Op EdsOP. ED.

   

The Special Judge (Prevention of Corruption Act, 19881) (MPs/MLAs Cases), Rouse Avenue District Court, New Delhi while deciding upon bail applications of co-accused in Directorate of Enforcement v. D.K. Shivakumar2 categorically held that:

“…for the applicability of twin conditions of Section 453 of the Prevention of Money-Laundering Act, 20024 (PMLA) for deciding the bail applications, the accused should be in the custody of the investigation agency. If the investigating agency itself took a conscious decision that it was not a fit case to arrest accused persons during the investigation, then simply on the filing of the charge-sheet before a court, the accused cannot be taken into custody by applying twin conditions of Section 45 of PMLA.”

The Special Judge while coming to the abovestated conclusion, relied heavily upon the judgment of the Supreme Court in Satender Kumar Antil v. CBI5. The Supreme Court in Satender Kumar Antil6 has clarified the scope and ambit of Section 1707 CrPC. While citing the judgment of Siddharth v. State of U.P.8, the Supreme Court opined that power under Section 170 CrPC is to be exercised by the court after the completion of the investigation by the agency concerned. Further, where the prosecution does not consciously arrest the accused during the investigation, there is no need for an arrest when a case is sent to the Magistrate under Section 170 CrPC. The Supreme Court even clarified the law to the extent that in such a situation there is not even a need for filling a bail application as the accused is merely forwarded before the Magistrate for framing of charges and issuance of process for further proceedings.

Further, the Supreme Court observed that the law laid down pertaining to Section 170 CrPC will also apply to special statutes like Narcotic Drugs and Psychotropic Substances Act, 19859 (NDPS), PMLA and Unlawful Activities (Prevention) Act, 196710 (UAPA) where the accused has to go through extraneous rigours before being enlarged on bail. The Supreme Court held that:

65. We may clarify on one aspect which is on the interpretation of Section 170 of the Code. Our discussion made for the other offences would apply to these cases also. To clarify this position, we may hold that if an accused is already under incarceration, then the same would continue, and therefore, it is needless to say that the provision of the special Act would get applied thereafter. It is only in a case where the accused is either not arrested consciously by the prosecution or arrested and enlarged on bail, there is no need for further arrest at the instance of the court11.

Therefore, the judgment of Satender Kumar Antil12 makes it clear that firstly, when a charge-sheet has been filed without arrest, the investigation agency has used its discretion to not require the accused in custody. Secondly, where such discretion has been exercised d by the investigation agency there is no need for an arrest of the accused as the meaning of “custody” in Section 170 CrPC is neither judicial custody or police custody, it simply means that the presence of the accused before the Magistrate for framing of charges and issuance of process for the trial. Thirdly, the Supreme Court held that the discussion pertaining to Section 170 CrPC will apply even to special statutes like PMLA, UAPA, NDPS, Protection of Children from Sexual Offences Act, 201213 (POCSO), etc.

Further, the Supreme Court has clarified that provisions of the special Act would be applied only after the accused is arrested. This particularly means that “arrest” is a prerequisite condition for the applicability of provisions of the special statutes. Thus, the rigours of Section 45 of PMLA will only apply in cases where the accused is arrested.

It is now clear that twin conditions under Section 45 of PMLA will apply only in cases where the accused is arrested, in arguendo it can be said that one of the twin conditions in Section 45 of PMLA is that before being enlarged on bail, an accused has to satisfy the court that there are reasonable grounds for believing that he/she is not guilty of such offence. A close reading of Section 1914 of PMLA i.e. “power to arrest” suggests that the appropriate officer of the Directorate of Enforcement (ED) on the basis of material in his possession, has reason to believe that person has been guilty of an offence punishable under this Act, he may arrest such person. Therefore, when the appropriate officer of the ED does not arrest an accused it is prima facie evident of the fact that the appropriate officer of the ED had no reason to believe that the accused is guilty of an offence punishable under the Act, thereby automatically satisfying the twin condition of Section 45 of PMLA. So, even when Antil15 judgment says that in PMLA cases of prosecution complaint without arrest, rigours of Section 45 of PMLA will not apply, it is very much in agreement with the scheme of the provisions of PMLA even though the observations of the Supreme Court in Antil case16 is not limited to cases of PMLA only. The judgment of the Supreme Court in Vijay Madanlal Choudhary v. Union of India17, on the provisions of the PMLA, does not deal with the question of whether twin conditions of Section 45 of PMLA would be applicable in cases where the prosecution complaint is filed without the arrest of the accused. In this judgment, there is neither any reference to the judgment of the Supreme Court in Satender Kumar Antil case18 nor has it been overruled.

