Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a PIL filed seeking to impose a complete ban on flying kites, a Division Bench of Satish Chandra Sharma, CJ and Subramonium Prasad J. clarified that complete ban cannot be granted but the use of Chinese Maanjha can be curbed by strictly adhering to orders and notifications passed by the Government and competent authorities from time to time.

The petition was filed by a practicing Advocate ‘petitioner' seeking issuance of writ in the nature of Mandamus or any other appropriate writ/direction/ order to Union of India ‘respondents' to impose complete ban on flying, making, sale-purchase, storage, transportation of kites and objects used in making and flying of kite. This is due to use of kite flying thread made up of Nylon, Plastic and other Synthetic material commonly known as Chinese Maanjha which has led to a large number of accidents taking place in and around Delhi. A large number of people are getting injured, and not only people, even animals and birds are also becoming victims of Chinese Maanjha.

Counsel for State informed Court regarding a notification dated 10-01-2017 issued by GNCTD which imposes complete ban on use of Chinese Maanjha and other similar material and a Monitoring Committee has also been constituted to look into the matter. The state has ensured strict compliance of the notification before Court.

Further, it was also brought to the attention of the Court that an order dated 10-08-2020 has been passed by National Green Tribunal prohibiting manufacture, sale, storage, purchase and use of thread made of Nylon, synthetic material and/or coated with synthetic substance which is non-biodegradable for kite flying, and the said order of the NGT has been circulated to all authorities and strict compliance of the same is being ensured.

State also submitted that an order dated 18-07-2020 issued by ACP, Sub-Division — Mehrauli in exercise of powers under Section 144 Criminal Procedure Code has been passed in respect of imposing of ban on use of Chinese Maanjha

Thus, the Court noted that no further orders were required to be passed and further directed the strict compliance of the order passed by the NGT as well as the earlier order passed by the Government on the subject.

[Sanser Pal Singh v. Union of India, WP (C) No. 11592 of 2022, decided on 05-08-2022]


Advocates who appeared in this case :

For Petition- In person

For Respondents- Mr. Chetan Sharma, Additional Solicitor General and Mr. Anil Soni, CGSC with Mr. Amit Gupta, Mr. Rishav Dubey, Mr. Sahaj Garg & Mr. Saurabh Tripathi, Advocates for Respondent No.1/ UOI. Mr. Sameer Vashisht, Additional Standing Counsel with Ms. Sanjana Nangia, Advocate for Respondent No.2/ GNCTD. Mr. Sanjay Lao, Standing Counsel with Ms. Supriya Manan & Mr. Karan Jeet Rai Sharma, Advocates along with Mr. Shankar Banerjee, ACP (Legal Division) and Mr. Vinod Sharma, Inspector (Legal Division), PHQ, Delhi Police, for Respondent No.3/ DP.


*Arunima Bose, Editorial Assistant has reported this brief.

Andhra Pradesh High Court
Case BriefsHigh Courts

   

Andhra Pradesh High Court: Subba Reddy Satti J. granted anticipatory bail to the Chief Executing Officer (applicant-accused) as on perusal of complaint there was no sign of instigation and abetment and mere allegation of harassment will not attract offence under Section 306 Penal Code, 1860 (‘IPC') unless such actions compelled the victim to commit suicide.

The wife of the deceased employee lodged a complaint alleging that her husband worked as Clerk for nine years in Primary Agriculture Cooperative Society (‘Society') and presently was working as Secretary. It was alleged that due to the pressure made by the accused, the deceased committed suicide. Based on the said complaint, the present crime was registered. Thus, instant petition was filed under Section 438 Criminal Procedure Code (‘CrPC') seeking pre-arrest bail to the petitioner/A3 in the event of her arrest in connection with the said registered offence punishable under Section 306 Penal Code, 1860 .

The Court noted that the averments of the complaint with regard to the pressure made by the petitioner who is CEO may not arise for the reason that in case of any defaults, the President and Secretary will follow the procedure contemplated under the Co-operative Societies Act and not the accused who happens to be the Chief Executing Officer ‘CEO'.

Placing reliance on Geo Varghese v. State of Rajasthan, 2021 SCC Online SC 873, wherein it was held mere allegation of harassment will not attract offence under Sections 306 IPC unless such actions compelled the victim to commit suicide.

Further placing reliance on M. Mohan v. State of Tamil Nadu, (2011) 3 SCC 626, the Court noted that mere allegations of pressure or harassment made by wife, in the instant case, will not suffice to attract ingredients of Section 306 IPC and to attract the offence under Section 306 IPC, there should be instigation or abetment on the part of the accused.

Thus, the Court held as there is no instigation or abetment made by the accused which led the deceased to commit suicide as indicated by the complaint and hence, ingredients of Section 306 IPC are prima facie not made out and the accused be granted bail.

[B Sridevi v. State of Andhra Pradesh, Criminal Petition No. 4976 of 2022, decided on 14-07-2022]


Advocates who appeared in this case :

O Kailashnath Reddy, Advocate, for the Petitioner.


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

“Criminal courts in general with the trial court in particular are the guardian angels of liberty. Liberty, as embedded in the Code, has to be preserved, protected, and enforced by the Criminal Courts. Any conscious failure by the Criminal Courts would constitute an affront to liberty. It is the pious duty of the Criminal Court to zealously guard and keep a consistent vision in safeguarding the constitutional values and ethos.”

Supreme Court: The division bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has asked the Government of India to consider the introduction of an Act specifically meant for granting of bail, as done in various other countries like the United Kingdom.

The Court took note of the statistics that show that jails in India are flooded with undertrial prisoners with more than 2/3rd of the inmates of the prisons constituting undertrial prisoners. Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offense, being charged with offenses punishable for seven years or less. They are not only poor and illiterate but also would include women. Statistics also show that more than 1000 children are living in prisons along with their mothers. Granting bail in such cases is not only in the interest of the accused, but also the children who are not expected to get exposed to the prisons.

The Court observed,

“it certainly exhibits the mindset, a vestige of colonial India, on the part of the Investigating Agency, notwithstanding the fact arrest is a draconian measure resulting in curtailment of liberty, and thus to be used sparingly. In a democracy, there can never be an impression that it is a police State as both are conceptually opposite to each other.”

The Court also noted that the rate of conviction in criminal cases in India is abysmally low and this factor weighs on the mind of the Court while deciding the bail applications in a negative sense.

“Courts tend to think that the possibility of a conviction being nearer to rarity, bail applications will have to be decided strictly, contrary to legal principles. We cannot mix up consideration of a bail application, which is not punitive in nature with that of a possible adjudication by way of trial. On the contrary, an ultimate acquittal with continued custody would be a case of grave injustice.”

The Court observed that the Jurisdictional Magistrate who otherwise has the jurisdiction to try a criminal case which provides for a maximum punishment of either life or death sentence, has got ample jurisdiction to consider the release on bail.

Hence, taking note of the aforementioned considerations and the number of special leave petitions pertaining to different offenses, particularly on the rejection of bail applications, being filed before it, despite various directions issued from time to time, the Court issued the following directions for the investigating agencies as well as for the courts:

a) The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails.

b) The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action.

c) The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail.

d) All the State Governments and the Union Territories are directed to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code while taking note of the order of the High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 of 2018 and the standing order issued by the Delhi Police i.e. Standing Order No. 109 of 2020, to comply with the mandate of Section 41A of the Code.

e) There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code.

f) There needs to be a strict compliance of the mandate laid down in the judgment of this court in Siddharth v. State of U.P., (2021) 1 SCC 676.

g) The State and Central Governments will have to comply with the directions issued by this Court from time to time with respect to constitution of special courts. The High Court in consultation with the State Governments will have to undertake an exercise on the need for the special courts. The vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously.

h) The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release.

i) While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind.

j) An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district judiciary level and the High Court as earlier directed by this Court in Bhim Singh v. Union of India, (2015) 13 SCC 605, followed by appropriate orders. In Bhim Singh, the Court directed that Jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge shall hold one sitting in a week in each jail/prison for two months commencing from 1-10-2014 for the purposes of effective implementation of Section 436-A of the Code of Criminal Procedure.

k) Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being an intervening application. Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application.

l) All State Governments, Union Territories and High Courts are directed to file affidavits/ status reports within a period of four months.

