Case BriefsDistrict Court

Karkardooma Courts, Delhi: While addressing a case of alleged criminal conspiracy, Virender Bhat, ASJ-03, expressed that,

“The circumstances in a case, when taken together on their face value, should indicate the meeting of minds between the conspirator for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy.”

The prosecution’s case was that the accused were members of an unlawful assembly on 25th and 26th February, 2020 and the object of which was to take revenge for the death of the several Hindus during riots and to teach Muslims a lesson, and in order to achieve the said, they hatched a conspiracy to which they bludgeoned to death innocent persons namely Aas Mohammad.

As per the charge sheet, three persons were apprehended, and their mobile phones were seized and the data was checked. As per the WhatsApp data on the phone of Mohit Sharma and Shivam Bhardwaj, it was revealed that they were members of the WhatsApp group “Kattar Hindu Ekta”. An accused Lokesh Solanki was found to be a member of this group and messages had also been sent to group by him.

Analysis, Law and Decision


Court expressed that the offence of criminal conspiracy has its foundation in an agreement to commit an offence, it consists not merely in the intention of two or more, but in the agreement of the two or more to do an unlawful act by unlawful means.

“…the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved by direct evidence or by circumstantial evidence or both.”

Elaboration further with regard to conspiracy, Bench stated that it requires an act and an accompanying mental state.

To convict a person for the offence of conspiracy, the prosecution must show that he agreed with others that together they would accomplish the unlawful object of the conspiracy.

In the present matter, the only evidence with regards to hatching the conspiracy of the accused were the chats on the WhatsApp group “Kattar Hindu Ekta”.

On perusal of the chats, it nowhere indicated that the said group had been formed for any particular illegal object i.e., to kill the persons belonging to the Muslim community as well as to vandalize/burn their properties and that the members had agreed with each other that they would accomplish any such unlawful object of the conspiracy.

Infact, as per the Court’s opinion, the said chats revealed that the members were keeping themselves ready for any attack from other communities.

“There was nothing in the WhatsApp Chats to lead this Court to any conclusive or irresistible inference that the members of the group had agreed for any particular unlawful object and for accomplishment of that unlawful object.”

Further, the Court analyzed that the messages posted in the group nowhere indicated that the members had formed the requisite mental state to launch an offensive against the members of the other community and to commit vandalization/arson of their properties and kill them.

In fact as per the prosecution’s case, except for Lokesh Solanki, none of the other accused were a member of the said group, hence it would be unfathomable as to how an agreement between all the accused to do an illegal act can be inferred merely from the message posted in the said WhatsApp group.

In view of the above discussion, the charge of the conspiracy failed.

Another statement relied upon by the Special PP was of Nisar Ahmed who stated that the accused were asking Hindus to come out of their homes, to bring out the Muslims from their homes, kill them and rob/usurp their homes. Even if the said statement was taken at its face value, it would still only indicate exhortation.

For the above, Court stated that,

“Mere exhorting others to come out and indulge in criminal activities does not tantamount to any agreement between the person who holds out exhortation and the person to whom the exhortation is held out, to commit a crime.”

Therefore, no offence of criminal conspiracy was made out. [State v. Lokesh Kumar Solanki, 2022 SCC OnLine Dis Crt (Del) 20, decided on 15-3-2022]

Case BriefsSupreme Court

Supreme Court: In a major relief to Samajwadi Party Leader Azam Khan, the 3-judge bench of L. Nageswara Rao, BR Gavai and AS Bopanna, JJ has granted him interim bail in a cheating case.

Azam Khan, who,  in the case at hand, was accused for committing offences punishable under Sections 420 and 120B of the Penal Code, 1860, was accused in 87 criminal cases when he approached the Supreme Court and was granted bail in 84 cases at that point of time. He, however, has now been granted bail in all 87 cases.

Interestingly, though the FIR was registered on 18th March, 2020 and the charge-sheet in the said FIR was filed on 10th September, 2020, Azam has only now been implicated, i.e., after a period of 1 year and 7 months, by order dated 6th May, 2022 passed by the Additional Chief Judicial Magistrate, Rampur.

“It is not as if that the allegations which are now sought to be made against the petitioner could not have been made at that point of time. The main allegation against the petitioner in the said FIR No.70 of 2020 is that the certificates are forged. Further allegation is that the person who had issued the certificates was not authorized to issue those certificates.”

Hence, taking into consideration the delay in implication of Azam Khan and the nature of the allegations made therein, the Court was of the view that it will not be in the interest of justice to deprive him of his personal liberty, particularly when in respect of 87 criminal cases/FIRs, he has already been released on bail.

While the Court directed Azam Khan to be released on interim bail, he is directed to file an application for regular bail before the Competent Court within a period of two weeks from the date of order.

It has, however, been made clear that the interim bail granted to the petitioner by the present order shall continue to operate till the decision of the Competent Court in the application for regular bail and in the event that the regular bail application is decided against the interest of Azam Khan, the present interim bail shall continue to operate for a further period of two weeks from the date of the order passed by the Competent Court in the application for regular bail.

[Md. Azam Khan v. State of Uttar Pradesh, WRIT PETITION (CRIMINAL) NO.39 OF 2022, order dated 19.05.2022]


Counsels

For Appellant: Senior Advocate Kapil Sibal

For State: Additional Solicitor General S.V. Raju

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, BR Gavai and AS Bopanna, JJ has granted bail to Indrani Mukerjea, accused of murdering her daughter Sheena Bora after noticing that “even if 50% of the remaining witnesses are given up by the prosecution, the trial will not complete soon.

Indrani is charged of kidnapping her daughter with intention to murder and committing murder after entering into a criminal conspiracy. She is the wife of Pratim @ Peter Balram Mukerjea who is co-accused in the case. She is alleged to have committed murder being annoyed by the live in relationship of her daughter, through her earlier husband Sanjeev Khanna with Rahul Mukerjea who is the son of Peter Balram Mukerjea, through his earlier wife-Shabnam Singh.

Taking into account the fact that Indrani has been in custody for 6½ years and even if 50% of the remaining witnesses are given up by the prosecution, the trial will not complete soon, the Court was of the considered view that she was entitled to be released on bail.

The Court, hence, directed,

  • The petitioner shall surrender her passport to the C.B.I. Court and shall not leave India without permission of the C.B.I. Court.
  • The petitioner shall inform her latest place of residence and contact number immediately after being released and/or change of residence or mobile details, if any, from time to time to the prosecution as well as C.B.I. Court, in writing.
  • The petitioner shall not influence the prosecution witnesses or tamper with the evidence.
  • The petitioner shall regularly attend the trial and shall not seek any adjournment on whatsoever count.
  • The petitioner in any case shall not meet or establish contact with the witnesses till recording of evidence is over.
  • If there are two consecutive defaults in appearing before the trial Court or breach of any of the above conditions, the prosecution will be at liberty to apply for cancellation of petitioner’s bail.