It is also important to mention that while the judgment of the Supreme Court in Vijay Madanlal Choudhary19 dealt with the validity of provisions of PMLA, it is the judgment of Satender Kumar Antil20 which specifically deals with the provisions of bail and lays down comprehensive guidelines on bail. Therefore, while deciding on a bail application the judgment of the Supreme Court in Satender Kumar Antil case21 has to be followed in letter and spirit and in light of this judgment it is held that rigours of Section 45 of PMLA will only apply when an accused is arrested not in cases of prosecution complaint without arrest.


†Practising criminal advocate in Delhi. Author can be reached at <rohanwadhwa06@gmail.com>.

1. Prevention of Corruption Act, 1988.

2. 2022 SCC OnLine Dis Crt (Del) 40.

3. Prevention of Money-Laundering Act, 2002, S. 45.

4. Prevention of Money-Laundering Act, 2002.

5. 2022 SCC OnLine SC 825.

6. 2022 SCC OnLine SC 825.

7. Criminal Procedure Code, 1973, S. 170.

8. (2022) 1 SCC 676.

9. Narcotic Drugs and Psychotropic Substances Act, 1985.

10. Unlawful Activities (Prevention) Act, 1967.

11. 2022 SCC OnLine SC 825.

12. 2022 SCC OnLine SC 825.

13. Protection of Children from Sexual Offences Act, 2012.

14. Prevention of Money Laundering Act, 2002-

15. 2022 SCC OnLine SC 825.

16. 2022 SCC OnLine SC 825.

17. 2022 SCC OnLine SC 929.

18. 2022 SCC OnLine SC 825.

19. 2022 SCC OnLine SC 929.

20. 2022 SCC OnLine SC 825.

21. 2022 SCC OnLine SC 825.

Standing Order
Op EdsOP. ED.

   

The Supreme Court of India issued guidelines and directions regarding arrest, bail and summoning of accused and witnesses in Satender Kumar Antil v. CBI.1 These directions were in light of the multiple special leave petitions being filed pertaining to different offences, particularly on rejection of bail applications.

The Supreme Court passed various directions including that all the State Governments and Union Territories should facilitate Standing Orders for the procedure to be followed under Sections 412 and 41-A3 of the Code of Criminal Procedure, 19734 (CrPC). This direction was passed in consideration of the order dated 7-2-2018 of the High Court of Delhi in Amandeep Singh Johar v. State (NCT of Delhi)5 and Standing Order No. 109 of 20206 (Standing Order) issued by Delhi Police.

Section 41-A CrPC pertains to notice of appearance before police officer where arrest of person is not required. The provision was introduced into the Code by way of the Code of Criminal Procedure (Amendment) Act, 20087. Subsequently by way of the Amendment Act, 20108, the issue of notice under Section 41-A CrPC was made mandatory.

The Supreme Court was of the opinion that guidelines like the Standing Order which provide the procedure for issuance of notices or orders by the police for appearances of accused persons will not only take care of unwarranted arrests but also the clogging of bail applications before various courts. The Standing Order was passed pursuant to the order dated 7-2-2018 in Amandeep Singh Johar case9, which laid down the procedure to be followed by the police in Delhi under Section 41-A CrPC.

As per the order dated 7-2-2018, the following procedure is to be followed by the police and noticees:

(a) Mandatory issuance of notices under Section 41-A CrPC: The police officers are mandatorily required to issue notices under Section 41-A CrPC. Additionally, such a notice is to be formally served in the manner and in accordance with Chapter VI of CrPC. The model form for the notice and acknowledgement have been provided in the Standing Order.

(b) Necessary compliance with the notice: The suspect/witness concerned must necessarily comply with the notice under Section 41-A CrPC and make himself available on the required place and time. In the event the accused is unable to be present for a valid reason, the same should be intimated to the investigating officer (IO) in writing and an alternative time, not exceeding a period of 4 working days, should be fixed. The justification for the rescheduling is to be recorded in the case diary. However, if the IO believes that the accused is resorting to dilatory tactics and being evasive by seeking time, the IO can deny the request for extension and mandatorily require the person to attend.

