Op EdsOP. ED.

   

Introduction

A cross-criminal case or a counter criminal case refers to an interesting situation wherein two criminal cases relate to the same incident and/or happening at the same location. Any man of reasonable prudence recognises it to have occurred together or at the same time either in whole or in parts.  

This counter criminal case is a complex legal procedural situation that conventionally occurs in many cases and happens to not have been addressed adequately. The Code of Criminal Procedure, 1973 (CrPC)1provides for different types of trials and their consequent procedure. The closest provision that could be invoked pertains to provisions relating to joint trials but, the same is not designed exclusively and therefore incapable of dealing with counter criminal cases.

According to the common law jurisprudence, an accused is presumed to be innocent until proved guilty and the standard of proof is beyond all reasonable doubt. In a counter criminal case, an accused in one case could pose as a victim in another. Henceforth, it poses complicated logical questions as to the presumption of innocence and conclusion of facts.

The authors through this paper attempt to bring out the nuances of a cross-criminal case/counter criminal case. Part II discusses the position of law in India as the Supreme Court through a few notable decisions has tried to address this issue, thereby setting up the tone for further discussions. Part III briefly describes certain problematic instances in counter cases, strategies that are being adopted to overcome, and tries to explore the crucial role of the participants — the courts, the prosecutors, and the investigators who are material to the justice-delivery system. Part IV concludes with suggestions on types of reform that may be considered to address the issue.

Position of law

In India, the courts have made an earnest attempt in formulating a procedure for dealing with counter criminal cases recognising the absence of any specific provisions.

One of the earliest cases2, even before the commencement of the Code of Criminal Procedure, 1973, was dealt with by the Madras High Court which had taken the view that a case and counter-case derived from the same affair should be tried by the same court to the extent possible. In this case, each party might represent themselves as the innocent victims of the act of the other.

Furthermore, in Krishna Pannadi, In re3, the Madras High Court had once again expressed its concern for not having a proper procedure to deal with counter criminal cases and held that the Judge should hear both cases and not pronounce the judgment till both the cases are being heard. The Court felt that this way it could prevent two contrary judgments on the same facts and avert the danger of an accused being convicted without hearing the whole facts. The High Court had also remarked that counter criminal case procedure is against the cardinal principle of the law holding that facts on one case should not be considered in the other case. The High Court further observed:

To take an illustration, suppose in the first of the cases the accused succeeds in showing that the prosecution has failed to prove its charge, and then in the second case the same accused as complainant goes into the witness box and breaks down in cross-examination to convince the court that the truth lies with the other side: Can the court be expected to dismiss this circumstance from its mind, and if it does not do so, what legal justification is there for importing it into the case already heard?4

In the instant case, the same prosecutor conducted the prosecution of both the cases numbered 157 and 158respectively. Upon the Magistrate first trying Case No. 158 which led to a conviction the prosecutor consequently withdrew Case No.157. Subsequently, upon appeal, the Sessions Judge who heard the matter found no prejudice to the accused in the matter. The Sessions Court even went to extent of saying that the accused in Case No.158 which resulted in conviction would have called and examined all his prosecution witnesses in Case No.157 as defence witnesses in Case No.158 itself. The High Court5 rightfully repelled this view of the Sessions Court thereby holding that the accused in Case No.158 cannot be compelled to examine all his prosecution witnesses in Case No.157 as a defence witness in Case No.158 as he may wish to avoid an earlier cross-examination of his witnesses. Moreover, the Court also held that the accused in Case No. 158 might not have been warned by the trial Judge that if he were against him, Case No. 157 in which he is a victim would be dropped. The Madras High Court had finally ordered a retrial in this case.

The Madras High Court has taken a view that in the case of counter-case both cases should be considered as one case by legal fiction and that only the legislature can intervene in this matter. Whereas these decisions were rendered before the enactment of the Code of Criminal Procedure, 1973, the legislature had somehow missed on this important aspect of procedural law.

Further again in Nathi Lal v. State of U.P.6, the Supreme Court had to come up with certain guidelines to be followed in counter-cases after the Code of Criminal Procedure, 1973 came into force realising the absence of a such provision in the then recently codified legislation.

In Nathi Lal v. State of U.P.7, the Supreme Court issued the following guidelines:

(1) The same Judge should try both cases.

(2) The learned Judge should hear one case after the other.

(3) The evidence should be heard first and then the Judge should go to hear the arguments. However, he should reserve the judgment in that case.

(4) He should then hear the counter-case, record the evidence, and hear the arguments. Here he should reserve the judgment.

(5) Later pronounce two separate judgments.

(6) However, the evidence recorded, or arguments made in one case cannot be looked into while deciding another case.

(7) The Judge should pronounce both the judgments one after the other.

With all humbleness, the authors of this paper find the view of the Supreme Court of referring to the evidence in the cross-case while deciding one case may not result in finding the truth. The authors are raising the same doubts as those raised by the Madras High Court in Krishna Pannadi, In re8. How can it be logical if the court is not considering the evidence in another case when both are two different versions of the facts? The authors even doubt the necessity of conducting a trial by the same court when one case is not influencing the other. The criminal cases are to be proved beyond all reasonable doubts and henceforth if A alleges that B attacked him and B had a counter-case that A attacked him; the criminal court can acquit both of them if the court is not satisfied beyond all reasonable doubts about both the stories. However, it does not mean that the court need not consider the evidence in the other case.

The problems and legal strategies

When there is a lack of proper provision the court has to design a procedure without disturbing the existing norm that one case should influence the other case. Given below is the list of instances where the ruling of the Supreme Court had caused some practical difficulty.

Cases involving different triability

In another notable decision of the Supreme Court of Sudhir v. State of M.P.9 wherein the problem was that one among the case was exclusively triable by the Court of Session as it involved the charge of Section 30710 IPC while the other cross-case was triable by Judicial Magistrate. In this case, the Chief Judicial Magistrate committed both the cases to the Court of Session while the Court of Session transferred the case under Section 228(1)11 of the Code of Criminal Procedure, 1973 to the Chief Judicial Magistrate.

The Supreme Court explained Section 228(1)(a) and interpreted that the expression “he may” indicates that a case not exclusively triable by the Court of Session may be transferred to the Chief Judicial Magistrate or any other Judicial Magistrate of First Class. The Court held that it is an option and discretion of the Court of Session and in cases of counter-case where one is a case triable exclusively by the Court of Session and the other is not, the guidelines in Nathi Lal v. State of U.P.12 should be followed and both the cases are to be tried by the Court of Session. The Supreme Court held that the Court of Session can try any offence under Section 2613 of the Code of Criminal Procedure, 1973. Moreover, the Court even held that a Judicial Magistrate may invoke Section 32314 of the Code of Criminal Procedure, 1973 and commit the counter-case along with the case triable exclusively by the Court of Session. Section 323 of the Code of Criminal Procedure, 1973 empowers a Magistrate to commit a case to the Court of Session during inquiry or trial if he finds that the case ought to be tried by the Court of Session.