[Satender Kumar Antil v. CBI, 2022 SCC OnLine SC 825, decided on 11.07.2022]


*Judgment by: Justice MM Sundresh

Counsels

Senior Advocates Amit Desai, Sidharth Luthra and Additional Solicitor General S.V. Raju.

Tis-hazari
Case BriefsDistrict Court

Tis Hazari Court, Delhi: While deciding a bail application, Kamini Lau, J. granted anticipatory in a case where the complainant-girl was a major and was held to be in a consensual relationship and thus, consent forms part of the subject matter in the said case. The Court granted bail since the accused joined the investigations and therefore, his custodial interrogation was not warranted.The applicant/accused got into a relationship with the prosecutrix/complainant after getting acquainted at work. The applicant had also introduced the complainant to his parents, and they approved of her. Subsequently, since March 2021, they started developing sexual relations on various occasions at different places like his residence, office and different hotels. The complainant alleged that these relations were non-consensual, and she was coerced based on the false promise of marriageby the applicant. The applicant contended that due to professional and personal issues he had been unable to marry the complainant, but she was pressurizing him to marry her. However, the complainant contended that after their last encounter on 11-06-2022, the applicant started ignoring her and avoided all communication with her. Pursuant to this,, the complainant filed a case against the applicant under Sections 354-D and 376 Penal Code, 1860 (‘IPC’). The applicant filed the instant anticipatory bail application under Section 438 Criminal Procedure Code (‘CrPC’)

The Court vide order dated 12-07-2022 granted interim protection to the applicant/accused and directed them to file a detailed report at the next hearing. Thus, a detailed report was filed by the Investigating officer who admitted that the applicant/accused Rahul Sharma joined investigations on 13-07-2022.

The Court observed that there is rarely any cogent or tangible proof to establish/ prove the existence of a criminal intention which has to be gathered, deciphered or inferred from circumstances.

Placing reliance on Uday v. State of Karnataka (2003) 4 SCC 46, and Jayanti Rani Panda v. State 1983 SCC OnLine Cal 98, the Courtobserved that “it is evident that there is no straitjacket formula which can be evolved for determining whether the consent was given under a misconception of fact or not and it has to be deciphered from the facts and circumstances of each case.”

The court concluded to note that, according to the applicant, he was ready and willing to marry the complainant, but it was the family of the complainant who had an issue with an inter-caste marriage. Additionally, the applicant joined the investigation and therefore, his custodial interrogation is not required , thus, the court granted anticipatory bail to the applicant on a bail bond of Rs. 1 lakh subject to the conditions as mentioned in the order.

[Rahul Sharma v. State, 2022 SCC OnLine Dis Crt (Del) 27, decided on 19-07-2022]


Advocates who appeared in this case :

Mr Pankaj Bhatia, Advocate, for the State;

Mr Kapil Madan, Mr Gurmukh Singh Arora and Mr Saurabh Gauba, Advocates, for the Applicant/Accused;

Complainant in person with Ms Sudershna Chakraborty Advocate from Delhi Commission, for the Women.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: HP Sandesh J. while dealing with an application filed under Section 439 Criminal Procedure Code, ‘CrPC’ by Deputy Commissioner who is accused of taking bribe of Rs 5 lakh from the complainant for passing an order in his favour, took note of the inefficiencies in the investigation and remarked that if the investigation agency has failed to consider the public interest while dealing with a corruption case involving ADGP, then the Court ought to monitor the investigation in such circumstances.

The bail order was heard and dispensed vide order dated 07-07-2022 which further culminated in a transfer threat received by HP Sandesh J, who in his own words’ remarked vide order dated 11-07-2022

“Hon’ble sitting Judge came and sat by the side of me and stated that he received a call from Delhi (not disclosed the name) and said that the person who called from Delhi, enquired about me and immediately I replied that I am not affiliated to any political party and the Hon’ble Judge did not stop the same there itself and further said that ADGP is from North India and he is powerful and also gave an instance of transfer of Senior Judge of this Court to some other State and told that for no mistake on his part, he was transferred and chances of one side feeding to them”

The case details are such that on 20-5-2022, a case was filed by a complainant before the Anti-Corruption Bureau (ACB) against the Deputy Commissioner. The allegation stated that when the complainant met the DC, he instructed the complainant to meet his Personal Assistant and when he met the Personal Assistant, he demanded an amount of Rs.15 lakhs to get an order passed by the Deputy Commissioner in favor of the complainant. The amount was bargained and reduced to Rs.5 lakhs and accordingly, the amount was accepted by the Deputy Tehsildar (accused 2) who is working in the office of the Deputy Commissioner. The accused 2 filed a petition under Section 439 of Cr. P.C seeking regular bail.

When the petition was heard, the State and ACB claimed the person who has received the money is not an employee in the Deputy Commissioner’s office, but it was revealed by the Personal Assistant of the Deputy Commissioner that the person who has received the amount is working in the Appeal Section. The accused 2 said in his statement that he collected the amount as per the instructions of accused 1 i.e., the Personal Assistant.

However, the Court noted that the ACB did not register the case against the Deputy Commissioner and registered a case only against the clerk and the subordinate officials, despite there being ample material before the ACB. The Court also noted that the counsel appearing for ACB, instead of assisting the Court, submitted that this Court has to consider only the bail petition and not the other materials.

Thus, a simple bail matter highlighted various inefficiencies by the ACB which led to the Court relying on judgments Manohar Lal Sharma v. Principal Secretary 2014 SCC OnLine SC , Kedar Narayan Parida v. State of Orissa, (2009) 9 SCC 538 to observe ADGP who is representing the institution and who is in helm of affairs of ACB did not exercise his powers legally to protect the institution, thus, this Court in the interest of general public since general public are facing difficulties in the Government departments to get the work done from the below rank to the top rank without bribe and hence in the interest of general public, the Court can monitor the investigation.

Further directions were also given by the Court vide order dated 07-07-2022 regarding summoning the documents of B report filed against accused persons alleged of accepting the bribe amount, along with the B- reports filed by ACB since 2016 till date along with its current status (being pending or not).

Deputy Secretary to DPAR mentioned an illegal mining case relating back to 2009-10 against the ADGP in question, where again the investigation was not carried out in depth in respect of the involvement of various officers from the Department concerned. Thus, this Court recommended investigation and necessary action to be taken at the earliest.

The Court further passed directions in the aforesaid matter stating that Deputy Secretary to DPAR is supposed to place all the relevant materials before the Court and directed the CBI to place the report in respect of the said investigation pertaining to ADGP in the aforesaid case on the next date of hearing i.e., 11-07-2022.

The Court vide order 11-07-2022 stated that the Court found inaction on the part of the ACB while dealing with the bail matter at the last hearing and thus observed the same. It was here when the Judge mentioned the transfer threat call which has been already reproduced verbatim above.

Thus, the Court directed the Chief Secretary and DPAR to not post any tainted officer in an institution which is established to prevent corruption by analyzing the details of service records and integrity of the officer.