(c) Acknowledgement of appearance: A suspect or accused complying with the notice under Section 41-A CrPC and appearing before the IO can request for an acknowledgement for the same. In the event the suspect/accused is directed to appear at a place other than the police station then such an acknowledgment is to be attested by an independent witness.

(d) Notices to be issued in triplicate: An indexed booklet containing serially numbered notices in triplicate carbon copy format are to be issued by the SHO to the IO which will contain the serial number, case number, date and time of appearance, consequences of non-appearance and acknowledgement slip. The IO is to serve the original to the accused and retain a carbon copy in the case diary.

(e) Preservation and destruction of booklets: The used booklets are to be deposited with the SHO who will retain them till the completion of investigation and submission of final report. Appropriate rules regarding preservation and destruction of the booklets are to be framed by the Police Department. The Standing Order provides that the used booklets shall be retained with the SHO for 3 years after completion of investigation and submissions of the police report.

The above procedure is to be followed for Sections 9110 (summons to produce document or other thing), 16011 (police officer's power to require attendance of witness) and 17512 CrPC (power to summon persons). The Standing Order also provides the formats relevant for these sections as formulated in the order dated 7-2-2018.

The Standing Order further lays down additional responsibilities of the police and IO while summoning persons. These responsibilities are as follows:

(a) Mandatory presence of the IO: While issuing the notices under the abovementioned sections, the IO must ensure his presence on the given date and time. If due to unforeseen circumstances or official exigencies, he is unable to be present, the Inspector or the SHO shall take the necessary action with respect to the noticee. However, if none of these officers are available, the duty officer will issue the necessary acknowledgement and collect a self-attested ID proof from the noticee.

(b) Utmost care and precaution to be exercised by the IO: The IO must exercise utmost care about the personal safety of the persons summoned. They should also guard against the possibility of such persons attempting to cause injury to themselves or commit suicide.

(c) Interrogation of certain persons: A woman cannot be summoned to the police station for interrogation under Section 160 CrPC. Women must ordinarily be questioned in their place of residence, in the presence of family or women police personnel. Similarly, a male person below the age of 15 years and above the age of 65 years or a mentally or physically disabled person must only be questioned at their residence.

(d) Disciplinary proceedings for failure to comply: Failure on part of the IO to comply with the provisions of CrPC will attract disciplinary proceedings.

(e) Publicity of the Standing Order: The Standing Order is to be posted on the official website of Delhi Police in Hindi and English and be displayed in prominent places in the police stations, courts, legal services authorities, etc.

While there are orders like the DGP Circular dated 12-3-201913 passed by Puducherry Police which also lay down the procedure to be followed under Section 41-A CrPC, it appears that the Supreme Court has laid more impetus on the directions under the Standing Order. It is evident that by way of the Standing Order, Delhi Police has made the procedure of summoning and appearance more transparent and accountable ensuring that the common man is not harassed by the police.

We hope that the other State Governments will abide by the directions of the Supreme Court and issue directions in line with the Standing Order to comply with the mandate of Section 41-A CrPC.


† Partner, C&S Law Chambers. Author can be reached at <surbhi@cslawchambers.com>.

†† Partner, C&S Law Chambers.

1. 2022 SCC OnLine SC 825.

2. Criminal Procedure Code, 1973, S. 41.

3. Criminal Procedure Code, 1973, S. 41-A.

4. Criminal Procedure Code, 1973.

5. Amandeep Singh Johar v. State (NCT of Delhi), 2018 SCC OnLine Del 13448.

6. Delhi Police, Standing Order No. 109 of 2020, Procedure for Issuance of Notices or Orders by Police Officers, <https://delhipolice.gov.in/Images/HTMLfiles/109a.pdf>.

7. Criminal Procedure Code (Amendment) Act, 2008.

8. Criminal Procedure Code (Amendment) Act, 2010.

9. 2018 SCC OnLine Del 13448.