The expression “ought to be tried by the Court of Session” could be interpreted as different from exclusively triable by the Court of Session. Henceforth, this kind of counter-case could be committed to the Court of Session. In State of M.P.v.Mishrilal15, the Supreme Court reiterated the necessity of following the guidelines in Nathi Lal v. State of U.P.16 and held that in cross criminal cases the same Judge should try both the cases.

Cases involving presumption of culpability

Some enactments like the Protection of Children from Sexual Offences Act, 2012 (POCSO)17 have presumptions against the accused. In such situations, the problem is much more complicated. If a counter-case arose in such kinds of cases, there would be great difficulty in applying the law. The POCSO Act, 2012 is gender neutral. There is no exception given to child offenders, of course, the Juvenile Justice (Care and Protection of Children) Act, 201518 would be available in appropriate cases. If both children involved in a sexual act (consider both above 16 years also) claim sexual abuse from the other side as a case and counter-case, it would be a debatable legal issue.

Role of the court

The Magistrates could play a vital role in dealing with counter-cases. When a case is instituted, whether generally or otherwise than on a police report under Section 17319 of the Code of Criminal Procedure, 1973 and it is made to appear to Magistrate currently conducting the inquiry or trial of such a case that an investigation by the police on that subject-matter is in process, the Magistrate will stay the inquiry or trial pending before him. He shall call for the report from the police officer conducting the investigation. If such Magistrate has taken cognizance on such report against any person who is an accused in the earlier complaint case, the Magistrate shall inquire into or try together both the cases as if one of them were derived from the police report. If he has not taken any such cognizance as mentioned earlier against any person accused in the earlier complaint case, based on that police report, the Magistrate shall proceed with the trial of the complaint case.

Duties as an investigator and the task of a prosecutor

Investigators in cross-criminal cases should find the truth of the matter and attempt to see the allegation and find out which side is right before submitting a charge-sheet20. In State of Karnataka v. Hosakeri Ningappa21, the Full Bench of the Karnataka High Court held that in cross-criminal cases the investigation should be conducted by one investigation officer and by two different Public Prosecutors.

A similar view was taken by the Karnataka High Court, as recently in Daya v. State of Karnataka22 on 16-1-2021. In this case, the Karnataka High Court while relying on the Full Bench decision in State of Karnataka v. Hosakeri Ningappa23, referred to the 1975 Circular issued by the Government of Karnataka and cited Gooti Sannaiah v. State of Karnataka24, in discrediting the process of the same prosecutor conducting cross-case prosecution. The Court observed:

5. … The prosecution in both the cases was conducted by the same prosecutor. What is said above would aptly attract the age-old saying that a person cannot ride on two horses running in opposite directions and if he attempts to do so, the earth would be his destination.

Provision under Police Standing Orders

The Madras High Court in this case encountered the provision Order 588-A of the Madras Police Standing Orders (hereinafter called “PSO 588-A”).25In Vellapady Thevar v. State26, the Madras High Court held that any contravention of the procedure mentioned in PSO 588-A would be illegal and bad in law. The same view was followed by the Madras High Court in Justin v. State27. In Vellapady Thevar case28, the Court held that contravention of PSO588-A would be bad in law.

In State of Punjab v. Charan Singh29, the Supreme Court had already declared that the Punjab Police Rules cannot override the Code of Criminal Procedure. In V. Karthikeyan v. State30, the Madras High Court held that PSO 588-A cannot override the Code of Criminal Procedure, 1973.

In Sujin v. State31, the Madras High Court took view that non-compliance with PSO 588-A is not illegality, and two police reports could be filed in appropriate cases by the police officer conducting the investigation. Unlike in the case of the investigator when both the prosecutions have been conducted by the same person it would be against the principle of the rule against bias. In Sujin v. State32, the Madras High Court further held that in appropriate cases the investigating officer can file two charge-sheets when he could not find the real aggressor in the investigation. In such circumstances, whether the court has to conduct the trial in both cases? The Madras High Court, in this case, observed:

“… it is not an illegality to file a final report in both the case and the counter-case, where the investigating officer is unable to find out as to who was the real aggressor. In such cases, it would require an appreciation of evidence for the trial court by conducting a simultaneous trial in both cases. In cases of this nature, the procedure that has been prescribed by the Supreme Court in Nathi Lal v. State of U.P.33 has to be followed.”34

Through these cases, the Madras High Court has evolved upon the view that filing a report on both the case and counter-case in a situation where the police officer cannot find who is the aggressor, is not an illegality but the correct procedure. The High Court in this case held that it is appropriate for the investigating officer to submit two police reports to the court when he could not find who the aggressor was. The High Court took a view that in such a case the trial court should come to a conclusion based on the evidence.

Conclusion

In the humble opinion of the authors, the legislature should intervene and legislate a separate chapter in the Code of Criminal Procedure, 1973 to deal with counter criminal case trials. Despite the observation made by the Madras High Court in Krishna Pannadi, In re35 in the pre-constitutional period, the legislature never chose to legislate on this even in the Code of Criminal Procedure, 1973. The legislature considering all the circumstances involved must enact such a chapter. It is also humbly suggested that the legislature has to think of enacting such a chapter/provision in special statutes where presumptions are created by the legislature against the accused persons. The legislature has to decide on considering the need for specific circumstances of such cases as to the burden of proof and presumptions in the trials of such counter-cases.


† Sr. Asst. Professor, School of Law, SASTRA Deemed to be University. Author can be reached at<sanjith@law.sastra.edu>.

† Professor, School of Management/Law, SASTRA Deemed to be University. Author can be reached at <balachandran@mba.sastra.edu>.

1. Criminal Procedure Code, 1973.

2. Goriparthi Krishtamma v. Emperor, 1929 SCC OnLine Mad 420.

3. 1929 SCC OnLine Mad 166.

4. Krishna Pannadi, In re, 1929 SCC OnLine Mad 166.

5. Krishna Pannadi, In re, 1929 SCC OnLine Mad 166.

6. 1990 Supp SCC 145.

7. 1990 Supp SCC 145, para 2.

8. Krishna Pannadi, In re, 1929 SCC OnLine Mad 166.

9. (2001) 2 SCC 688.

