criminal proceedings

Case BriefsSupreme Court

Supreme Court: In an interesting case where the Division Bench of Sanjay Kishan Kaul* and M.M. Sundresh, JJ., was to answer whether pending criminal appeal, and with the sentence being suspended, could the DCRG be directed to be released on the construction of the applicable rules, the Bench resolved the issue against the employees and held there was not statutory mandate that DCRG should be released to the respondents pending consideration of the criminal appeal.

The moot question before the full Bench of the Kerala High Court was whether on conviction in a criminal case for violation of integrity norms in performance of official duties and an appeal pending before the High Court, is the employee still entitled to the release of his Death-cum-Retirement Gratuity (DCRG). The High Court, by the impugned judgment had ruled in favour of the employees and had held that the recovery under Rule 3 of Kerala Services Rules could only be against pension and not DCRG, and Rule 3A insofar as it permitted DCRG to be withheld was struck down.

The Rules in Question

The Rule 3 of Kerala Services Rules reads as:

“withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to government if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement…”

Whereas, Rule 3A provides that:

“3-A. (a) Where any departmental or judicial proceedings is instituted under Rule 3 or where a departmental proceeding is continued under clause (a) of the proviso thereto, against an employee who has retired on attaining the age of compulsory retirement or otherwise he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceeding final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service up to the date of retirement, or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension, but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final orders thereon.”

Noticeably, Rule 3 in the KSR deems continuation of service in the case of a delinquent servant even after superannuation if any departmental or judicial proceedings are initiated, for the limited purpose of their finalisation. In the event of an order of dismissal being passed, even after retirement, the Government servant would have to forfeit his pension and DCRG.

Impugned Judgment

The High Court read the Rule 3 of the KSR as empowering the Government to punish the delinquent employee by withholding, withdrawing or reducing, for a specified period or permanently, the pension payable or to order recovery for any  pecuniary loss, but again only from the pension. The Court opined that the same could not be done from the DCRG. While, Rule 3A of the KSR was opined to be only tailored towards the effective implementation of Rule 3 and could not have any separate or distinct consequences.

Noting that the Rule 3A has two parts, the Court observed that the first part dealt with certain conditions on the disbursal of pension in the cases of a continuing proceeding while the second part allowed DCRG or gratuity to be withheld until the conclusion of the proceedings. By the impugned judgment, the second part was held to have an unnecessary penalising effect on an employee while proceedings are pending and would have onerous consequences if the proceedings ended in exoneration since the provision did not contemplate any modality for re-compensation if the DCRG is paid after a long period of time.

Further, observing that Note 2 to Rule 3 provided that the word ‘pension’ did not include DCRG and, that that liabilities could be recovered from DCRG only after giving the employee a reasonable opportunity to explain, the Court held that the recovery under Rule 3 could only be against pension and not DCRG, and Rule 3A insofar as it permitted DCRG to be withheld was struck down.

Analysis and Interpretation by the Court

Noticeably, the State in its wisdom had preferred to await the outcome of criminal proceedings in the instant case and had not initiated any separate departmental proceedings. Rule 3 of the KSR provides that Government reserves to themselves the right to withhold or withdraw a pension or any part of it, whether permanently or for a specified period, and all its ramifications. Further, the word pension is clarified by Note 2, as it would not include DCRG. Thus, DCRG and pension have been dealt with as separate aspects.

However, on the further reading of Note 2, which provides that the liabilities fixed against an employee or a pensioner can be recovered from DCRG without the departmental/judicial proceedings but after giving an employee or pensioner concerned a reasonable opportunity to explain, the Bench opined,

“If any part of DCRG was not supposed to be available for recovery of amounts, there would be no reason of inclusion of this aspect of DCRG in Note 2 and a view to the contrary would make the latter part of Note 2 otiose.”

The Bench observed that Note 2 is further clarified by Ruling 3, which stipulates that Note 2 does not mean that the employee’s or pensioner’s consent should be obtained for recovering the liabilities from DCRG. What has been contemplated is only a communication of such liabilities to him so as to enable him to submit his explanation. Thus, this Ruling No.3 also deals with the DCRG. Therefore, the important aspect before the Bench was whether Rule 3A is to be construed in the context of Rule 3 or should be read independently of itself. The High Court had sought to take a view that Rule 3A is in a sense assisting Rule 3 and does not have any independent existence. The Bench stated,

“The High Court, in our view, has introduced a new legislation by undertaking the exercise of reading down. We do believe that there is absolutely no need to do so when the language of the rule is so clear conveying its intended meaning without any ambiguity.”

Holding that it was a very restrictive view to disburse DCRG on account of the proceedings against a pensioner coming to an end, even where a conviction had arisen, specially where the convicted person has availed of the remedy of appeal, the Bench reiterated that an appeal is a continuation of the proceedings in trial and would be, thus, a continuation of judicial proceedings.  Therefore, pendency of the appeal cannot disentitle the State from withholding the DCRG, considering that it is a hiatus period within which certain arrangements have to be made which would be dependent on the outcome of the appeal.

Conclusion

In the light of the above, the Bench concluded that Rule 3A could not be read in isolation nor the latter part of it struck down as done by the High Court. Rule 3, Note 2, Ruling 3, and Rule 3A have to be read in conjunction as they provide for the treatment of the DCRG in case of disciplinary or judicial proceedings pending at the stage of retirement.

Accordingly, the impugned judgment was set aside holding that it could not be opined that the DCRG would have to be released to the respondents pending consideration of the criminal appeal.

[Local Self Government Department v. K. Chandran, 2022 SCC OnLine SC 318, decided on 15-03-2022]

*Judgment by: Justice Sanjay Kishan Kaul

Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Karnataka High Court: Krishna S Dixit J. quashes the criminal proceedings as the SC-ST act is not retrospective in nature.

The petitioners filed instant petition under Section 482 of Cr.PC 1973 seeking quashment of criminal proceedings as the Court has referred the matter for investigation in exercise of power u/s 156 (3) of the Code.

The Court observed that the offences allegedly been committed years ago i.e., on 18-10-1975 and the complaint was filed with inordinate delay with no plausible explanation for the same and thus ordinarily, the stale claims would not be entertained;

The Court further observed that the alleged acts do not constitute an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which is prospective in operation, there being constitutional bar to the retrospectively enacted in Article 20(2); it has been a settled principle of criminal jurisprudence that when the act complained of is not an offence when committed; a free citizen cannot be brought to book merely because such act is criminalized in a subsequent legislation.

The Court thus held “In the above circumstances, this petition succeeds and as a consequence, the FIR No.46/2014 registered by respondent No.1-Police is also set at naught and the proceedings in PCR No.63/2013 are also set aside.”

[Dr Shantha Raj TR v. State, 2022 SCC OnLine Kar 204, decided on 23-02-2022]

Appearances

For petitioners: Mr. Sathish K and Mr. M S Bhagwat

For respondents: Ms. Renukaradhya

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: While expressing the object of PMLA Act Chandra Dhari Singh, J., expressed that, offence of money laundering is threefold including the stages of placement, whereby the criminals place the proceeds of crime to the general and genuine financial system, layering, whereby such proceeds of crime are spread into various transactions within the financial system and finally, integration, where the criminals avail the benefits of crime as untainted money.

A criminal revision petition was filed by the petitioner under Section 397 of the Penal Code, 1860 read with Section 401 of the Code of Criminal Procedure, 1973 and Section 47 of the Prevention of Money Laundering Act, 2002 (PMLA) seeking setting aside of the order passed by the Special Judge, Patiala House Courts whereby all the accused persons were discharged on the ground that no prima facie case was made out against them.

Background

In the present matter, criminal proceedings under PMLA were initiated against the respondents by the petitioner on the basis of independent intelligence gathered regarding money laundering activities. Therefore, an FIR under Sections 21,25,29 and 61 of the Narcotics Drugs and Psychotropic Substance Act, 1985 and Sections 420, 468, 471, 120B of the Penal Code, 1860 were registered.

Petitioner’s case was that the respondents were found to be involved in an international syndicate of laundering the money generated out of the drug trafficking in Australia and other countries.

While the private Respondents 1 to 3 are based in India, their counterparts, namely, Gulshan Kumar, Mandeep Singh, Sanjeev Kumar Saini and Ravinder Pal Singh were based in Australia and together they had been carrying out cross border criminal activities and their counterparts in Australia had already been apprehended.

Analysis, Law and Decision

High Court firstly stated that the offence of money laundering under the PMLA is layered and multi-fold and includes the stages preceding and succeeding the offence of laundering money as well.

Further, the Bench stated that the offence of money laundering, is not to be appreciated in isolation but is to be read with complementary provisions.

“…the essential ingredients for the offence of Section 3 of the PMLA become, first, the proceeds of crime, second, proceeds of crime arising out of the offences specified in the Schedule of the Act and third, the factum of knowledge while commission of the offence of money laundering.”

High Court expressed that, since no scheduled offence was made out against the respondents, this Court found that an investigation and proceedings into the PMLA could not have been established against the respondents at the first instance.

Section 397 CrPC unequivocally states that the High Court or Sessions Courts which is exercising its revisional jurisdiction shall apprise itself solely of the question of correctness, legality and propriety of the order of the Subordinate Court.

“…the provision of the Cr.P.C. suggests that the Court shall limit itself to the findings, sentence or order passed by the subordinate Court, against which the Revisionist is seeking relief before the Courts concerned and shall not go beyond the analysis and observations made by the subordinate court.”

Additional Sessions Judge is under the challenge before this Court in its revisional jurisdiction.

This Court stated that in its revisional jurisdiction it would not proceed into the enquiry of the records, documents and other evidence in consideration before the Trial Court, but shall constrain itself to the findings of the lower Court in the impugned order and to the question whether there is any patent illegality, error apparent on record or incorrectness.

Bench remarked that the extent of exercise of discretion by the Court was limited to the prima facie satisfaction of the Court and if the Court does not find reasonable grounds of suspicion against the accused, it may discharge him of the offence alleged against him.

Additional Sessions Judge did not find any evidence brought on record to show that the accused persons were involved in the commission of the offences alleged against them.

This Court found force in the submission that since no offences were made out against the respondents. Petitioner could not establish the allegations against the respondents and as such the material produced was not sufficient to find the guilt against them.