10. Criminal Procedure Code, 1973, S. 91.

11. Criminal Procedure Code, 1973, S. 160.

12. Criminal Procedure Code, 1973, S. 175.

13. Circular No. 4/DGP/SECY/2019-35 dated 12-3-2019,

<https://police.py.gov.in/DGP%20circular%20dt%2012.03.19-%20Procedure%20for%20sending%20notice%20and%20acknowledgment%20us%2041-A%20CrPC.pdf>.

Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: While deciding the instant petition wherein an order of conducting a Test Identification Parade (TIP) after a gap of 11 years was challenged; the Bench of Suraj Govindraj, J., observed that after a period of 11 years, a person’s memory becomes frail, therefore the identification by such witnesses cannot be considered trustworthy, hence, such an identification parade carried out after a lapse of these many years will not serve any purpose at all.

In 2006, crime No. 244/2006 was registered by the Basaveshwara Nagara Police Station against Umesh Shetty, s/o Ponnappa and others for the offences punishable under Sections 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956. Though the accused persons had been arrested and remanded to judicial custody, subsequently they were released on bail and one of the accused absconded and was not found.

The investigation into the matter was completed, a charge sheet was prepared and a non-bailable warrant was issued. Since one of the accused was still absconding at the stage of issuance of warrant, a proclamation was issued under Sections 82 and 83 of CrPC. Thereafter, the non-bailable warrant was sought to be executed against the petitioner.

However, when the petitioner informed the concerned officer that he was not K. Umesh Shetty S/o. Ponnappa but K. Umesh Shetty, S/o. Late Vittal Shetty, thus not the person named in the warrant; the prosecution then filed an application seeking to conduct a test identification parade. The Trial Court in 2017 issued directions for the conduction of TIP. The petitioner challenged this order before the High Court in the instant petition.

The counsel for the petitioner contended that the offences were committed way back in 2006, hence conducting a test identification parade in 2017 would not arise since the same would be unbelievable on account of lapse of a long period of time i.e. more than 11 years. It was further submitted that if the present year is added then 15 years have passed since the commission of the above-stated offences, therefore a TIP at this stage will serve no purpose.

Counsel for the respondent argued that the name of the petitioner is the same as that of the accused and that there is a reasonable doubt of the petitioner being accused. Since the proceedings did not continue on account of the absence of the accused, the TIP would aid the prosecution to proceed with the matter in the event of the identity of the petitioner is similar to that of the accused.

Perusing the facts and contentions raised in the petition, the Court observed that the purpose of the Test Identification Parade is to ascertain the identity of a person who is alleged to be the accused or the perpetrator of a crime. The TIP must be carried out at the earliest so that there is no failing memory or improper memory which can be attributed to the test identification parade.

Noting the lapse of 16 years, the Court observed that a TIP at this point will serve no purpose, especially when the fingerprints of the petitioner did not match with the fingerprints found at the scene of occurrence. The petition was therefore allowed.

[K. Umesh Shetty v. State of Karnataka, 2022 SCC OnLine Kar 1537, decided on 14-09-2022]


Advocates who appeared in this case:

C.H. Jadhav, Senior Counsel for M. J. Alva., Advocate for the petitioner

Mahesh Shetty, HCGP for the respondent


*Sucheta Sarkar, Editorial Assistant has prepared this brief

Section 340
Case BriefsSupreme Court

   

Supreme Court: While answering the reference questions arising from a reference order of a Division Bench, the 3-judges Bench of Sanjay Kishan Kaul, Abhay S. Oka and Vikram Nath, JJ., held that Section 340 of the CrPC does not mandate a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 of the CrPC.

Questions Referred

The instant matter arose from a reference made to a three Judges Bench by an order passed in State of Punjab v. Jasbir Singh, (2020) 12 SCC 96, seeking the following questions to be answered:

“(i) Whether Section 340 of the Code of Criminal Procedure, 1973 mandates a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 of the Code by a Court?

(ii) what is the scope and ambit of such preliminary inquiry?”

Background

The High Court, by the impugned judgment in Jasbir Singh v. State of Punjab, 2019 SCC OnLine P&H 2965, granted relief to the respondent while dealing with an aspect of forgery in a civil case, on the reasoning that the FIR registered against the respondent-accused did not comply with the mandatory requirements of Section 340 which provides for the procedure in cases mentioned in section 195, particularly because the FIR was filed without any inquiry and without giving any opportunity to the respondent to be heard.