10. Penal Code, 1860, S. 307.

11. Criminal Procedure Code, 1973, “228. Framing of charge.— (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which —

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the First Class.… (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.”

12. 1990 Supp SCC 145.

13. Criminal Procedure Code, 1973, S. 26.

14. Criminal Procedure Code, 1973, S. 323.

15. (2003) 9 SCC 426.

16. 1990 Supp SCC 145.

17. POCSO Act, 2012.

18. Juvenile Justice (Care and Protection of Children) Act, 2015.

19. Criminal Procedure Code, 1973, S. 173.

20. State of M.P. v. Mishrilal, (2003) 9 SCC 426.

21. 2011 SCC OnLine Kar 3694.

22. 2021 SCC OnLine Kar 167.

23. 2011 SCC OnLine Kar 3694.

24. 1975 SCC OnLine Kar 90.

25. Order 588-A of Madras Police Standing Orders provides as follows—In a complaint and counter-complaint arising out of the same transaction, the investigation officer has to enquire into both of them and adopt one or the other of the two courses, namely, (1) to charge the case where the accused were the aggressors; or (2) to refer both the cases if he finds them untrue. If the investigating officer finds that either of the course is difficult, he should seek the opinion of the Public Prosecutor and act accordingly. A final report should be sent in respect of the case referred to as a mistake of law and the complainant or the counter-complainant, as the case may be, should be advised about the disposal by notice in Form 96 and to seek a remedy before the specified Magistrate if he is aggrieved by the disposal of the case by the police.

26. 1984 SCC OnLine Mad 508.

27. 1988 LW (Cri) 467.

28. 1984 SCC OnLine Mad 508.

29. (1981) 2 SCC 197.

30. 1991 SCC OnLine Mad 613.

31. 2019 SCC OnLine Mad 38972.

32. 2019 SCC OnLine Mad 38972.

33. 1990 Supp SCC 145.

34. 2019 SCC OnLine Mad 38972.

35. 1929 SCC OnLine Mad 166.

Sedition Stay Order
Op EdsOP. ED.

   

Introduction

The Supreme Court of India in an unprecedented order in S.G. Vombatkere v. Union of India2 stayed the operation of the contentious Section 124-A3 of the Penal Code, 18604 (hereinafter “IPC”). The Supreme Court in a bunch of petitions challenging the constitutionality of Section 124-A IPC relating to the offence of sedition decided to keep in abeyance all pending trials, appeals and proceedings with respect to the charge framed under Section 124-A IPC. The Supreme Court also put an embargo on fresh registration of first information report (hereinafter “FIR”) by the police, failing which appropriate relief could be sought by the aggrieved by way of approaching the jurisdictional courts. The above directions passed by the Supreme Court shall continue till further orders are passed.

It is a case in point that the Supreme Court while issuing slew of directions left remarkable lacunae in the order. The author tries to point out in the paper that there are no specific directions issued by the Supreme Court with respect to the accused persons already incarcerated in prison charged under Section 124-A IPC, whose trial is pending before a competent court. The author would endeavour to demonstrate that failure to issue directions in the impugned order pertaining to bail may impede a prisoner's right to life and liberty on irrational grounds.

The first section of the paper summarises the background leading to the impugned order. The second section examines the lacunae in the order by the Court. The author concludes by proposing solutions to remove ambiguity inherent in the order. It is pertinent to state at the outset that the scope of the article is restricted to pointing out glaring lacunae in the impugned order and does not touch upon the discourse on sedition.

Background leading to the Supreme Court's fallacious order in S.G. Vombatkere

The original IPC, 1860 did not have an express provision to punish seditious speech or libel. Section 124-A was later engrafted in IPC in 1870.

Kedar Nath Singh v. State of Bihar5 was the first post-independence case in which the constitutionality of Section 124-A IPC was challenged. The court read down in Section 124-A that “only those expressions that either intend to or have the tendency of causing violence are punishable”. However, the continued unscrupulous use of Section 124-A brought to the fore the misuse of the sedition law in the political landscape. It compelled the Supreme Court in Common Cause v. Union of India6 to issue a direction to all the authorities dealing with the offences under Section 124-A IPC to be guided by the principles laid down by the Constitutional Bench in Kedar Nath Singh v. State of Bihar7.

The Allahabad High Court in Inayat Altaf Shekh v. State of U.P.8 sweepingly expressed that “the unity of India is not made of bamboo reeds which will bend to the passing winds of empty slogans”. The order of Allahabad High Court aptly demonstrates the misuse of sedition law on trivial issues such as sloganeering between students in an India-Pakistan cricket match.

Petitions challenging the constitutionality of Section 124 IPC were filed successively in the Supreme Court. The Supreme Court constituting N.V. Ramana, C.J., Surya Kant, J. and Hima Kohli, J. heard the pleas and stayed the operation of Section 124-A IPC until further orders.

Analysis of the order

In the writ petition challenging constitutionality of Section 124-A IPC, the Supreme Court directed the parties to submit written submissions. An affidavit filed on behalf of Union of India averred:

The Government of India is fully cognizant of unintended use of sedition law. It has decided to re-examine and reconsider the provision of Section 124-A IPC which can only be done before competent forum. The Attorney General had also, on an earlier date of hearing, given some instances of glaring misuse of this provision, like in the case of recital of the Hanuman Chalisa.

In para 5 of the order, the Supreme Court prima facie agreed with the stand of Union of India that the rigours of Section 124-A IPC are not in tune with the current social milieu and was intended for a time when this country was under the colonial regime. It also suggested that the Union of India may reconsider the aforesaid provision of law.

The Supreme Court, further in para 7 stayed the operation of Section 124-A IPC till the re-examination of the section is complete and passed the following orders in the interest of justice:

(a)***

(b) State and Central Governments will refrain from registering any FIR, continuing any investigation, or taking any coercive measures by invoking Section 124-A IPC while the aforesaid provision of law is under consideration.

(c) No fresh case shall be registered under Section 124-A. If any fresh case is registered against any individual person under Section 124-A, he may approach the court concerned for appropriate relief. The courts are requested to examine the relief sought in light of the order of this Court in the present case.

(d) All pending trials, appeals and proceedings with respect to the charge framed under Section 124-A IPC be kept in abeyance. Adjudication with respect to other sections, if any, could proceed if the courts are of the opinion that no prejudice would be caused to the accused.

(e)***

(f) The above directions may continue till further orders are passed.

Direction (c) does not pose any problem since it specifically states that no fresh FIR shall be registered by the police. In an event where a fresh FIR is registered by the police, the aggrieved person may approach the High Court under Section 4829 of the Criminal Procedure Code, 1973 (hereinafter “CrPC”) for quashing the FIR or the Magistrate before whom that person may be produced may release the person booked under Section 124-A on bail and to not take cognizance of the matter any further.

