jurisdiction of High Court(s) in terms of Section 482 CrPC. Understandably, in the absence of any such power on the Magistrate’s Court to review/recall/set aside its order for dismissal of complaint for non-prosecution, the burden of the High Courts intensifies to a great deal. At the same time, the absence of remedy/recourse with a bona fide complainant may also result in undue harassment, delay in criminal proceeding/prosecution, incurring of additional expenses, etc. 

The Law Commission of India (“the Law Commission”) as early as the year 1991, carried out an exhaustive study, inter alia, of the provisions of Section 256 CrPC, especially in the context of absence of power of the trial/ Magistrate’s Court to restore criminal complaint/proceedings and submitted its Report[27] on its comments and recommendations. The Law Commission in the said Report duly acknowledged that the absence of such power of restoration of criminal complaint/ proceeding with the trial court may, “cause and are likely to cause serious hardship and injustice in practice in several cases.” It was further appreciated by the Law Commission that even in the cases where such absence of the complainant may be justified by the reasons of “sufficient case”, the consequential order of acquittal of the accused for the reasons of such absence may result in throwing out of a meritorious case. Under such an event of passing of an order of acquittal, it was recognised, would bar a subsequent trial before the same court and the complainant would be bound/burdened to take recourse to remedies of appeal, etc., which may prove costly and tedious. Further, acknowledging, “a meritorious complaint of a complainant cannot be allowed to be thwarted, only on the ground that the complainant was unable to remain present”, the Law Commission was of the opinion that the power to set aside dismissal and restoring the complaint has to be conferred with the criminal/Magistrate’s Court. Accordingly, the Law Commission recommended the amendment to Section 256 CrPC by incorporating the provision of initial termination of proceedings on complainant’s absence which may ultimately lead to acquittal, unless the order of such termination is set aside in the manner proposed. As per the recommendation of the Law Commission, the order of termination of proceedings may be set aside within a period of 30 (thirty) days of such order, on an application of the complainant and the service/notice of the same on the accused.

The Law Commission, again vide its 233rd Report[28] reiterated its previous recommendations made in the year 1991 and recommended, “appropriate  amendments in Sections 249 and 256 of the Code of Criminal Procedure, 1973 inserting provisions on the lines of Order 9 CPC, enabling restoration of complaints.” Pertinently, in its earlier Report (141st Report), the Law Commission had also recommended amendment of Section 482 CrPC for conferment of inherent powers also on all subordinate criminal courts, other than the High Court. Clearly, the recommendations were premised on the understanding that the same may enable reducing the burden of superior courts and ensuring that no injustice is resulted as a course of administration of criminal justice.

It is settled law, procedural prescriptions/laws are the handmaid and not the mistress; a lubricant, not a resistant, in the administration of justice[29]. As per the Supreme Court[30], “Procedure is meant to subserve and not rule the cause of justice. Procedural laws must be liberally construed to really serve as handmaid. Technical objections which tend to defeat and deny substantial justice should be strictly discouraged.” Further, considering the dynamic nature of laws and dependent on the need of society, laws must adapt and modify so that such societal needs are properly catered to. In light of recommendations of the Law Commission and being cognizant of the fact that the absence of provisions of restoration of criminal complaint, dismissed for some unforeseeable and unavoidable reasons would result in aggravating the plight of the victim, complainant and the overburdened judicial system, it is only apt that the recommendations of the Law Commission for amendment of the provisions of Sections 249 and 256 CrPC are adopted under the Code. In the alternate or simultaneously, explicit provision for recognition of the ancillary powers or conferment of inherent powers on trial/ Magistrate’s Court may be introduced under the Code so that the mere absence of procedural provisions, does not deprive the victims of abuse of their substantial rights and proper legal recourse.

*Managing Associate, L&L Partners Law Offices

[1] Latin maxim meaning, “When the law gives anything to anyone, it also gives all those things without which the thing itself could not exist.”

[2] Section 482 CrPC  

[3] Priya Vrat Singh v. Shyam Ji Sahai, (2008) 8 SCC 232 

[4] State of Karnataka v. L. Muniswamy, (1977) 2 SCC 699 

[5] State of A.P. v. Golconda Linga Swamy, (2004) 6 SCC 522 

and State of A.P. v. Gourishetty Mahesh, (2010) 11 SCC 226 

[6] 151. Saving of inherent powers of Court.—Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of the justice or to prevent abuse of the process of the court.