High Court found no illegality or impropriety in the lower court’s decision, hence the petition was dismissed. [Directorate of Enforcement v. Gagandeep Singh, 2022 SCC OnLine Del 514, decided on 17-2-2022]

Advocates before the Court:

For the Petitioner:

Anurag Ahluwalia, CGSC with Danish Faraz Khan, Advocates

For the Respondents:

Vikram Chaudhari, Senior Advocate with Rishi Sehgal and Ria Khanna, Advocates

Case BriefsHigh Courts

Orissa High Court: Sashikant Mishra J. allowed the criminal petition and quashed the FIR and the criminal proceeding due to inordinate delay on the part of investigating authorities.

The facts of the case are such that an FIR was lodged against the present petitioner on by the then Tahasildar, Chhendipada before the Officer-in- Charge, Chhendipada Police Station leading to registration of case for the alleged commission of offence under Sections 447/379/188/294/535/506 of Penal Code, 1860 i.e. IPC. The said case is presently pending in the Court of J.M.F.C., Chhendipada. Final Report was submitted in the case after more than 15 years. The inaction of the investigating agency complied with inordinate delay was cited as a ground by the petitioner for quashment of the FIR and the consequential criminal proceedings in the present application filed under Section 482 Cr.P.C.

Counsel for the petitioner M/s. Anirudha Das, A Das,S.C. Mishra, A. Das and A. Sahoo submitted that that continuance of the case without Final Form being submitted for as long as 15 years by itself is an abuse of the process of Court. It is further argued that the petitioner is presently aged about 72 years and has been going through tremendous mental strain and anxiety because of pendency of the criminal case and the uncertainty attached to it. Since right to speedy trial is also a part of fundamental right under Article 21 of the Constitution of India, it was contended that inaction of the investigating agency for an inordinately long period of time directly violates such right, for which the proceedings need to be quashed.

Counsel for respondents Mr. P. K. Maharaj admitting that the Final Form was not filed for as long as 15 years, however, contends that no time limit being prescribed for conclusion of a criminal proceeding, mere delay in submission of Final Form or Final Report, as the case may be, cannot be a ground to quash the Proceedings.

The Court observed that this is a case of a man against whom an FIR was lodged and investigation continued for as long as 15 years to ultimately end in a Final Report being filed. One can only imagine the stress that the petitioner would have undergone during all these years with the “Sword of Damocles” hanging over his head.

The Court further observed that pendency of a criminal proceeding, irrespective of the nature of the offence alleged, are sufficient to cause concern, anxiety and apprehension in the mind of the accused not to speak of the expenses that he may have to incur in defending himself. What is a matter of greater concern to note is that there is no explanation whatsoever from the side of the investigating agency as to the reasons for non-completion of investigation for all these years.

The Court also took note of the fact that save and except the offence under Section 506, all the other offences alleged to have been committed by the accused namely, Sections 447/379/188/294/353 of IPC, are punishable with imprisonment for terms ranging from one year to three years at the most. So even if a Final Form had been submitted, the concerned Magistrate would have been hard put to take cognizance keeping in view the provisions under Section 468 of Cr.P.C. However, that is besides the point. The crux of the matter is inordinate delay in completion of the investigation.

The Court held that the inaction of the investigating agency to conclude the investigation for as long as 15 years, that too, without offering even a semblance of explanation is a direct affront to the cherished principle of right to speedy trial ingrained in the provisions of Article 21 of the Constitution of India.

The Court held this is a fit case to exercise its inherent powers under Section 482 of Cr.P.C. to put an end to the fiasco, once for all, moreso, as the investigation has ended in Final Report True being submitted.

The Court also observed that the higher police authorities should take note of such inaction on the part of the investigating officer (s) and pass appropriate orders to be followed by all concerned so as to prevent the same from recurring in future.[Binod Bihari Shetty v. State of Orissa, CrlMC No. 112 of 2020, decided on 03-01-2022]

Arunima Bose, Editorial Assistant has reported this brief.

Experts CornerKapil Madan

Introduction

Terrorism is a global phenomenon, with varying forms of manifestation. It is a rampant crime that many organisations and unfortunately some countries thrive on. Hence, protection of one’s country and its citizen is an obligation of the Government and they do so through counter-terrorism laws.

 

The Unlawful Activities Prevention Act, 1967 (hereinafter referred to as “UAPA”) is one such legislation. Unlawful Activities (Prevention) Amendment Act was enacted in 1967, it gained particular prominence in the year 2008-2012 after the 26/11 Mumbai terror attacks. It is an upgraded version of the TADA (Terrorist and Disruptive Activities Prevention Act, 1987) and POTA (Prevention of Terrorism Act, 2002) which lapsed and was repealed in 1995 and 2004 respectively. Due to heinous nature of terrorism, UAPA provides special procedures to decide cases with respect to terrorism. The National Investigation Agency is the central law enforcement agency tasked to deal with instances of terrorism in India.

 

It defines terrorist activities under Section 15 and offences and punishments related to terrorism and in Chapter IV, Sections 15-23 and terrorist organisations are dealt within Chapter VI, Sections 35-40. This Act grants the Centre power to declare any act they deem to be unlawful to be declared so. An unlawful activity is an act by an individual or a group that incites feelings of disaffection, and disrupts, disclaims, questions, is intended to disrupt the territorial integrity and sovereignty of the country.[1]

What is unlawful activities?

Unlawful activities in literal terms mean any activity contrary to the lawful procedure established by the legislature. According to Section 2(1)(o) of UAPA Act, an “unlawful activity”, means any action taken by individuals or associations which can be done through words, visible representation or written publications:

(i) with the intention to cede or cause severance of any part of the territory of India from the Union, either done itself or by inciting any individual or group of individuals to cause such cession or severance;

(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or

(iii) which causes or is intended to cause disaffection against India.

 

On a critical interpretation of this definition, it can be deduced that clauses (ii) and (iii)  of the definition are quite vague and open-ended. This gives surprisingly unlimited power to the Government to declare any kind of disclaim or questions as incitement as unlawful activities, at the garb of disruption to government’s sovereignty and territorial integrity. This can (or has already) led to prejudice to one of the most essential elements of a democracy i.e. constructive criticism of its Government.

Significance of bail in criminal proceedings

The provision of bail goes back to the medieval times of Magna Carta which was drafted 800 years back and described as the keystone of individual liberty and has been consistently followed in India. Clause 39 of the Royal Charter of the Magna Carta provided that

“no free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled or deprived if his standing in any other way, nor will he be proceeded against with force, except by the lawful judgment of his equals or by the law of the land”.

 

The presumption of innocence is the cardinal rule of our criminal justice system and also finds its roots under Article 21 of the Constitution of India. The Supreme Court in several judgments have reiterated that “bail is the rule and jail is the exception”. Since presumption of innocence is attached to all the accused persons and as such they may be given the opportunity to look after and defend their own case. The Supreme Court in Sanjay Chandra v. CBI[2] has also echoed that the accused has a better chance to prepare and present his case while he is out on bail in the following words:

  1. 18. … It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted.…

 

Furthermore, the Supreme Court in Sanjay Chandra case[3] and State of U.P. v. Amarmani Tripathi[4], has observed that the following factors among others may be considered while deciding the bail application:

  • Nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
  • Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
  • Prima facie satisfaction of the court in support of the charge.

Legislative amendments in UAPA which specifically deals with stringent bail conditions

The UAPA has been amended a few times which has further strengthened the strict provisions of the Act. When it was first enacted it was meant to deal only with unlawful activities, whereby the Central Government was given the power to declare certain activities as unlawful. However, due to repeated amendments, the Act has converted itself into primary legislative enactment for “terrorist activities”. The amendments increased the powers of Central Investigating Agencies, especially the National Investigation Agency (NIA) with respect to prosecution of accused persons under the Act. Some of the amendments were introduced by the legislature in the years 2004, 2008, 2012 and 2019, wherein the 2008 amendment introduced stringent twin conditions to be applicable for grant of bail to the accused which are distinguishable from other special Acts such as Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) and Prevention of Money-Laundering Act, 2002 (PMLA). Such conditions are now contained in Section 43-D(5) of the UAPA Act which is reproduced herein-below for the sake of ease reference:

 

43-D. Modified application of certain provisions of the Code.—(1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of Section 2 of the Code, and “cognizable case” as defined in that clause shall be construed accordingly.

*               *             *

 (5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:

 

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

 

A bare perusal of the aforementioned conditions envisaged under Section 43-D(5) of the Act shall makes it apparently clear that the regular bail provisions under the Act are distinct from other similar provisions in as much as the other special Acts require recording of an opinion by the Court that there are reasonable grounds for believing that the accused is “not guilty” of the alleged offence, UAPA requires recording of an opinion by the court deciding bail that there are reasonable grounds for believing that the accusation against such person is “prima facie” true.

 

Interpretation of stringent bail provisions under UAPA by various judicial forums

As already discussed above, the bail conditions in UAPA are not only stringent but are also distinct from various other special Acts enacted by the legislature in India. Therefore, it is extremely pertinent to look at the interpretation of such provisions by various judicial forums in India in order to understand its applicability in various scenarios.

 

In 2019, the landmark judgment passed by the Supreme Court of India in National Investigation Agency v. Zahoor Ahmad Shah Watali,[5] has made pertinent observations in regard to the nature of the burden on the accused and the evidence to be considered in order to reach a prima facie finding of guilt while hearing bail applications. The relevant excerpts of the judgment are reproduced hereinbelow:

 

  1. 23. … It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the court has to opine that the accusation is “prima facie true”, as compared to the opinion of the accused “not guilty” of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act.
  1. 24. A priori, the exercise to be undertaken by the Court at this stage—of giving reasons for grant or non-grant of bail—is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.

 

From the above-mentioned observations it is evident that having a power, exercise of such power, and conditions of exercise of such power are three different things. Grant/denial of bail in terrorism-related offences under UAPA is a power of the designated court. Exercise of such power is bound by Section 43-D(5), which lays down a test of a lesser degree than the erstwhile TADA and POTA and other special Acts such as NDPS, PMLA. The Supreme Court has, however, released the grant of bail from this comfort by asking the court to “merely” record a finding on the basis of “broad probabilities regarding involvement in commission of a stated offence or otherwise”.