However, direction (d) is problematic since it grants stay on pending trials, appeals and proceedings with respect to the charge framed under Section 124-A without deciding the corollary issues such as grant of bail to the person already incarcerated in prison under Section 124-A IPC.

For example, an FIR was lodged in 2021 against Z under Section 124-A IPC. The trial court took cognizance and trial started against Z. The court remanded Mr Z to judicial custody after the commencement of the trial under Section 30910 CrPC. The Supreme Court later stayed all the pending trials under Section 124-A IPC. What will be the effect of stay on the liberty of Z who is incarcerated in the prison during the pendency of stay order of the Supreme Court? Can he seek bail as a matter of right on the ground that all pending trials under Section 124-A IPC have been stayed by the Supreme Court or will he remain incarcerated in prison during the embargo put by the Supreme Court, both of which substantially affects the right to life and liberty of the prisoner? This issue failed to find any place in the impugned order of the Supreme Court. The court has not specifically issued any directions for the grant of bail to persons already in prison whose trial appeal is still pending in the court of law.

Another problematic proposition is for example, an accused person was acquitted by the trial court under Section 124-A IPC. The State preferred an appeal under Section 37811 CrPC12 against the acquittal order of trial court. The High Court under Section 390 CrPC13 may commit the accused person to prison pending the disposal of the appeal. Let us say, Mr Z was committed to prison by the High Court before the stay on appeal was granted by the Supreme Court in the impugned order. What will be the effect on his liberty? Can he approach the High Court for grant of bail, or will he be incarcerated in prison during the stay order as the High Court cannot hear the appeal in light of direction (d) of the impugned order?

The invidious problem is that the courts may refuse to grant bail to the incarcerated prisoners on the ground that the Supreme Court has not issued any specific directions to release an accused on bail pending the adjudication of constitutionality of sedition law by the Supreme Court, which would affect the right of the accused person of speedy justice guaranteed by Article 2114 of the Constitution.15

The effect of stay order of the Supreme Court is that the pending cases under Section 124-A will be delayed and the effect of it is to release an accused person on bail which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21 as held by Constitutional Bench of this Court in A.R. Antulay v. R.S. Nayak.16

The author argues that an accused person's incarcerated years in prison cannot be restored if the Supreme Court decides the sedition law to be constitutional ultimately. The pending trial, from thereon will proceed, but the incarceration in prison between the stay and revocation of stay order will prejudice the accused, if he is acquitted in any case later on, under the charged section.

Concluding remarks

The Rajasthan High Court in Aman Chopra v. State of Rajasthan17 quickly followed the suit and ordered the police to not investigate the matter for allegations covered by Section 124-A IPC on the same day the Supreme Court stayed the operation of Section 124-A IPC.

The author argues that the accused person may seek bail on the ground of “change in circumstances” under Section 439 CrPC.18 Another recourse could be had to Section 482 CrPC as there is no specific section in the CrPC which deals with situation wherein the Supreme Court has stayed all the proceedings under a particular section in general, and the proceedings has not been provided. In such cases, the High Court can use its inherent power to grant relief to the incarcerated prisoners while the stay order is in force.

The problem of conflicting opinions could also be resolved by the Supreme Court by filling the gap in the order by issuing a sweeping order for grant of bail to the accused persons incarcerated in prison, pending the adjudication on constitutionality of sedition law or till the re-examination of it is complete, which would uphold the cherished right of life and liberty of the prisoners.


† BA LLB (Hons.) National Law University, Odisha, Law Clerk-cum-Research Assistant, Supreme Court of India. Author can be reached at <advdeepaksingh20@gmail.com>.

2. 2022 SCC OnLine SC 609.

3. Penal Code, 1860, S. 124-A.

4. Penal Code, 1860.

5. AIR 1962 SC 955.

6. Common Cause v. Union of India, (2016) 15 SCC 269.

7. AIR 1962 SC 955.

8. 2022 SCC OnLine All 419.

9. Criminal Procedure Code, 1973, S. 482.

10. Criminal Procedure Code, 1973, S. 309.

11. Criminal Procedure Code, 1973, S. 378.

12. Criminal Procedure Code, 1973.

13. Criminal Procedure Code, 1973, S. 390.

14. Constitution of India, Art. 21.

15. Constitution of India.

16. (1988) 2 SCC 602.

17. 2022 SCC OnLine Raj 1056.

18. Criminal Procedure Code, 1973, S. 439.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J. partly allowed a writ petition setting aside the judgment and order of Additional Sessions Judge and confirming the findings of Judicial Magistrate First Class further modifying the maintenance amount to Rs 3000/- per month.

The present petition was filed by a father intending to invoke the Constitutional powers of this Court to challenge the order passed by Additional Sessions Judge whereby the revision petition by son (present respondent) was allowed setting aside the order of grant of maintenance passed by Judicial Magistrate First Class under Section 125 of Criminal Procedure Code, 1973.

Petitioner had three daughters and only one son, wife of the petitioner is still alive, but she stays separately from the petitioner but with the respondent. Petitioner contended that he had no source of income and due to his old age he is unable to do any work therefore said application for maintenance was filed. Magistrate after taking into consideration the evidence on record had come to the conclusion that the petitioner is unable to maintain himself, respondent had refused to maintain his father even after being capable of maintaining father. He had granted maintenance of Rs. 5000/- per month. This order was challenged by the respondent and reversing all the findings of the Magistrate, the Additional Sessions Judge had set aside the order passed by the Magistrate and dismissed the original application. Hence, this writ petition.

A surrejoinder was filed by the respondent stating that petitioner had agricultural land admeasuring 57 R and he has sold the same to one Sunil Chandrabhan Admane on 09-11-2015 for a consideration of Rs.3 lakh. However, according to the him, actual consideration amount was Rs.7,50,000/-, but it has been shown less in the sale deed.

The Court from the submissions gathered that at present the age of the petitioner is around 73 to 75 years and it was on record that there is no land left with the petitioner. The Court further opined that even if for the sake of arguments its accepted that there was a piece of land for the petitioner the question still remains whether that is giving him sufficient income to sustain and whether his physical ability is allowing him to cultivate the land or get it cultivated through anybody so that he can earn.

