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Supreme Court: The 3-judge Bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ came to the rescue of actress Priya Prakash Varrier, who shot into limelight after her ‘wink’ video went viral, by staying criminal proceedings against her in some states on the grounds that a song from her Malayalam film “Oru Adaar Love” allegedly hurt religious sentiments of the Muslim community. The Bench also granted similar relief to the director of the movie .

Besides staying the existing criminal proceedings, the bench also restrained all state governments from registering any further FIRs against the actress and the director with regard to the promotional video.

The 18-year-old Priya Prakash Varrier had sought protection from an FIR lodged on complaints alleging that the lyrics of the song ‘Manikya Malaraya Poovi’ from the movie was “offensive” and had “violated the religious sentiment of a particular community.

The plea said the claims that it hurt religious sentiments of the Muslim community are

“without any basis and what is hard to fathom is that a song which has been in existence for the past 40 years, which was written, sung and cherished by the Muslim community in Kerala is now being treated as an insult to the Prophet and his wife…. It is submitted that a song, which …. has been cherished by more than one crore Muslim population of Kerala, cannot suddenly offend the religious sentiments of the Muslim community”

Source: PTI

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of S.P. Garg, J., dismissed a criminal leave petition before it, preferred by the Directorate of Revenue Intelligence for leave to appeal against an acquittal.

The arguments advanced by the petitioner were that the trial court did not appreciate the evidence before it in correct perspective. Further, that the investigating agency had issued summons and were duly served on the respondent by speed post which the respondent had ignored. The petitioner further argued that the trial court had failed to consider the statutory presumption of service of summons sent by speed post as prescribed under Section 27 of the General Clause Act, coupled with Section 114 of the Evidence Act. Further, it was alleged that the respondent was avoiding appearing as he was involved in a serious case under Section 135 of the Customs Act.

The Court upon appreciation of evidence noted that the petitioner had not attempted to deliver the summons to the respondent directly at any point. Also they relied exclusively on tracking reports to make the case, while to who the summons was being delivered was not clear at any point. The impugned judgment also had recorded that the summons were delivered as per tracking reports on 14.09.2016, while the date of appearance mentioned therein was 13.09.2016. The Court reiterated that before initiating criminal proceedings against the respondent, the investigating agency was duty bound to ensure that the summons had been duly served and that he had deliberately or intentionally avoided appearing. Petition dismissed. [Directorate of Revenue Intelligence v. Raju Arora, 2018 SCC OnLine Del 7070, decided on 05.02.2018]

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Karnataka High Court: While deciding a writ petition filed under Articles 226 and 227 of the Constitution, a Single Judge Bench comprising of K.N. Phaneendra, J. quashed the criminal proceedings pending against the petitioner, giving him the benefit of the acquittal of other accused persons.

The petitioner along with other accused was charged under Sections 143, 341, 506, 326, 307, 120B read with 149 IPC. Learned counsel for the petitioner submitted that the allegations against the other accused persons who were acquitted and the petitioner were one and the same. They were inter-twined with each other and there were no distinct and separate allegations against the petitioner so as to try him separately. He prayed that the benefit of acquittal of other accused persons should be extended to the petitioner.

The High Court referred to a few Supreme Court decisions to discuss the question whether such benefit as prayed for by the petitioner could be extended to him. The Court also perused the record to find that the allegations against the petitioner and other accused persons who were acquitted were one and the same and were inseparable in nature. The Court was of the opinion that in such a case, the benefit of acquittal of other accused persons could be extended to the petitioner as well; no purpose would be served even if the petitioner was tried before the Trial Court and it would be a futile exercise. Accordingly, the petition was allowed and the proceedings pending against the petitioner were quashed. [Hassan v. State of Karnataka, WP No. 55102 of 2017 (GM-RES), order dated December 14, 2017]

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Gauhati High Court: The High Court recently through a common judgment disposed of two criminal petitions under Section 482 CrPC quashing the FIRs under Sections 418/420/423/406 IPC. The common arguments in both the petitions by the counsel were that the allegations in the FIR were purely civil in nature and therefore, the FIRs deserve to be quashed.

On hearing the arguments, the Court revisited the judgment of the Supreme Court in Indian Oil Corporation v. NEPC, (2006) 6 SCC 736 wherein the Court has taken notice of a growing tendency in business circles to convert purely civil disputes into criminal cases clearly indicating the fact that civil law remedies usually fail to protect the interests of lenders/creditors and criminal prosecution is rampantly used in pressuring the other party for settlement of dispute.

The Court further examined the law on the point as laid down by the Apex Court in Anju Chaudhary v. State of Uttar Pradesh, (2013) 6 SCC 384. In this case, it has been held that the purpose of registering an FIR is to set the machinery of criminal investigation into motion, which culminates with filing of the police report in terms of Section 173(2) of the Code. The Court has explained that there cannot be two FIRs for the same offence in the same incident. However, there will be different FIRs in case of separate incidents, but same offence. The Supreme Court in this judgment has highlighted the need of examining the safeguards provided in Section 154 CrPC that are akin to principle of double jeopardy.