[Indrani Pratim Mukerjea v. CBI, 2022 SCC OnLine SC 695, order dated 18.05.2022]


Counsels

For Petitioner(s): Sr. Adv. Mukul Rohatgi and Advocates Sana Raees Khan, Sushil Karanjkar, Dhawesh Pahuja and Sandeep Singh

For Respondent(s): ASG Suryaprakash V.Raju and Advocates Sairica Raju, Rajat Nair, Nidhi Banga, Sudarshan. K., Arvind Kumar Sharma, Sachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph, Adv. Ms. Shewtal Shepal and Risvi Muhammed.

Case BriefsSupreme Court

Supreme Court: In the case where the bench of Hemant Gupta and V. Ramasubramanian*, JJ upheld NCLAT’s order of winding up of Devas Multimedia Private Limited, the requirement of advertising the winding up petition was looked into and the Court observed that the failure to publish an advertisement would not lead to the automatic dismissal of the petition for winding up.

Analysis

The Court analysed Rule 5 of the  the Companies (Transfer of Pending Proceedings) Rules, 2016 which prescribes the procedure to be followed by the Tribunal, upon the filing of a petition for winding up.

What does Rule 5 state?

The step-by-step procedure prescribed in Rule 5 is as follows:-

(1) The petition should first be posted before the Tribunal for admission.

(2) The purpose of posting the petition for admission is threefold, namely,

(i)  fixing a date for hearing of the petition;

(ii) issuing appropriate directions as to the advertisement to be published; and

(iii) indicating the persons upon whom the copies of the petition are to be served.

(3)  On the date when the petition is posted for admission, the Tribunal may direct notice to be given   to   the company and also provide an opportunity of being heard before giving directions as to the advertisement of the petition.

What is the purpose of advertisement?

The Court noticed that the essence of Rule 5 is to provide an opportunity of being heard to the company sought to be wound up, even before directions as to the advertisement of the petition are given.

Two purposes:

  • it provides an opportunity to all the stakeholders such as (i)creditors; (ii)workers; (iii) suppliers; (iv) customers; and (v) the general public, either to support or oppose the proceedings for winding up.
  • it serves as a warning/notice or red alert to all those dealing with the company so that they know that there could be an element of risk in dealing with the company.

Explaining why an opportunity of being heard is contemplated in Rule 5, before ordering the advertisement of the petition, the Court said,

“After all, the winding up of a company is like the insolvency of an individual. The advertisement of the petition for winding up, not merely serves as an opportunity to support or oppose winding up, but also harms the reputation of the company and sends shock waves in the stock market, if it is a listed company or among the stakeholders who have dealings with the company.”

What happens in case of failure to publish an advertisement?

The Court went through a number of authorities where the Court took a view that advertisement is mandatory, not only in view of the prescription contained in the Rules, but also in view of the specific order passed by the Company Court at the time of admission, directing the publication of the advertisement in specified newspapers. The Court, however, observed that even in such cases the failure to publish an advertisement was not seen as something that would lead to the automatic dismissal of the petition for winding up.

“This is for the reason that the advertisement of a petition for winding up is perceived to be something that worked at cross purposes, sometimes beneficial to several stakeholders as it provides an opportunity of hearing to them and sometimes as a measure of harassment of the company. There are cases where the companies themselves have opposed the advertisement of the petition on the ground that the same would harm their reputation and cripple their commercial activities. There are also cases where the failure to advertise has led to some of the creditors not having any notice of the proceedings and thereby suffering prejudice.”

Was non-publishing of advertisement detrimental to the case at hand?

In the case at hand it was alleged that the petition for winding up of Devas was never advertised nor even ordered to be advertised, either upon the admission of the petition or anytime thereafter. It was therefore contended that the failure to comply with this requirement which is mandatory, vitiates the whole proceedings.

To know what the case was about, read this.

In the present case, there were no stakeholders who were prejudiced by the failure of NCLT to order the publication of advertisement of the petition.

Also, this was not a case where the company is sought to be wound up on the ground of inability to pay debts or on just and equitable ground. This was a case of fraud and all stakeholders were fully aware of the proceedings and they had even shown extreme urgency in enforcing an ICC Arbitration award and BIT awards, before the conclusion of the winding up proceedings.

Therefore, the Court rejected the argument that the failure of the Tribunal to order the publication of an advertisement rendered the entire proceedings unlawful.

[DEVAS Multimedia Pvt. Ltd.v. Antrix Corporation Ltd., 2022 SCC OnLine SC 46, decided on 17.01.2022]


*Judgment by: Justice V. Ramasybramanian


Counsels

For DEVAS: Senior Advocate Mukul Rohtagi,

For shareholder¬appellant: Senior Advocate Arvind P. Datar,

For Antrix: Additional Solicitor General N. Venkataraman

For UPI: Additional Solicitor General Balbir Singh

Case BriefsSupreme Court

Supreme Court: The bench of Hemant Gupta and V. Ramasubramanian, JJ has upheld NCLAT’s order of winding up of Devas Multimedia Private Limited and has observed that allowing Devas and its shareholders to reap the benefits of their fraudulent action, may send another wrong message that by adopting fraudulent means and by bringing into India an investment in a sum of INR 579 crores, the 133 investors can hope to get tens of thousands of crores of rupees, even after siphoning off INR 488 crores.

Antrix Corporation Limited, the commercial arm of the ISRO, entered into a Memorandum of Understanding with Forge Advisors, LLC, a Virginia Corporation to make both parties become “strong and vital partners in evaluating and implementing major new satellite applications across diverse sectors including agriculture, education, media and telecommunications”.

In furtherance of this Agreement, Forge Advisors made a presentation proposing an Indian joint venture, to launch what came to be known as “DEVAS” (Digitally Enhanced Video and Audio Services) for delivering multimedia and information services via satellite to mobile devices tailored to the needs of various market segments.

Hence, DEVAS was incorporated as a private company and Antrix immediately entered into an Agreement i.e. “Agreement for the lease of space segment capacity on ISRO/Antrix SBand spacecraft by DEVAS” with the said company on 28.01.2005.

Alleging that Devas offered services which were non­existent, through a device which was not available and that even the so­called intellectual property rights over the device were not available, Antrix asserted that the aforementioned agreement as a result of a fraudulent and criminal conspiracy between the persons in management of the affairs of the company and the officials of Antrix/Government of India, to award a lease of scarce and   valuable   S­band   spectrum,   without   obtaining   necessary approvals and without following applicable norms and procedures.

It was alleged that the company which was formed with an authorized share capital Rs. 1,00,000/¬  in December, 2004, managed to secure a contract for a stated consideration of an “up-front capacity reservation fee” in the region of US, $ 20 million per satellite, apart from annual license fee of around US $ 9 million per satellite.

Not just the investors and the share¬holders concerned in the formation and the management of its affairs but also some of the then officials of Antrix and the Government of India were guilty of fraud, corrupt practices and money laundering.

Noticeably, not just the winding up proceedings but criminal proceedings also came to be initiated by CBI when the criminal conspiracy, fraud and corrupt practices came to light.

The Supreme Court noticed that when two forums namely NCLT and NCLAT have recorded concurrent findings on facts, borne out by documents, none of which is challenged as fabricated or inadmissible, the orders did not warrant any interference.