Even on a mention by ACB Counsel, regarding filing of SLP in Supreme Court slated to be heard on 12-07-2022, the Court further directed to communicate the order to the Chief Secretary as well as to the Secretary to the DPAR and Registrar (Judicial) to keep the further investigation materials in safe custody.

The said order however stands by the Supreme Court vide order dated 18-07-2022 after it was observed that lack of enthusiasm of ACB and ADGP in a matter are not relevant for deciding bail application of accused.

[Mahesh PS v. State of Karnataka, 2022 SCC OnLine Kar 1363, decided on 07-07-2022 and 11-07-2022]


Advocates who appeared in this case :

B L Nagesh, Advocate, for the Petitioners.

Calcutta High Court
Case BriefsHigh Courts

Calcutta High Court: Shampa Sarkar, J. disposed of a writ petition with certain directions to police authorities in relation to an investigation in lieu of protection of animals.

Petitioners are members of the Kalyani Bar Association. They filed a complaint that a piglet which had been rescued and brought up by them, was forcefully taken away by some miscreants. It was alleged that four unknown persons entered the Court premises in a swift desire and forcefully took away the animal.

It was noted that the entire incident was video-graphed in a mobile phone by a security guard and forwarded to the police. It was further urged that forceful removal of the animal from its familiar surroundings and from the custody of the persons who looked after it, amounted to cruelty and it should have been incorporated in the FIR.

The Court found substance in the contentions of the petitioner and opined that the police authorities ought to have conducted the enquiry with more seriousness. It was further opined that although, the statements of the security guards were recorded under Section 161,Criminal Procedure Code, whether attempts were made to track down the accused persons, do not reflect from the report. The Court dissatisfied by the investigation stated that from the photographs clicked by the security guards, the identity of the miscreants could have been ascertained.

The Court clarified that the paramount consideration in this investigation should be to protect the interest of the animal, apart from protection/security of court compound. Well-being of animals has been statutorily recognized. The right to get protection from unnecessary pain or suffering, is a right guaranteed to the animals under Section 3 and Section 11 of the Prevention of Cruelty to Animals Act, 1960 (PCA Act) read with Article 51-A(g) and (h) of the Constitution of India.

The Court further relied on Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547 where it was observed that freedom from fear and distress are recognized as a right in case of animals. Thus, when the pig was forcefully removed from its surrounding by unknown persons, the rights guaranteed, have been violated.

Consequently, the Court was of the view that Superintendent of Police shall supervise the investigation henceforth and take necessary steps in this regard. It was reiterated that it is to be kept in mind that it is fundamental duty to protect the animals, from cruelty. This is not a case that the civic body had removed the animal, for maintenance of hygiene etc. Further, the police authorities were directed to keep a strict vigil towards the security of the Court compound so that no such incident was repeated.

[Atasi Chakraborty v. State of West Bengal, 2022 SCC OnLine Cal 2021, decided on 15-07-2022]


Advocates who appeared in this case :

Mr Shibaji Kumar Das, Mr Bhaskar Prasad Vaisya, Advocate, for the Petitioner;

Mr Mrinal Kanti Ghosh, Advocate, for the State.


*Suchita Shukla, Editorial Assistant has reported this brief.

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: K Murali Shankar, J. quashed the proceedings initiated against an advocate who happens to be the counsel of the accused in a case sub-judice in a Court of law. The Court reprimanded the practice of implicating advocates as accused, as in the given case the advocate accompanied the Advocate Commissioner to the disputed suit property which forms the subject matter of a sub-judice case and implicated for offences such as trespass, theft and criminal intimidation.

The petitioner is a practicing Advocate in the Courts at Dindigul for the past 29 years and he is the Counsel on record for the accused Balaguru and Leelavathy in title dispute sub-judice in a Court of law. The case of the prosecution is that when the defacto complainant and his family members went to Trichendur, all the five accused broke open the door of the defacto complainant’s house, trespassed into the house and had stolen Rs.1, 00,000/- cash, one laptop and some documents, that when the defacto complainant and his wife returned to their home from Trichendur, they were prevented from entering into their house and that the accused Leelavathi and Balaguru had caused criminal intimidation.

F.I.R was registered for the offences under Sections 147, 454, 380, 341 and 506(i) Penal Code, 1860 (‘IPC'), against 5 persons including the petitioner, charge sheet was filed and non-bailable warrant (‘NBW') was issued against the petitioner after showing him to be an absconding accused. Thus, an instant petition was filed by the petitioner under Section 482 Criminal Procedure Code (CrPC) for quashing the proceedings.

Based on alteration report filed by Sub Inspector before the Court, the Court observed that the alleged complaint of stealing cash, laptop and other documents was not true, that there was no stealing of such articles and that the defacto complainant with an evil intention to implicate the accused with theft case has raised false allegations.

The Court observed that as per the Advocate Commissioner’s interim report, the petitioner had visited the disputed property along with the Advocate Commissioner after 08.00 PM, on the occurrence day. It was noted that the nature of work of an Advocate is not only limited to the Courts, and they are expected to visit the property in dispute or the scene of occurrence to have first-hand information and direct such information about the property in dispute or the occurrence scene. Moreover, it is their bounden duty to accompany the Advocate Commissioner appointed in the cases for inspecting the disputed property and for other purposes.

The Court noted that a new trend has been emerging in implicating the Advocates as accused along with their clients with ulterior motive of achieving the intended result quickly or immediately. Thus, the Court held “permitting the prosecution to proceed against the petitioner is totally unwarranted and the same would amount to be an abuse of process of the law.”

[P Velumani v. The State, Crl O P (MD) No. 3653 of 2019, decided on 07-07-2022]


Advocates who appeared in this case :

Mr. M. Sheik Abdullah, Advocate, for the Petitioner;

Mr. K. Sanjai Gandhi, Government Advocate, for the Respondents(Crl. Side).


*Arunima Bose, Editorial Assistant has reported this brief.

Experts CornerKapil Madan

Background

Perjury is a crime that blurs the lines between substantive and procedural law, posing a challenge to the judicial administration system. The term “perjury” is nowhere defined either in the Penal Code, 1860 (hereinafter referred to as “IPC”), or for that matter in the Criminal Procedure Code (CrPC). However, the Supreme Court in Kishorbhai Gandubhai Pethani v. State of Gujarat1 has succinctly elaborated the meaning of perjury in para 9, which reads as under:

9. Perjury is an obstruction of justice. Deliberately making false statements which are material to the case, and that too under oath, amounts to crime of perjury. Thus, perjury has always to be seen as a cause of concern for the judicial system. It strikes at the root of the system itself and disturbs the accuracy of the findings recorded by the court. Therefore, any person found guilty of causing perjury, has to be dealt with seriously as it is necessary for the working of the court as well as for the benefit of the public at large.

The genesis of the offence of perjury finds mention in Sections 191 and 192 IPC that defines “giving of false evidence” and “ fabricating false evidence” respectively. It should be noted that the punishment for these offences finds mention in the charging section i.e. 193 of the Penal Code, 1860. Further, the aggravated form of these offences stands committed if giving or fabricating false evidence was done with in intent to procure conviction of a capital offence (Section 194); if with an intent to procure conviction or are committed if the intent to procure conviction for an offence punishable with imprisonment for life.