 

Further recently Delhi High Court in Asif Iqbal Tanha v. State of NCT of Delhi[6] has made it clear that prima facie burden as stated in Section 43-D(5) lies on the prosecution. Relevant excerpts of the judgment are reproduced hereinbelow for ease of convenience. Relevant excerpts of the judgment are reproduced hereinbelow for ease of reference:

  1. (l) In the statutory framework of the now repealed TADA and POTA, before allowing a bail plea, the court was required to assess whether the accused person was “not guilty” of the offence alleged; and therefore the burden was clearly on the defence to disprove the allegations on a prima facie basis. Correspondingly therefore, under Section 43–D(5) of the UAPA, where, before allowing a bail plea, the court is required to assess if the accusation against an accused is prima facie true, the burden to demonstrate the prima facie veracity of the allegation must fall upon the prosecution. The requirement of being satisfied that an accused is “not guilty“ under TADA or POTA meant that the court must have reasons to prima facie exclude guilt; whereas the requirement of believing an accusation to be “prima facie true” would mean that the court must have reason to prima facie accept guilt of the accused persons, even if on broad probabilities.

 

Thus it is clear that the bar for getting a bail under UAPA is on lighter footing when compared with other special Acts such as NDPS and PMLA. However, under the Act, bail can only be granted if the accused is able to prove that there does not, infact, exist a “prima facie” case against him.

Instances where judicial forums have granted bail to the accused under Act

In Union of India v. K.A. Najeeb[7], a three-Judge Bench of the Supreme Court headed by Chief Justice N.V. Ramana upheld the bail granted to the accused by the High Court of Kerala at Ernakulam under UAPA when the accused had undergone incarceration for a significant period even as it recognised that bail under UAPA was an exception.

  1. … courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.

 

Recently, the Bombay High Court in P.V. Varavara Rao v. National Investigation Agency[8] has  reiterated the principles expounded by the Supreme Court in K.A. Najeeb[9] judgment made pertinent observations on the interpretation of Section 43-D(5) of the Act. Relevant excerpts of the judgment are reproduced hereinbelow for ease of reference:

 

  1. As we have noted above, in a given case, the fundamental rights guaranteed in Part III of the Constitution of India to prisoners languishing in four walls of prisons could be asserted on the basis of appropriate material to show that to recognise such rights, particularly the right guaranteed under Article 21 of the Constitution of India, the walls of the prison would have to be breached, subject of course, to imposition of appropriate conditions. Imposition of conditions would be in the nature of a safety net to ensure that the undertrial/accused is made to face proceedings before the trial court. The Supreme Court in K.A. Najeeb[10], has categorically held in the context of sufferings of undertrials where the proceedings before the trial court take years to be completed, that the rigours of provisions pertaining to grant of bail found in special statutes like the UAPA will melt down where there is no likelihood of the trial being completed within a reasonable time. Therefore, such a position of law is now well recognised and it can be relied upon where on facts, the court comes to a conclusion that continued incarceration of an accused like the undertrial in the present case, would violate his right under Article 21 of the Constitution, considering the precarious health condition of such an accused. Even otherwise, in the present case also, the respondents have conceded that at least 200 witnesses will be examined by the prosecution. The charge-sheet itself runs into thousands of pages. The charge is not framed yet, and consequently, the trial is yet to commence and, even after commencement of trial, it may take a long time to complete since the prosecution intends to examine at least 200 witnesses.

 

A bare perusal of the above-mentioned case laws shall make it clear without an iota of doubt that although rigours of granting bail to the accused under the Act are strict, however in any circumstance whatsoever the same  cannot take shape of prohibition on grant of bail to the person accused of committing offences under the Act. The most recent interpretation of Section 43-D(5) by the Supreme Court in Zahoor Ahmad Shah Watali[11] contains two pertinent observation switches that support such a conclusion. Firstly Section 43-D(5) of the act is on lighter footing when compared with other special Acts such as NDPS and PMLA Act and secondly  there is no need to going into merits and demerits of the case at the stage of bail pertaining to offences under the Act. Further The Bombay High Court in P.V. Varavara Rao[12] has further made it clear that incarceration of the accused while he is under trial in a case where trial may not occur immediately is an express violation of the right guaranteed to him under Article 21 of the Indian Constitution. Thus in lieu of above the position of law is well settled and no longer per incuriam that there is no prohibition of grant of bail under the provisions of the Act and if the accused meets the criteria which has been explained above in detail, he is entitled to grant of bail under the Act.

 Applicability of Section 167(2) of CrPC 1973 pertaining to offences under the Act

Apart from abovementioned provisions of regular and anticipatory bail,  Section 167(2)(a) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Code”), grants the accused the right to be released on bail when investigation has not been completed within 90 days in case of offences punishable with death/life imprisonment or imprisonment for a term not less than 10 years, and 60 days in case of other offences. The abovesaid provisions reproduced herewith for the convenience of reference:

  1. 167. …

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that:

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,–

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that chapter.

 

However under the UAPA 1967 Section 43-D(2) of the Act  operates a special provision distinguishing the applicability of rights granted under Section 167(2)(a) of the Code. The provision is reproduced hereinbelow for ease of reference:

43-D. Modified application of certain provisions of the Code.—

… (2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),—

(a) the references to “fifteen days”, “ninety days” and “sixty days”, wherever they occur, shall be construed as references to “thirty days”, “ninety days” and “ninety days” respectively; and

(b) after the proviso, the following provisos shall be inserted, namely:

“Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days: Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.

 

Thus a bare reading of the above-mentioned provision of the Act shall make it clear that there that the benefit of default bail shall be available to the accused person for the offences committed under the Act for where the investigation have not concluded within 90 days of arrest of the accused irrespective of the punishment of the alleged offences committed by him. However it is pertinent to note that the provision also gives right to the investigation agencies to seek for extension of investigation to a period of 180 days by filing a report of the Public Prosecutor indicating the progress of investigation along with specific reasons for detention of the accused.

 

Further the Supreme Court in Bikramjit Singh v. State of Punjab[13], has made pertinent observations with in regard to interpretation of grant of default bail to a person accused of commission of offences under the Act:

  1. A conspectus of the aforesaid decisions would show that so long as an application for grant of default bail is made on expiry of the period of 90 days (which application need not even be in writing) before a charge-sheet is filed, the right to default bail becomes complete. It is of no moment that the criminal court in question either does not dispose of such application before the charge-sheet is filed or disposes of such application wrongly before such charge-sheet is filed. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted.

 

On a bare reading of the provision, the Supreme Court’s interpretation of the same , it can be perceived that the provision is fair and just to the accused as well as the investigation agencies as it tries to create a balance between  rights of an individual and a greater/larger interest of the State. However the interpretation of this provision is extremely critical in order to maintain such balance as if on one hand  the right have been granted to accused to seek default bail when investigation is not complete within stipulated time and on the other hand the investigation authorities are also entitled to seek for an extension of investigation by spelling out requisite grounds,which if allowed would disentitle the accused form obtaining default bail. Therefore there is a  high chance that the investigation authorities in a backhanded manner  may move the application for extension of time period of investigation, without notifying the accused, then the act of the court in allowing  and would deprive the accused of their statutory liberty.

 

Recently Karnataka High Court in Muzammil Pasha v. National Investigating Agency[14], has clarified the position of law on this aspect and have held that extending the time period for an investigation without hearing the accused person under the provisions of Section 43-D(2) is a gross violation of natural Justice, such an act is in grave contravention with the settled principles of law. The High Court has further gone on to hold that even if charge-sheet has been filed within the extended period of investigation , the accused cannot be deprived of his right to be released on statutory bail, as the same is a right established by procedure of law and is hence covered under the ambit of Article 21 of the Indian Constitution relevant excerpt of the judgment are reproduced hereinbelow:

 

  1. In my considered opinion, the judgment of the Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra[15] and in Sanjay Dutt v. State[16] would be applicable to the facts of the present case. Since the petitioners were not given an opportunity of being heard before passing an order on the application filed by the prosecution for extension of time for completion of the investigation and since the petitioners were not kept present before the court when the application filed by the prosecution for extension of time for completion of the investigation was being considered and Muzammil Pasha[17] since the petitioners were not notified that such an application filed by the prosecution was being considered by the court for the purpose of extending the time for completion of investigation, I am of the considered opinion that the order passed by the trial court on the application filed by the prosecution under the first proviso to Section 43-D(2)(b) of the Act of 1967 extending the time to complete the investigation is legally unsustainable and accordingly, Point 1 for consideration is answered in the negative.

*                        *                       *

 

  1. In the case on hand, immediately after completion of 90 days period prescribed under Section 167(2) of the Code for completion of the investigation, an application has been filed by the petitioners seeking statutory bail, which is also known as “default bail” on the ground that the prosecution had not completed the investigation and filed the charge-sheet. In view of the law laid down in Bikramjit Singh[18], merely for the reason that the charge-sheet Criminal Appeal No.699/2020 (arising out of SLP (Crl.) No.2333/2020) DD 26.10.2020 Muzammil Pasha[19] WP.1417/2021 C/W WP.637/2021, 640/21, 1299/21 & 1706/21 has now been filed, it will not take away the indefeasible right of the petitioners, if it has accrued in their favour. Therefore, there is no merit in the contentions of the learned ASG that the prayer made by the petitioners for grant of statutory bail under Section 167(2) of the Code cannot be considered having regard to the fact that the charge sheet has now been filed during the extended period for completion of the investigation.

… 35. The right to statutory bail has now been considered as a fundamental right under Article 21 of the Constitution of India, by the Supreme Court in Muzammil Pasha[20]and Bikramjit Singh[21]. Article 21 which guarantees the right to life and personal liberty is considered to be sacrosanct of our Constitution. The State has an obligation to follow fair, just and reasonable procedure prior to depriving any person this right guaranteed under Article 21.

Therefore its is imperative that the above provisions are interpreted in the light on principles of natural justice and in fair reasonable and just manner so that an accused is not deprived of his statutory rights in contravention of procedure established by law, which inturn is violative of the letter and spirit   under Article 21 of the Indian Constitution.