Hitesh Kumar Sarma, J. in the light of the judgments of Apex Court observed that in the present cases, when the first set of selection of tenderers was made it was fair and in accordance with Rules and informant had no grievance as far as the selection of highest bidders was concerned. The Court observed that petitioners had chosen a different set of tenderer after the withdrawal of previously selected tendered and this may or may not be an arbitrary decision and this very question doesn’t even arise in the petitions. The Court went on to hold that when a right is vested in an authority to select a tenderer, the criminal offence can’t be made out of it on the ground that by exercising the option of selecting a tenderer revenue loss has been caused to the State.

Finally, keeping in mind what has been held in Binod Kumar v. State of Bihar, (2014) 10 SCC 663, the Court reiterated the principle of law that criminal proceedings are not a shortcut for other remedies and since no case of cheating is made out in any of the FIRs, the petitions are allowed and FIRs are quashed. [Pranita Das v. State of Assam, 2017 SCC OnLine Gau 716 , decided on 05.09.2017]

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Madhya Pradesh High Court: The petitioner was working as the sub-inspector and it had been alleged that he went into the house of a subordinate lady employee in the night, misbehaved with her and acted in a manner that outraged her modesty. Against the same allegation, a criminal case as well as a departmental enquiry was instituted against him.

The contention of the petitioner before the Writ Court was that the allegations made in the departmental enquiry and in the criminal case are identical in nature and, therefore, for the same set of allegation both the proceedings cannot go together. The petition was dismissed by the Court and appeal to the dismissal was presented before the High Court.

After hearing both the parties, the High Court concluded that there was no error in judgment of the Writ Court. The Division Bench observed that the criminal case doesn’t involve any complicated question or any issues pertaining to mixed question of law and fact. The question involved is simple and petition doesn’t need any reconsideration, the Court observed. The appeal was accordingly dismissed. [Chandra Shekhar Kushwaha v. State of Madhya Pradesh, 2017 SCC OnLine MP 139, decided on 08.02.2017]

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Himachal Pradesh High Court: While deciding the present case wherein the accused had been charged under Sections 452 and 302 of the Penal Code, 1860 for trespassing into the room of the victim, wrongfully restraining her and pouring kerosene oil on her when she refused to marry the accused, the Division Bench of Rajiv Sharma and Sureshwar Thakur, JJ., noted how the police in the inquest report, the statement, recovery memo and dying declaration had mentioned separately the caste of the accused and the victim. Holding the practice to be impermissible, the Court stated that the colonial legacy of mentioning the caste in the criminal proceedings should be done away with and as a public policy caste system should be shunned wholly.

The Court further observed that the Constitution guarantees a casteless and classless society, as right to live with dignity is an integral part of the Fundamental Right to Life. The Court further noted that how the Founding Fathers of the Indian Constitution had a faith that the caste system which had no scientific, intellectual and logical basis will come to an end with the passage of time, however it has still lingered on even though it is against the very basic tenets of the Constitution. The Court thereby issued directions to the Principal Secretary (Home) for the Government of Himachal Pradesh to issue instructions to the investigating officers to do away with the practice of mentioning the caste of the accused, victims and witnesses in recovery memos, FIR’s, seizure memos, inquest papers and other forms prescribed under the CrPC and Punjab Police Rules. [Krishan Kumar v. State of Himachal Pradesh, 2016 SCC OnLine HP 2130, decided on September 16, 2016]

Case BriefsHigh Courts

Allahabad High Court: Deciding a petition filed against the order of the Superintendent of Police, District Jalaun in withholding the payment of gratuity amount and holding that the petitioner was entitled to only interim pension due to pendency of criminal case, the Court held that gratuity can be withheld where  serious charges are levelled against the employee in a pending judicial proceeding and that the petitioner will be entitled for gratuity only after the criminal proceedings against him are culminated.

The petitioner, a Constable Driver in the Police Department having retired in 2013, was aggrieved that the  post-retiral benefits had  not been  paid in full. No gratuity had been paid and he was getting only interim pension. An FIR was registered against him among others accusing him of a conspiracy to implicate innocent persons in criminal charges and collecting false evidence against them during the investigation. The case is since pending before the court.

The Bench of Sunita Agarwal, J. observing the charges levelled against the  petitioner held that the allegations of lapses in discharge of duty with utmost integrity and honesty are serious charges. The charge-sheet has been filed and the criminal trial is going on. Not finding any illegality in the order passed by the Superintendent of Police, the Court held that the petitioner will be entitled for gratuity only after the criminal proceeding against him are culminated. [Ramsiya Yadav v. State of UP, 2016 SCC OnLine All 731, decided on September 6, 2016]