Case BriefsHigh Courts

Orissa High Court: B. P. Routray, J dismissed the criminal revision petitions being devoid of merit.

The case, in a nutshell, is that a mining lease in favour of the accused petitioner’s late father Mr Patnaik over an area for Manganese for 20 years and Iron Ore Mining lease was granted for 30 years in 1959. However, in the year 1967 Mr Patnaik surrendered the mining lease for Manganese but continued for Iron Ore and applied for renewal of the lease in 1988 for the break-up area, but without the de-reservation proposal though there were forest areas within the applied area. However, no renewal of fresh lease was granted in his favour after 1989, but the period was further extended for one year. The petitioner accused is alleged to apply for a lease on behalf of his father in 1991 to the Government in the Department of Steel and Mines for grant of working permission pending renewal of mining lease which was granted without any approval by the Ministry of Environment and Forest. The father of the petitioner died in 1995. The Ministry of Environment and Forest in its letter dated 3.9.1998 communicated the permission for DRP (De-reservation Proposal).

In the meantime accused requested the Government in Steel and Mines Department for 20 years renewal of the mining lease, however, without submitting the application in proper form and submitted another proposal for by enclosing a forged will. He was charged under offences under Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,1968, Sections 379/120-B of the Indian Penal Code, Sections 21 of the Mines and Minerals (Development and Regulations) Act, 1957 (hereinafter in short called “MMDR Act”), Section 3-A of the Forest Conservation Act, 1980 and Section 58 of the Mineral Conservation and Development Rules, 1988. The instant criminal revision petition is filed to challenge the order dated 19.07.2019 passed by the learned Special Judge (Vigilance), Keonjhar.

Counsel U.C. Patnaik, G. Mukherjee, S. Panda, R. K. Mohanty and Sumitra Mohanty represented the petitioner’s side. The petitioners have submitted that cognizance taken on the report of Vigilance Police is bad in the eye of law as per Section 22 of MMDR Act. It was further submitted that the complaint at the instance of the Vigilance Police and initiation of the proceeding thereof by taking cognizance of the offences by the court is vitiated as per Orissa Minerals (Prevention of Theft, Smuggling & Illegal Mining and Regulation of Possession, Storage, Trading and Transportation) Rules, 2007. It was further submitted that the provisions of the MMDR Act or MCD Rules never mean to constitute the offence of theft. It was also submitted that the two co-accused have retired from service in 1994 and 1996 respectively and therefore, initiation of any judicial proceeding against them after four years of their retirement is not permissible in view of the provision contained in Rule 7(2)(c) of the OCS (Pension) Rules, 1992.

Counsel for the respondent Sangram Das submitted that the Vigilance Officials have been duly empowered and authorized to conduct enquiry and investigation in respect of all such offences by the Notification of Government. As per Sections 22 and 23B of the MMDR Act, in its Notification dated 19-12-2009 has named the Director of Mines and two Joint Directors authorizing them to exercise the powers of detection/seizure and confiscation, etc. in connection with illegal mining activities for all type of minerals covering the entire State of Odisha. Hence the argument of the petitioners holds no value. It was further submitted that where a person without any lease or license or authority extract minerals and remove and transport them with an intent to remove dishonestly, is liable to be punished of committing such offence under Sections 378 and 379 of the IPC. The argument regarding retirement stands vitiated as the same is barred under Section 7(2)(c) of the OCS (Pension) Rules, 1992, and is not found acceptable. It is because Rule 7 has a limited field of application and cannot be extended to put an absolute bar against criminal prosecution.

The Court relied on the judgment titled Fani Bhusan Das v. State of Odisha, 2018 SCC Online 310 and held that the provision of the CrPC shall have an overriding effect and shall prevail notwithstanding any provision in the Pension Rules, and therefore, the provisions of OCS (Pension) Rules, 1992 would not give any relief to the petitioners.

In view of the above, the petition is dismissed being devoid of merits. [Jitendra Nath Patnaik v. State of Odisha, 2020 SCC OnLine Ori 559, decided on 06-08-2020]

Case BriefsHigh Courts

Allahabad High Court: Om Prakash-VII, J. allowed the application filed under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of a summoning order passed by the Chief Judicial Magistrate, Agra in a case filed under Sections 463, 464, 466, 467, 468, 471, 474 of the Penal Code, 1860.

