criminal proceedings Archives

Explained| Burden of proof: Criminal Proceedings versus Departmental Proceedings

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;

(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 Briefs High Courts

Person accused under S. 307 IPC if entered into a compromise with victim, can Court quash criminal proceedings in light of settlement? Delhi HC unravels

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), Crl. MC No. 2021/2021, 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 Briefs High Courts

Chh HC | When prima facie ingredients of S. 383 IPC is not made out, then the offence under S. 388 IPC cannot be made out

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 Briefs Supreme Court

Real test is to check whether the act was directly concerned with official duty: SC quashes criminal proceedings against clerk accused of conspiring with superiors, for want of S. 197 CrPC sanction

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 Briefs High Courts

When can decree on admission be passed? Madras HC explains how general admission of facts v. admission of claim, makes difference

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 Briefs Supreme Court

Italian marines allegedly kill two Indian fishermen in 2012! Here’s why Supreme Court has closed all proceedings against them

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 Briefs High Courts

Madras HC | Can Criminal Proceedings instituted under DV Act be converted as Civil Proceedings, so as to transfer such proceedings before Civil Court or Family Court while exercising supervisory powers under Art. 227 of Constitution? Read on

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 Briefs High Courts

Madras HC | Political parties should restrain from making serious allegations or criticism against constitutional functionaries

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 Briefs Supreme Court

In what circumstances can a criminal proceeding be quashed? Supreme Court yet again answers the “hotly debated” question on scope of exercise of HCs’ power under Section 482 CrPC

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 Briefs Supreme Court

Criminal proceedings cannot be permitted to degenerate into weapon of harassment; HCs must quash frivolous FIRs: Supreme 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 Briefs Supreme Court

‘Section 138 NI Act proceeding a “civil sheep” in a “criminal wolf’s” clothing’; quasi criminal proceedings against corporate debtor covered under Section 14(1)(a) IBC : SC

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 Briefs High Courts

Del HC | Offences like rape & forgery having a bearing on vital societal interest cannot be construed to be merely private or civil disputes

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

Case Briefs Supreme Court

Activist with “an urge to positively contribute to the society” files plea u/s 482 CrPC seeking expedition of a criminal trial. ‘You have no locus standi’, holds SC

Supreme Court: The 3-judge bench of Ashok Bhushan*, R. Subhash Reddy and MR Shah, JJ has reiterated that an application by a person who is in no way connected with the criminal proceeding or criminal trial under Section 482 Cr.P.C. cannot ordinarily be entertained by the High Court.

Background

The Court was dealing with a case wherein a person (respondent no. 2) who is “a social activist and an advocate” and “a person having an urge to positively contribute to the society in all possible ways” had filed application under Section 482 Cr.P.C in an ongoing case against one Sanjai Tiwari under Prevention of Corruption Act, 1988, seeking direction to Special Judge to expedite and conclude Special Trial. He, further, stated in his application that although FIR was lodged in 2006 but it got delayed by tactics opted by the accused persons. “The Vigilance Department completed the investigation after about 14 years and still the accused persons are trying to get away from the charges.”

On 09.09.2020, the High Court disposed of the said application directing the Court concerned “to expedite the proceedings of the aforesaid case and conclude the same, at the earliest possible, on day to day basis without granting any unnecessary adjournment to either of the parties, in accordance with law, provided there is no impediment.”

Analysis

In order to answer the issue relating to locus of a third party to challenge the criminal proceedings or to seek relief in respect of criminal proceedings of accused, the Court referred to the judgment in Janata Dal vs. H.S. Chowdhary and others, (1993) 1 SCC 756, wherein it was held,

“Even if there are million questions of law to be deeply gone into and examined in a criminal case of this nature registered against specified accused persons, it is for them and them alone to raise all such questions and challenge the proceedings initiated against them at the appropriate time before the proper forum and not for third parties under the garb of public interest litigants.”

The Court further noticed that criminal trial where offences involved are under the Prevention of Corruption Act have to be conducted and concluded at the earliest since the offences under Prevention of Corruption Act are offences which affect not only the accused but the entire society and administration. It is also well settled that the High Court in appropriate cases can very well under Section 482 Cr.P.C. or in any other proceeding can always direct trial court to expedite the criminal trial and issue such order as may be necessary.