Conclusion

In lieu of provisions and judgments cited above , it is safe to conclude that the strict provision of bail under the Unlawful Activities Prevention Act, 1967, can in no circumstance whatsoever be interpreted as a prohibition on the grant of bail or a measure to incarcerate undertrial prisoners in cases where the trial may not commence shortly. It is also clear that in the cases pertaining to UAPA the burden of proving prima facie guilt rests on the prosecution which they need to prove on the basis of broad probabilities.  Further as far as statutory or default bail is concerned , same is also available to the accused under the Act subject to certain modifications, and the accused cannot be deprived of this right in abhorrence of principles of natural justice.  Thus it may not be wrong to say out of all the special Acts, Unlawful Activities Prevention Act, 1967 is an exception wherein higher burden lies on the prosecution to establish the prima facie guilt of the accused.

† Kapil Madan, Partner, KMA Attorneys.

†† Pulkit Pandey, Associate, KMA Attorneys.

[1] UAPA, 1967, S. 2(1)(o).

[2] (2012) 1 SCC 40.

[3] (2012) 1 SCC 40.

[4]  (2005) 8 SCC 21.

[5] (2019) 5 SCC 1.

[6] 2021 SCC OnLine Del 3253.

[7] (2021) 3 SCC 713.

[8] 2021 SCC OnLine Bom 230.

[9] (2021) 3 SCC 713.

[10] (2021) 3 SCC 713.

[11] (2019) 5 SCC 1.

[12] 2021 SCC OnLine Bom 230.

[13]  (2020) 10 SCC 616.

[14] 2021 SCC OnLine Kar 12688.

[15] (1994) 4 SCC 602.

[16] (1994) 5 SCC 402.

[17] 2021 SCC OnLine Kar 12688.

[18] (2020) 10 SCC 616.

[19] 2021 SCC OnLine Kar 12688.

[20]   2021 SCC OnLine Kar 12688.

[21] (2020) 10 SCC 616.

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 held “present 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

Delhi High Court: Mukta Gupta, J., decided whether a settlement of parties wherein an accused and his family members who subjected his wife to harassment due to which the wife committed suicide can be accepted or not?

By the present petition, 5 petitioners sought quashing of an FIR under Sections 498A, 304B, 34 Penal Code, 1860 on the ground that the parties have settled.

In the above-noted FIR, respondent 2 had stated that his daughter got married to petitioner 1 who was unemployed and this his parents used to bear the expenses. After the marriage, the in-laws of his daughter started demanding dowry though nothing was demanded at the time of the marriage and respondent 2 had performed the marriage as per his capacity.

Later the daughter was harassed by her husband, mother-in-law, brother-in-law and two nieces.

One day, respondent 2 got a phone call that his daughter had committed suicide.

During the pendency of the investigation, petitioners and respondent 2 entered into a memorandum of understanding and as per the terms of the settlement, the parties entered into a settlement without any coercion and without any transfer of money.

Even respondent 2 agreed that he had no claim and grievance against the petitioners and will cooperate in the quashing petition preferred before this Court as also make sincere efforts in getting the petitioners released on bail and that no grudges were left between the parties.

Analysis, Law and Decision

High Court cited the Supreme Court decision in Parbatbhai Aahir v. State of Gujarat, (2017) 9 SCC 641, wherein it was clearly held that where serious and grave offences are involved, the quashing of FIR cannot be allowed on the basis of the compromise. Broad principles were also laid down in respect of the inherent power of the High Court to quash the first information report or the criminal proceedings.

Bench held that in the present case, a woman committed suicide within five months of her marriage due to harassment caused by the husband and his family members and the offences punishable under Section 304-B IPC were not only grave and heinous but an offence against the society actuated by the social evil of demand od dowry, therefore needs deterrence nad cannot be quashed on the basis of settlement arrived between the accused and complainant.

In view of the above discussion, the petition was dismissed. [Dalbir Singh v. State GNCT of Delhi, 2021 SCC OnLine Del 5449, decided on 17-12-2021]

Advocates before the Court:

For the Petitioner: Vikrant Chowdhary, Pradeep Chowdhary, Advocates (through VC)

For the Respondent: Kamna Vohra, ASC for the State with Inspector Hari Singh, P.S. Tilak Nagar

Case BriefsHigh Courts

Chhattisgarh High Court: Narendra Kumar Vyas, J., quashed the FIR registered against the petitioner by Respondent 4 at Women Police Station, Bilaspur (C.G.) for commission of offence punishable under Section 354(A) IPC and Section 3 (1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The facts of the prosecution are such that the petitioner is working as an Assistant Professor in D.P. Vipra College, Bilaspur, filed present writ petition under Article 226 of the Constitution of India for quashing FIR registered against him on the basis of complaint made by respondent 4 at Women Police Station, Bilaspur (C.G.) for commission of offence punishable under Section 354 (A) of Penal Code, 1860 i.e. IPC & Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act i.e. “the Act, 1989”. The petitioner also highlighted that a criminal case was registered the petitioner against respondent 4 along with other 33 teaching staff having committed offence of unlawful assembly, criminal intimidation for which Judicial Magistrate 1st  class convicted the accused persons including respondent 4 and imposed fine s well.

Counsel for the petitioner Mr. B P Sharma submitted that being aggrieved by the conviction order, respondent 4 lodged FIR as a counterblast to the criminal proceedings. It was further submitted that the remarks made by petitioner was “Madam yadi aap chutti chahti hain toh mujhe akele mein aakar milein” which cannot be termed as sexually coloured remarks. Hence, no ingredient of offence under Section 354 (A) IPC is made out and the offence under the Act of 1989 was also prima facie not made out.

Counsel for the respondent 4 Mr. Manoj Paranjape submitted that the alleged statement made by the complainant/respondent 4 feel humiliated and caused grievance as such statement felt as an attack to the dignity and modesty of the complainant. It was submitted that it is the feeling perceived by the victim that is of paramount consideration and not what the accused states.

The Court observed that from bare perusal of Section 3(1) (xii) of the Act of 1989, statement of the complainant and other witnesses, it cannot be prima facie established the offence has been committed with racial prejudice and that the petitioner was ever in a position to exploit respondent 4 sexually as petitioner and respondent 4 are working as Assistant Professors in the same college, therefore, it cannot be presumed that the petitioner was in a position to dominate the respondent 4 or to command or control her.

The Court observed that the contents of the complaint cannot be inferred as a sexual coloured remark against respondent 4. The remarks do not fall within the ambit of sexual harassment in order to prosecute the petitioner for commission of offence under Section 354 (A) (iv) IPC.

The Court held

“since the criminal case is going on, therefore it is counter blast on the part of respondent no. 4, as such; adjudication of the proceeding against the petitioner for commission of offence under Section 354 (A) of IPC will be nothing but an abuse.”

The Court held “FIR No. 0036 dated 25.06.2018 registered against the petitioner by Respondent No. 4 at Women Police Station, Bilaspur (C.G.) for commission of offence punishable under Section 354(A) IPC and Section 3 (1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, deserves to be and is hereby quashed.” [Manish Tiwari v. State of Chhattisgarh, 2021 SCC OnLine Chh 3799, decided on 01-11-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: Explaining the difference between the degree of proof in a criminal proceedings and departmental proceedings, the bench of Hemant Gupta* and V. Ramasubramanian, JJ has held that the burden of proof in the departmental proceedings is not of beyond reasonable doubt as is the principle in the criminal trial but probabilities of the misconduct.

Here’s the elaborate law laid down by the Supreme Court in this point:

State of Haryana v. Rattan Singh, (1977) 2 SCC 491

In a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility.

“It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. (…) The simple point is, was there some evidence or was there no evidence — not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny.”

Union of India v. P. Gunasekaran, (2015) 2 SCC 610

“In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal.”

The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

Under Articles 226/227 of the Constitution of India, the High Court shall not:

  • reappreciate the evidence;
  • interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
  • go into the adequacy of the evidence;
  • go into the reliability of the evidence;
  • interfere, if there be some legal evidence on which findings can be based.
  • correct the error of fact however grave it may appear to be;
  • go into the proportionality of punishment unless it shocks its conscience.

Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., (2005) 7 SCC 764

  • In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused “beyond reasonable doubt”, he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of “preponderance of probability”.
  • Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules.
  • In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings.

Noida Entrepreneurs Association v. NOIDA, (2007) 10 SCC 385

The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public, whereas, the departmental inquiry is to maintain discipline in the service and efficiency of public service.

[Union of India v. Dalbir Singh, 2021 SCC OnLine SC 768, decided on 21.09.2021]

*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Case BriefsHigh Courts

Delhi High Court: Emphasizing on the gravity of seriousness of Section 307 Penal Code, 1860, Subramonium Prasad, J., observed that,

“…an offence under Section 307 IPC will fall under the category of heinous offence, and therefore, has to be treated as a crime against the society and not against the individual alone and the proceedings under Section 307 IPC cannot be quashed only on the ground that the parties have resolved the entire disputes amongst themselves.”

Present matter was in the Court for quashing an FIR registered for offences under Section 307/34 of Penal Code, 1860.

Factual Matrix

It was stated that victim was assaulted by some unknown persons and the nature of injuries was opined to be serious, for further treatment he was shifted to RML Hospital.

Since the victim was unfit for treatment, his father gave a statement wherein he stated that Hannan and petitioner were quarrelling with his son. They both were holding the victim and then stabbed him. After stabbing, they escaped from the spot.

On father’s statement, the FIR was registered for offences under Sections 307/34 IPC.

Hannan was declared as a Proclaimed Offender.

Further, the charge sheet was filed and enough material against the accused was there to proceed against him under the above-stated Sections.

Later the parties entered into a compromise and as per the compromise deed accused was to pay a sum of Rs 3,00,000 as compensation/medical charges. Accused had paid Rs 1,00,000 at the time of settlement and remaining amount would be paid at the time of quashing the FIR.

Crux

Quashing of criminal proceedings for offences under Section 307 IPC on the ground that parties had entered into a settlement.

It was noted that Supreme Court had a conflict of opinion with regard to whether an offence under Section 307 IPC could be quashed by the High Court while exercising power under Section 482 CrPC.

In the decision of State of Rajasthan v. Shambhu Kewat, (2104) 4 SCC 149, it was held that an offence under Section 307 IPC is a serious offence and ordinarily should not be quashed by the High Court while exercising its powers under Section 482 CrPC on the ground that the parties have settled their disputes.

Further, Supreme Court in the decision of Narinder Singh v. State of Punjab, (2014) 6 SCC 466 had quashed the proceedings under Section 307 IPC after noting the judgment in State of Rajasthan v. Shambhu Kewat, (2104) 4 SCC 149.