It observed,

“If the seeds of the commercial relationship between Antrix and Devas were a product of fraud perpetrated by Devas, every part of the plant that grew out of those seeds, such as the Agreement, the disputes, arbitral awards etc., are all infected with the poison of fraud. A product of fraud is in conflict with the public policy of any country including India. The basic notions of morality and justice are always in conflict with fraud and hence the motive behind the action brought by the victim of fraud can never stand as an impediment.”

[DEVAS Multimedia Pvt. Ltd.v. Antrix Corporation Ltd., 2022 SCC OnLine SC 46, decided on 17.01.2022]


*Judgment by: Justice V. Ramasybramanian


Counsels

For DEVAS: Senior Advocate Mukul Rohtagi,

For shareholder¬appellant: Senior Advocate Arvind P. Datar,

For Antrix: Additional Solicitor General N. Venkataraman

For UPI: Additional Solicitor General Balbir Singh

Case BriefsSupreme Court

Supreme Court: Noticing that the allotment of government largesse on the basis of discretionary quota inevitably leads to corruption, nepotism and favouritism, the bench of MR Shah* and BV Nagarathna, JJ has suggested that discretionary quota should be done away with, and allotments of the public properties/plots must be through public auction by and large.

“The allotment of plots in the discretionary quota cannot be at the whims of the persons in power and/or the public servants who are dealing with the allotment of plots in the discretionary quota.”

The criminal conspiracy that led to the observation

The observation came in a case where in pursuance of an alleged criminal conspiracy and by abusing their official positions, the officials of the Bhubaneswar Development Authority (BDA) and of the Housing and Urban Development Department, Government of Odisha Deptt. (H.&U.D.), Government of Odisha, surreptitiously distributed 10 prime plots in the discretionary quota to their own family members/relatives.

The Orissa High Court had quashed the criminal proceedings against the official. However, the Supreme Court found the said order unsustainable, both, in law and/or facts as the,

“The allegations against the respondents – accused are very serious including hatching a criminal conspiracy in allotment of 10 plots in the discretionary quota arbitrarily and to their own family members/relatives. There are specific allegations with respect to huge loss caused to the B.D.A and the public exchequer, as according to the prosecution the plots were allotted at throw away prices.”

The Court held that action has to be initiated against the officials who are prima facie responsible for the illegality in the allotment of the plots to the relatives and/or family members resulting in huge loss to the B.D.A. and the public exchequer.

Why it’s time for the discretionary quota to go

Allotment of public properties must be transparent and has to be fair and non-arbitrary and in such matters public interest only has to be the prime guiding consideration. The objective is to get the best or maximum price so that it may serve the public purpose and public interest so as to avoid loss to the authority and/or the public exchequer.

“When a democratic government in exercise of its discretion selects the recipients for its largess, then discretion should be exercised objectively, rationally, intelligibly, fairly and in a non-arbitrary manner and it should not be subjective and according to the private opinion and/or the whims and fancies of the persons in power and/or the public servants.”

However, even if guidelines are issued to be followed while allotment of the plots under the discretionary quota and it is found that many a time they are hardly followed or are manipulated to suit the particular circumstances.

Therefore, the Court was of the opinion that the best thing is to do away with such discretionary quota and allotments of the public properties/plots must be through public auction by and large.

[State of Orissa v. Pratima Mohanty, 2021 SCC OnLine SC 1222, decided on 11.12.2021]


*Judgement by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsHigh Courts

Allahabad High Court: Sanjay Kumar Singh, J. while addressing a bail application of an accused expressed that,

“A criminal conspiracy is generally hatched in secrecy, and it is difficult to obtain direct evidence.”

Instant bail application was filed to seek bail in a case filed under Sections 302, 201, 120-B and 34 of the Penal Code, 1860 during the pendency of the trial.

Factual Matrix 

Complainant who was the friend of the deceased lodged the FIR against the co-accused Shamshad (husband of present applicant Aysha Khatoon) for the offence under Section 364 of Penal Code, 1860 to the effect that the co-accused who was a Muslim by caste and already married had lured and masquerade the deceased 5 years ago and solemnized second marriage with her.

Thereafter, the deceased and her daughter started residing with him.

Deceased had informed the complainant about the torture and harassment along with the threat that co-accused used to subject her to due to her being aware of the first marriage of the co-accused.

Co-accused had confessed his guilt before the police wherein he confessed that the deceased resided with him under a live-in relationship, and he used to bear all the expenses of both the deceased.

Further, he added that co-accused-Shamshad also stated that the deceased was a very high ambitious lady and also spend a lot of money and was leading a luxurious life and when he tried to stop her from doing so, she started squabbling with him.

On an intervening night, the deceased started quarreling with co-accused and demanded money, then he strangulated the victim to death and also killed her daughter (second deceased) by putting the pillow on her face.

The co-accused even confessed that the dead bodies of both the deceased were hidden by him on the floor of the L.E.D room of his house. Police recovered the skeleton and other parts of the bodies in a decomposed condition.

Analysis, Law and Decision

 High Court noted the fact that it was a brutal and heinous double murder case, in which a helpless mother, who blindly trusted upon the co-accused, Shamshad and living with him for the last 5 years and her little daughter had been flagitiously killed and their dead bodies had been hid by the co-accused Shamshad with the help of his brother-in-law in the floor of the room.

“Deceased would never have imagined that the place where they lived would become their graveyard.”

Bench noted the fact that the dead bodies of both the deceased had been buried by the co-accused to destroy the evidence.

Further, the High Court asserted that it is well settled that a man may tell a lie, but circumstances do not.

Hence, in view of the above background, the innocence of the applicant could not be adjudged at the pre-trial stage.

Therefore, while rejecting the bail application, Bench concluded stating that,

 “…trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led uninfluenced by anything expressed in this order.”[Aysha Khatoon v. State of U.P., 2021 SCC OnLine All 548, decided on 16-08-2021]


Advocates before the Court:

Counsel for Applicant:- Yogendra Pal Singh, Avnish Kumar Srivastava

Counsel for Opposite Party:- G.A.

Case BriefsDistrict Court

Delhi Court: Vinod Yadav, J., held that Umar Khalid cannot be permitted to remain behind bars in the present case on the basis of such a sketchy material against him and added that he cannot be made incarcerate in jail for infinity merely on account of the fact that other persons who were part of the riotous mob were to be identified and arrested in the matter.

Prima facie, the applicant appears to have been roped in the matter merely on the basis of his own disclosure statement and disclosure statement of co-accused Tahir Hussain.

On the statement of Constable Sangram Singh, an FIR was registered wherein he stated that he was on duty when a large crowd gathered on the road near Chand Bagh Pulia and started pelting stones.

When the constable went to save himself into a parking lot, a mob broke the shutter and thrashed all the persons present inside. Vehicles that were lying were set on fire and the complainant’s motorcycle was also burned by the rioters.

During the inspection of the building of principal accused Tahir Hussain, it was found that the said building was used by rioters/miscreants/accused persons for brick batting, stone pelting, pelting of petrol bombs and acid bombs. A lot of stones, bricks, glass bottles containing petrol with neck stuffed with clothes and other material, including catapults were found lying on the third floor and on the rooftop of the principal accused Tahir Hussain’s house.

Analysis, Law and Decision

Bench noted that it was not prosecution’s case that the applicant was physically present at the scene of crime on the date of incident.