“A criminal trial of an accused is conducted in accordance with procedure as prescribed by the Criminal Procedure Code. It is the obligation of the State and the prosecution to ensure that all criminal trials are conducted expeditiously so that justice can be delivered to the accused if found guilty.”

However, in the present, the proceeding initiated by respondent No.2 did not appear to be a bona fide proceeding. He is in no way connected with initiation of criminal proceeding against the appellant.

“The present is not a case where prosecution or even the employer of the accused have filed an application either before the trial court or in any other court seeking direction as prayed by respondent No.2 in his application under Section 482 Cr.P.C.”

Hence, noticing that the respondent No.2 has no locus to file the application which was not clearly maintainable, the Court held that the impugned judgment of the Allahabad High Court dated 09.09.2020 cannot be sustained.

The Court, however, observed that it will be open for the trial court to expedite the criminal trial, the offences being the offences under the Prevention of Corruption Act, 1988, subject to any order passed by the High Court in pending proceedings.

[Sanjai Tiwari v. State of Uttar Pradesh, 2020 SCC OnLine SC 1027, decided on 16.12.2020]

*Justice Ashok Bhushan has penned this judgment.

Case Briefs High Courts

P&H HC | No offence constituted under SC/ST Act where abusive language in the name of caste used over phone call: Criminal proceedings against accused quashed

Punjab and Haryana High Court: Harnaresh Singh Gill, J.,quashed the criminal proceedings against the appellant accused of using abusive language against the complainant over a phone call in the name of his caste.

Petitions were filed against the order passed by Additional Sessions Judge (Exclusive Court for Heinous Crime against Women), Kurukshetra wherein it was observed that prima facie offence punishable under Section 506 read with Section 34 Penal Code, 1860 and Sections 3 (i) (r), 3 (i) (s) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was made out.

Respondent alleged that petitioners had used abusive language against him on his mobile phone in the name of his caste and also gave threat to kill him.

Complainant alleged that Sandeep Kumar under the influence of Pardeep Kumar said ‘you sister fucker chamaar how dare you take possession from us and fill the firni with soil, we will kill you’.

Petitioners counsel submitted that allegations made against the petitioners do not fall within the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as the telephonic call is not in a public view. Hence, the ingredients of offence under the SC/ST Act and Section506/34 IPC are not made out.

Allegations in the present matter were with regard to the usage of caste based remarks over a mobile phone call to the informant, or a member of Scheduled Castes, of which there are no records.

Decision

To constitute the offence under the Act, it must be alleged that the accused intentionally insulted or intimidated with intention to humiliate a member of Scheduled Caste or Schedule Tribe in any public place within public view.

In Court’s opinion with regard to the present matter, once it’s admitted that the alleged conversation over the mobile phone was not in a public gaze nor witnessed by any third party, the alleged use of caste words cannot be said to have been committed within the public view.

Court added to its observation that,

Merely uttering such wrong words in the absence of any public view does not show any intention or mens rea to humiliate the complainant who besides being Sarpanch, belongs to Scheduled Caste community.

Basic ingredients of the offence in the FIR are that there must be intentional insult, secondly the insult must be done in a public place within public view, which is not in the present case.

Thus, the essential ingredients which must be fulfilled, are not found in the present case.

Since no offence under Section 3 of the SC & ST Act is found to be made out, the offence under Section 506 IPC read with Section 34 IPC, which stemmed out of the alleged offence under Section 3 of the SC and ST Act, is also not made out. [Pardeep Kumar v. State of Haryana, 2020 SCC OnLine P&H 671 , decided on 14-05-2020]

Case Briefs High Courts

HP HC | High Court has inherent power under S. 482 CrPC to quash FIR even in non compoundable cases due to amicable settlement; Not to be exercised in cases of heinous nature

Himachal Pradesh High Court: Sandeep Sharma, J. allowed the petition observing that High Court has inherent power to quash criminal proceedings even in non compoundable cases, but such power is to be exercised sparingly and with great caution.