The Reference Order

By the reference order in State of Punjab v. Jasbir Singh, (2020) 12 SCC 96, the Division Bench of the Supreme Court noted that a three Judges Bench in Pritish v. State of Maharashtra, (2002) 1 SCC 253, had held that the purpose of a preliminary inquiry under Section 340(1), CrPC was not to find whether a person is guilty or not but only to decide whether it was expedient in the interest of justice to inquire into the offence. It was thus observed that the Court is not obliged to make a preliminary inquiry on a complaint but if the Court decides to do so, it should make a final set of the facts which is expedient in the interest of justice that offence should be further probed into.

The Division Bench noted that the views of the Court in Pritish’s case (supra) were conflicting with the views of the other 3-judges’ Bench in Sharad Pawar v. Jagmohan Dalmiya, (2010) 15 SCC 290, to the extent that in para 7, it was observed that it was necessary to conduct a preliminary inquiry as contemplated under Section 340 CrPC. and also, to afford an opportunity of being heard to the defendants.

The Division Bench, in the reference order simultaneously noted the observations of the Constitution Bench in Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370, which was post the judgment in Pritish’s case (supra) but prior to the judgment in Sharad Pawar’s case (supra). In the said case, the Constitution Bench had opined:

“In view of the language used in Section 340 CrPC the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words ‘Court is of opinion that it is expedient in the interest of justice.’ This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(i)(b). This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice.”

Analysis and Conclusion

In the view of the above, the Court held that the Constitution Bench’s view would naturally prevail which makes the legal position quite abundantly clear. Additionally, the Court noted that what is reported in Sharad Pawar’s case (supra) is only an order giving factual scenario and not a judgment that lays down the principles of law. As a matter of caution, the Court remarked,

“The scenario is that any order or judgment passed by this Court becomes a reportable exercise to create more volumes of reported cases! This thus has a possibility at times of causing some confusion on the legal principles prevalent. The observations in the quoted paragraph extracted aforesaid apparently came out of the flow of the order rather than pronouncing any principles of law and that is why the Bench itself categorized what is observed as an order i.e, in the given factual scenario.”

Hence, the Court concluded that there is no question of opportunity of hearing in a scenario of this nature and the law as enunciated by the Constitution Bench in Iqbal Singh Marwah’s case (supra) is in line with what was observed in Pritish’ case (supra). Further, the Bench noted that interestingly both the aforesaid judgments had not been noted in order passed in Sharad Pawar’s Case (supra).

Consequently, the Court answered the first question negatively. Insofar as the second question is concerned, the Court held that scope and ambit of such a preliminary inquiry already stands resolved in terms of the Constitution Bench judgment in the Iqbal Singh Marwah’s case (supra). The matter is directed to be placed before the regular Bench for consideration on merits.

[State of Punjab v. Jasbir Singh, 2022 SCC OnLine SC 1240, decided on 15-09-2022]


Advocates who appeared in this case :

For Appellant(s): AOR Rooh-e-hina Dua, Advocates Harshit Khanduja, Kanishak Bunderwal, and Ananya Sikri

For Respondent(s): AOR Shubham Bhalla and Advocates Sumeir Ahuja, Akansha Gulati, and Deepak Samota


*Kamini Sharma, Editorial Assistant has put this report together.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: While deciding the instant petition for quashment of complaint, the Bench of Suraj Govindaraj, J., held that in the instant case where it has been alleged that the petitioner (a doctor) had conducted the sex change operation upon a minor without their consent, such allegations are not something that can be considered by the High Court under Section 482, CrPC and should be strictly left open for trial, with the petitioner having the liberty to raise appropriate defense.

Facts and Contentions: A complaint was filed on 11-02-2018 whereby it was alleged that the petitioner had conducted a sex change operation on the complainant’s grandchild and had changed his sex from male to female. There are other allegations which have been levied upon the petitioner, such as kidnapping and offences under Section 376, IPC and Sections 6 and 21 of the Protection of Children from Sexual Offences Act, 2012.

The counsel for the petitioner argued that the petitioner is a doctor, who has wrongfully been implicated in the matter. It was submitted that the petitioner has not performed any operation as alleged or otherwise; furthermore, no criminal prosecution could be initiated against the petitioner, without following the guidelines laid down by in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, which had stated that unless there is a credible opinion given by another doctor against the accused doctor, no criminal case ought to be registered against such doctor.