It was also recorded that the applicant was not visible in any CCTV footage/viral videos pertaining to the incident and no identification of the applicant either through independent public witness or any police witness of he being at the scene of crime on the date of incident.

“…applicant has merely been roped in the matter on basis of his own disclosure statement, fourth disclosure statement of co-accused Tahir Hussain and disclosure statement of co-accused Khalid Saifi.”

Bench added that the argument that the applicant was in regular contact with co-accused Tahir Hussain and Khalidi Saifi over the mobile phone is hardly of any consequences, as prima facie that does not in any way go on to establish the criminal conspiracy alleged against the applicant in the matter.

Court stated that it is aware of the fact that besides the present matter, the applicant was also accused in the case of FIR No. 59 of 2020.

Reliance was placed on the decisions cited by the applicant as the said judgments duly apply to the facts of the present case.

High Court quoted the Judgment of Delhi High Court in Devangna Kalita v. State, 2020 SCC OnLine Del 1092, wherein bail was granted to Devangna Kalita in the case of murder and rioting, primarily on the ground that the material against her was the disclosure statement of co-accused Shahrukh recorded in the case of a larger conspiracy and her presence at scene of crime.

Bench expressed that the present case was at better footing than Divangna Kalita’s case as in the present case the statement of co-accused Tahir Hussain did not lead to any recovery of fact, except for the recording of disclosure statements of co-accused Khalid Saifi and applicant.

In Court’s opinion, it did not find any rationale in the act of police in involving the applicant in this solitary case for the offence of conspiracy and police has unnecessarily brought in the material of FIR No. 59 of 2020 in the present matter.

On perusal of charge sheet, it was clear that the role assigned to the applicant in the matter was categorically different and distinct from the role attributed to aforesaid co-accused persons, as:

  • Firstly, it had nowhere been the case of prosecution that applicant was physically present at the scene of crime on the date of the incident.
  • Secondly, the applicant was nowhere captured in any CCTV footage/viral video
  • Thirdly, neither any independent witness nor any police witness identified the applicant to be present at the scene of crime.

Bench failed to understand from the statements recorded as to how a lofty claim of conspiracy could be inferred.

Charge sheeting the applicant on the basis of insignificant material was unwarranted.

 Special PP failed to establish that the role assigned to the applicant was not similar to the role attributed to the c-accused Khalid Saifi.

Bench held that the applicant deserves bail on ground of parity with co-accused Khalid Saifi.

Applicant shall furnish a bond of sum Rs 20,000 with one surety in the like amount to the satisfaction of the Court and subject to the condition that he shall not tamper with the evidence or influence any witness in any manner and shall maintain peace and harmony in the locality. Aarogya Setu App to be installed in his phone.

In view of the above, application was disposed off. [State v. Umar Khalid, Bail Application No. 506 of 2021, decided on 15-04-2021]


Advocates before the Court:

Shri Manoj Chaudhary, Ld. Special PP for the State alongwith IO, Inspector Sunil Kumar.

 Shri Trideep Pais, Sr. Advocate alongwith Ms Sanya Kumar and

 Ms Rakshanda Deka, Ld. Counsel(s) for accused Umar Khalid/applicant.


Image Credits: India Today

Case BriefsHigh Courts

Delhi High Court: Yogesh Khanna, J., reiterated that there is no provision in the Criminal Procedure Code to amend a criminal complaint, but amendment can be allowed if the amendment is sought before taking of cognizance.

Petitioner (Aroon Purie, Editor-in-Chief, India Today) filed an application for amendment challenging the order dated 26-02-2020 whereby the trial court directed to issue notice against the petitioner for offences under Sections 500/501/502 read with Section 120-B IPC.

Factual matrix

India Today Magazine in its edition dated 30-04-2007 had published a news item under the title “Mission Misconduct”. The said item asserted allegations, against the complainant, of soliciting sexual favour leading to a probe that revealed financial irregularities and fudging of bills. It was also reported that consequently, the official (complainant) is back in India is facing disciplinary action.

Petitioner’s arguments

(a)       As per Section 7 of the Press and Registration of Books Act, 1867, normally an editor, printer can only be prosecuted. The petitioner is the editor-in-chief and therefore could never be prosecuted. The news item itself shows the petitioner is editor-in-chief and not an editor.

(b)       The news item merely reported the facts and hence it cannot be said to be defamatory. Facts were accurate and reflected the public record and hence no defamation case could be made out.

(c)        Violation of Section 196(2) CrPC: It was argued that it prohibited any Court from taking cognizance of an offence of conspiracy, other than criminal conspiracy to commit an offence punishable with death or imprisonment for life or rigorous imprisonment for two years or above. Such cognizance can be taken only in a case where the State Government or the District Magistrate has consented in writing and since there is no consent of the State Government or by the District Magistrate, the cognizance in the present case is barred under Section 196(2) CrPC.

(d) Challanege was also based on the grounds of violation of Section 197 CrPC. It was contended that necessary sanction for prosecution was not obtained.

(e) Lastly, it was asserted that the instant petition under Section 482 CrPC was maintainable despite availability of the remedy under Section 397 CrPC.

Complainant’s story

As per the complainant, information about allegation of “sexual harassment at work place” was conveyed to him only in the form of a show cause notice. On the basis of his reply, the Ministry of External Affairs conveyed to the complainant that they would not pursue the matter further at that stage. Thus, without any basis, India Today went ahead with the publication of an unsubstantiated and unverified defamatory story and splashed it all over the world through the medium of the internet.

Act of Defamation was done on 30-04-2007 on which date there were no charges of any financial irregularities or of fudging of bills, etc, against the complainant. Such charges were created and disciplinary action initiated and pursued by the Department under the shadow of a democles sword in the form of the publication of the defamatory news story which ignited the flame and the resultant fire engulfed the whole unblemished service career, jeopardized his chances of promotion and, above all, assassinated his precious reputation.

As per the complainant, the so-called complaint dated 10.07.2005 (2006) never existed and was subsequently planted. Further, it was alleged that on the date of publication of story in India Today dated 30-04-2007, no show cause notice much less the memorandum of charges were issued to him.

Whatever information with regard to any allegations was available to the accused/officers of the MEA, who were privy to such classified/confidential information; they rather provided such classified information to India Today in an unauthorized manner and in violation of the GOI Conduct Rules applicable to them, which specifically prohibits sharing any information about service matters of its officer with the media. Thus the assertion the news story on 30-04-2007 was only reporting of a fact which was in public record, was completely misleading.

Analysis, Law and Decision

(a) The High Court was of the opinion that the argument that as per Section 7 of the Press and Registration of Books Act, 1867, normally an editor can only be prosecuted cannot be adhered to. It was reiterated that it is matter of evidence in each case and if the complaint is allowed to proceed only against the editor whose name is printed in the newspaper against whom there is a statutory presumption under Section 7 and in case such editor succeeds in proving that he was not the editor having control over the selection of alleged libelous matter published in the newspaper, the complainant would be left without any remedy left to redress the arguments against the real culprits.

(b) On the second issue, the Court said that the assertions that the news item merely reported facts which were accurate and reflected public records and cannot be held to be defamatory, cannot be accepted. Rather such assertion and who was responsible for its publication and has it came to the fore of editors require critical examination and hence evidence of these issues is required.