The brief facts of the case are that the respondent 2/complainant, namely Kuljeet Kumar, who alleged that on 27-9-2019 petitioner/accused, who had boarded HRTC Bus from Bus stand, Hamirpur, started abusing him and manhandled him and suffered injuries on his nose and mouth. By way of instant petition filed under Section 482 of the Code of Criminal Procedure, prayer has been made on behalf of the petitioner for quashing of FIR under Sections 353, 332 and 333 of Penal Code, 1860 on the basis of the compromise arrived inter se parties.

Counsel Vinod Kumar Thakur for the petitioners and Sudhir Bhatnagar, Kunal Thakur, Sunny Dhatwalia and Raj Kumar Negi stated before the Court that without any external pressure parties have entered into a compromise and have resolved to settle their dispute amicably inter se and have no objection in quashing the FIR. It was further submitted that due to compromise now, there are very bleak chances of conviction of the petitioner and as such, no fruitful purpose would be served in case FIR lodged sustains.

The Court relied on Supreme Court decision in Narinder Singh v. State of Punjab, (2014) 6 SCC 466 and State of T.N. v. R. Vasanthi Stanley, (2016) 1 SCC 376 and duly observed that the power conferred under Section 482 of CrPC is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. In view of the facts, arguments and settled position of law in the instant case that the matter has been compromised and the compromise being genuine, this Court accepted the compromise and quashed the FIR.

In view of the above, the petition was allowed. [Sumit Kumar v. State of H.P., 2020 SCC OnLine HP 436, decided on 16-03-2020]

Case Briefs High Courts

Jhar HC | Exoneration from departmental proceedings has nothing to do with criminal proceedings in the Court if the allegations levelled are different

Jharkhand High Court: Anubha Rawat Choudhary, J., dismissed the criminal petition seeking exoneration from criminal proceedings.

In the present case, the petitioner was caught red-handed with bribe money. The petitioner herein seeks to quash all the criminal proceedings in connection with Vigilance Case No. 39/2017 arising out of A.C.B. P.S. Case No. 06/2016 lodged under Section 7/13(2) read with Section 13 (1) (d) of the Prevention of Corruption Act.

The advocate representing the petitioner, Mahesh Tewari, submitted that the petitioner has already been exonerated in the departmental proceedings on the same set of allegations. The advocate also relied on judgments passed by the Supreme Court and submitted that considering the aforesaid judgments, the entire criminal proceeding against the petitioner is fit to be set aside.

The advocate for the State, T. N. Verma contended that the petitioner was caught red-handed with bribe money of Rs 4,500 and the present criminal case arises out of a trap case. The advocate further contended that the allegation in contention in with the departmental proceeding has nothing to do with the trap case and the judgments relied upon by the petitioner, P.S. Rajya v. State of Bihar, (1996) 9 SCC 1 and Lokesh Kumar Jain v. State of Rajasthan, (2013) 11 SCC 130 does not relate to the facts and circumstances of the instant case.

The Court upon perusal of the circumstances and materials placed on record stated that the allegation levelled against the petitioner in the criminal proceeding has nothing to do with any departmental proceedings and also the allegation regarding the trap case has nothing to do with the departmental proceedings.

The Court also stated that the judgments relied upon by the petitioner will not be applicable to the present case since in P.S. Rajya v. State of Bihar, (1996) 9 SCC 1 there was no dispute that the allegation which was there in the departmental proceeding was identical with that of the criminal case and in Lokesh Kumar Jain v. State of Rajasthan, (2013) 11 SCC 130 the petitioner was exonerated in the departmental proceeding and in the criminal case, the records were not available due to which the investigation was delayed and there was no likelihood of tracing out the records and considering the totality of the facts and circumstances of the case, the Supreme Court had quashed the criminal proceeding against the accused of the said case. [Lal Babu v. State of Jharkhand, 2020 SCC OnLine Jhar 195, decided on 17-02-2020]

Case Briefs High Courts

Kar HC | Criminal proceedings cannot be initiated against other suspects, in the absence of main culprit

Karnataka High Court: P.G.M. Patil, J. heard a Criminal Petition under Section 482 of Code of Criminal Procedure, 1973 appealing to quash Judicial Magistrate First Court’s (JMFC), Hubballi order which resulted in registering of cases under Sections 307, 120 (B), 114 of Penal Code (IPC), 1860 and under Section 25 of Arms Act, 1959.