The son cannot avoid his responsibilities to maintain the father. The Court further remarked that the respondent cannot impose a condition on him in exchange of providing maintenance. The respondent had pointed out that because of the vices of the father, there were differences between the mother and the father and they were not residing together and now he was demanding the money just to fulfill his vices to which the Court commented that it cannot go into disputed facts forever and the Court can only decide whether there is a source of income for the petitioner which could give him sufficient amount to support and then there is responsibilities of son to maintain the father, and therefore, the finding which has been arrived at by the revisional Court only on the technical basis that some amount was received by the petitioner in the past because of the sell and the so called admission of the petitioner that by doing labour work he is getting wages of Rs.20/- per day. The Court believed that the said order could not have been totally discarded and that the revisional Court by applying proper criteria could have reduced that amount to make it sustainable for both the parties.

The approach taken by the revisional Court appears to be too hyper technical and when it comes to petitions under Section 125 , CrPC, the Courts cannot be so hyper technical in their approach.

The Court therefore considering all the situations partly allowed the petition setting aside the judgment and order of Additional Sessions Judge and confirming the findings of Judicial Magistrate First Class modifying the maintenance amount to Rs 3000/- per month.

[Jagannath Bhagnath Bedke v. Haribhau Jagannath Bedke, 2022 SCC OnLine Bom 1528, decided on 08-07-2022]


Advocates who appeared in this case :

Mr N. D. Batule, Advocate, for the Petitioner;

Mr D. R. Marked h/f Mr G. P. Darandale, Advocates, for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Op Ed
Op EdsOP. ED.

On 11-5-2022, a three-Judge Bench of the Supreme Court of India in S.G. Vombatkere v. Union of India2, while dealing with the petitions challenging the constitutionality of Section 124-A3 of the Penal Code, 18604 which deals with offence of “sedition”, has directed that all pending trials, appeals and proceedings with respect to the charge framed under the said section be kept in abeyance. The Supreme Court also urged the State and Central Governments to restrain from registering any FIR under Section 124-A IPC till the Court decides the provision’s constitutional validity. In case, the court further held, the FIR is registered then the affected person is free to approach the court concerned for appropriate relief.

In simple terms, as the Supreme Court cannot direct the police not to register FIR in a cognizable offence in view of its own decision in Lalita Kumari v. Govt. of U.P.,5 it has urged the police not to register FIR under Section 124-A IPC and gave liberty to the affected party to approach the court concerned for appropriate relief if the FIR is registered. The “court concerned” here, by all accounts, means the High Court which has got power under Section 4826 of the Code of Criminal Procedure, 19737 to quash/stay the FIR. And in all likelihood, all the High Courts in India will stay the FIRs registered under Section 124-A IPC on the ground that the provision’s validity is pending consideration by the Supreme Court. This means Section 124-A IPC has been kept in abeyance not only for cases pending trials, appeals, charge but also for cases at the investigation/crime stage.

In legal sense, the operation of Section 124-A IPC has been stayed by the Supreme Court. While many are calling it as a historic order, in my opinion, the Supreme Court went against its own principles in passing the above discussed order.

It is the Court’s own craved principle in Health for Millions v. Union of India,8 that the “operation of statutory provisions cannot be stultified by granting an interim order except when the court is fully convinced that the particular enactment or rules are ex facie unconstitutional and the factors, like balance of convenience, irreparable injury and public interest are in favour of passing an interim order”. While one may argue that Section 124-A , which is “colonial era provision”, seems to be ex facie unconstitutional, causes irreparable injury and is against public interest and that in some previous cases the courts granted stay of the statute, but those were the cases where the statute was challenged immediately after its enactment. Here, Section 124-A IPC is in vogue since 152 years which does not call for a stay at this point of time. Also, the Courts granting stay or abeyance of the statute while the hearing of the case is pending will create an impression that the court has formed a particular opinion even before pronouncing the final judgment.

It is again the court’s-own-craved principle that there is always a presumption that a statute is constitutional, until the court, after hearing finally, declares it to be unconstitutional. For Section 124-A, there should be double presumption because, firstly, as per Article 372(1)9 of the Constitution all laws before the enactment of the Constitution shall continue to be in force until they are repealed by the competent legislature. That the legislature has not done it even after 72 years of coming into force of the Constitution means that the legislature in its wisdom, although may be wrong, has thought that the provision shall continue. Secondly, in Kedar Nath Singh v. State of Bihar,10 a five-Judge Constitutional Bench declared Section 124-A to be valid and not in violation of Article 19(1)(a)11 of the Constitution.

Also, in S.G. Vombatkere case,12 the Bench strength was of three Judges which was hearing the issue as to whether to refer the matter to a larger Bench as the Bench strength in Kedar Nath Singh case,13 which held Section 124-A IPC to be valid, was of five Judges. However, without deciding on the referral aspect, the 3-Judge Bench, in extreme deviation from the doctrine of stare decisis, has kept Section 124-A into abeyance.

Even assuming that Section 124-A will be declared unconstitutional by overruling Kedar Nath Singh case,14 such declaration has to apply prospectively as Article 13(1)15 uses the word “void” i.e. from the date of declaration of law and not the words “void ab initio” i.e. from the beginning. By borrowing the principle from American jurisprudence, the Supreme Court in C. Golak Nath v. State of Punjab,16 has started the doctrine of “prospective overruling”. This doctrine enunciates that when the court finds or lays down the correct law, the court restricts the operation of new found law to the future so that its impact does not fall on the past transactions.

In Chicot County Drainage District v. Baxter State Bank,17 the US Supreme Court said, “The law prior to the determination of unconstitutionality is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration.” Therefore, the present abeyance of all the proceedings, even before declaring Section 124-A IPC as unconstitutional, is against the doctrine of “prospective overruling.”

It is true that Section 124-A IPC is being misused by the ruling dispensation to stifle the democratic views and it is also true that Section 124-A IPC was castigated by likes of Mahatma Gandhi, Bal Gangadhar Tilak and many great intellectuals. In that scenario, the Supreme Court can give priority to hearing of the cases challenging validity of law and declare it either ways, instead of bypassing the settled principles of law.


† Advocate practising at Telangana High Court. Author can be reached at <akashbaglekar@gmail.com>.

2. 2022 SCC OnLine SC 609.

3. Penal Code, 1860, S. 124-A.

4. Penal Code, 1860.

5. (2014) 2 SCC 1.

6. Criminal Procedure Code, 1973.

7. Criminal Procedure Code, 1973, S. 482.

8. (2014) 14 SCC 496.

9. Constitution of India, Art. 372(1).

10. AIR 1962 SC 955.

11. Constitution of India, Art. 19(1)(a).

12. 2022 SCC OnLine SC 609.