The ingredients of Section 499 IPC clearly point out towards the imputation published in any form which also include newspaper. In case the petitioner seeks the protection of an exception under Section 499, that stage is yet to come, meaning thereby the submissions made by the petitioners are not applicable at this stage.

It was noted that as per record available before the Court, the story by the petitioner against the complainant, was allegedly published much prior to the issue of show cause notice. Subsequent to this, the complainant was exonerated from all the allegations vide an order dated 04-04-2008, but as per the complainant, with the publication of the article in question, the complainant was allegedly defamed in the eyes of his wife, his family, his friends and colleagues and society, in India and all over the world. Till date the defamatory article allegedly haunts him and that is the reason the complainant has been vigorously pursuing litigation.

(c) Further, the Court doubted whether Section 196(2) CrPC will be applicable in the present case. Anyhow, in this case, the Magistrate after due process of law and after applying her mind to the facts and circumstances of the complaint, has taken cognizance and thus has consented in writing to the initiation of the proceedings against the petitioner vide a summoning order dated 20.04.2013, hence this objection was not relevant at this stage.

(d) With respect to the objection qua violation of Section 197 CrPC, the High Court expressed that in the present matter, petitioner was neither a judge nor a public servant, therefore no sanction was required to initiate criminal action by the Magistrate against the petitioner.

Relying on the Supreme Court decision in State v. Battenapatla Venata Ratnam, (2015) 13 SCC 87, the Court opined that as the allegations against the government official are of leaking of the confidential information of complainant to block his career, and allegedly for their own pleasure, hence, prima facie, at this stage, per allegations, sanction was not required.

(e) On the question of maintainability of the instant petition, the Court was of the view that allegations and counter allegations in the present matter raised disputed questions of facts and cannot be dwelled into by the High Court under Section 482 CrPC.

All the defenses raised in the instant petition, can very well be taken up by the petitioner during the course of trial, said the High Court.

Whether amendment can be allowed at the instant stage

In the present case, the trial court had already taken cognizance of the complaint and proceeded with the trial. As per the High Court, the amendment which was now sought is illegal and against the provisions of law.

In the present matter, the amendment were sought when the Magistrate had already taken cognizance of the complaint and had proceeded with trial. The High Court relied on the Supreme Court decision in S.R. Sukumar v. S. Sunaad Raghuram, (2015) 9 SCC 609, wherein it was held that, there is no provision in CrPC to amend criminal complaint, but amendment can be allowed if the amendment is sought before taking cognizance.

Therefore, the present petition was dismissed as no ground to interfere under Section 482 CrPC was found. [Aroon Purie v. State, Crl. MC No. 3492 of 2013, decided on 07-04-2021]


Advocates before the Court:

[CRL.M.C. 3492/2013 CRL.M.As. 12820/2013 & 18912/2014]

For the Petitioner: Mr. Siddharth Luthra, Senior Advocate with Mr.Hrishikesh Baruah, Mr. Pranav Jain.

For the Respondents: Mr. Amit Ahlawat, APP for State. Mr.SS.Ahluwalia, Advocate for R2/ Amicus Curie.

[CRL.M.C. 4636/2013, CRL.M.A.Nos.16659/2013, 17386/2020]

For the Petitioner: Mr. Ajay Digpaul, CGSC with Mr. Kamal R.Digpaul, Advocate

For the Respondents: Mr. S.S. Ahluwalia, Advocate/ amicus curie and Mr. Mohit Bansal, Advocate.

[CRL.M.C. 1762/2014, CRL.M.A.Nos.5882/2014, 17297/2020, 17299/2020]

For the Petitioner: Mr. Hrishikesh Baruah, Mr. Ajay P.Tushir, Mr. Shailendra Singh, Mr. Pranav Jain, Mr. Shahrukh, Advocates.

For the Respondents: Mr. Amit Ahlawat, APP for State. Mr.S.S.Ahluwalia, Advocate/ amicus curie and Mr. Mohit Bansal, Advocate for Mr. O.P.Bhola

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjeev Kumar, J., addressed the instant petition whereby the petitioner was charged for sedition under Sections 124-A, 153-A, 153-B and 505(2), 120-B of IPC in connection with a viral audio clip containing demeaning content regarding armed forces. The Bench said,

“…unless the conversation has the tendency or intention of creating public disorder or disturbance of public peace by incitement to an offence, the same would not be sedition to attract the applicability of Section 124A or for that matter Sections 153A or 153B IPC.”

Facts of the Case

 On 18-06-2020 the police had registered an FIR against one Zakir Hussain and co-accused Nissar Ahman Khan in connection with a viral audio clip containing objectionable conversation, demeaning armed forces of the country in the backdrop of clashes between Indian Army and armed forces of China that took place in Galwan Valley of Ladakh region.  The conversation was found to be extremely objectionable containing derogatory references to the role of Indian Army in the Galwan misadventure of armed forces of China.

The petitioner contended before the Court that police had no authority to register an FIR as it had been provided in law that under Section 196 CrPC, the Court can take cognizance only on a complaint filed by District Magistrate and in the instant case no such complaint had been filed.

Observation and Analysis

The Court, observing the complexity of the matter had framed two moot points to be adjudicated in the instant case;

  1. What is the true import and scope of Section 124-A, 153-A, 153-B, 505(2) IPC when seen through the prism of Article 19(1) of the Constitution of India?

Constitutionality of Section 124A along with Section 505 of the IPC came up for consideration before Supreme Court in the case of Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769, wherein the Court had held, “it is only when the words, written or spoken, etc., which have the pernicious tendency or intention of creating public disorder or disturbance of law and order, that the law steps in to prevent such activities in the interest of public order.” It had been concluded that Section 124A should strike the correct balance between individual fundamental right and the interest of public order.

In the backdrop of legal position adumbrated above, the conversation contained in the audio clip, would not constitute any of the offences alleged against the petitioner. The Bench observed,

“There is no material to demonstrate any criminal conspiracy between the petitioner and Nissar Ahmed Khan to commit sedition or prior concert or meeting of minds to commit the offences with which both have been charged by the police.”

 Undoubtedly, the petitioner had demeaned the Indian Forces and eulogized the armed forces of China Khan, which bring into contempt the Government established by law in India, but unless the conversation had the tendency or intention of creating public disorder or disturbance of public peace by incitement to an offence, the same would not be sedition to attract the applicability of Section 124A or for that matter Section 153A or 153B IPC.

  1. Whether FIR can be registered for commission of offences under Section 124A, 153A, 153B, 505(2) and 120-B IPC without prior sanction of the competent authority as envisaged in Section 196 of the Code of Criminal Procedure?

 From a perusal of Section 196(1), it could be transpired that the offences punishable under Section 124A and Section 153A of the IPC could not be taken cognizance of by the Court except with previous sanction of the Central Government or of the State Government. It is, thus, evident that,

The bar created by the provisions of Section 196 CrPC was against taking of cognizance by the Court and there was no bar against registration of FIR or investigation by the police if information received by the police discloses commission of cognizable offence.