In view of the conflict of opinion in the above two decisions, matter was referred to a larger bench of Supreme Court in State of M.P. v. Laxmi Narayan, (2019) 5 SCC 688, wherein it was observed that,

“…It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of weapons used, etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge-sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paras 29.6 and 29.7 of the decision of this Court in Narinder Singh [Narinder Singh v. State of Punjab, (2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54] should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove”

 (emphasis supplied)

In the above decision, Court also stated that the powers conferred on the High Court under Section 482 CrPC can be exercised keeping in mind the injuries sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of weapons used etc.

High Court stated that in view of the above decision of the Supreme Court, it can be seen that the fight involved in the present matter was not an ordinary fight between the neighbors, infact petitioners should be thankful that they are not facing trial in a case of murder because in ordinary circumstances the injuries inflicted by the petitioners were sufficient to cause death.

Victim was stabbed with a dangerous weapon i.e. a knife and the injuries caused were of such nature that they would have caused death in ordinary circumstances.

Hence, Court declined to quash the FIR solely on the ground that the parties entered into a compromise. [Mukhtiyaar Ali v. State (NCT of Delhi), 2021 SCC OnLine Del 4428 , decided on 20-09-2021]

Advocates before the Court

For the Petitioners: Rishipal Singh, Advocate with petitioners in person

For the respondents: Meenakshi Chauhan, APP for the State with ASI Naresh, PS Jaffrabad Complainants in person

Case BriefsHigh Courts

Chhattisgarh High Court: Narendra Kumar Vyas J. allowed the petition and quashed the FIR and the criminal proceedings against the petitioner.

The factual matrix of the case is such that the Government of Chhattisgarh enacted the Shakambhari (Nal-Jal) Scheme for benefit of agriculturists by granting subsidy. The major authorities along with respondent 5/complainant Kuleshwar Chandrakar and Roshan Chandrakar, Proprietor of Shri Ram Bore-wells have committed gross embezzlement at the time of granting subsidy to the concerned agriculturists, therefore, the petitioner made a complaint before the Collector, Dhamtari for registration of FIR against the corrupt employee/officers. But the respondent did not take any action against the corrupt persons including the respondent 5. Being aggrieved, the petitioner filed complaint under Section 156(3) Criminal procedure Code i.e. Cr.P.C before District and Sessions Court, Dhamtari for registration of offence under Prevention of Corruption Act. On 9-10-2015, the complainant Kuleshwar Chandrakar lodged FIR against the petitioner contending that the petitioner has demanded Rs 25, 00,000/- by way of extortion. Police has registered the FIR without conducting any preliminary enquiry. The petitioner, who is an Advocate by profession, filed the present writ petition (cr.) challenging the registration of First Information Report against him under Sections 384 and 388 of Penal Code, 1860 IPC on the basis of complaint filed by respondent 5 Kuleshwar Chandrakar.

The Court observed that on perusal of sections mentioned in the FIR it is amply clear that what is necessary for constituting an offence of ‘extortion’ is that the prosecution must prove that on account of being put in fear of injury; the victim was voluntarily delivered any particular property to the man putting him into fear. If there was no delivery of property, then the most important ingredient for constituting the offence of ‘extortion’ would not be available. Further, if a person voluntarily delivers any property without there being any fear of injury, an offence of ‘extortion’ cannot be said to have been committed.

The Court relied on judgment Sudha Tripathi v. State of Madhya Pradesh in MCRC No 1187 of 2019 decided on 2-5- 2019 and observed that it is apparent that the alleged offence under Section 384 of IPC has been quashed on the ground that no valuable assets have been delivered because of extortion, threaten, pressure created by the accused. In the present case also respondent 5 has not delivered any valuable assets to the petitioner, therefore, the judgment referred to by respondent No.5 also support the contention of the petitioner and in that case also Madhya Pradesh High Court held that offence under Section 384 of IPC is not made out.

The Court observed that when prima facie provisions of Section 383 of IPC is not made out, then the offence under Section 388 of IPC cannot be made out, because unless and until the ingredient of extortion is established, then only the alleged offence, prima facie, is said to have been committed by the petitioner. Since the ingredients of Sections 383 of IPC are not made out, the ingredient of Section 388 of IPC cannot be, prima facie, established; therefore, registration of FIR, prima facie, is nothing, but an abuse of process of law.

The Court thus held “from perusal of FIR, prima facie, no case is made out against the petitioner and criminal proceedings is manifestly attended against the petitioner with malafide, therefore, initiation of criminal proceeding is nothing, but an abuse of process of law.”

[Shatrughan Singh Sahu v. State of Chhattisgarh, WPCR No. 133 of 2017, decided on 27-074-2021]

Arunima Bose, Editorial Assistant has reported this brief.

 Appearances

For Petitioner: Mr. Roop Naik and Mr. Sanjeev Sahu,

For Respondents 1 to 4: Mr. Gurudev I Sharan

For Respondent 5: Mr. Manoj Paranjpe

Case BriefsSupreme Court

Supreme Court: A Division Bench of Sanjay Kishan Kaul and Hemant Gupta, JJ. upheld Rajasthan High Court’s order whereby it had directed that criminal proceedings against the accused−Lower Division Clerk be quashed, for want of requisite sanction under Section 197 CrPC.

The Court held that in cases where a question of requirement of sanction under Section 197 arises, the real test is to check whether the act committed by the public servant was directly concerned with the official duty.

Factual Matrix

The appellant−complainant had filed an FIR wherein she made allegations of cheating, forgery and criminal conspiracy against the accused. The accused was a Lower Division Clerk in the Municipality concerned.

It was the complainant’s case that she and her husband purchased two plots in District Barmer. Out of these, one plot was sold to one Meghram. Further, in the plot purchased in her husband’s name, a residential house and shops were constructed. It was alleged that Meghram tempered with and fabricated the agreement with intention to defraud. Dimensions of the plot which was sold to Meghram were enlarged with intention to grab the land and house occupied by the complainant and her husband. The khasra number was also changed. This was alleged to have been done in collusion with the Executive Officer of the Municipality, a Junior Engineer, and the accused−Lower Division Clerk. The police made investigation made into the FIR and charge sheet was filed.

 Appeal

Before the trial court, the accused stated that he was a public servant and what he did in respect of allotment of lease that was executed in favour of Megharam, was done during the course of his official duty. He assailed the charge sheet as the same was filed without obtaining sanction of the competent authority under Section 197 CrPC. This application was dismissed by the trial court. The accused assailed this order before Rajasthan High Court by filing a petition under Section 482 CrPC, which was allowed. Aggrieved, the complainant approached the Supreme Court.

Contentions

The complainant contended that the accused conspired with his superior officers in dishonestly concealing the forgery, and intentionally omitting mentioning the date of the proceedings on the order sheet. Such action of forging documents would not be considered as an act conducted in the course of his official duties and, thus, Section 197 CrPC would not give protection to the accused.

Per contra, the accused submitted that the co-accused officials had already been granted protection, petition filed by them under Section 482 CrPC have been allowed by the High Court and those orders have not been challenged by the complainant or the State. It was argued that two key people involved in entire process have already been granted protection and, thus, the accused who was merely a Lower Division Clerk could not be denied similar relief.

Analysis and Observations

At the outset, the Court noted that Section 197 CrPC seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the court from taking cognizance of such offence except with the previous sanction of the competent authority.

Relying on Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64, the Court observed that:

“Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. At the same time, the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty, justice and good governance.“

The Court recorded that the alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. However, such sanction is necessary if the offence alleged against the public servant is committed by him “while acting or purporting to act in the discharge of his official duty”.  Placing reliance on State of Maharashtra v. Budhikota Subbarao, (1993) 3 SCC 339, the Court stated that:

“In order to find out whether the alleged offence is committed ‘while acting or purporting to act in the discharge of his official duty’, the yardstick to be followed is to form a prima facie view whether the act of omission for which the accused was charged had a reasonable connection with the discharge of his duties.“

The real question therefore was whether the act committed was directly concerned with the official duty. Applying this test, the Court considered the role assigned to the accused in the alleged conspiracy with his superiors. It was noted that the work assigned to the accused pertained to subject matter of allotment, regularisation, conversion of agricultural land, which fell within his domain of work. In the processing of application of Megharam, the file was initially put up to the Executive Officer who directed inspection which was carried out by the Junior Engineer and only thereafter the Municipal Commissioner signed the file.

The Court also noted that the co-accused Executive Officer and Junior Engineer had already been granted protection. The result was that the superior officers, who have dealt with the file, have been granted protection while the clerk, who did the paper work, was denied similar protection by the trial court even though the allegation is of really conspiring with his superior officers.

Decision

The Court found itself unable to appreciate why a similar protection ought not to be granted to the accused as was done in the case of other two officials. The sanction from competent authority would be required to take cognizance and no sanction had been obtained in respect of any of the officers.

In such a view of the matter, the Supreme Court upheld the order of the High Court quashing proceedings against the accused. The appeal was dismissed. [Indra Devi v. State of Rajasthan, 2021 SCC OnLine SC 487, decided on 23-7-2021]

Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madras High Court: Dr G. Jayachandran, J., refused to pass a decree in favour of the plaintiff who relied on general admission of facts made by the defendant.

In the instant matter, it was stated that the plaintiff was engaged in the business of providing and arranging finance to various borrowers and had lent a loan to the first defendant company, which is an NBFC.

On the date of filing the suit, a sum of Rs 38,16,45,711/- was due and payable to the plaintiff. While advancing the loan, the second defendant provided personal guarantees for each of the facility agreements entered by the first defendant.

The second and third defendants were jointly and severally liable to pay the suit claim.

According to the plaintiff, since 2014, the transaction between the plaintiff and the first defendant company was regular without any default till the month of September 2020.

Further, it was submitted that the misappropriation of the fund by the Management of the Company came to light, when there was a default and when the Chief Financial Officer of the first defendant issued a Circular on 07-10-2020 disclosing diversion of the fund of the first defendant company by the second defendant as a consequence, criminal proceedings had been initiated by the plaintiff and the matter had been seized by the Directorate of Enforcement Wing.

Extracting a certain portion of the pleadings in the written statement, the plaintiff sought passing of a decree and judgment upon the said statement as admission.