Per contra, the respondents argued that the instant case is not about medical negligence. The allegations are regarding a forcible sex change operation, which is a criminal offence both under the IPC and under the POCSO Act.

Observations and Decision: Perusing the allegations and contentions, the Court noted that allegations of forcible sex- change operation has been made against the petitioner and the investigations are ongoing for the same. Several parties have been implicated in the charge sheet, many of whom are transgenders, who also alleged to have got a forcible sex change operation, so that they can be used for extortion and prostitution.

The Court further observed that guidelines in the Jacob Mathew case are applicable when there is an alleged criminal negligence on part of a doctor and opinion of another doctor is required to establish such criminal rashness or negligence. The Court pointed out that in the instant case, no allegations of medical negligence have been made against the petitioner.

With the afore-stated observations, the Court noted that, “I am unable to come to a conclusion that there are no offences which have been made out, there are no grounds which have been made out for quashing of the proceedings, as such“.

Holding that the allegations must be strictly left for trial; the Court dismissed the instant petition.

[Dr. Anitha Patil v. State of Karnataka, 2022 SCC OnLine Kar 1487, decided on 24-08-2022]


Advocates who appeared in this case:

Vijetha R. Naik, Advocate, for the Petitioner;

Mahesh Shetty, HCGP, Advocate, for the Respondent.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: While deliberating upon the instant writ petitions for quashment of FIR registered in connection with the suicide of prominent tribal leader Mohanbhai Sanjibhai Delkar,(MP, Dadra and Nagar Haveli), the Division Bench of Prasanna B. Varale and Shrikant D. Kulkarni, JJ., exercised their powers under Section 482 of CrPC and quashed the FIR filed against Praful K. Patel (Administrator, Dadra and Nagar Haveli) and others by Mohan Delkar’s son Abhinav Delkar.

Background

Mohanbhai Sanjibhai Delkar (the deceased) was a prominent tribal leader and was representing Dadra and Nagar Haveli since 1989 as Member of Parliament. On 21-02-2021, Mohan Delkar along with driver Ashok Patel and private bodyguard Nandu Wankhede reached Mumbai for attending some Court matter. The deceased was staying at Sea Green South Hotel, Marine Drive. On 22-02-2021 the deceased committed suicide by hanging in his hotel room. The deceased’s son, Abhinav Delkar was intimated of the turn of events through driver Ashok Patel. A suicide note and minutes of Parliamentary Privilege Committee were recovered from the scene. Abhinav Delkar recorded his statement with the police and the same statement was treated as First Information Report.

In the FIR it was stated that the deceased was subjected to ill-treatment, harassment and defamation at the instance of certain persons. It was also stated that this ill-treatment and harassments were done under the orders of Praful Khoda Patel, Administrator, Dadra and Nagar Haveli. Since the deceased was unable to bear this harassment, he committed suicide. It was stated in the FIR that the petitioners by hatching a conspiracy created such an atmosphere of pressure and depression which led the deceased to end his life.

The FIR against 9 persons was registered for offences punishable under Sections 306 (Abetment to suicide), 506, 389, 120-B of Penal Code, 1860 read with relevant provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The FIR further stated that the deceased was representing Dadra and Nagar Haveli since 2019 as an independent Member of Parliament (MP) and he belonged to a scheduled tribe community (Dhodia Patel). It was further stated that the deceased was continuously taking steps for the development of the area and in the past 1 year he was under tremendous pressure as the administration of Dadra and Nagar Haveli was continuously harassing and ill-treating him. The motive behind this harassment and ill-treatment was to take control over the college being run by the deceased and to prevent him from contesting the next elections.

Contentions of the Petitioners

The counsel of each petitioner made detailed submissions before the Court, the crux of which was-

  • It was contended that taking the FIR as it stands would only reflect that deceased himself admitted that he was active in social and political life for a considerably long period; had faced many adversities, and, was bold enough to face these difficulties and proceed further in his active political career.
  • It was submitted the deceased only made assumption and presumption that officers in the administration were acting under the orders of the Administrator and that the private individuals were hand in glove with the Administrator and were acting vindictively against the deceased.
  • It was also contended that the copy of the suicide note was not made available to the Petitioners and it is only referred to in the FIR. Since this material itself is undisclosed and withheld, therefore the petitioners are left only to guess work.
  • It was submitted that as far as the incidents quoted in the FIR are concerned, there is no proximity of these incidents and the act of committing suicide by deceased. Mere assumption and presumption are not sufficient enough to attract the provisions of the IPC. The FIR is silent on the aspect of the enmity or grudge being carried by the petitioners against the deceased; general and baseless statement that the petitioners joined together and hatched conspiracy under the direction of the Administrator is wholly unsustainable.