Taking cognizance on the basis of protest petition was set aside as the Magistrate took extraneous material into consideration.

An application was filed to quash the summoning order and criminal case proceedings initiated by Chief Judicial Magistrate, Agra, against the appellant.

Counsels for the Applicant, Vimlendu Tripathi, M.C. Chaturvedi and S.C. Dwivedi submitted that the concerned Magistrate took cognizance in the matter against the applicant by taking into consideration extraneous facts and evidence annexed with the protest petition rejecting the final report which was illegal. It was further contended that the prosecution against the applicant was barred by Section 197 CrPC as the alleged act came under the purview of discharge of official duty.

Rishabh Agarwal, appearing on the behalf of the respondent, submitted that mere exoneration in the departmental enquiry would not be sufficient to quash the criminal prosecution, and since the case was made out from the evidence available in the case diary itself, therefore, there was no illegality in the impugned order.

The Court relied on Ram Chandra Sharma v. State of Uttar Pradesh, 2016 SCC OnLine All 3375 where it was held that exoneration in departmental proceedings does not render the criminal proceedings arising out of the same, liable to be quashed. But in peculiar circumstances, a criminal proceeding can be quashed.

It was noted by the Court that in the present case evidence which was not part of the case diary was taken into consideration by the concerned magistrate while passing the impugned order whereby cognizance was without following the procedure prescribed under Chapter XV of CrPC. Since in the present matter neither enquiry has been conducted under Chapter XV of the CrPC by the Magistrate nor the documents, facts and evidence relied upon by the concerned Magistrate were part of the case diary, therefore on the basis of the same, the order against the applicant was held to be against the law and not sustainable.

In such view of the matter, the High Court allowed the application and the impugned order was set aside. The matter was sent back to the Magistrate to pass a new order in accordance with law. [N.K. Janoo v. State of Uttar Pradesh, Application No. 31673 of 2016, decided on 22-11-2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Manmohan and Sangita Dhingra Sehgal, JJ. dismissed of an appeal filed against the judgment of the trial court whereby the respondent, accused of raping the appellant-prosecutrix, was acquitted.

The case of the prosecutrix was that the accused established physical relations with her under the false pretext of marriage and that they were living together for about five years before the complaint was lodged by the prosecutrix under Section 376(2)(n) and 313 read with 506 Penal Code, 1860.

The High Court, at the outset, reiterated the settled legal position that the onus is on the prosecution to prove its case beyond a reasonable doubt. Relying on Pramod Suryabhan Pawar v. State of Maharashtra, 2019 SCC OnLine SC 1073, it was noted that the false promise should have had a direct nexus to the prosecutrix decision to engage in the sexual act. It was noted that the prosecutrix was already married to someone else and had six children from the wedlock. The Court was of the view that it was imperative for the prosecution to prove that prosecutrix was divorced from her first husband and was eligible for re-marriage. It was asserted by the prosecutrix she was given triple talaq orally in the presence of her parents and in-laws. However, the factum of the divorce was not substantiated by any proof, not even the evidence of prosecutrix parents and in-laws for proving the divorce was adduced. The Court was of the opinion that the prosecutrix failed to prove that she was eligible for re-marriage.

Further, the prosecutrix’s allegation that the accused neither married her nor allowed anybody else to marry her, did not inspire confidence since neither the 2015 marriage proposal had been proved nor the alleged obscene photos and videos shown by the accused to the prospective groom had been placed on record.

The High Court is in agreement with the finding of the trial court that the prosecutrix’ conduct of voluntary meeting the accused in Rohini Jail three times after filing of the present complaint lend credence to the accused’ defence that the real intent behind the present proceeding was to force him to marry the prosecutrix.

It was held that the testimony of the prosecutrix, read in its entirety, was neither credible nor believable or trustworthy. Therefore the appeal was found without merit and was dismissed. [“X” v. State, 2019 SCC OnLine Del 10822, decided on 22-10-2019]

Case BriefsHigh Courts

Patna High Court: Birendra Kumar, J. allowed the application to quash the proceedings against the petitioner as it was an abuse of the process of the Court since no material evidence was found against him.

The petitioner was put to trial, for an offence under Section 7 of the Essential Commodities Act, 1955 when an FIR was registered when a  tractor carrying fertilizer was seized.  The tractor was carrying 30 bags of Urea and 6 bags of DAP fertilizer. The driver of the tractor disclosed that for the last two years, they were purchasing fertilizer from the PDS shop of the petitioner.