The petitions were filed by Vijay and Dr Mallikarjun, two of the accused in the above-mentioned Crime Number. On the night of 10-12-2007, the complainant’s husband Dr Shivanand Doddamani was shot by two people. The victim was called out citing a medical emergency. Later on 11-12-2007, the police station of Vidyanagar registered under Sections 307, 120 (B), 114 of IPC and Section 25 of Arms Act, 1959. The police submitted the ‘C’ report and it was accepted by JMFC against accused 1 and 3 and rejected for accused 3, 5 and 6. Accused 4 and 7 were discharged. The High Court heard two petitions filed by accused 3 and 6 under Criminal Petition Number 101613/2017 and 101612 respectively.

The counsel for petitioners K.S. Patil, R.V. Naik and G.R. Gurumath submitted that trying accused 3 and 6 after accepting C report against accused 1 and 2 was a futile exercise. They also submitted that the guidelines mentioned under Selvi v. State of Karnataka, (2010) 7 SCC 263 had not been followed while subjecting the petitioners to Narco analysis tests and other tests as the consent was not taken, the lawyer was not present during the tests. They also relied on the judgments in Veerappa v. Bheemareddappa, 2001 SCC OnLine Kar 447 in the support of the contentions made by them. They further submitted that the petitioners were not alleged but were merely suspects. They prayed to quash the orders of JMFC.

The Counsel appearing for respondents, S.S. Naik and M.H. Patil submitted that the petition should have been filed under Section 227 of CrPC. instead of filing under Section 482 CrPC. Also, the Counsel supported the C report.

The Court observed that the impugned order was passed based on Polygraphy Test, Brain Mapping Test and Narco Analysis Test. Therefore, it has to be considered that whether all the guidelines in paragraph 263 of the judgment of Selvi v. State of Karnataka case were followed by the investigating officer and independent agency or not. The report did not state that the guidelines have been followed; therefore the Court found it clear that none of the guidelines mentioned by Court in the aforesaid case has been followed. The Court also observed that Magistrate should not have relied on such a report which has no evidentiary value. The Court opined that in the absence of the main culprits who had shot the victim, initiating criminal proceedings against the petitioners would amount to an abuse of law.

Therefore, the Court quashed the impugned order and allowed the petition. [Vijay v. State of Karnataka, 2020 SCC OnLine Kar 98, decided on 10-01-2020]

Case Briefs High Courts

Ker HC | No bar to simultaneous continuance of a criminal proceeding and a civil proceeding, if the two arise from separate causes of action

Kerala High Court: R. Narayana Pisharadi, J. dismissed a petition praying for quashing the criminal proceedings against the petitioner initiated under Section 482 of the Code of Criminal Procedure, 1973 when a simultaneous arbitration proceeding was going on against the petitioner in a civil court.

The petitioner was a surety for one, M.L. George, who had subscribed for four of the respondent company’s chitties and defaulted in paying a certain balance amount. As surety for George, the petitioner was supposed to pay the balance amount to the respondent company on his default. The petitioner failed to pay the amount owed by Mr George to the respondent company and hence a complaint was filed against the petitioner under Section 138 of the Negotiable Instruments Act, 1881.

The counsels for petitioner P.V. Kunhikrishnan and P.V. Anoop contended that the averments in the complaint do not constitute the ingredients of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. Further, it was contended that the initiation of the arbitration proceedings at the instance of the respondent affected the maintainability of the complaint filed against the petitioner for an offence punishable under the Negotiable Instruments Act, 1881.

The Court did not find any merit in the contentions of the petitioner and hence rejected the petitioner’s contentions. Reliance was placed on the case of Sri Krishna Agencies v. State of A.P., (2009) 1 SCC 69 where the Supreme Court, setting aside the order of the High Court for quashing proceedings under Section 138 of the Negotiable Instruments Act, 1881, on the grounds of simultaneous arbitration proceeding, held that disputes to arbitration could not be an effective substitute for a criminal prosecution when the disputed act is an offence. It must, however, be elementary that the two are based on the independent cause of action.