Rule of audi alteram and its application at a pre-cognizance stage

It is a settled law that the accused does not have a right of being heard at stage prior to registration of FIR or a stage prior to taking of the cognizance. Whether the proposed accused can be heard at a stage prior to registration of FIR came for consideration before the Supreme Court in Anju Chaudhary v. State of U.P.2, wherein it was observed as under:

31. … Where the officer in charge of a police station is informed of a heinous or cognizable offence, it will completely destroy the purpose of proper and fair investigation if the suspect is required to be granted a hearing at that stage and is not subjected to custody in accordance with law. There would be predominant possibility of a suspect escaping the process of law. The entire scheme of the Code unambiguously supports the theory of exclusion of audi alteram partem pre-registration of an FIR. Upon registration of an FIR, a person is entitled to take recourse to the various provisions of bail and anticipatory bail to claim his liberty in accordance with law. It cannot be said to be a violation of the principles of natural justice for two different reasons: firstly, the Code does not provide for any such right at that stage, secondly, the absence of such a provision clearly demonstrates the legislative intent to the contrary and thus necessarily implies exclusion of hearing at that stage. This Court in Union of India v. W.N. Chadha3 clearly spelled out this principle in para 98 of the judgment that reads as under: (SCC p. 293)

98. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary.

Procedure to initiate perjury proceedings

Section 195 CrPC provides a bar that states that no court will take cognizance of the offences under Sections 193-196 (perjury and its aggravated form) except on the complaint in writing by such court or by an officer authorised by such court. A bare reading of the section would reveal that for the offences of perjury, it would be the court that will be complainant as these offences are against the public justice.

Section 340 CrPC further enumerates the procedure to be followed in respect of the offences mentioned under Section 195 CrPC provides for a bar of taking cognizance of the offences inter alia mentioned under Sections 193196 IPC. If the court is of the opinion that it is expedient in the interest of justice that an inquiry may be conducted in respect of the offences as mentioned under Section 195 may order an inquiry and upon conclusion of such inquiry record a finding to this effect and make a complaint in writing. The Supreme Court in Surjit Singh v. Balbir Singh4 while explaining the scope of the inquiry under Section 340 CrPC observed as under:

“Public justice demands an absolute bar of private prosecution and that power be given to the court to lay complaints under Section 340 of the Code as per the procedure prescribed therein. The object thereby is to protect persons from needless harassment by the prosecution for private vendetta; to preserve the purity of the judicial process and unsullied administration of justice; to prevent the parties from the temptation to pre-empt proceedings pending in a court and to pressure and desist parties from proceeding with the case. The bar of Section 195 is to take cognizance of the offences covered thereunder. The object thereby is to preserve the purity of the administration of justice and to allow the parties to adduce evidence in proof of certain documents without being compelled or intimidated to proceed with the judicial process. In this case, the original agreement appears to have been filed in the civil court on 9-2-1984 long after cognizance was taken by the Magistrate.”

Whether the proposed accused claim the right of being heard at the stage of inquiry under Section 340 CrPC

It is often claimed on behalf of a person against whom court may initiating the proceedings in terms of Sections 195(1)(b)/340 CrPC, that such the accused must be afforded an opportunity of hearing before any complaint is made to the Magistrate in terms of the said provision(s). The said question fell for consideration before the Supreme Court in Pritish v. State of Maharashtra5, wherein it was observed as under:

“Reading of the sub-section makes it clear that the hub of this provision is formation of an opinion by the court. It is important to notice that even when the court forms such an opinion it is not mandatory that the court should make a complaint. The purpose of preliminary inquiry, even if the court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence. The Supreme Court has ruled that there is no requirement for a court to provide an opportunity of hearing to the persons against whom it might file a complaint before the Magistrate for initiating prosecution proceedings. The court at that stage is not deciding the guilt or innocence of the party against whom proceedings are to be taken, but whether it is expedient in the interest of justice to hold an inquiry.”

Thus, the Supreme Court after examining the legal provisions came to a conclusion that a prospective accused does not have any right of being heard at the stage of inquiry. The said ratio is also in sync with other previous judgments that says that the accused does not have any right of being heard at a pre-cognizance stage.

The Supreme Court in Sharad Pawar v. Jagmohan Dalmiya6 however departed from the settled legal position as held in Pritish7 and observed that the proposed accused must be given an opportunity of being heard in the inquiry under Section 340 CrPC.

The said issue once again came for consideration in State of Punjab v. Jasbir Singh8 wherein the Court noted the conflicting decision in Sharad Pawar9 and Pritish10 case and referred the matter to a larger Bench for deciding the said issue.

In the backdrop of the settled legal position as held in Anju Choudhary11 says that the accused has no right of being heard at a pre-cognizance stage that has stood the test of time. It can safely be concluded that departure from the ratio of Pritish12 in Sharad Pawar13 was not legally tenable and in the humble opinion of the author, the larger Bench is likely to affirm the ratio of Pritish14 says that the proposed accused does not have any right of being heard at the stage of inquiry under Section 340 CrPC.


† Kapil Madan, Partner, KMA Attorneys.

† Gurmukh Singh Arora, Senior Associate, KMA Attorneys.

*The author would like to acknowledge the work of Vedika Kakar and Aeshita Marwah

1. (2014) 13 SCC 539, 542.

2. (2013) 6 SCC 384, 409-410.

3. 1993 Supp (4) SCC 260 : 1993 SCC (Cri) 1171.

4. (1996) 3 SCC 533.

5. (2002) 1 SCC 253.

6. (2010) 15 SCC 290.

7. (2002) 1 SCC 253.

8. (2020) 12 SCC 96.

9. (2010) 15 SCC 290.

10. (2002) 1 SCC 253.

11. (2013) 6 SCC 384.

12. (2002) 1 SCC 253.

13. (2010) 15 SCC 290.

14. (2002) 1 SCC 253.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court (Dharwad Bench): Suraj Govindaraj, J. while deciding a matter regarding handcuffing of an accused during arrest, held that “handcuffing should be by way of last resort and such handcuffing should mainly be only for the reason of whether there is a possibility of the accused and/or under trial prisoner escaping custody, causing harm to himself or causing harm to others.

Some disputes had arisen between a law student studying in Shikshan Prasrak Mandals Law College at Raibag (‘the petitioner’) and Babu Annappa regarding a mortgage deed executed in respect of agricultural lands belonging to the petitioner. Due to this, five criminal cases were filed against the petitioner for offences under Section 138 of the Negotiable Instruments Act, 1881 on account of dishonour of cheques issued in pursuance of the said mortgage. Pursuant to this, the petitioner was arrested by the Respondent 3- Police Sub-Inspector, Ankali Police Station after a non-bailable warrant was issued Thereafter, he was allegedly paraded with handcuffs in Ankali Town and later on was taken in a bus in handcuffs from Ankali to Chikodi Police Station, without being produced before the Court.

Later on, the petitioner’s bail application was rejected, and he was remanded to judicial custody. He appealed the order of conviction which was thereby stayed The petitioner alleged that despite the conviction being stayed, he was repeatedly harassed by the police as they would illegally arrest or detain him, visit his house, and threaten him. Thus, the petitioner filed the present writ petition seeking relief in nature of compensation under Articles 226 and 227 of Constitution of India, for the damage caused to his life and reputation due to illegal detention and illegal handcuffing even prior to the petitioner being proven guilty.

Issues framed by the Court:

1. Whether the accused who is arrested can be handcuffed? If so, under what circumstances?

2. If there is any violation by the Arresting Officer, would the accused be eligible for compensation?

3. On what basis is the compensation required to be determined and paid?

4. Whether the accused suffered damage to his life and reputation or not? If yes, then what amount of compensation should be awarded?

Relevant Statutory Provisions regarding Arrest and Handcuffing

A perusal of Section 46 of the Code of Criminal Procedure, 1973 ‘CrPC’ indicates that a person can be arrested by touching or confining the body of the person to be arrested, unless there is a submission to custody by word or action. It is only when there is a resistance to the arrest or evasion of arrest that the Police Officer may use all means necessary to effect the arrest.