13. AIR 1962 SC 955.

14. AIR 1962 SC 955.

15. Constitution of India, Art. 13(1).

16. AIR 1967 SC 1643.

17. 1940 SCC OnLine SC 1 : 84 L Ed 329 : 308 US 371 (1940).

Op Ed
Op EdsOP. ED.

   

Before the Code of Criminal Procedure, 19732 (hereinafter referred to as “the new Act”), came into force; the related law in force was the Code of Criminal Procedure, 1898 (hereinafter referred to as “the old Act”). The power of revision was primarily contained in Section 435 of the old Act. In the old Act, no distinction was made for the exercise of revisional powers apropos interlocutory or other category of orders. The result being that even with regard to purely interlocutory orders, revisional powers could be exercised. The vast power of revision conferred in the old Act was one of the main contributing factors in the delay of disposal of criminal cases. To remedy this, the 41st Law Commission Report suggested the taking away of the revisional powers of the courts apropos interlocutory orders. This suggestion was adopted in the new Act as is clear from the Statement of Objects and Reasons of the new Act and more particularly from the provision contained in Section 397(2)3 of the new Act which reads as under:

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

The legislature did not think it necessary to provide any definition of the term interlocutory order either in the definition clause or in the body of Section 397 of the new Act. This led to a lot of confusion. The term interlocutory order vis-à-vis the exercise of the revisional powers as contained in Section 397 of the new Act came to be considered in many a cases after the passing of the new Act.

The author has, before writing this article, meticulously perused the only four-Judge Bench decision of the Supreme Court on the point, all the three-Judge Bench and all the two-Judge Bench decisions of the Supreme Court on the point including the two-Judge Bench decision which has been approved by the only four-Judge Bench decision of the Supreme Court on the point.

The first three-Judge Bench decision of the Supreme Court on the point came on 23-11-1976, in Parmeshwari Devi case4 in which it was essentially held that an order though literally interlocutory cannot be treated as interlocutory if it is conclusive as to a person who is not a party to the enquiry or trial against whom it is directed i.e. if it is passed against a stranger to the case who would have no opportunity of challenging it after a final order is made affecting the parties concerned provided the order adversely affects the stranger's rights.

Then came a two-Judge Bench decision of the Supreme Court on the point on 29-7-1977, titled Amar Nath case5. The following essential tests were laid down by the Bench to determine what is an interlocutory order and what is not an interlocutory order:

Test on what is an interlocutory order

The term interlocutory order in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense and it merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties.

Test on what is not an interlocutory order

1. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order; and

2. orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory orders.

Then came a three-Judge Bench decision of the Supreme Court on the point on 31-10-1977, titled Madhu Limaye case6 in which the judgment of the Supreme Court in Amar Nath case7 was partially affirmed on the point of what is meant by the term interlocutory order. In this case, it was held that the term interlocutory order as used in Section 397 of the new Act does not invariably mean the converse of the term final order. After clarifying the above position, the following yardstick was given to determine whether a particular order is not an interlocutory order; which is as follows:

an order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397(2).

Then came the only four-Judge Bench decision of the Supreme Court (till date) on the point on 7-12-1979, titled V.C. Shukla case8. In this case, after discussing the judgments in Amar Nath case9 and Madhu Limaye case10, they were approved on the point of law laid down therein apropos what is not an interlocutory order. It was also held that intermediate, quasi-final and final orders are revisable. Apart from these, the following law was laid down in V.C. Shukla case11:

7. … the term “interlocutory order” used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial … If, therefore, the right of revision was to be barred, the provision containing the bar must be confined within the four corners of the spirit and the letter of the law. In other words, the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi-final.

Then came a three-Judge Bench decision of the Supreme Court on the point on 13-7-2017, titled Girish Kumar Suneja case12 in which affirming the decision in Madhu Limaye case13, it has been held that in Madhu Limaye case14 it had been held that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Finally, it was held in Girish Kumar Suneja case15 that revisional powers can be exercised only against a final order or an intermediate order, namely, an order which if set aside would result in the culmination of the proceedings.

The decision in Girish Kumar Suneja case16 appears to be not laying down the correct law — on the point as to what is an interlocutory order — due to the following reasons:

1. Firstly, in Madhu Limaye case17, the yardstick — not exhaustive — to determine what is not an interlocutory order was provided. Nowhere in Madhu Limaye case18, it was held as to what constitutes an interlocutory order. But in Girish Kumar Suneja case19 it has been wrongly taken to mean that the test laid down in Madhu Limaye case20 is exhaustive for determining what is an interlocutory order — rather than what is not an interlocutory order. There is an ocean of difference between the tests — if they (the tests) are not exhaustive — of what is an interlocutory order and what is not an interlocutory order. An order may not be interlocutory in nature, but it does not mean that other orders cannot be interlocutory in nature. For instance an order which is such that when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order is not an interlocutory order, but it does not mean that there cannot be other orders which are not interlocutory in nature.

2. Secondly, in Girish Kumar Suneja case21, it has been held that revisional powers can be exercised only against a final order or an intermediate order, namely, an order which if set aside would result in the culmination of the proceedings. This goes against the law laid down by an earlier two-Judge Bench Supreme Court decision in Amar Nath case22 which was affirmed as abovestated by a four-Judge Bench in V.C. Shukla case23. In Amar Nath case24, it was held that orders which substantially affect the right of the accused, decide certain rights of the parties, and which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory orders. That is to say that in Amar Nath case25 a few other categories of orders have been spoken about which would not fall in the category of interlocutory orders. As per the law of precedents, the law laid down by a two-Judge Bench of the Supreme Court and later discussed and affirmed by a four-Judge Bench of the Supreme Court cannot be given a go-by by a subsequent three-Judge Bench decision of the Supreme Court. And in case it does, what is binding is the law laid down by the two-Judge Bench and later discussed and affirmed by the four-Judge Bench rather than the three-Judge Bench decision of the Supreme Court.

Till now, we saw the law laid down by the various Benches of the Supreme Court on the point as to what is and what is not an interlocutory order for the purpose of exercise of revisional powers under Section 397 of the new Act; we also saw that Girish Kumar Suneja case26, due to the aforementioned reasons, does not lay down the correct law on the point in issue.

Before we succinctly see as to what constitutes an interlocutory order and what does not ; we shall examine the law laid down in Amar Nath case27 which is essentially the reason behind the conundrum in determining what is and what is not an interlocutory order.