Bench stated that the three admissions which were relied upon by the applicant were all general admissions and did not admit the suit claim.

Further, the Court added that the admission that fraud was committed per se will not entail the plaintiff for a decree as claimed in the suit. Whatever claimed in the suit has to be proved through evidence in the manner known to law and the portions of the admission relied upon by the plaintiff/applicant is a general admission of fact regarding the liability of the first defendant company and its inability to pay his creditors. The general admissions of fact cannot be construed as an admission of suit claim to pass a judgment and decree.

In view of the above application was dismissed. [Northern Arc Capital (P) Ltd. v. Sambandh Finserve (P) Ltd., 2021 SCC OnLine Mad 2577, decided on 5-07-2021]

Advocates before the Court:

For Applicant: Mr Anirudh Krishnan

For 1st Respondent: Mr. Supriyo Ranjan Mahaptra

For 2nd respondent: Mr Prashant Rajapogal

Case BriefsSupreme Court

Supreme Court: In the 2012 incident wherein two fishermen were killed while fishing off the coast of Kerala after allegedly two Italian Military Naval officials fired at them from a passing ship, the bench of Indira Banerjee and MR Shah*, JJ has closed all the proceedings against the marines in India including criminal proceedings in exercise of powers under Article 142 of the Constitution of India.

Criminal proceedings were initiated against the marines after the Kerala police apprehended them and two months after the incident, the Republic of Italy made ex-gratia payment of compensation to the legal heirs of the deceased persons. The vessel, from which the shots were fired, was allowed to sail away, subject to certain terms and conditions along with all 24 crew members, only after the order passed by the Supreme Court in May, 2012. The unfortunate incident had occurred in February, 2012.

Important facts that persuaded the Court to close the proceedings 

  • the Arbitral Tribunal constituted under Annex VII of UNCLOS has delivered its award dated 21.05.2020 under which the Republic of Italy has agreed to pay the compensation of Rs. Ten crores, over and above the amount of ex-gratia amount already paid
  • the Arbitral Tribunal has also duly recorded Republic of Italy’s commitment that following the award Italy will resume its criminal investigation into the incident of 15.02.2012.

As an aftermath of the Arbitral Tribunal’s award, the Republic of Italy deposited the said amount of Rs. Ten Crores and the State of Kerala as well as the heirs of the deceased fishermen and even the owner of the boat which was damaged agreed to accept the award.

The Court was, hence, of the opinion that

“…the amount of compensation of Rs. Ten Crores over and above the ex-gratia amount of compensation already paid to the heirs of the deceased fishermen offered and deposited by the Republic of Italy, deposited pursuant to award dated 21.05.2020 passed by the Arbitral Tribunal can be said to be a reasonable amount of compensation and can be said to be in the interest of heirs of the deceased, we are of the view that this is a fit case to close all the proceedings in India including criminal proceedings in exercise of powers under Article 142 of the Constitution of India.”

It was hence, directed that Rs. Ten Crores now lying with the Supreme Court Registry be transferred to the High Court of Kerala, out of which Rupees Four Crores be paid to the heirs of each deceased and Rs. Two crores be paid to the owner of the boat – St. Antony.

However, the Court clarified that while disbursing the amount of compensation to the heirs of the deceased fishermen, i.e, Rs. Four Crores to the dependents/heirs of each deceased, their interest is also required to be protected so that the amount of compensation paid to them is not frittered away, by investing the amount in the name of the dependents/heirs of each deceased in a Fixed Deposit in a nationalised bank for some time and they will be paid the periodical interest accrued thereon.

The Court, hence, asked the Chief Justice of the Kerala High Court to nominate a Judge to pass appropriate order of disbursement/investment of the amount to be paid to the heirs of each deceased (Rupees Four Crores each) so as to protect the interest of the heirs and ensure that the compensation is duly received by the heirs and not diverted/misappropriated. The order of disbursement/investment is to be passed after hearing the heirs of each deceased and appropriate order be passed, protecting the best interest of the heirs of each deceased.

[Massimilano Latorre v. Union of India, 2021 SCC OnLine SC 428, decided on 15.06.2021]

*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

For Petitioner(s): Mr. Suhail Dutt, Sr. Adv.

Mr. Diljeet titus, Adv.

Mr. Jagjit Singh Chhabra, AOR

Mr. Ujjwal Sharma, Adv.

Mr. Baljit Singh Kalha, Adv.

Mr. Ninad Laud, Adv.

Mr. Akshat Bhatnagar, Adv.

Ms. Ananyaa Mazumdar, Adv.

Mr. Saksham Maheshwari, Adv.

For Respondent(s): Mr. Tushar Mehta, SG

Mr. Aman Lekhi, ASG

Mr. S.A. Haseeb, Adv.

Mr. Suhashini Sen, Adv.

Mr. Rajat Nair, Adv.

Mr. B. V. Balaram Das, AOR

 Mr. G. Prakash, AOR

Mr. Jishnu M.L., Adv.

Ms. Priyanka Prakash, Adv.

Ms. Beena Prakash, Adv.

 Mr. C. Unnikrishnan, Adv.

Mr. A. Karthik, AOR

Ms. Smrithi Suresh, Adv.

Ms. Sreepriya K., Adv.

Mr. Arsh Khan, Adv.

Case BriefsHigh Courts

Madras High Court: S.M. Subramaniam, J., held that

Protraction and prolongation of litigations affecting women can never be encouraged by the Courts.

Husband and wife used to live in Singapore and when a misunderstanding arose between the two, the husband stated that the respondent/wife deserted him in the year 2018. Hence, the husband sought the relief of Restitution of Conjugal Rights by filing a petition in the Family Court, Chennai.

Wife had filed a Domestic Violence Complaint against the husband and further filed the maintenance seeking maintenance.

Under the above-stated circumstances, an instant transfer petition was filed to transfer the Domestic Violence Act case.

Questions of Legal Importance

Whether the High Court in the exercise of power of superintendence under Article 227 of the Constitution of India transfer the criminal proceedings from the Criminal Court to the Family Court, when the powers of transfers of cases are already conferred on the High Court under the provisions of the Criminal Procedure Code and Civil Procedure Code?

Presuming, the powers under Article 227 of the Constitution of India is exercised, in order to transfer a criminal case to a Civil Court or Family Court, what would be the consequences and the provisions governing such transfers and the Constitution of Special Courts under the Special enactments?

Whether the decision of this Court in Mohana Seshadri v. Anuja, CDJ 2020 MHC 944, can be followed as a precedent in the present matter?

Analysis

The above case cited by the petitioners need not be relied upon for the purpose of entertaining a transfer petition under Article 227 of the Constitution of India. In the present petition, this Court has to consider the provisions of the Special Acts namely the Domestic Violence Act, Family Courts Act and also the Code of Criminal Procedure for the purpose of forming an opinion.

Domestic Violence Act

Provisions of the ‘DV Act’ are unambiguous that an application is entertainable before the Judicial Magistrate Class I or the Metropolitan Magistrate as the case may be for seeking one or more reliefs under the Act.

Proceedings under the ‘DV Act’ are regulated under the Code of Criminal Procedure as contemplated under Section 28 of the ‘DV Act’. Thus, a complaint registered under Section 12 of the DV Act is criminal proceedings on the criminal side of the judiciary and accordingly the said proceedings are to be regulated under the Criminal Procedure Code.

Generalia Specialibus non derogant (when there is a conflict, general and special provision, the later will prevail)

It is to be held that Special Act will prevail over the General Laws.

Therefore, when a Special enactment is in force to deal with certain specific offences, in the present context, Domestic Violence Act, then the other general laws cannot have any application and all such Domestic Violence’s are to be tried by following the procedures as contemplated under the Special Enactment and this being the legal principles, the application under

Section 12 of the Domestic Violence Act cannot be construed as a civil natured proceeding.

Family Courts Act, 1984

Applications which are all filed seeking maintenance for wife, children and parents alone shall be tried by exercising the powers conferred under Section 7(2)(a) of the Family Courts Act, 1984. Hence, with regard to the jurisdiction as contemplated under the DV Act, the Family Courts/Civil Courts are not having jurisdiction to deal with certain offences defined under the provisions of the DV Act.

Criminal Procedure Code

Section 407 of the Criminal Procedure Code provides Power of High Court to transfer cases and appeals.

 Hence, the High Court is empowered to transfer the case from one Court to another Court as the case may be as contemplated under the provisions of Section 407 of the CrPC.

Civil Procedure Code

Under Section 24 of CPC, Civil Proceedings can be transferred from one Civil Court to another Civil Court.

 However, Criminal Proceedings cannot be transferred from one Criminal Court to a Civil Court/Family Court.

Article 227 of the Constitution of India

In the Supreme Court decision of Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329, there was an elaborate consideration of High Court’s Power of Superintendence under Article 227 of the Constitution.

Power of High Court

High Court’s power under Article 227 to be plenary and unfettered but at the same time, the High Court should be cautious in its exercise.

“…in cases, where the High Court exercise its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claiming it as as a matter of right.”

Jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields. Jurisdiction under Article 227 is exercised by the High Court for the vindication of its position as the highest judicial authority in the State

Scope of the power under Article 227 of the Constitution cannot be exercised overriding the provisions of the Special Enactments, wherein the specific reliefs are provided for redressal.

Thus, the proceedings instituted under the Family Courts Act before the Family Courts are to be regulated in accordance with the provisions as contemplated.

Equally, an application filed under Section 12 of the Domestic Violence Act is to be regulated under the provisions of the ‘DV Act’ and the application registered under Section 12 of the Domestic Violence Act is a criminal proceedings and the entire provisions of the ‘DV Act’ unambiguously portrays that the nature of proceedings are under criminal law. The procedures as contemplated under the Criminal Procedure Code is to be followed for trial of the cases under the ‘DV Act’.

Thus, there is no reason to form an opinion that application filed under the ‘DV Act’ is a “Civil natured proceeding”.

Bench added that when the scope of Article 227 does not permit the High Court to entertain a transfer petition to transfer a criminal case to a Civil Court or a Civil case to a Criminal Court, then conversion of such power under Article 227 for transfer of cases is certainly beyond the scope of the principles settled by Supreme Court decisions.