Section 49 CrPC indicates that a person arrested shall not be subjected to more restraint than is necessary to prevent his escape. Therefore, it is the requirement of law that the restraint has to be reasonable and only to the extent that the person does not escape from custody.

Section 220 of Penal Code, 1860 ‘IPC’ indicates that if a person who has legal authority to confine a person, confines such a person contrary to law, he shall be punishable with imprisonment, which may extend to seven years or with fine or with both.

Sections 831, 832, 833, 834 and 835 of the Karnataka Police Manual provide for instructions for using handcuffs. A perusal of the said provisions would indicate that the prisoner should not be normally handcuffed, unless he is violent or disorderly or circumstances necessitate such handcuffing. In the event of an accused is handcuffed, the facts and reasons for it is required to be recorded in the Station House Dairy.

Analysis and Findings:

Reliance was placed on Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526 and Antonio Sebastiao Mervyn Degbertde Piedade Pacheco v. State of Goa 2008 (6) AIR Bom R 585 and observed that normally during arrest an accused cannot be handcuffed. Only under extreme or exceptional circumstances, such as violent tendencies or the possibility of escape, can an accused be handcuffed. Furthermore, there are some requirements to be fulfilled by the authorities in such a case:

  • When an accused is handcuffed, the Arresting Officer is required to record the reasons for handcuffing, which would have to sustain the scrutiny of the Court.

  • Whenever an accused is produced before the Court of law, it would be required of the Court to enquire if the accused had been handcuffed or not and if handcuffed, to ascertain the reasons recorded by the Arresting Officer on the justifiability on the same.

Thus, the court held that “handcuffing should be by way of last resort and such handcuffing should mainly be only for the reason of whether there is a possibility of the accused and/or under trial prisoner escaping custody, causing harm to himself or causing harm to others. The nature of offences and the punishment prescribed for the said offence are not relevant for the matter of handcuffing.

Dealing with the issue regarding compensation, reliance was placed on D.K. Basu v. State of West Bengal (1997) 1 SCC 416 and Nilabati Behera v. State of Orissa (1993) 2 SCC 746 and observed that “if there is a violation by the Arresting officer in putting handcuffs on the petitioner, the petitioner would be eligible for compensation”. Thus, in the present case, the State is responsible for compensating the petitioner and the amount of damage is to be calculated on the basis of any evidence and documents produced by the petitioner.

Regarding the third issue, the court held that there are a few considerations that have to be made while awarding the compensation, these considerations are as follows:

  • The court should take into consideration the loss/damage that might have been caused to the person who has been handcuffed.

  • The court should also consider the imposition of compensation as a deterrent to the Police Officers who do not discharge their duties in a proper manner and/or violate the applicable law. Additionally, although the State would be required to pay the compensation, the State would be at liberty to recover the same from the concerned defaulter(s).

Thus, the court observed that “Compensation which is required to be paid as aforesaid being a Public Law Remedy, there cannot be a straitjacket formula which could determine the amount of compensation that has to be paid. Be that as it may. The compensation which is required to be paid is by applying the principles of strict liability.

Lastly, the court held that the evidence provided by the petitioner does not sufficiently prove that the petitioner was paraded in handcuffs and his reputation has been as immensely damaged as he claims. Thus, for the procedural irregularity of handcuffing, the petitioner was awarded Rs. 2 lakhs as compensation as opposed to Rs 25 lakhs which was originally demanded.

[Suprit Ishwar Divate v. State of Karnataka, 2022 SCC OnLine Kar 1133 decided on 10-06-2022]


Advocates who appeared in this case :

Santosh P. Pujari, Advocate, for the Petitioner;

Praveen K. Uppar, Advocate, for the Respondent.

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.

Patna High Court
Case BriefsHigh Courts

Patna High Court: While dealing with a case of rape, A M Badar, J. observed that mere non-offering of physical resistance by a rape survivor cannot amount to the consent given by a woman for sexual activity under Section 375 of the Indian Penal Code (‘IPC’).

An appeal was filed under section 374 of the Criminal Procedure Code (CrPC) challenging the conviction order given by the trial court for offences under Sections 376, 323, 452, and 506 of the Penal Code, 1860 (‘IPC’) and Sections 3(1)(xi) and (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), 1989.

The accused alleged that it was consensual sex between two adults and in the medical examination, no physical injuries were found on the body of the prosecutrix, therefore, indicating the absence of resistance.

As per the story of the prosecutrix, she used to work in the brick Klin of the accused as a laborer. On 09.04.2015, after completing her work, the prosecutrix demanded her wages. The accused refused to pay the wages stating that he would pay her subsequently. In the evening hours, when the prosecutrix was cooking food, the accused came to her house, dragged her to a room, and raped her. The villagers got gathered as the prosecutrix shouted and the accused was tied to a tree. Subsequently, an FIR was lodged against the accused.

As per the statement of the victim as well as submissions made, the Court opined that, the present case is a rape case and therefore in such cases the version of the prosecutrix is found more reliable and trustworthy. Further, the Court stated that the statements of the prosecutrix should not necessarily be corroborated by medical shreds of evidence.

The Court also observed that the prosecutrix is a married woman having a son aged about 4 years. She was pitted against an adult male in the late night at her own house. In such a situation, it might not be possible for her to offer resistance to the act of the accused. Moreover, mere non-offering of resistance cannot amount to consent.

At this juncture, the Court visited the provisions under Section 375 of IPC and stated that that consent must be in the form of an unequivocal voluntary agreement showing willingness to participate in sexual acts. Further, the Court stated that the Proviso clause of Section 375 of the IPC makes it clear that only because a woman does not physically resist the act of penetration, it cannot be regarded as consenting to the sexual activity.

Further, the Court noted that the acts of the prosecutrix during the incident, firstly by shouting and secondly, registering an FIR against the accused denotes that there was nothing on record to suggest the case of the consensual sex between two adult persons. Therefore, the Court was of the view that by entering the house of the prosecutrix, the accused had committed rape on her.

Hence, the Court upheld the conviction of accused under Sections 376 and 452 of the IPC. It was however noted that there was no substantive evidence in support of the commission of offences under Sections 323 and 506 of the Indian Penal Code as well as under Sections 3(1)(xi) and 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Hence, acquitted the accused for those charges and partly allowed the application.

[Islam Mian @ Mohd. Islam v State of Bihar, 2022 SCC OnLine Pat 1579, decided on 22-06-2022]


Advocates who appeared in this case :

Mr. Diwakar Upadhyaya, Advocate, for the Petitioner;

Mr. Bipin Kumar, A.P.P., Advocate, for State.

Himachal Pradesh High Court
Case BriefsHigh Courts

   

Himachal Pradesh High Court: Vivek Singh Thakur, J. dismissed the petition filed under Sec 482 Criminal Procedure Code (‘CrPC') for extension of parole as the right remedy is under Article 226 of Constitution of India.

The instant petition was filed under Section 482 CrPC seeking extension of term of parole granted to the petitioner on medical grounds.

The Court noted that grant of parole to a convict/prisoner is governed by provision of H.P. Good Conduct Prisoners (Temporary Release) Act, 1968 and Rules framed thereunder.

The Court observed that omission or commission on the part of concerned authority in granting or rejecting the claim of a prisoner under H.P. Good Conduct Prisoners (Temporary Release) Rules, 1968 is an administrative action, but not an action governed by provisions of Code of Criminal Procedure or any other Criminal Law and therefore instead of filing petition under Section 482 CrPC, a petition under Article 226 of Constitution of India shall be maintainable.