In Amar Nath case28, it has been held that an interlocutory order is an order of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties whereas an order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order; also orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory orders. Now, the million-dollar question is when can it be said that an order affects the rights or liabilities of a party. In Amar Nath case29, a few examples and some guideline have been provided for the same which are as follows:

1. Orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code.

2. The judgment in Central Bank of India Ltd. v. Gokal Chand30 is referred to wherein it is held that the term interlocutory order does not include interim orders which are merely procedural and do not affect the rights or liabilities of the parties like orders pertaining to the summoning of witnesses; discovery, production and inspection of documents; issue of a commission for examination of witnesses; inspection of premises; fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interim orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties. In Amar Nath case31, relying on the above judgment in Central Bank of India Ltd. v. Gokal Chand32, it has been held that the aforesaid decision clearly illustrates the nature and incidents of an interlocutory order and the incidents given by this Court constitute sufficient guidelines to interpret the connotation of the word interlocutory order as appearing in sub-section (2) of Section 397 of the 1973 Code.

An order relating to summoning or refusing to summon a witness or an order refusing to or admitting a document — in general — is considered as an order affecting the rights or liabilities of a party; but as per the meaning given in Amar Nath case33, orders which are steps in aid of the pending proceeding, which are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in a pending proceeding and which regulate the procedure only are considered not to affect any rights or liabilities of parties.

Here the problem is that the test as provided above is imperfect. It can be interpreted loosely given the imperfect yardstick provided for in Amar Nath case34. When would an order be considered as affecting the rights and liabilities of parties cannot be culled out with certitude on applying the above tests and hence the confusion.

The solution to this is either an authoritative pronouncement on the true and exhaustive meaning of the term interlocutory order by a larger Bench of the Supreme Court or the best solution would be if the legislature makes suitable amendments in the new Act to make it crystal clear as what would and what would not constitute interlocutory order vis-à-vis Section 397(2) of the new Act.

The other two-Judge Bench decisions35 of the Supreme Court although worth perusal, neither legally enlarge nor curtail the scope of the term interlocutory order laid down in the abovereferred judgments.

On the basis of the law laid down by the Supreme Court, the following is an interlocutory order:

An order of a purely interim or temporary nature which does not decide or touch the important rights or the liabilities of the parties.

On the basis of the law laid down by the Supreme Court in various pronouncements, the following are not interlocutory orders:

1. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order.

2. Orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory orders.

Note for Points 1 and 2: Orders which are steps in aid of the pending proceeding, and which are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in a pending proceeding and which regulate the procedure only are considered not to affect any rights or liabilities of parties.

3. Orders rejecting the plea of a party on a point which, when accepted, will conclude the particular proceeding.

4. Orders passed against a stranger to the case who would have no opportunity of challenging it after a final order is made affecting the parties concerned provided the order adversely affects the stranger's rights.

Rider: The term interlocutory order used in the new Act has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial (as per the law laid down by the four-Judge Bench in V.C. Shukla case36).


† Civil Judge, Senior Division, Tarana, Ujjain, Madhya Pradesh. Author can be reached at <dagliyashrikrishna@gmail.com>.

2. Code of Criminal Procedure, 1973.

3. Criminal Procedure Code, 1973, S. 397(2).

4. Parmeshwari Devi v. State, (1977) 1 SCC 169.

5. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

6. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

7. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

8. V.C. Shukla v. State, 1980 Supp SCC 92.

9. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

10. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

11. V.C. Shukla v. State, 1980 Supp SCC 92.

12. Girish Kumar Suneja v. CBI, (2017) 14 SCC 809.

13. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

14. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

15. Girish Kumar Suneja v. CBI, (2017) 14 SCC 809.

16. Girish Kumar Suneja v. CBI, (2017) 14 SCC 809.

17. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

18. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

19. Girish Kumar Suneja v. CBI, (2017) 14 SCC 809.

20. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

21. Girish Kumar Suneja v. CBI, (2017) 14 SCC 809.

22. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

23. V.C. Shukla v. State, 1980 Supp SCC 92.

24. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

25. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

26. Girish Kumar Suneja v. CBI, (2017) 14 SCC 809.

27. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

28. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

29. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

30. AIR 1967 SC 799.

31. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

32. AIR 1967 SC 799.

33. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

34. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

35. Haryana Land Reclamation and Development Corpn. Ltd. v. State of Haryana, (1990) 3 SCC 588; Om Kumar Dhankar v. State of Haryana, (2012) 11 SCC 252; Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460; State of Rajasthan v. Fatehkaran Mehdu, (2017) 3 SCC 198; Mohit v. State of U.P., (2013) 7 SCC 789; Urmila Devi v. Yudhvir Singh, (2013) 15 SCC 624; MCD v. Girdharilal Sapuru, (1981) 2 SCC 758; Gautam Navlakha v. National Investigation Agency, 2021 SCC Online SC 382; State of Gujarat v. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539; S.K. Bhatt v. State of U.P., (2005) 3 SCC 634; K.K. Patel v. State of Gujarat, (2000) 6 SCC 195; Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd., (2001) 7 SCC 401; Sethuraman v. Rajamanickam, (2009) 5 SCC 153; Dhariwal Tobacco Products Ltd. v. State of Maharashtra, (2009) 2 SCC 370; D. Devaraja v. Owais Sabeer Hussain, (2020) 7 SCC 695 and Rajendra Kumar Sitaram Pande v. Uttam, (1999) 3 SCC 134.

36. V.C. Shukla v. State, 1980 Supp SCC 92 : 1980 SCC (Cri) 695.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: M. Nagarprasanna J. allowed a petition filed under Section 482 of Criminal Procedure Code, 1973 (CrPC) seeking quashing of the impugned order passed by the Additional Chief Metropolitan Magistrate. Therefore, the magistrate court directed that interim compensation be given as per the “conduct of the accused” for the applications filed under Section 143-A of the Negotiable Instruments Act, 1881 (NI Act).

The observation came after the Court noticed that it was “flooded with litigation with regard to grant of compensation under Section 143-A of the NI Act by criminal courts”. Noticing that in several cases discretion is exercised for grant of compensation and in several other cases there are no reasons for exercise of such discretion, the Court found it necessary to direct Magistrates to consider the conduct of the accused at the outset while considering applications filed under Section 143-A of the Act.

“If the accused has been unnecessarily evading the proceedings by seeking adjournments, consideration of the application would become imperative as the amendment itself is introduced to compensate such payees of delay tactics adopted by unscrupulous drawers of cheques.”

Facts of the case

The petitioner and the respondent entered into an agreement in 2017 for the distribution of ice cream and frozen dessert products manufactured by the respondent. As per the agreement, the respondent had demanded the petitioner the issuance of blank cheques as security instead of the proposed supply to be made to the petitioner. Therefore, the petitioner issued several blank cheques to the respondent.