Transfer not Traceable

The power of transfer conferred under the Code of Criminal Procedure and the Code of Civil Procedure are expected to be exercised by the High Courts and such power of transfer is not traceable under Article 227 of the Constitution of India.

Multiple options are provided under the special enactments, facilitating the aggrieved women to redress their grievances which are to be dealt in accordance with the provisions of such enactments and speedy disposal being the paramount importance, Courts are bound to ensure all such cases, affecting women must be disposed of at the earliest possible.

Proceedings under the Domestic Violence Act

Further, the Court added to its elaborative analysis that the initiation of proceedings under the Domestic Violence Act with reference to the bodily injuries contemplated under the provisions of the Act, are Criminal acts and therefore, the Domestic Violence proceedings are criminal in nature and to be tried by the competent Judicial Magistrate.

Offences/Bodily Injuries as contemplated under the DV Act are against the society at large and therefore, the proceedings are criminal and competent criminal Court of Law is empowered to try those cases.

In view of the above discussion, Court concluded that criminal proceedings instituted under the Domestic Violence Act cannot be converted as Civil proceedings nor construed as proceedings of civil nature, so as to transfer such criminal proceedings before the Civil Court or Family Court by exercising the supervisory powers under Article 227 of the Constitution of India.

Therefore, any transfer petition, if at all filed to transfer a case registered under the Domestic Violence Act must be entertained only under the Code of Criminal Procedure and certainly not by invoking power under Article 227.

On transferring the DV Act proceedings to Family Court, the appropriate reliefs are depraved.

Hence, the objections regarding the maintainability of the transfer petition raised by the Registry, High Court of Madras, is perfectly in consonance with provisions of law and said objections stands confirmed. [P. Arun Prakash v. S. Sudhamary, 2021 SCC OnLine Mad 1954, decided on 01-04-2021]

Case BriefsHigh Courts

Madras High Court: N. Sathish Kumar, J., expressed that:

“…to constitute an offence under Section 500 of IPC, against the constitutional functionaries or the Minister of State, it has to be established by the prosecution that the alleged imputation made in respect of the conduct of a public servant/public functionary in discharge of his/her public functions and the public function stands on a different footing than the private activities of a public servant.

If the statement is made on mere criticism then it is a right guaranteed under Article 21 of the Constitution of India.”

The present criminal original petition was filed to quash the proceedings pending with regard to criminal cases related to elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu, Chennai.

Prosecution submitted that in an interview, the petitioner gave a defamatory statement against the Chief Minister and Ministers of Government of Tamil Nadu which was telecasted in leading Television Channels and the same came in the leading dailies on a subsequent day.

In view of the above-stated complainant gave a complaint under Section 199(2) of CrPC of the alleged offence under Section 499 of IPC punishable under Section 500 IPC.

Analysis, Law and Decision

In the instant matter, the imputation alleged to have made by the petitioner was only an allegation made against the ministers in general and in no way connected with the discharge of their official functions.

“…power of quashing of a criminal proceedings should be exercised sparingly, with circumspection and in rarest of rare cases. The court, is not justified in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the FIR or the complaint on the basis of the evidence collected during investigation.”

 Supreme Court decision in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, was cited.

Bench stated that the allegations in the FIR and the materials collected by the prosecution did not disclose the commission of any offence and made out a case against the accused and prosecution itself is instituted with an ulterior motive for wreaking vengeance, Court can exercise power under Section 482 CrPC.

Supreme Court in a catena of decisions such as Rajdeep Sardesai v. State of A.P., (2015) 8 SCC 239 held that judicial process should not be an instrument of oppression or needless harassment.

Mere allegation made against the Ministers in general without any intent on the part of the petitioner and/or without any nexus with discharge of public duties will not come under the purview of offence punishable under Section 500 of IPC.

 While taking cognizance of a complaint under Section 199(2) CrPC, defamation should be directly attributed to a person in discharge of his/her public functions and only in such circumstances the said provision would stand attracted.

Hence, in view of the above discussion, the pending complaint related to Members of Parliament and Members of Legislative Assembly of Tamil Nadu was liable to be quashed.

Before parting with the decision, High Court recorded that persons in public life and the leaders of various political parties should restrain themselves from making serious allegations or criticism against constitutional functionaries since leaders of political parties have huge followers and the same will have a serious impact on the followers and the followers also blindly follow the path of their leaders.

“…irrespective of the political affiliation, when a person raised to the level of leader of a political party should show atmost respect to the others in public life. Of course, every citizen of a democratic country have a freedom of speech, but at the same time such criticism should not exceed affecting the sentiments of others also.”

[T.T.V. Dhinakaran v. City Public Prosecutor, 2021 SCC OnLine Mad 1370, decided on 08-03-2021]

Advocates before the Court:

For Petitioner: Mr.P.S. Raman Senior Counsel for Mr N.Raja Senthoor Pandian

For Respondent: Mr.A.Natarajan, State Public Prosecutor

Case BriefsSupreme Court

Supreme Court: Answering the “hotly debated” question as to in what circumstances and categories of cases, a criminal proceeding may be quashed either in exercise of the extraordinary powers of the High Court under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court under Section 482 CrPC, the bench of Indu Malhotra* and Ajay Rastogi, JJ has held that in the matter of exercise of inherent power by the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court

“… the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.”

The Court observed that in order to exercise powers under Section 482 CrPC, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint/FIR/charge-sheet and the High Court at that stage was not under an obligation to go into the matter or examine its correctness. Whatever appears on the face of the complaint/FIR/charge-sheet shall be taken into consideration without any critical examination of the same. The offence ought to appear ex facie on the complaint/FIR/charge-sheet and other documentary evidence, if any, on record.

“The Criminal Procedure Code contains a detailed procedure for investigation, framing of charge and trial, and in the event when the High Court is desirous of putting a halt to the known procedure of law, it must use proper circumspection with great care and caution to interfere in the complaint/FIR/charge-sheet in exercise of its inherent jurisdiction.”

The Court was dealing with a case where a property, belonging to 2nd Respondent was mortgaged with State Bank of Patiala and the total legal liability payable to the Bank was Rs. 18 crores. In order to clear the said dues, 2nd respondent hatched a conspiracy with a broker so as to cheat and defraud the appellants/complainants and to further misappropriate the amounts paid by the complainants as part of the deal, the 2nd respondent breached the trust of the appellants/complainants deliberately and falsely stating to the appellants/complainants that the 2nd respondent would be liable to pay a sum of Rs. 25.50 crores to the complainant if the deal is not carried forward by the 2nd respondent.

While an FIR was lodged in the case at hand for offence of cheating, arbitral proceedings were also initiated at the instance of the appellants/complainants.

On a careful reading of the complaint/FIR/charge-sheet, the Court noticed that the ingredients of the offences under Sections 406 and 420 IPC cannot be said to be absent on the basis of the allegations in the complaint/FIR/charge-sheet.

“… whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. Simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482 CrPC for quashing such proceedings.”

The Court noticed that the facts narrated in the present complaint/FIR/charge-sheet indeed reveal the commercial transaction but that is hardly a reason for holding that the offence of cheating would elude from such transaction. In fact, many a times, offence of cheating is committed in the course of commercial transactions and the illustrations have been set out under Sections 415, 418 and 420 IPC. So far as initiation of arbitral proceedings is concerned, there is no correlation with the criminal proceedings.

The Court, hence, held that the issue involved in the matter under consideration is not a case in which the criminal trial should have been short-circuited. The High Court was not justified in quashing the criminal proceedings in exercise of its inherent jurisdiction. The High Court has primarily adverted on two circumstances,

(i) that it was a case of termination of agreement to sell on account of an alleged breach of the contract and

(ii) the fact that the arbitral proceedings have been initiated at the instance of the appellants.

The Court held that both the alleged circumstances noticed by the High Court are unsustainable in law.

[Priti Saraf v. State of NCT of Delhi, 2021 SCC OnLine SC 206, decided on 10.03.2021]

*Judgment by: Justice Indu Malhotra

Appearances before the Court by:

For appellants: Senior Advocate Mukul Rohatgi,

For Second Respondent: Senior Advocate P. Chidambaram,

For State: Additional Solicitor General  Aishwarya Bhati

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and MR Shah, JJ has held that merely because on the same set of facts with the same allegations and averments earlier the complaint is filed, there is no bar to lodge the FIR with the police station with the same allegations and averments. However, when the impugned FIR is nothing but an abuse of process of law and to harass the accused, the High Courts must quash the FIR by exercising the powers under Article 226 of the Constitution of India and 482 Cr.P.C., to secure the ends of justice.

As per Section 210 Cr.P.C., when in a case instituted otherwise than on a police report, i.e., in a complaint case, during the course of the inquiry or trial held by the Magistrate, it appears to the Magistrate that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.

It also provides that if a report is made by the investigating police officer under Section 173 Cr.P.C. and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.

It also further provides that if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of Cr.P.C.

Hence, the Code of Criminal Procedure permits such an eventuality of a complaint case and enquiry or trial by the Magistrate in a complaint case and an investigation by the police pursuant to the FIR. However, at the same time, if it is found that the subsequent FIR is an abuse of process of law and/or the same has been lodged only to harass the accused, the same can be quashed in exercise of powers under Article 226 of the Constitution or in exercise of powers under Section 482 Cr.P.C. In that case, the complaint case will proceed further in accordance with the provisions of the Cr.P.C.

“As observed and held by this Court in catena of decisions, inherent jurisdiction under Section 482 Cr.P.C. and/or under Article 226 of the Constitution is designed to achieve salutary purpose that criminal proceedings ought not to be permitted to degenerate into weapon of harassment.”

The statute saves the inherent power of the High Court, as a superior court, to make such orders as are necessary

(i) to prevent an abuse of the process of any Court; or

(ii) otherwise to secure the ends of justice.

Same are the powers with the High Court, when it exercises the powers under Article 226 of the Constitution. When the Court is satisfied that criminal proceedings amount to an abuse of process of law or that it amounts to bringing pressure upon accused, in exercise of inherent powers, such proceedings can be quashed.

[Kapil Agarwal v. Sanjay Sharma, 2021 SCC OnLine SC 154, decided on 01.03.2021]

*Judgment by: Justice MR Shah

Appearances before the Court by:

For appellants: Senior Advocate K.V. Vishwanathan

For Respondent: Advocate M.C. Dhingra

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman*, Navin Sinha and KM Joseph, JJ has, analysing various provisions under the Negotiable Instruments Act, the Court concluded that the proceedings under Section 138 are “quasi-criminal” in nature.