The Court thus dismissed the petition with liberty to file a fresh comprehensive petition and directed the Authority not to take any coercive action till 15-07-2022.

[Mohd. Margoob v. State of HP, Criminal Misc. Petition (Main) No. 470 of 2022, decided on 21-06-2022]


Advocates who appeared in this case :

Vinod Kumar, Advocate, for the Petitioner;

Hemant Vaid, Advocate, for the Respondent.


*Arunima Boase, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Gauhati High Court: A bail application under Section 438 of the Criminal Procedure Code, 1973, (CrPC) was denied by Sanjay Kumar Medhi, J. to a petitioner for a case registered under Sections 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and it was held that recovery or seizure of contraband is not a sine qua non for arrest, detention or conviction under the NDPS Act if there are other convincing and corroborating materials.

Background of the case

A Truck was intercepted near Jorabat and consequently in the search, 44,160 bottles of Eskuf cough syrup in 276 cartons were recovered without any documents. The psychotropic substance seized was sold by the agency run by the petitioner to a distributor of Karimganj district. An FIR against the petitioner was registered.

The petitioners contended that though the articles are psychotropic substance it would come under the exception of Section 8 (c) of the NDPS Act and transportation of the same with necessary documents is available under proviso to Rule 67(4) of the NDPS Rules and subsequent generation of bills can at best be violation of the GST Act and cannot be violation of the NDPS Act

The State contended that the very initiation of movement of the consignment involving a huge number of bottles in cartons which admittedly is a psychotropic substance under the NDPS Act, as the cough syrup contains a substance called ‘codeine’, amounted to an offence under the NDPS Act. There were anomalies / illegalities at different stages, including GST invoices. It was further submitted that offences under the NDPS Act, are part of organized crime wherein different roles are played by different accused.

Analysis and decision

The Court affirming the contention raised by the State, noted that, “offences under the NDPS Act are part of an organized crime wherein different roles are played by different accused persons.” Further, while determining the offence under the Act various factors are to be taken into consideration like the quantity of the contraband, nature of the substance, nature of involvement etc.

While mere recovery and seizure of psychotropic substance cannot be a ground of arrest or detention of the accused, until and unless, there is substantive evidence to prove the conviction, in the case at hand, the offence involved in this case is one under the NDPS Act and the quantity involved was a commercial quantity of chemical manufacture drugs.

Considering the law, coupled with the facts of the case, the Court observed that for purposes of bail under Section 37 of the NDPS Act, the petitioner should have satisfied the Court that he is not guilty of the offence, and he is not likely to commit this offence further. The same was not established by the petitioner. The Court noted that, since the very object of the NDPS Act is to curb the menace of drugs and its ill effects on the society which has the propensity to destroy the generation as a whole; therefore, the court, in view of the facts and contentions presented before it, rejected the petitioner’s plea for anticipatory bail.

[Amal Das v. State of Assam, 2022 SCC OnLine Gau 764, decided on 06-05-2022]


Advocates who appeared in this case :

AM Bora, Advocate, for the Petitioner;

PP, Assam.

Op EdsOP. ED.

The Enforcement Directorate (ED)  has seized INR 5551.27 crores from Xiaomi Technology India (Pvt.) Ltd. on account of alleged violation of Section 4[1] of the Foreign Exchange Management Act, 1999 (FEMA). The seizure has been done on account of involving the patent ban in the FEMA and in Section 4, which reads, “(sic) no person shall acquire, hold, own, possess or transfer foreign exchange (sic) situated outside India”. As per the press release by the ED dated 29-4-2022, Xiaomi has disguised its remittance in the form of “royalty” and providing misleading information to the banks.

 

A plain reading of the alleged crime being committed by Xiaomi may seem one that could be penalised through reparations, however a reading of the Section 37-A[2] of  FEMA, which was inserted in 2015 provides in sub-section (1) that “the authorised officer who has reason to believe (sic) is suspected to have been held in contravention…”. This is a spurious part of the legislation, which is being tested in the case of Xiaomi. The threshold for invoking the seizure and the intervention of the ED is at the stage of “suspicion of contravention”. Anyone can reasonably wonder as to whether the transaction that they are embarking upon as unmalicious as remitting to study abroad, etc. may be called to scrutiny due to the threshold of suspicion. As confusing as this may look, a further reading into sub-sections (2) and (3) of Section 37-A, the officer must submit the order of seizure to the competent authority (non-judicial and of a rank of Joint Secretary) and the competent authority can hold on to the seizure for up to 180 days to dispose it or to further it to a judicial body. This period of 30 to 180 days is internal and based on suspicion of guilt. It is a well-regarded theory in criminal jurisprudence that the person alleging a crime has to prove beyond reasonable doubt. However, the structure of Sections 37-A(2) and (3) gives autonomy to the ED to proceed on the basis of doubt alone. As of 2021, Xiaomi recorded INR 38,196 crores in turnover.

 

For a moment, if one were to assume that the crime indeed has been committed, one would wonder the proportionality of the suspicion and the consequences of such, versus the harm that may be caused to any company or person who is being investigated. Section 37-A is flawed for reasons more than the constitutional one. The invocation of the ED, widens the ambit of investigation as regarded in the Penal Code, 1860 (IPC)[3]. Neither the IPC nor the Criminal Procedure Code, 1973[4] (CrPC) define the term “police officer” but both of them have penal provisions indicating powers of a police officer. In FEMA, the ambiguity of whether an ED officer is a police officer is answered in Section 385 which empowers officers as may be authorised by the Government from time to time. This provides a wide range of powers to the officer of the Government of a non-judicial rank and squarely not independent, including arrest and investigation.

 

The question before the courts in interpreting the FEMA is what remedy a person would have during the interim period of the 30 days and 180 days during which the investigation and potential arrests are made at the behest of an itch of suspicion that an ED officer may have. This casts a burden on the suspect providing information to the ED officer who is investigating. Most likely than not, such information provided could be self-incriminating in nature. Article 20(3)6 of the Constitution of India expressly provides for the right of silence. The same is reflected in Section 1617 CrPC which provides for protection of such information so as to not incriminate themselves. However, the caveat in Section 161 CrPC is that this does not include information given on their own volition. The flaw in Section 37-A is further amplified as the information obtained during the period of 30 to 180 days after which it moves to a judicial fora can be misused against the suspect, thus opening the doors for corruption in the interim. The only relief for the suspect is to get a clean chit from the competent authority (government officer of the rank of Joint Director) as per Section 37-A(5). Especially in cases where there is a seizure, this circles within  the ED and never leaves the governmental control for a period of up to 180 days. By conferring the Section 37-A, the legislators have created a behemoth of a corruption engine which need not traverse outside the realm of “suspicion” to chase companies or individuals for any investment, even if it is eventually proven to be genuine. This undue vesting of power must be supplemented at the very least by a judicial forum or an independent oversight of the seizure. If we as legislators do not embark on this amendment, we may very well bid foreign direct investment an adieu.

 


† Professor of International Law and an alumnus of The Hague Academy, Netherlands. Author can be reached at <casrikantparth@gmail.com>.

†† Principal Counsel at Chambers of Dr Srikant Parthasarathy.

[1] Foreign Exchange Management Act, S. 4.

[2] Foreign Exchange Management Act, S. 37-A.

[3] Penal Code, 1860.

[4] Criminal Procedure Code, 1973.

5 Foreign Exchange Management Act, S. 38.

6 Constitution of India, Art. 20(3).

7 Criminal Procedure Code, 1973, S. 161.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: H.P. Sandesh, J. allowed the petition and granted bail to the petitioner in connection with a crime registered in  Magadi Police Station, Ramanagara District, for the offence punishable under Sections 8 and 12 of the POCSO Act.