The counsel for the petitioner, Vikash Sharma submitted that, no other form of evidence was produced to substantiate the involvement of the petitioner in the alleged occurrence. He further contended that neither the premise of the petitioner was searched nor stock register was checked in order to ascertain any lapses in the records and the actuals.

The Court held that the confession of a co-accused while in police custody could not be proven under Sections 25 and 26 of the Evidence Act, 1872. Hence, it could not be treated as evidence at any stage of the proceedings and such criminal prosecution would be an abuse of the process of the court.

In view of the above noted facts, the instant petition was allowed and the impugned order and subsequent proceedings against the petitioner stood quashed.[Jai Prakash Yadav v. State of Bihar, 2019 SCC OnLine Pat 1188, decided on 19-07-2019]

Case BriefsHigh Courts

Patna High Court: Birendra Kumar, J. allowed the application to quash criminal proceedings against the petitioner as the whole criminal prosecution against the petitioners stood to be vitiated in law.

The petitioners challenged the order of the Chief Judicial Magistrate, Gopalganj whereby they were asked to face trial for offences under Sections 53 and 52 of the Bihar Sugarcane (Regulation of Supply and Purchase) Act, 1981. The Petitioners had purchased cane to the quantum of 50.36 lakhs quintal from the cane growers and the cost of the same was not paid in full. As such, the complaint petition was filed by the Cane Officer with prior approval of the Cane Commissioner.

The petitioners contended that the complainant was not a competent person to file a complaint petition. The Cane Commissioner is an officer authorized in this behalf by the State Government to file a complaint; however, he may by speaking order grant sanction for prosecution. In this case, the sanction for prosecution has been granted in a mechanical manner which is against the mandate of law. They also contended that the Magistrate did not apply his mind before summoning the petitioners.

The counsel for the respondents contended that the Magistrate had issued the summon order after considering the plight of the cane growers.

The Court held that cognizance has been taken by the Magistrate in a mechanical manner and that the Magistrate failed to examine the requirement of constitution of the offences for which cognizance has been taken. Therefore, impugned order suffered from non-application of judicial mind. The Court also opined that the Cane Commissioner had not gone into the allegation and material brought before him to substantiate the allegation. The sanction granted to the Cane Officer to act on behalf of the Cane Commissioner was carried out in a mechanical manner

In view of the above-noted facts, the instant application was allowed and the impugned order and subsequent proceedings against the petitioner stood quashed.[Vishnu Sugar Mills Ltd. v. State of Bihar, 2019 SCC OnLine Pat 1187, decided on 19-07-2019]

Case BriefsHigh Courts

Jharkhand High Court: Anil Kumar Choudhary, J. disposed of a revision petition, filed against the judgment of the trial court, whereby the petitioner was convicted and sentenced for simple imprisonment for six months for offences punishable under Section 33 of the Indian Forest Act, 1927 but it did not pass any separate sentence for his conviction under Section 2 of the Forest (Conservation) Act, 1980.

The facts of the instant case were that two forest guards while patrolling through the protected forest area, had found the revision petitioner and other co-accused persons ploughing the forest land within the protected forest. On being questioned, they disclosed their names and addresses but resisted confiscation of their ploughing implements. The guards confirmed that 3.5 acres had been ploughed by the petitioner and the other co-accused persons and they had no documents proving ownership of the land. Another witness stated that the land was ploughed after being encroached upon. The trial court relied on the evidence and convicted the revision petitioner and the co-accused persons. The first appellate court conducted an independent comprehension of the evidence on the record and agreed with the decision of the trial court and dismissed the appeal.

Abhilash Kumar and Anurag Kashyap, counsels for the revision petitioner, submitted that both the lower courts had made an error by convicting the revision petitioner for the offence punishable under Section 2 of the Forest (Conservation) Act, 1980 as this was not penal provision. They also added that the appellate court did not properly consider the evidence on the record. They further stated that the petitioner was an old man of 74 years and had been facing the severity of criminal prosecution since 1993. Moreover, the petitioner had remained in custody until he was granted bail. Thus, in case his conviction was sustained, a lenient sentence could be given to him.

Sanjay Kumar Pandey, counsel appeared on behalf of the State and defended the impugned judgment passed by the appellate court and contended that the appellate court had rightly upheld the conviction of the revision petitioner. He asserted that this revision was not based on any merit and hence should be dismissed.