A complaint was filed invoking Section 200 of the CrPC for offences punishable under Section 138 of the NI Act when the cheque of Rs 5,56,71,208/- was dishonored on the grounds of want of sufficient funds in the account.

The trial court, after considering the facts, gave the impugned order of granting 10% interim compensation in terms of section 143-A of the NI Act.

Analysis of the court

Firstly, the court noted that Section 143-A of the Act was introduced for a specific purpose. The purport of the amendment was that the court may, in certain circumstances, award interim compensation which shall not exceed 20% of the amount of the cheque and such interim compensation can be permitted to be withdrawn in terms of the said amendment. Therefore, the court in such cases directs the accused to pay interim compensation under section 143-A. In circumstances when the accused would not deposit the amount directed by the Court, it is recoverable by initiating proceedings under Section 421 of the CrPC. Therefore, the provision which is a directory in the beginning snowballs into becoming mandatory and penal by the time the realization of the deposit amount is made.

The Court, further, explained the following “two-fold discretion” that are sine qua non for an order to be passed by the Magistrate while considering the application under Section 143-A of the NI Act.:

  • First: In a given case if the accused is cooperating with the trial without seeking any unnecessary adjournments, not absenting himself or his counsel on any date and cooperating with the conclusion of the trial in such cases, the learned Magistrate will have to apply his mind, exercise his discretion as to whether such applications should be entertained at all.

  • Second: In any given case, the compensation may vary from 1% to 20%. As the mandate of the statute is that it should not exceed 20%, in the cases where Magistrate proceeds to grant compensation, has to bear in mind the amount involved in the instrument, as certain transactions would run to several cores and the accused may have formidable defence against the complainant. In such cases, the Magistrate should exercise discretion in a cautious manner. Here again the conduct of the accused should be noticed.

The court opined that application of mind and passing of a reasoned order of grant of compensation becomes necessary in penal cases that ensue an accused who failed to comply with the order granting 20% compensation as the complainant is given several remedies of recovery which result in the accused being taken into custody. Hence, such orders which result in such penal consequences should be rendered by giving cogent reasons which would demonstrate the application of mind, and such orders should be passed only after hearing the accused in the matter.

Ruling on facts

In the case at hand, involving the amount of Rs. 55 Lakhs, it was observed that the order of the Magistrate did not bear any reason. Hence, the Court held that the Magistrate after analyzing the conduct of the accused should grant compensation which would vary from 1% to 20% after recording necessary reasons and therefore set aside the impugned order and remitted back the matter to the hands of themagistrate.

[V. Krishnamurthy v. Diary Classic Ice Creams Pvt. Ltd., 2022 SCC OnLine Kar 1047, decided on 01-06-2022]


Advocates who appeared in this case :

Maruthi, Joshna Hudson Samuel, Advocates, for the Petitioner;

Dinesh SK, Advocate, for the Respondent.

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: Rumi Kumari Phookan J. held that Maharashtra Police neither had the jurisdiction nor the authority to investigate offences under the Food Safety and Standards Act, 2006 (FSS Act) only a food inspector has the authority to investigate such offences. Hence, the court directed Maharashtra Police to pay Rs 2,00,000/- to the petitioner as a cost to the petition.

Facts of the case

The petitioner, Dharampal Satyapal Ltd., is a company incorporated under the provisions of the Companies Act, 1956, having its registered office in New Delhi. The petitioner had been granted a license under the FSS Act, to manufacture pan-masala, which is classified as a food product.

An FIR was registered against Md. Imran Mohammed Hanif under Sections 188, 272, 273 and 328 of the Penal Code (IPC) in possession of Rajanigandha pan-masala, Scented Tobacco and Baba Nabaratan pan-masala, etc. which are prohibited items of food, given the notification issued by the Commissioner of FSS and Drug Administration, Maharashtra, dated 20.07.2019. As the investigation proceeded, stocks of pan-masala and tobacco were recovered from the accused. After this, the respondent visited the petitioner’s factory at Bamunimaidam, Guahati, and forcibly seized the entire machinery and articles from the factory and prepared a seizure list (panchnama).

Contentions

The petitioner contended that the respondent had no jurisdiction and power to seize the factory and other articles as they had not contravened any law in Solapur, Maharashtra as well the petitioner had the license to produce pan-masala, given by the appropriate authority.

The respondent contended that the search and seizure done by the respondent were by the law. Further, the respondent submitted that the petitioner stored and sold the product manufactured by the petitioner in Maharashtra which was prohibited under the notification issued under the FSS Act

Analysis, Law, and Decision

First, the court referred to Sections 41 and 42 of the FSS Act, according to which Section 41 prescribes that Food and Safety Officer have the power to search and seize food articles and Section 42 prescribes that the Food and Safety Officer is responsible for inspection of food business, drawing samples and sending the same to the food analyst for analysis and thereafter can launch the prosecution in an appropriate case.

Further, the court was of the view that provisions of Section 4(2) of Criminal Procedure Code, 1973 (CrPC), all offences under any other law shall be dealt with under the enactment regulating the manner of investigation and trial, etc. and hence, FSS being a complete statute, has an overriding effect as a Special Act to deal with such food items.

At this juncture, the court relied on the judgment given in the case of Christy Fried Gram Industry v. State of Karnataka, 2016 Cri LJ 482, wherein the court held that for initiation of proceedings regarding the manufacture and supply of food to the general public are regulated under FSS Act in complete mechanism is provided under the said Act to deal with the cases concerned with the food-related laws. Section 29 of the said Act specifies the authorities responsible for enforcement of the Act and Section 30 specifies the Commissioner of Food and Safety as a competent authority to implement the provision of the Act effectively.

Noting that, in the case at hand, the fundamental right of the petitioner to carry out the lawful business has been hampered for such illegal conduct on the part of the investigating officer, the Court observed that

“The petitioner herein without there being any criminal culpability has been thrown to utter hardship and inconvenience by seizure of building as well as the article valued more than crores of rupees thereby the petitioner has been compelled to run a legal battle consuming time, energy and heavy cost while continuing such litigation before the High Court.”

Therefore, the Court held that the investigation carried out by the investigating officer was beyond its jurisdiction under the law and directed the respondent to release all the seized articles to the petitioner and pay Rs 2,00,000/- as a cost to the petition.

[Dharampal Satyapal Ltd. v. State of Maharashtra, 2022 SCC OnLine Gau 943, decided on 16-06-2022]


Advocates who appeared in this case :

Dr. A. Saraf, Senior Advocate, for the Petitioner;

Mr. RKD Choudhury, Advocate and Mr. M. Phukan, P.P., Assam, Advocate, for the Respondent.