Contentions of the Respondent

Meanwhile the respondents contended that-

  • Conspiracy was hatched under the directions of the Administrator and pursuant to the conspiracy the petitioners harassed the deceased. Submitting details about the various incidents as referred to in the FIR, the counsels stated that though they are different incidents, however, a common thread in all these incidents is that they lead to the humiliation and harassment of the deceased.
  • It was submitted that FIR is not an encyclopedia as such, the investigating agency, upon lodging of FIR conducts the investigation and further material is collected or unearthed in the investigation.
  • It was submitted that though commission of suicide is a final act, the process of abetment to suicide is a complex one. There are certain causes for commission of suicide and consideration of these causes can be set as dynamics of suicide. It was stated that broadly there are two reasons for commission of suicide i.e., internal or personal reason and secondly, external factors. The effect of these two factors depends upon the sensitivity of a person.
  • It was contended that the investigation is still in progress, therefore, this is not a fit case for exercising powers under Section 482, CrPC.

Findings

Upon perusal of the contents of the FIR and noting the contentions raised by all the petitioners, the Court was of the opinion that that there are considerable merits in the submissions raised by the counsels appearing for Petitioners.

The Court agreed with the petitioners that the deceased was active in social and political life for a long period and faced many difficulties in life boldly and the alleged incidents of ill-treatment stated in the FIR were mere impressions carried out by the deceased. The Court noted that the petitioners presented sufficient material to show that the deceased was never disrespected in any of the public functions and proper protocols were followed considering the deceased’s stature.

Concerning the powers of the Court under Section 482, CrPC, it was observed by the Bench that while exercising powers under Section 482, the Court is not expected to undertake the exercise of detailed scrutiny or assessment of the material collected in the investigation, and it is expected from the Court to go through the contents of the FIR and material along with it.

The Court also agreed with the petitioners that the contents of the FIR fall short in order to attract Section 120-B of IPC. In order to attract Section 120 (B), there must be positive material to show that the petitioners came together to hatch a conspiracy and effect was given to that conspiracy. In the present case, except bare words that the petitioners were acting under the directions of Administrator, there is not a single incident to show that these petitioners came together and acted under the dictates of the Administrator.

Concerning offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the Court pointed out that the FIR also falls short in attracting the charges under the 1989 Act.

Regarding Section 306 of IPC, the Court noted that there must be material of a positive act, as a pre-requisite for satisfying the word ‘abetment’, the contents of FIR and reference made to incidents falls too short to show any positive act committed by the petitioners so as to satisfy the term ‘abetment’.

[Sharad Darade v. State of Maharashtra, WP No. 1806/2021, decided on 08-09-2022]


Appearances

For State: AS Pai, PP


*Sucheta Sarkar Editorial Assistant has prepared this brief

 

 

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of UU Lalit, CJ and S. Ravindra Bhat and PS Narasimha, JJ has granted bail to Journalist Sidhique Kappan after considering the length of custody undergone by him ever since he was taken in custody on 06.10.2020. It is important to note that, last month, the Allahabad High Court had rejected his bail plea.

The Kerala journalist was arrested under the Unlawful Activities (Prevention) Act on his way to Hathras, Uttar Pradesh to report on the alleged gang-rape of a Dalit woman, who later died in the Hospital. He has been booked under Sections 153A, 295A, 120B of the Indian Penal Code, Sections 17 and 18 of Unlawful Activities (Prevention) Act, 1967 and sections 65 and 72 of the Information and Technology Act, 2000. While the charge-sheet has already been filed on 02.04.202, the matter has yet not been taken up for consideration whether charges need to be framed or not.