[7] Madhavi v. Thupran, 1987 SCC OnLine Ker 219

[8] Minu Kumari v. State of Bihar, (2006) 4 SCC 359 [Also refer to State Prosecutor, In re, 1972 SCC OnLine Ker 201]

[9] Madhavi v. Thupran, 1987 SCC OnLine Ker 219

[10] Parbatbhai Aahir v. State of Gujarat, 2017 SCC OnLine SC 1189

[11] Shiji v. Radhika, (2011) 10 SCC 705

[12] State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335

[13] Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736; State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 and M. Mohan v. State, (2011) 3 SCC 626

[14] Urmila Devi v. Yudhvir Singh, (2013) 15 SCC 624; Aroon Poorie v. Jayakumar Hiremath, (2017) 7 SCC 767

[15] Jagir Singh v. State of Haryana, 2006 SCC OnLine P&H 1276; Purshotam Mantri v. Vinod Tandon, 2008 SCC OnLine P&H 125

[16] Bindeshwari Prasad Singh v. Kali Singh, (1977) 1 SCC 57

[17] Including an order passed for dismissal of complaint for its non-prosecution

[18] (1986) 2 SCC 709

[19] Krishan Lal v. Sangeeta Aggarwal, 2009 SCC OnLine P&H 4894

[20] Order 9  Rule 4 of the Code of Civil Procedure, 1908 

[21] Order 9  Rule 2 of the Code of Civil Procedure, 1908 

[22] Order 9  Rule 3 of the Code of Civil Procedure, 1908  

[23] Order 9  Rule 7 of the Code of Civil Procedure, 1908 

[24] Order 9  Rule 13 of the Code of Civil Procedure, 1908 

[25] 249. Absence of complainant.—When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused.

[26] 256. Non-appearance or death of complainant.— (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.

[27] 141st Report on Need for Amending the Law as Regards Power of Courts to Restore Criminal Revisional Application and Criminal Cases Dismissed for Default in Appearance.

[28] 233rd Report on Amendment of Code of Criminal Procedure Enabling Restoration of Complaints (August, 2009)

[29] State of Punjab v. Shamlal Murari, (1976) 1 SCC 719

[30] Sarah Mathew v. Institute of Cardio Vascular Diseases, (2014) 2 SCC 62

Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J., while exercising inherent powers under Section 482 CrPC quashed the criminal complaint filed against the petitioners for the offences punishable under Sections 405, 420 and 441 read with Section 120-B IPC. Warrants issued against the petitioners by the Magistrate in the same case were also quashed.

The parties were involved in a landlord-tenant dispute, pursuant to which the said complaint was filed by the landlord. Magistrate took cognizance and issued process against the petitioners. Aggrieved, they filed the instant petition. It was an admitted fact that the petitioners resided beyond the territorial jurisdiction of the Magistrate concerned.

Dismissing Chapter 15 of CrPC which deals with complaints to Magistrates, the High Court relied on Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., 2019 SCC OnLine SC 682, wherein the Supreme Court held that under the amended sub-section (1) to Section 202 CrPC, it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction. he shall inquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fir for finding out whether or not there is sufficient ground for proceeding against the accused. The Supreme Court also held that the order of the Magistrate must reflect that he has applied his mind to the facts of the case and the law applicable thereto. It was also held that the application of mind has to be indicated by disclosure of mind on the satisfaction and considering the duties of the magistrates for issuance of summons to accused in a complaint case, there must be sufficient indication of it. The Supreme Court after referring to a catena of its previous judgments held that summons may be issued if the allegations in the complaint, the complainant statement and other materials would show that there are sufficient grounds for proceeding against the accused.

The records of the instant matter, however, did not reveal that the Magistrate had complied with the provisions of Section 202 CrPC and applied her mind to the facts of the case and the law applicable thereto. The order of taking cognizance stated that “cognizance of the matter is taken against accused no. 1, 2, 3 and 4”. Section 190 CrPC deals with cognizance of offence by Magistrate, which provides that the Magistrate “may take cognizance of any offence.” It is settled law that cognizance is taken of the offence and not the offender. The Magistrate did not even mention which of the offences she had taken cognizance of.

It was, thus, held that the Magistrate failed to exercise her discretion to issue summons against the petitioners residing beyond her territorial jurisdiction in the manner required. Even otherwise, considering the allegations, it was found that there was no material before the Court to proceed under criminal jurisdiction. [Mohd. Yusufuddin Ahmed v. Ruth Karthak Lepchani, 2019 SCC OnLine Sikk 198, decided on 07-12-2019]

Case BriefsHigh Courts

Orissa High Court: Dr Akshaya Kumar Mishra, J. quashed lower court proceedings partially and directed to proceed the matter under the Penal Code.

The present case relates to an FIR lodged by the Mining Officer, Office of the Deputy Director of Mines, Koira Circle, Sundargarh alleging that Ajay Mineral & Steels (P) Ltd. procured a certain metric ton of Iron ore lumps in an unauthorized manner for crushing and conversation purpose. The FIR was registered under Section 379 and Section 34 of the Penal Code, 1860 and under Section 21 of Mines and Minerals (Development & Regulation) Act, 1957 (‘MMDR’). Upon investigation of the matter, a charge sheet was submitted basing upon which the learned Sub Divisional Judicial Magistrate, Bonai took cognizance of the matter and nine of the accused persons including the present four petitioners were issued for initiation of the proceedings against them.