The factual matrix of the case of the prosecution is that this petitioner is a PT teacher and he misbehaved with a student who is studying in 10th standard and he had indulged in the same act when she was in 8th and 9th standard also. When the victim girl was unable to tolerate the act of this petitioner, a complaint was given to the Principal of the school and pursuance of the said complaint, the Principal of the school had lodged the complaint and case has been registered under Sections 8 and 12 of POCSO Act. This petition is filed under Section 439 of CrPC. seeking regular bail of the petitioner in a crime registered at Magadi Police Station, Ramanagara District, for the offence punishable under Sections 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short).

Counsel for the petitioner submitted that the petitioner is aged about 55 years and the complaint discloses that there was a delay in lodging the complaint and afterthought only a false complaint is lodged and no such complaint is filed earlier and investigation has already been completed and the petitioner has been in custody from last two months. The maximum punishment for the said offence is five years and hence he may be enlarged on bail subject to conditions.

Counsel for the respondent-State submitted that the complainant immediately has not lodged the complaint. When the victim girl brought to the notice of the friends, the friends told her to lodge a complaint with the Principal and accordingly the complaint is lodged and statement under Section 164 CrPC of the victim was also recorded before the Court wherein also she has reiterated the very act of the petitioner.

The Court observed that particularly the complaint given by the Principal, specific allegation is made against the petitioner that this petitioner had indulged in committing of the offence under Sections 8 and 12 of the POCSO Act and the fact that the victim girl is a student of this petitioner is not in dispute. However, having taken note of the punishment provided for the said offence is for a period of maximum five years and the petitioner is in custody from last two months and investigation has already been completed and charge-sheet is also filed, hence there is no need of custodial trial and the matter requires to be decided in trial.

The Court held “it is appropriate to exercise the powers under Section 439 of Cr.P.C. with conditions.” [N R Sugandaraju v. State of Karnataka, Criminal Petition No. 2917 of 2022, decided on 17-05-2022]


Appearances

For Petitioners- Mr. IS Pramod Chandra

For respondents- Mr. KS Abhijith and M Somashekhara


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta, J.,  dismissed the petition.

The facts of the case are such that the petitioner and the respondent, who got married on 17-02-1976, have been living separately since 1986. The instant petition was filed under Section 482 Criminal Procedure Code i.e. CrPC challenging order dated 06-01-2022, whereby the Gram Nyayalay, Aspur, District Dungarpur partly allowed the application for interim maintenance filed by the respondent (wife) and directed the petitioner to pay a sum of Rs 5,000/- per month as interim maintenance.

Counsel for the petitioner submitted that the present petition under Section 125 of CrPC that has been filed in the year 2021, is clearly an abuse of the process of law. It was further submitted that the Court has treated petitioner’s income to be Rs 1,00,000/- whereas his return of income tax shows that his income is approximately Rs 40,000/- per month.

The Court observed that an order under Section 125 of CrPC is in the nature of interim maintenance and husband, who admittedly earns Rs 40, 000/- per month cannot be absolved of his obligation to pay interim maintenance, merely because the respondent – wife has chosen to file the application after 36 years of marriage.

The Court held “This Court does not find any reason to interfere in the present petition, particularly when the petitioner has failed to point out any jurisdictional error or apparent error on the face of record and when a meagre sum of Rs.5,000/- has been ordered to be paid.”

[Chandrakant Jain v. Veermati Jain, S.B. Criminal Misc(Pet.) No. 986/2022, decided on 11-03-2022]


Appearances:

For Petitioner(s): Mr. Mohit Singhvi

For Respondent(s): Mr. Mahipal Bishnoi


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: H.P. Sandesh J. allowed the petition and set aside the bail granted by the Trial Court on the file of V Additional District and Sessions Judge.

 The facts of the case are such that accused 1 has been prosecuted for the offence punishable under Sections 376(2), 506 and 384 Penal Code, 1860 i.e. IPC and Sections 4, 5(f), 6, 8 and 14 of Protection of Children from Sexual Offences Act, 2012 (i.e. ‘POCSO Act’) and Section 67(b) of the Information Technology Act. Based on the complaint, case was registered against both respondent 2 and his wife, who was arraigned as accused 2. During the crime stage, respondent 2 herein filed an application for grant of bail and the Trial Court enlarged him on bail. Hence, the instant petition was filed under Section 439(2) of Criminal Procedure Code i.e. Cr.PC for cancellation of the bail.

Counsel for petitioners submitted that allowing the bail application is illegal, perverse and without application of mind. It was also contended that the Trial Court without considering the presumption enunciated in the POCSO Act, granted bail. It was submitted that the incident took place when the victim girl was below 16 years of age, which makes it mandatory on the Court to issue notice to the informant/complainant/victim.

Counsel for the respondents submitted that the Trial Court has observed that the complainant/victim girl and the Investigating Officer even the learned Special Public Prosecutor have ample opportunity to seek the cancellation of the bail of accused 1 in the event of collecting incriminating materials or violation of condition of bail by accused 1. When such an observation is made and detailed order has been passed, this Court cannot invoke Section 439(2) of Cr.P.C.

The Court observed that The reasons assigned by the Trial Court is nothing but perverse and though elaborately discussed in the order, but the very approach in exercising the discretion under Section 439 of Cr.P.C. it is nothing but capricious order

The Court observed that it is specific in the case on hand that accused 1 called the victim girl and subjected for sexual act and also taken the photographs and subsequently blackmailed the victim girl and collected an amount of Rs.10,000/-. It is important to note that when serious allegations are made and no doubt two letters are addressed in favour respondent 2, but whether those letters are addressed by the victim girl or not is a matter of trial and while considering the bail application those documents also cannot be relied upon and the same is subject to proof, but the fact is that she was subjected to sexual act and when the same is alleged and filing of complaint after two and half years cannot be a ground when specific allegation is made in the complaint that he had caused life threat and also taken photographs of subjecting her for sexual act.

The Court observed that it is not the case of the petitioner that respondent 2 has violated the conditions of the bail order, but the observation of the Trial Court is that if incriminating material is collected, the option is open to the victim.

The submission of the learned counsel is that this Court can give an opportunity to the petitioner to approach the Trial Court and the said situation does not arise when the order has been passed in noncompliance with the mandatory provisions of Section 439(1A) of Cr.P.C. and Section 376(3) of IPC and amended provision is brought into force in 2018. Apart from that, an exercise is made to analyze the evidence available on record and hurriedly passed the order. When such being the factual aspects of the case, it is nothing but perverse order is passed by the Trial Court while enlarging him on bail. The learned counsel for respondent No.2 submits that as on the date of lodging the complaint, the victim girl was aged about 17 years and the said contention cannot be accepted for the reason that the Court has to take note of subjecting the minor girl for sexual act and not the date of complaint.

Hence, the Court held it appropriate to invoke Section 439(2) of CrPC to cancel the bail granted by the Trial Court. It further held The accused be arrested and commit him to custody under Section 439(2) of CrPC. [Lalitha v State of Karnataka, Criminal Petition No. 7143 of 2021, decided on 14-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For petitioner: Mr. Sachin BS

For respondents: Mr. V S Hegde, Mr. Krishnakumar and Mr. Chandrashekhar RP

Case BriefsHigh Courts

Karnataka High Court: Sreenivas Harish Kumar J. dismissed the petition being devoid of merits.