In the instant case all the offences, with which the petitioner had been charged, were cognizable. It was, thus, well settled and beyond any pale of doubt that the provisions of Section 154 CrPC were not controlled by the provisions of Section 196 and both operate at different points of time and at different stages of a criminal case.

Conclusion

 In the light of above, the Bench laid down a detailed guideline regarding Section 196 of CrPC,

  1. For making out an offence under Sections 124A, 153A, 153B and 505(2) IPC, it was necessary to demonstrate that the words written or spoken or signs or visible representation had the tendency or intention of creating public disorder or disturbance of public peace by incitement to offence. (Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769,);
  2. That the provisions of Section 196 CrPC did not, in any manner, control Section 154 of the Code of Criminal Procedure, in that, the police was competent to register an FIR, if information received by it discloses commission of cognizable offence, even if it was referable to Section 196;
  3. Section 196 CrPC would come in operation at the stage of taking of cognizance by the Court and the Court would have to refuse to take cognizance of the offence(s) referable to Section 196 CrPC, if there was no previous sanction by the Central Government or State Government or District Magistrate, as the case may be.
  4. In case, report with regard to the offence(s) having reference to Section 196 CrPC was presented before the Judicial Magistrate without obtaining prior sanction from the competent authority, the Court should not take its cognizance but return the same to be presented only after seeking previous or prior sanction of the competent authority.
  5. The Court should be deemed to have taken cognizance only if it had applied its mind to the Final Police Report submitted before it in terms of Section 173 CrPC with a view to proceed further in the manner provided in law.
  6. That the Magistrate, who would find the police report not in consonance with Section 196 CrPC should not retain the report and proceed in the matter rather it would return the same to the prosecution.

Hence, the petition was allowed and all the criminal proceedings pending against the petitioner including the impugned FIR were quashed. [Zakir Hussain v. UT of Ladakh, 2021 SCC OnLine J&K 64, decided on 11-02-2021]


Kamini Sharma, Editorial Assistant has put this story together.

Hot Off The PressNews

Narcotics Control Bureau (NCB) had sought 14 days Judicial Custody of Actress Rhea Chakraborty for being involved in the procurement and distribution of Drugs.

According to the media reports, She has been allegedly charged for Sections 8(c), 20(b) (ii), 22, 27(A), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985

Her Bail plea was also rejected.

Rhea was summoned and her voluntary statement was recorded under Section 67 of NDPS Act on 06-09-2020, 07-09-2020 and 08-09-2020.

NCB states that Rhea is an active member of the drug syndicate connected with drug supplies.


Here’s an explainer for the Sections under which Rhea Chakraborty has been charged:

Section 8(c) of the NDPS Act:

8Prohibition of certain operations.—No person shall—

(a) cultivate any coca plant or gather any portion of coca plant; or

(b) cultivate the opium poppy or any cannabis plant; or

(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance,

except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:

Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf.

1[Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.]

Section 20(b) (ii) of NDPS Act, 1985:

Punishment for contravention in relation to cannabis plant and cannabis.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,—

(a) cultivates any cannabis plant; or

(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,—

1[(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and

(ii) where such contravention relates to clause (b),—

(Aand involves small quantity, with rigorous imprisonment for a term which may extend to 2[one year], or with fine which may extend to ten thousand rupees, or with both;

(Band involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;

(Cand involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]

Section 27(A) of the NDPS Act:

Punishment for financing illicit traffic and harbouring offenders.—Whoever indulges in financing, directly or indirectly, any of the activities specified in sub-clauses (i) to (v) of clause (viii-a) of Section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]

Section 29 of the NDPS Act:

29Punishment for abetment and criminal conspiracy.—(1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracyand notwithstanding anything contained in Section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence.

(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which—

(a) would constitute an offence if committed within India; or

(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.


Image Credits: Hindustan Times

Case BriefsHigh Courts

Delhi High Court: Anu Malhotra, J., while deciding a petition with regard to the investigation of Sanjeev Chawla alleged for acting as a bookie in fixing the India and South Africa cricket matches from 16-02-2000 to 20-03-2000, held that,

“Investigating Agency in the said matter is permitted to conduct an interrogation of the petitioner at Tihar jail complex only in terms of timeline stipulated in terms of Section 167(2) of CrPC, 1973, for a period not exceeding 15 days from the date of arrest.”

Background of the Case

Sanjeev Chawal (Petitioner) a citizen of United Kingdom was an accused under Section 173 of CrPC for the allegation of commission of offences punishable under Section 420/120-B Penal Code, 1860 in relation to,

An alleged conspiracy to fix matches during the India-South Africa Cricket series played through February-March, 2000 in alleged connivance with Hansie Cronje, Captain of South Africa Cricket Team.

Petitioner had allegations of being the main conduit in match-fixing.

Averments in the police report under Section 172 of CrPC submitted by the Crime Branch, three accused persons were arrested, Sanjeev Chawla (Petitioner) and Manmohan Khattar allegedly absconded having left for UK and Canada, respectively.

Petitioner had further been extradited on 12-02-2020.

Through the petition filed, petitioner submitted that trial court failed to consider and take into account the three Letters of Assurances of the Ministry of Home Affairs, whereby the Government of India had given a solemn sovereign assurance that at all times and during pre-trial custody, petitioner would be lodged at the Tihar Jail Complex, Delhi and that thus, no police remand could be granted and that the petitioner had been extradited from the United Kingdom only to face trial and not for any investigation.

Senior Advocate Vikas Pahwa, on behalf of the petitioner reiterated that the extradition had been granted only on the basis that the petitioner was being extradited to face trial and not for any investigation and thus, no investigation could be carried out nor permitted and that the pre-trial detention of the petitioner could only mean detention at the Tihar Jail and nowhere else as had been stated by the Government of India.

Further adding to the above, Clauses 9&10 of the Guidelines for Extradition issues by Ministry of External Affairs in India categorically spelt out the extradition could be granted only for the trial on the basis of the evidence made available in the charge sheet and not for the purpose of any investigation.

APP, Kewal Singh Ahuja on behalf of the Government (NCT of Delhi) submitted that during the investigation it was found that the present petitioner had played the most vital role in the commission of the crime. Statements of Hansie Cronje and Hamid Cassim before the Kings Commission allegedly clearly pointed to his deep-rooted involvement in the case.

It was submitted by ASG, through the status report that neither the Investigating Agency nor the Government of India, had given any assurances that on extradition no further investigation in the matter could be carried out and that for the purposes of a fair trial, petitioner has to be confronted with the evidence against him to unearth the whole conspiracy.

“..in terms of the law of the land Section 173(8) of the Cr.P.C., 1973 provides for continuing investigation even after the filing of the police report under Section 173(2) of the Cr.P.C., 1973”

Thus, in the above view, it is submitted that the police interrogation of the petitioner was very essential.

Union of India submitted that,

“…from the investigation conducted so far, there is sufficient evidence to prove that the accused persons namely Sanjeev Chawla, Hansie Cronje, Krishan Kumar, Rajesh Kalra, Sunil Dara @ Bittoo and Manmohan Khatter mentioned in Column No 11 of the chargesheet had entered into a criminal conspiracy to fix the cricket matches played between India and South Africa from 16.02.2000 to 20.03.2000 in India.”