Sanjit Mohanty, S.P. Panda, S. Pattnaik, and P.K. Muduli, learned counsels representing the petitioners submitted that the police had no jurisdiction to try the case under the MMDR Act and the matter needs to be quashed due to the entire proceedings being illegal in nature. The Advocates also relied on the decision Surendra Kumar Agarwal v. State of Orissa (2009) 44 OCR 232.

Additional Government Advocate representing the respondent, D.K. Praharaj placing reliance on the Supreme Court judgment in the case of State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 stated that the proceedings should continue due to the case being registered under Section 379 IPC.

The High Court referred to the cited judgments wherein Surendra Kumar Agarwal it has been held that “provisions contained in Section 22 of the MMDR Act and Rule 15 of the 2007 Rules, makes it abundantly clear that no Court shall take cognizance of offence punishable under the said Act or the 2007 Rules made thereunder, except upon a complaint in writing made by the competent authority or person authorized in that behalf by the Central Government or the State Government.” However, as an Apex Court decision shall take priority over a High Court judgment the present court took into consideration the decision of the Apex Court which stated that “Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed.” It also held that “the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such persons is sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitutes an offence under the Penal Code.”

High Court quashed the lower court order partially stating that for want of complaint, the offence for contravention of Section 4 of MMDR Act cannot be proceeded with and thereby only proceedings under Section 379 of the IPC shall be proceeded with accordingly.[Ramesh Ku. Agarwal v. State of Orissa, 2019 SCC OnLine Ori 226, decided on 09-07-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for SAFEMA, FEMA, PMLA, NDPS & PBPT Act: The Coram of Manmohan Singh, J. (Chairman) and G.C. Mishra (Member) allowed the appeal of a person whose property, allegedly pertaining to a money laundering transaction, had been seized.

An FIR was registered by the CBI in 2017 under Section 13 of the Prevention of Corruption Act, 1988 and Sections 120B read with Sections 420, 467, 468 and 471 of the Penal Code, 1860 against a company Sterling Biotech Ltd. Sole allegation against appellant was that he was involved in erasing and taking a backup of certain digital data/records pertaining to one Ghanshyam Pandya, and that he was in possession of certain documents/records/property relating to money laundering. His residential premises were searched and the respondent sealed his 4 mobile phones, 2 pen drives, 2 mobile tablets, and 1 laptop. The Adjudicating Authority passed an order under Section 8(3) of Prevention of Money Laundering Act, 2002 confirming retention of the property. Hence, the present appeal.

Dr Shamsuddin, Advocate appearing on behalf of the appellant contended that Section 20(1) of PMLA mandates that the officer authorised by Director is under an obligation to record the ‘reason to believe’ in writing as to why the seized property is to be retained for adjudication under Section 8. Further, the authorised officer must forward a copy of the order for the retention of the property along with the material in his possession in a sealed envelope to the Adjudicating Authority. On the basis of the ‘reason to believe’ recorded under Section 20(1) and the order passed under Section 20(2), Adjudicating Authority must record a satisfaction under Section 20(4) that the property is prima facie involved in money laundering and is required for adjudication under Section 8. There was no compliance of the statutory mandates.

The Court noted that nothing had been brought on record to prove that the seized properties had any nexus or link whatsoever with money laundering. Settled law states that if a particular thing is to be done in a particular manner, it must be done in that manner only and none other. Reliance in this regard was placed on Dipak Babaria v. State of Gujarat, 2014 (3) SCC 502.

Counsel for the respondent Mr Nitish Rana admitted that appellant was not arrayed in the FIR nor any criminal complaint was pending against him. More than one and a half year had passed and still, nothing was revealed against the appellant.

It was opined that Section 8(3)(a) PMLA provides that the attachment or retention of property or record seized shall continue during the investigation for a period not exceeding 90 days. Since the said period had already elapsed, and no prosecution complaint had been filed against the appellant, therefore it was held that the seizure had lapsed. Accordingly, the respondent was directed to return the property retained by it to the appellant. [Arvind Gupta v. Deputy Director Directorate of Enforcement, Delhi, 2019 SCC OnLine ATPMLA 3, Order dated 25-03-2019]

Case BriefsHigh Courts

Bombay High Court: Considering the reply filed by the second respondent in the present case, the Division Bench comprising of V. M Kanade and Nutan Sardessai, JJ., ordered the  quashment of  the criminal complaint filed against the applicant under Sections 376, 323, 504 and 506 of the IPC. In the present case, the second respondent alleged that the applicant had physical relations with her by obtaining her consent on a false promise; however later on, the second respondent filed an affidavit mentioning her condition of depression stating that in consequence of the insecurity she felt, she filed a complaint against the applicant.

The Court relying on the ratio laid down in Narinder Singh v. State of Punjab, (2014) 6 SCC 466, held that, though the complaint filed under Section 376 of the IPC is a punishable offence, but in view of the reply filed by the second respondent, it would not constitute an offence, thereby quashing the criminal complaint. [Manteshwar Hanumantrao Kattimani v. State of Maharashtra, 2016 SCC OnLine Bom 10581 , decided on 2-12-2016 ]