The Court held that both the lower courts had erred by convicting the revision petitioner for the offence punishable under Section 2 of the Forest (Conservation) Act, 1980 as this was not a penal provision. Consequently, his conviction under the abovementioned Act was ‘not sustainable in law’ and thus he was acquitted for the same. It observed that the evidence on the record was adequate to establish the charge for the offence punishable under Section 33 (1) (c) of the Indian Forest Act, 1927. Thus, the Court did not need to exercise revisional jurisdiction in this aspect. However, the court remarked that there was no specific evidence on the record about the dimension of the area which was cleared for cultivation by the petitioner and noted the fact that he had undergone the rigors of the criminal prosecution for a considerable period of time. Hence, it held that the sentence of the petitioner be modified to the period that he had previously spent in custody. [Prasad Paswan v. State of Jharkhand, 2019 SCC OnLine Jhar 772, decided on 13-03-2019]

Case BriefsHigh Courts

Gauhati High Court: Reiterating that mere likelihood of suspicion cannot be a reason to charge someone for an offence, Rumi Kumari Phukan, J. allowed a criminal petition and quashed the FIR registered against the petitioners under Section 120-B, 32 and 307 IPC.

The matter related to a long pending land dispute between the petitioners on one hand and the injured and the informant on the other hand. The injured was shot from the backside while riding his motorcycle. The informant, the wife of the injured, lodged an FIR against the petitioners on suspicion that the attack was committed by them in response to their land dispute.

J.J. Borbhuiya, I., Mohan, R. Ali and K.H. Choudhary, Advocates, representing the petitioners vehemently submitted that the criminal proceeding could not stand and continue on sheer suspicion. Per contra, T. Sarma and H.K. Sarma, Advocates, for the informant asserted that the proceedings should continue till the end. However, D. Das, Additional Public Prosecutor, submitted that the injured himself could not identify the assailants.

 Perusing the record, the High Court noted that the informant tried to project the case only on suspicion and there was no supporting evidence to suggest the complicity of the petitioners. It was observed: “Criminal prosecution cannot be permitted to continue on the whims and pleasure of the litigants unless cogent, clear and convicting evidence collected in course investigation.” Holding that the same was very much lacking in the present case, the Court was of the view that continuance of the criminal proceeding against the petitioners would cause a miscarriage of justice. Thus, the prayer made by the petitioners was allowed and the impugned FIR was quashed. [Anuradha Gogoi v. State of Assam, 2019 SCC OnLine Gau 2296, decided on 14-05-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: The Bench of Tarlok Singh Chauhan, J. dismissed a petition being devoid of merit and also finding a gross abuse of process of the Court.

In the pertinent case the petitioner after his retirement from the service, filed for correction of his date of birth in the official order. The petitioner originally worked under the administrative control of Beas Control Board (BCB) where at the time of joining he got recorded his date of birth as 15-04-1950. The cases referred to by the Court were Bharat Coking Coal Ltd. v. Chhota Birsa Uranw, (2014) 12 SCC 570 and Union of India v. Harnam Singh, (1993) 2 SCC 162 wherein the issue was expressly dealt with. The petitioner in return produced his school leaving certificate, where the date of birth according to him was 15-4-1954 and not 15-4-1950.

The Court noted certain material facts:

– if the date of birth was 15-04-1954 and not 15-4-1950, as is being vehemently claimed by the petitioner, then it is impossible to fathom as to how his services could have been engaged by BCB at the age of about 15 years and he being minor at that time, under no circumstances, he could have been legally appointed.

-the petitioner, while in service of BCB, did not take any steps  whatsoever to get his date of birth corrected and the reason for the same is obvious because in case his service record would have been corrected on the basis of date of birth, then obviously his services were bound to be terminated being a minor.

-after attaining the age of superannuation on completion of 55 years, was granted three successive continuations and even during this period, he did not object to the date of birth.

The Court found this to be normally a fit case where the criminal prosecution should have been ordered against the petitioner for tampering with the official record, however, it refrained from passing any order to this effect taking into consideration that the petitioner has not only retired from service of the respondents, but is currently a senior citizen of about 65 years of age. Thus the petition was dismissed.[Dhani Ram v. Bhakra Beas Management Board, 2019 SCC OnLine HP 251, decided on 05-03-2019]