Union of India relied on the Extradition Treaty and the instruments of ratification between India and U.K.

Adding to above submissions, UOI submitted that petitioner falls under the category of “fugitive criminal” in terms of Section 2(f) of the Extradition Act, 1962 and thus trial of the petitioner qua the alleged commission of offence punishable under Section 420/120 IPC has to be conducted in which would not preclude the Investigating Agency from invocation of the powers of investigation in terms of Section 173(2) of CrPC.

“… in terms of Article 11 Sub-clause 3 of the Extradition Treaty between the United Kingdom and India, it is not necessary that the extradition can be made only when a charge sheet has been filed but if the material placed is sufficient to justify committal for trial to indicate that there is prima facie material to satisfy the Requested State that the fugitive is involved in the offence/ offences, the same would suffice to grant the prayer for extradition.”

Decision

ASG Supreme Court of India Sanjay Jain on behalf of Union of India expressly stated that the terms of Letter of Assurances would be followed in letter and spirit and that petitioner would not be taken out of Tihar Jail except with permission, granted by Court in terms of Section 173(8) of CrPC.

Thus, the bench disposed of the petition with a direction to effect that impugned order of trial court is modified to the effect that the petitioner during the entire stage of pre-trial detention, trial and conviction, if any, in terms of Letters of Assurances would continue to be lodged at Tihar Jail.

Further, petitioner cannot be taken out of Tihar jail for the purpose of investigation or interrogation in police custody, through the investigating agency in the matter is permitted to conduct the same at Tihar jail only.

The period of investigation will end on 28-02-2020; whereafter no further investigation will be granted.

Court also stated that the Investigating Agency shall, however, take care to ensure that the petitioner is treated with dignity during the investigation and interrogation conducted. [Sanjeev Kumar Chawla v. State, Crl. M.C. No. 870 of 2020, decided on 20-02-2020]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Joymalya Bagchi and Ravi Krishan Kapur, JJ. allowed an appeal filed against the order of the trial court whereby the appellant was convicted for committing the offence of criminal conspiracy punishable under Section 120-B IPC, and also under Section 216-A IPC for harbouring robbers or dacoits.

The matter related to the incident of dacoity and rape of a man committed in a convent school in Ranaghat, W.B., on 14-3-2015. The appellant was a relative of one of the accused persons. It was alleged that the accused persons, after committing the ghastly crime of dacoity and rape, stayed at the residence of the appellant. He was, thus, charged with the offence of harbouring the accused dacoits. The appellant was convicted as above mentioned two offences. Aggrieved thereby, he filed the instant petition.

The High Court noted that the accused were staying at the house of the appellant as they were there to attend a marriage. Reliance was placed on State v. Nalini, (1999) 5 SCC 253, wherein the Supreme Court had held that more association with one of the principal offenders or even knowledge about the conspiracy cannot make a person a conspirator. It is the agreement which is the sine qua non of the offence of conspiracy. Considering the evidence in the instant case, the High Court was convinced that the necessary ingredients of crime of conspiracy were not proved against the appellant and, hence, his conviction under Section 120-B IPC was quashed.

Coming to the offence under Section 216-A IPC, the High Court noted that the ingredients of the offence of harbouring robbers or dacoits: i) that the persons in question were about to commit or had recently committed robbery; ii) that the accused knew this; iii) that the accused harboured them or some of them; iv) that the accused did so with the intention of – (a) facilitating the commission of robbery or dacoity, or (b) screening them or some of them from punishment.

It was observed by the Court: “…penal liability would not be attracted if a person harbours dacoits in general and it must be proved that he had harboured such dacoits who intended to commit a ‘particular dacoity’.”

Considering the evidence, it was held: “Knowledge of the appellant with regard to dacoity conducted at the convent does not appear to be proved beyond doubt as evidence of P.W. 11 is too vague to be convincing and the other evidence on record do not inspire confidence to come to such conclusion.”

In such view of the matter, the Court held that the accused was entitled to be acquitted and therefore, the conviction of the appellant as recorded by the trial court was set aside.[Gopal Sarkar v. State of W.B., 2019 SCC OnLine Cal 5112, decided on 20-12-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: B. Sudheendra Kumar, J. dismissed the anticipatory bail application of a person who was charged with offences of breach of trust, cheating and dishonestly inducing delivery of property and criminal conspiracy under the Penal Code, 1860 and also for computer-related offences under the Information Technology Act, 2000.

The petitioner herein was accused 4 according to the registered crime. There were 5 accused out of which the 1st to 3rd accused were candidates for the post of Civil Police officer and the petitioner along with accused 5 was charged for supplying them with answers in the written examination conducted by the Kerala Public Service Commission with their respective mobile numbers. A preliminary enquiry was conducted and thereafter the crime was registered.

Counsel for the petitioner Latheesh Sebastian contended that the prosecution could not find any evidence as to how the petitioner got the question papers and answers and hence, pleaded his innocence. He also contended that the custodial investigation of the petitioner unnecessary and thus filed an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973.

V. Sreeja, the learned public prosecutor opposed the application and contended that they could find the messages that were sent from the petitioner’s mobile to the accused’s 1 and 3. However, they could not find as to who supplied the question papers and the custodial investigation of the petitioner was necessary in order to find this.

High Court after observing the materials opined that the answers were supplied to the accused’s 1 and 3 from the mobile phones of the petitioner. Accused 5 who supplied the question papers were known only to the petitioner and custodial investigation was necessary to find this information. Thus, the Court further dismissed the application for anticipatory bail and directed the petitioner to surrender himself before the investigation officer for subsequent investigation.[Safeer. D v. State of Kerala, 2019 SCC OnLine Ker 2796, decided on 30-08-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: B. Sudheendra Kumar, J. allowed a bail application seeking relief of anticipatory bail for crimes of criminal conspiracy.

In the present case, the third respondent had purchased the property of the petitioner. However, it was alleged that the survey number of the property was shown incorrectly by the petitioner and hence, a case was registered against the petitioner for criminal conspiracy under Section 120-B of the Penal Code, 1860.

The Counsel representing the petitioner, Binoy Vasudevan, applied for anticipatory bail and submitted that the petitioner was not involved in the acts of criminal conspiracy as alleged by the respondents.

The Public Prosecutor for the State opposed the submission of the petitioner. However, he submitted that the petitioner has not been involved in such activities of a similar nature and has no criminal antecedent.

The Court, upon perusal of the documents and facts presented on the record, allowed the bail application and stated that the documents relating to the transaction had been already been seized by the police and no recovery is to be effected from the petitioner. Thus, the custodial interrogation is not necessary and due to the petitioner having no criminal antecedent, the petitioner needs to be released.[Paily Mathew v. State of Kerala, 2019 SCC OnLine Ker 2866, decided on 04-09-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J.  allowed a petition filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter ‘CrPC’) by the accused who were charged with the offences of criminal breach of trust, forgery and criminal conspiracy under Sections 406, 466, 467, 471 and 120B of Penal Code, 1860 (hereinafter ‘IPC’).