The facts of the case are such that the 1st petitioner is the husband of 2nd respondent. On certain allegations that the petitioners subjected the 2nd respondent to harassment in connection with demand for dowry, FIR was registered in relation to offences punishable under sections 323, 504, 506 and 498-A of IPC and sections 3 and 4 of the Dowry Prohibition Act r/w section 34 of IPC. Investigation was taken up and charge sheet was been filed. This instant petition was filed under Section 482 of CrPC for quashing the charge sheet.

Counsel for the petitioner Mr. Arjun Rego submitted that if the entire charge sheet which is based on statements of witnesses is considered, it can be said that no offence against the petitioners is made out.

The Court observed that though under Section 482 of Cr.P.C. charge sheet can be quashed, the said jurisdiction cannot be invoked for quashing the charge sheet by appreciating the evidence. It is a settled principle that while deciding the petition under Section 482 of Cr.P.C., evidence cannot be appreciated as it lies within the domain of the Trial Court.

The Court held “I do not find any ground to entertain this petition. Accordingly, the petition is dismissed.” [Pradeep Moparthy v. State of Karnataka, Criminal Petition No. 2860 of 2021, decided on 15-12-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For respondent: Mr. Rohith BJ

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia J. disposed of the petition and quashed the FIR/complaint.

The facts of the case are such that marriage between Mukesh Sharma (son of petitioners 1 and 2 and brother of petitioner 3) and respondent No. 2/wife was solemnized on according to the Hindu rites and ceremonies and out of their wedlock one son namely, Master Kartik, was begotten. However, immediately after the marriage, differences arose between them and the wife has lodged a complaint against her husband and his family members, wherein allegations of harassment for bringing less dowry and maltreatment have been leveled. Consequently, F.I.R was registered under Sections 498A, 406, 120B and 506 Penal Code, 1860 i.e. IPC. However, the parties settled their dispute amicably, vide Compromise Deed, as per terms of the Compromise Deed, they do not want to continue with the present case. Hence, the present petition was filed under Section 482 of the Code of Criminal Procedure i.e CrPC for quashing the F.I.R.

Counsel for petitioner Mr. Ashok Kumar Thakur submitted that the parties have compromised the matter vide compromise deed, no purpose would be served by keeping the proceedings alive, therefore, the FIR, along with consequent proceedings arising out of the same, may be quashed and set aside.

Counsel for respondent Mr. C N Singh and Mr. Devender Sharma submitted that parties have settled their dispute amicably, the present petition may be allowed.

The Court relied on judgment Jitendra Raghuvanshi v. Babita Raghuvanshi, (2013) 4 SCC 58 wherein it was observed that “Even if the offences are non compoundable, If they relate to matrimonial disputes and the court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings.”

The Court thus observed that even if, the trial is allowed to be continued, as the parties have compromised the matter, there are bleak chances of conviction to secure the ends of justice. Thus, taking into consideration the law as discussed hereinabove and the compromise arrived at between the parties vide Compromise Deed, placed on record, I find that the interest of justice would be met, in case, the proceedings are quashed, as the parties have compromised the matter and do not want to proceed further with the case in order to live peacefully.

The Court heldpresent is a fit case to exercise jurisdiction vested in this Court, under Section 482 of the Code and, therefore, the present petition is allowed and F.I.R No. 105, dated 01.06.2013, under Sections 498A, 406, 120B and 506 of IPC, registered at Police Station Dehra, District Kangra, H.P., is ordered to be quashed.”

[Parkash Chand v. State of H P, 2021 SCC OnLine HP 7918, decided on 15-11-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: H P Sandesh J. allowed the petition and quashed the proceedings initiated against the petitioners.

This petition is filed under Section 482 of Criminal Procedure Code i.e. Cr.P.C., praying this Court to quash the order of the Civil Judge and JMFC, Muddebihal, dated 13.07.2018 passed in C.C.No.167/2018 (Crime No.107/2018 of Muddebihal Police Station) taking cognizance against the petitioners   for the offences punishable under Section 171H of Penal Code, 1860 i.e. IPC and Section 3 of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981.

Counsel for the petitioner Mr. Rajesh G Doddamani submitted that the Act invoked i.e., the Karnataka Open Places (Prevention  of Disfigurement) Act, 1981 is not applicable to  Muddebihal and the said Act is applicable only in respect  of particular places. Unless the same is notified in respect of particular place of Muddebihal, the police ought not to have initiated proceedings against the petitioners under Section 3 of the Act. It was also submitted that the respondents have also invoked Section 171H of IPC. The complaint is not filed under Section 195 of Cr.P.C., but the case has been registered against the petitioners and based on the police report, cognizance was taken. Therefore, when non-cognizable offence is invoked, it requires permission from the Magistrate under Section 155(2) of Cr.P.C., and hence, it requires interference of this Court.

Counsel for respondents Mr. Gururaj V Hasilkar submitted that the election was declared in respect of Muddebihal assembly constituency in 2018. When the election notification was issued by the State, the order was passed by the District Election Officer and District Magistrate, Vijayapura dated 31.03.2018 appointing flying squads and the same includes Muddebihal  Constituency. The learned counsel also relied upon the  order of the State Government dated 10.04.2018 and so also the revised order dated 31.03.2018 appointing officers consisting of flying squads. The learned counsel also relied upon the Notification of Election Commission of India dated 02.05.2018 wherein it is clarified that as per Section 126(1)(b) of the Representative of People Act, 1951, there shall not be displaying of any stickers and flags of any particularly party and the said act is in  violation of the same and there is no specific notification  for applying the above Act but election notification is  issued. It is not in dispute that the petitioners herein came to the Tahsildar’s office in vehicles displaying stickers and flags of a particular party. Hence, the proceedings initiated against the petitioners cannot be quashed.Issue: Whether Karnataka Open Places (Prevention of Disfigurement) Act, 1991 is applicable to Muddebihal or not?

The Court observed that on perusal of Section 1(2)(i) of the Act makes it clear that the Act is applicable for the cities viz., Bangalore,  Mysore, Hubli-Dharwar, Mangalore and Belgaum constituted or continued under the Karnataka Municipal  Corporation Act, 1976 or under any other law, on the fifth day of May, 1981 and Section (1)(2)(ii) of the Act says that the same come into force in the municipalities, notified areas, sanitary boards, constituted or continued under the Karnataka Municipalities Act, 1964 or under any other law, or in any other local area, on such date, as the State Government may by notification appoint and different dates may be appointed in respect of different areas.

But, no such Notification was issued in respect of Muddebihal. Hence, unless the Act is applicable to particular city and municipal area, the initiation of proceedings under the said Act is unsustainable under law.

The Court further observed that Section 171H of IPC deals with illegal payments in connection with an election. But, in the  case on hand, the allegation against the petitioners is  that they came in vehicles with flag of political party and no allegations with regard to illegal payments in  connection with election are found in the complaint.  Under the circumstances, very initiation of proceedings against the petitioners is nothing but an abuse of process of law. Hence, it is appropriate to exercise power under Section 482 of Cr.P.C., or otherwise it leads to miscarriage of justice.

The Court having considered the allegation made in the complaint as well as in the charge sheet observed that it does not attract offence under Section 171H of IPC and so also Section 3 of the Act as there is no notification. “….complaint averments and charge sheet averments do not attract the offences invoked and apart from that, the above Act is not applicable to Muddebihal and without any notification for application of the Act, proceedings have been initiated.”

The Court held “….very initiation of  proceedings against the petitioners is not sustainable in the eye of law, as there was no notification for applicability of the above Act to Muddebihal and also no ingredients of offence under Section 171H of IPC.”

[Hanmagouda v. State of Karnataka, Criminal petition No. 200377 of 2019, decided on 26-11-2021]


Arunima Bose, Editorial Assistant has reported this brief.