Hence, the Court consequently dismissed the petition and allowed both criminal and civil proceedings simultaneously against the petitioner. [Bindhu A.V. v. Sree Gokulam Chit And Finance Co. (P) Ltd., 2020 SCC OnLine Ker 198, decided on 17-01-2020]

Case Briefs High Courts

All HC | Continuation of criminal proceedings not useful where chances of conviction are bleak and settlement arrived at between the parties

Allahabad High Court: Sanjay Kumar Singh, J. allowed the instant application in terms of compromise and quashed the chargesheet as well as the entire proceedings.

This instant application was filed for the quashing of the chargesheet. The applicant, Gomti Devi purchased a plot that it got in a dispute with Madhu Sharma, daughter-in-law of Opposite Party 2. An FIR was lodged against Madhu Sharma by Opposite Party 2 under Section 156(3) of the Code of Criminal Procedure, 1973, for wrongly and illegally executing a sale deed which is in dispute. Investigating Officer filed the chargesheet under Section 420 of the Penal Code, 1860.

Counsel for the applicants, Vinod Sinha, submitted that during the pendency of the trial both the parties entered in compromise and all things were settled outside the court. So an affidavit was filed for cancellation of sale deed dated 12-12-2011. Since the compromise was made the continuance of criminal proceedings pursuant to impugned charge-sheet against the applicants after compromise arrived at between the parties would be a futile exercise.

The issue before the Court was whether the Court can quash the proceedings of a non-compoundable offence under Section 482 CrPC.

This Court relied on the judgment of the Supreme Court in the case of State of M.P. v. Laxmi Narayan, (2019) 5 SCC 688 where it laid down the guidelines for exercising the inherent power of the court under Section 482 of Code of Criminal.

The Court after considering the facts and circumstances of this case observed that this is a fit case, where this Court can exercise its inherent power to secure the end of justice. Accordingly, the Court quashed the subject proceedings. [Gomti Devi v. State of U.P., 2019 SCC OnLine All 4269, decided on 30-10-2019]

Case Briefs High Courts

Kar HC | Continuation of criminal proceedings against parties who have amicably settled their disputes would tantamount to abuse of process of law

Karnataka High Court: Mohammad Nawaz, J., while allowing the petition quashed the entire proceedings.

This instant petition was filed under Section 482 CrPC for quashing the proceedings under Sections 143, 147, 498-A, 323, 504, 506 read with Section 149 of the Penal Code and Sections 3, 4 and 6 of Dowry Prohibition Act, 1961.

Respondent 2 is the complainant and she is the wife of the petitioner 1.

Counsel for the petitioner, Arunkumar Amargundappa, submitted that complainant and petitioner had settled the matter by resolving their differences. Hence, the complainant did not want to prosecute the petitioners.

Respondent 2 and petitioner 1 had amicably settled their disputes. Therefore, the Family Court-dissolved their marriage by a decree. Hence, the proceedings which were then pending before JMFC-II were supposed to be quashed.

By analysing the facts and circumstances of the case, the Court observed that entire allegations in the complaint revolve around family issues, which after the settlement is resolved and both the parties after the dissolution of marriage had re-married. Respondent 2 had also received permanent alimony.

The Supreme Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303 held that ‘power to quash a criminal proceeding may be exercised where the parties have settled particularly their matrimonial disputes’.

Hence, a continuation of criminal proceedings against the petitioners would tantamount to abuse of the process of law. [Girish v. State of Karnataka, 2019 SCC OnLine Kar 2094, decided on 10-10-2019]

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

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

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

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

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Factual Matrix

Crux

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Factual Matrix

Appeal

Contentions

Analysis and Observations

Decision

Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

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Questions of Legal Importance

Analysis

Domestic Violence Act

Family Courts Act, 1984

Criminal Procedure Code

Civil Procedure Code

Article 227 of the Constitution of India

Power of High Court

Transfer not Traceable

Proceedings under the Domestic Violence Act

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Analysis, Law and Decision

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OBJECT AND INTERPRETATION OF SECTION 14 OF THE IBC

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

NATURE OF PROCEEDINGS UNDER CHAPTER XVII OF THE NEGOTIABLE INSTRUMENTS ACT

CONCLUSION

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Analysis and Decision

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Background

Analysis

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Decision

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