In the instant case, the partition of a family property took place and a part of the common property was set aside for conducting certain divine and charitable acts. This property was to be managed by the eldest member of the family as a trustee. First petitioner, who was the member of the family managed the aforementioned property as a trustee for the other members of the family since 1970. In order to grab this property, the first petitioner entered into a conspiracy with the Village Officer and forged the public register substituted his name as the owner of the property. Thereafter, the first petitioner gifted the aforesaid property to the second petitioner, his daughter. Execution of this settlement deed was in violation of the provisions contained in the partition deed. Thus, petitioners had committed the offences punishable under Sections 406, 466, 467, 471 and 120B of IPC.

K. Gopalakrishna Kurup, learned counsel for the petitioners argued that it was doubtful that immovable property can be the subject matter of the offence of criminal breach of trust. He also contended that the affirmations in the complaint did not clarify the offences alleged against the petitioners.

The learned counsel for complainants, Alex M. Scaria contended that the court must take into consideration each of the allegations made in the complaint as accurate to determine if the ingredients of the offences alleged were made out or not.

Reliance was laid upon R.K. Dalmia v. Delhi Admn., AIR 1962 SC 1821 to observe that the term ‘Property’ under Section 405 of IPC was not restricted to ‘movable’ property. Therefore, the immovable property can also be the subject matter of commission of an offence of criminal breach of trust. The Court noted that there was an absence of any averment in the complaint regarding entrustment of property in question. With such absence, one of the basic ingredients of the offence of criminal breach of trust was not made out against the accused.

Moreover, the Court cited Ramesh Dutt v. State of Punjab, (2009) 15 SCC 429 to observe that the execution of the settlement deed by the first petitioner in favor of his daughter did not constitute the offence of forgery. Furthermore, the Court held that an attempt was made by the complainant to showcase a matter of civil nature, as a matter of criminal nature. In these circumstances, the first information report, which was based on the complaint, was liable to be quashed. Consequently, the petition was allowed.[Damodara Panicker v. State Of Kerala, 2019 SCC OnLine Ker 1789, decided on 06-06-2019]

Case BriefsSupreme Court

Supreme Court: In the 37-year-old Kalanwali hooch tragedy in which 36 people lost their lives and 44 people lost their eyesight after consuming spurious liquor in a Haryana village, the bench of Dr. A.K. Sikri and Ashok Bhushan, JJ reversed the acquittal of the 2 accused persons to whom the local liquor vends belonged and held that the accused cannot be treated as naïve as they had exploited the resilience nature of bucolic and rustic villagers and hence, they should undergo the punishment imposed by the Trail Court.

In 2000, the trail court had convicted 2 accused persons out of 48 for the offences under Section 302 IPC read with Section 120B IPC who were directed to undergo imprisonment for life and also to pay fine of Rs. 10,000/- each. They were also convicted for offence under Section 328 IPC read with Section 120B IPC for which they were to suffer imprisonment for a term of 5 years with fine of Rs. 5,000/- each. They were also convicted under Section 61(1)(a) of the Punjab Excise Act, 1914 for which sentence of six months rigorous imprisonment and fine of Rs. 1,000/- was imposed on the two convicts. All the sentences were to run concurrently. The High Court, however, acquitted the accused and held that though the cause of death was established, namely, consumption of methyl alcohol, but no connection was established by the prosecution of consuming the said alcohol by the deceased and other victims from the bottles that had been purchased by the victims from the vends of the accused. It was also held that there cannot be charge of criminal conspiracy under Section 120B of IPC in respect of two persons qua the respondents when others stood acquitted meaning thereby charge of conspiracy of the respondents along with other accused persons was not proved.

The Court took note of the fact that the gruesome occurrence, where so many persons became the victims, happened was proximate to the place where vends of the accused are situate. Post mortem of the deceased persons were conducted which led to a common finding, namely, methyl was found in the viscera of the dead bodies and the cause of death was consumption of alcohol containing methyl. It was noticed that all the victims had, immediately after suffering the aforesaid consequence of consuming liquor, made a specific and categorical statement that they had purchased the liquor from the vends of the accused. Hence, considering the fact that the spurious liquor was sold from the local vends belonging to the respondents coupled with the fact that after this tragedy struck, the accused even tried to destroy remaining bottles, the Court said that the accused had full knowledge of the fact that the bottles contain substance methyl and also had full knowledge about the disastrous consequences thereof which would bring their case within the four corners of Section 300 fourthly IPC. [State of Haryana v. Krishan, 2017 SCC OnLine SC 690, decided on 09.06.2017]

Case BriefsHot Off The PressNewsSupreme Court

Supreme Court: Restoring the conspiracy charges against RJD Chief Lalu Prasad Yadav in Fodder Scam, the bench of Arun Mishra and Amitava Roy, JJ directed that the trial in the matter be concluded within 9 months. The Court explained that the modus operandi being the same would not make it a single offence when the offences are separate. Commission of offence pursuant to a conspiracy has to be punished. If conspiracy is furthered into several distinct offences there have to be separate trials. Each trial has to be separately held and the accused to be punished separately for the offence committed in furtherance of conspiracy. In case there is only one trial for such conspiracy for separate offences, it would enable the accused person to go scotfree and commit number of offences which is not the intendment of law.

Earlier, the Jharkhan High Court had dropped the charges against the RJD Chief on the ground that he cannot be tried twice for the offence. In 2013, a trial court had imposed 5 years sentence upon Lalu Prasad Yadav in a different case relating to fodder scam. The CBI, however, argued that both the cases are different as both relate to different amount of embezzlement during different period of time. Terming the order of the High Court to be flawed, the Court said that it is difficult to say that prosecution would be bound by the finding in a previous trial on a similar issue of fact. It was held that n what manner the duty has been carried on for different periods would be the question of fact in each case and there is no question of double jeopardy in such a case. The Court further said that the impugned orders are palpably illegal, faulty and contrary to the basic principles of law and Judge has ignored large number of binding decisions of this Court while giving impermissible benefit to the accused persons and delayed the case for several years.

Concerned with the conduct of the CBI in such important matters, the Court said that lethargy on CBI’s part is intolerable as CBI is expected of it to be more vigilant. If CBI fails to act timely, peoples’ faith will be shaken in its effectiveness. The Court said that in important cases Director, CBI should devise methodology which should not be cumbersome as reflected in these cases. Being the head of the institution it was the responsibility of the Director, CBI to ensure that appeals were filed within limitation. There should not have been delay in filing special leave petitions at all.

The Court had ordered CBI to investigate the large-scale defalcation of public funds, fraudulent transactions and fabrication of accounts in Animal Husbandry Department of State of Bihar in State of Bihar v. Ranchi Zila Samta Party, (1996) 3 SCC 682. The allegations of corruption relate to embezzlement of around Rs. 94 Lakhs during the regime of Lalu Prasad Yadav by procuring large amount of fodder, medicines and animal husbandry equipment for fictitious livestock. In the scam that lasted for several years, total 64 cases had been registered relating to Bihar Fodder Scam. 52 cases involved withdrawal of huge sums of money from Government treasuries falling within Jharkhand State and in 36 out of 52 cases charge-sheet had been filed by CBI before the appointed day. [State of Jharkhand v. Lalu Prasad, 2017 SCC OnLine SC 551, decided on 08.05.2017]