The Court held that

“a Section 138/141 proceeding against a corporate debtor is covered by Section 14(1)(a) of the IBC.”

In a 120-pages long verdict, the Supreme Court tackled the following issues to reach at the aforementioned conclusion:

OBJECT AND INTERPRETATION OF SECTION 14 OF THE IBC

The expression “institution of suits or continuation of pending suits” is to be read as one category, and the disjunctive “or” before the word “proceedings” would make it clear that proceedings against the corporate debtor would be a separate category.

“What throws light on the width of the expression “proceedings” is the expression “any judgment, decree or order” and “any court of law, tribunal, arbitration panel or other authority”. Since criminal proceedings under the Code of Criminal Procedure, 1973 are conducted before the courts mentioned in Section 6, CrPC, it is clear that a Section 138 proceeding being conducted before a Magistrate would certainly be a proceeding in a court of law in respect of a transaction which relates to a debt owed by the corporate debtor.”

A quasi-criminal proceeding which would result in the assets of the corporate debtor being depleted as a result of having to pay compensation which can amount to twice the amount of the cheque that has bounced would directly impact the corporate insolvency resolution process in the same manner as the institution, continuation, or execution of a decree in such suit in a civil court for the amount of debt or other liability.

“Judged from the point of view of this objective, it is impossible to discern any difference between the impact of a suit and a Section 138 proceeding, insofar as the corporate debtor is concerned, on its getting the necessary breathing space to get back on its feet during the corporate insolvency resolution process.”

Hence, the width of the expression “proceedings” cannot be cut down so as to make such proceedings analogous to civil suits.

THE INTERPLAY BETWEEN SECTION 14 AND SECTION 32A OF THE IBC

“A section which has been introduced by an amendment into an Act with its focus on cesser of liability for offences committed by the corporate debtor prior to the commencement of the corporate insolvency resolution process cannot be so construed so as to limit, by a sidewind as it were, the moratorium provision contained in Section 14, with which it is not at all concerned.”

If the expression “prosecution” in the first proviso of Section 32A(1) refers to criminal proceedings properly so-called either through the medium of a First Information Report or complaint filed by an investigating authority or complaint and not to quasi-criminal proceedings that are instituted under Sections 138/141 of the Negotiable Instruments Act against the corporate debtor, the object of Section 14(1) of the IBC gets subserved, as does the object of Section 32A, which does away with criminal prosecutions in all cases against the corporate debtor, thus absolving the corporate debtor from the same after a new management comes in.

NATURE OF PROCEEDINGS UNDER CHAPTER XVII OF THE NEGOTIABLE INSTRUMENTS ACT

“Section 138 contains within it the ingredients of the offence made out. The deeming provision is important in that the legislature is cognizant of the fact that what is otherwise a civil liability is now also deemed to be an offence, since this liability is made punishable by law.”

It is important to note that the transaction spoken of is a commercial transaction between two parties which involves payment of money for a debt or liability. The explanation to Section 138 makes it clear that such debt or other liability means a legally enforceable debt or other liability. Thus, a debt or other liability barred by the law of limitation would be outside the scope of Section 138. This, coupled with fine that may extend to twice the amount of the cheque that is payable as compensation to the aggrieved party to cover both the amount of the cheque and the interest and costs thereupon, would show that it is really a hybrid provision to enforce payment under a bounced cheque if it is otherwise enforceable in civil law.

Further, as the proviso gives an opportunity to the drawer of the cheque, stating that the drawer must fail to make payment of the amount within 15 days of the receipt of a notice, it becomes clear that the real object of the provision is not to penalise the wrongdoer for an offence that is already made out, but to compensate the victim.

Under Section 139, a presumption is raised that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. To rebut this presumption, facts must be adduced which, on a preponderance of probability (not beyond reasonable doubt as in the case of criminal offences), must then be proved.

Section 140 states that it shall not be a defence in a prosecution for an offence under Section 138 that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that Section, thus making it clear that strict liability will attach, mens rea being no ingredient of the offence.

Section 141 makes Directors and other persons statutorily liable, provided the ingredients of the section are met. Interestingly, for the purposes of this Section, explanation (a) defines “company” as meaning any body corporate and includes a firm or other association of individuals.

A cursory reading of Section 142 makes clear that the procedure under the CrPC has been departed from. First and foremost, no court is to take cognizance of an offence punishable under Section 138 except on a complaint made in writing by the payee or the holder in due course of the cheque – the victim. Further, the language of Section 142(1) (b) would again show the hybrid nature of these provisions inasmuch as a complaint must be made within one month of the date on which the “cause of action” under clause (c) of the proviso to Section 138 arises.

“The expression “cause of action” is a foreigner to criminal jurisprudence, and would apply only in civil cases to recover money. Chapter XIII of the CrPC, consisting of Sections 177 to 189, is a chapter dealing with the jurisdiction of the criminal courts in inquiries and trials. When the jurisdiction of a criminal court is spoken of by these Sections, the expression “cause of action” is conspicuous by its absence.”

Under Section 143, it is lawful for a Magistrate to pass a sentence of imprisonment for a term not exceeding one year and a fine exceeding INR 5,000/- summarily. Hence,

“… the payment of compensation is at the heart of the provision in that a fine exceeding INR 5000/-, the sky being the limit, can be imposed by way of a summary trial which, after application of Section 357 of the CrPC, results in compensating the victim up to twice the amount of the bounced cheque.”

Under Section 144, the mode of service of summons is done as in civil cases, eschewing the mode contained in Sections 62 to 64 of the CrPC. Likewise, under Section 145, evidence is to be given by the complainant on affidavit, as it is given in civil proceedings, notwithstanding anything contained in the CrPC. Most importantly, by Section 147, offences under this Act are compoundable without any intervention of the court, as is required by Section 320(2) of the CrPC.

CONCLUSION

“The gravamen of a proceeding under Section 138, though couched in language making the act complained of an offence, is really in order to get back through a summary proceeding, the amount contained in the dishonoured cheque together with interest and costs, expeditiously and cheaply.”

The Court, hence, concluded that a quasi-criminal proceeding that is contained in Chapter XVII of the Negotiable Instruments Act would, given the object and context of Section 14 of the IBC, amount to a “proceeding” within the meaning of Section 14(1)(a), the moratorium therefore attaching to such proceeding.

[P. Mohanraj v. Shah Brother Ispat Pvt. Ltd., 2021 SCC OnLine SC 152, decided on 01.03.2021]

*Judgment by: Justice RF Nariman

Know Thy Judge| Justice Rohinton F. Nariman

Appearances before the Court by:

For Appellants: Senior Advocate Jayanth Muth Raj

For Respondent: Advocate Jayant Mehta

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., with regard to the settlement of disputes stated that:

“In crimes which seriously endangers the well being of the society, it is not safe to leave the crime doer only because he and the victim have settled the dispute amicably. “

The instant petition was filed under Section 482 CrPC for offence under Sections 419, 467, 471, 474, 376, 354, 506 read with Section 34 of the Penal Code, 1860.

Petitioner/Accused had met respondent 2 and revealed that his name to be Shiva and promised the complainant to marry her. Complainant and the Petitioner became intimate and had a physical relationship she had been promised marriage by the petitioner.

Later the respondent 2/complainant came to know that the petitioner had concealed his identity and his real name as ‘Akhtar’.

Respondent 2/Complainant stated in the FIR that the petitioner took her to Arya Samaj Mandir wherein they got married and in the marriage certificate he gave his name as Akhtar. After the marriage, the petitioner started demanding money and when respondent 2 visited his parents, she was driven away with them.

The instant petition was filed as the parties amicably settled their dispute.

A Status Report was also filed wherein it was stated that Akhtar/Shiva hid his identity and was sexually exploiting the respondent 2 for five years. It was also stated that the petitioner forged Aadhaar Cards and has got two Aadhaar Cards, one in the name of Akhtar and the second in the name of Shiva. On further investigation, it was also found that the marriage certificate was also fake.

Analysis and Decision

Bench stated that the power of the High Court under Section 482 CrPC to quash proceedings is those offences which are non-compoundable is recognized.

Court noted that the Supreme Court time and again held that the High Court has to keep in mind the subtle distinction between the power of compounding offences given to the Court under Section 320 CrPC and the quashing of criminal proceedings and the jurisdiction conferred upon it under Section 482 CrPC.

For the above purpose, Court cited the Supreme Court’s decision in Shiji v. Radhika, (2011) 10 SCC 705.

Further, the Bench added that:

“While exercising its power under Section 482 CrPC, High Court is guided by the material on record as to whether the ends of justice would justify such exercise of power.”

 Court referred to the Supreme Court decision in Gian Singh v. State of Punjab, (2012) 10 SCC 303, wherein it has been elaborated under what circumstances, criminal proceedings in a non-compoundable case could be quashed when there is a settlement between the parties.

In the case of Narinder Singh v. State of Punjab, (2014) 6 SCC 466, the Supreme Court laid down principles by which the High Courts should be guided in giving adequate treatment to the settlement between the parties.

Court expressed that:

An offence of rape is an offence against the society at large and apart from offence under Section 376, the petitioner is also accused of committing offences under Sections 419,467,468,471,474,506 and 34 IPC.

In view of the facts and circumstances of the case, Bench opined that it is not in a position to quash the FIR on the basis of compromise entered into between the parties and wherein it was stated that the petitioner/accused and the respondent 2 decide to stay as husband and wife and lead their peaceful marital life.

Supreme Court has repeatedly stated that when parties reach a settlement and on that basis a petition is filed for quashing criminal proceedings, the guiding factor for the High Court before quashing the complaint in such cases would be to secure; a) ends of justice, b) to prevent abuse of process of any court.

In view of the FIR and Status Report, Bench held that it’s evident that the petitioner has been accused of serious offences like rape and forgery having a bearing on vital societal interest and these offences cannot be construed to be merely private or civil disputes but rather will have an effect on the society at large.[Akhtar v. GNCTD,  2021 SCC OnLine Del 260 , decided on 01-02-2021]

Advocates for the parties:

Petitioner: Haraprasad Sahu, Advocate

Respondents: Kusum Dhalla, APP for State