While the Court refrained from dealing with and commenting upon the progress and investigation and material gathered by the prosecution in support of its case as the matter is still to be taken up at the stage of framing of charges, it directed that Kappan be produced before the Trial Court within three days; and that the Trial Court shall release him on bail, subject to such conditions as the Trial Court may deem appropriate to impose to ensure Kappan’s presence and participation in the matter pending before it. Apart from this, Kappan shall either in person or through a lawyer attend the proceedings before the trial court on every single date. He will also deposit his passport if not already deposited with the investigating machinery before his actual release.

The Court also imposed the following conditions on Kappan while releasing him on bail :

  1. For the first six weeks, Kappan has to stay in Delhi and within the jurisdiction of Nizamuddin police Station. He cannot leave Delhi without express permission of the trial court; He also has to record his presence in the concerned police station every Monday in a register maintained for the purpose.
  2. After six weeks, he may go back to his native place and stay at Mallapuram in Kerala but shall report at the local police station on every Monday and mark his presence in the register maintained in that behalf.

[Sidhique Kappan v. State of Uttar Pradesh, Crl.A. No.-001534-001534 / 2022, order dated 09.09.2022]


For Sidhique Kappan: Senior Advocate Kapil Sibal

For State: Senior Advocate Mahesh Jethmalani

Also Read

Charge-sheet and documents adduced prima facie point towards guilt; Allahabad High Court denies bail to journalist Sidhique Kappan [Hathras gang-rape row]

Allahabad High Court
Case BriefsHigh Courts

   

Allahabad High Court: Samit Gopal, J. acquitted the appellant of the charges leveled against him of Section 307 of Penal Code, 1860 (‘IPC') wherein he was ordered to undergo three years and six months of rigorous imprisonment by the Additional District & Sessions Judge holding that the prosecution couldn’t establish the case beyond reasonable doubt.

As per the FIR, the police informer informed the police that one person standing at Jalalpur Mod and is about to commit an incident who is having narcotics and a country made pistol with him. The S.O. along with accompanying officials proceeded towards the said person and he all of sudden fired upon them to which they escaped and then they followed him after which near Jalalpur Mod he showed them his weapon but they arrested him on 03-03-2003 at about 23:40 hrs . They recovered a 12 bore country made pistol from his right hand and immediately upon opening its barrel found an empty cartridge. He further told them that he has diazepam tablets with him. He told them to take his search after which from his left pocket something wrapped in paper was found, on opening of which small tablets were recovered which were on counting found to be 300 tablets. The matter was investigated and a charge sheet was filed against the accused-appellant under Section 307 IPC.

Sub-Inspector was examined as PW-1 and the accused in his statement recorded under Section 313 Criminal Procedure Code, 1973 (‘CrPC') stated that he committed a fault and pleaded guilty. The Trial Court thus after his confession concluded that the prosecution had succeeded its case beyond reasonable doubt and convicts him as stated above.

Amicus Curiae, Satya Prakash Rathor argued that the view as taken by the trial court is fully perverse and illegal. The prosecution has to stand on its own leg and prove its case beyond reasonable doubt. It was pointed out that there is no opinion of any expert or even evidence to the effect that the said weapon was sent for analysis to show that there was fire made by the accused-appellant. The corroboration in so far as the use of the said weapon is concerned, was missing. It was argued that even the prosecution has not come forward to show that the said weapon was sent to the ballistic expert for its testing which would go to corroborate its use in the present case. It was argued that merely by pleading guilty in the statement recorded under Section 313 CrPC, the accused cannot be held guilty.

The main issue for this Court to decide was whether after pleading guilty in the statement recorded under Section 313 CrPC and the prosecution proving the recovery memo and in presence of one witness and the deposing against the accused who was one of the team members of the arresting team, is sufficient for conviction or not.

The Court noted that the present case was a case of no injury. The Court noted that the prosecution is silent as to whether the said weapon was sent to the ballistic expert for examination which would corroborate its use at that point of time. Mere recovery of a weapon and one empty cartridge would not be sufficient to prove the use of the said weapon without any corroborating evidence.

Another question was that if accused pleads guilty in his statement under Section 313 CrPC then does the circumstance rest against him or not to which the Court answered that the law stands undisputed that the statement under Section 313 CrPC is not evidence. It is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. However, it cannot be said to be a substitute for the prosecution evidence.

“It cannot be said that mere stating of being guilty in the statement under Section 313 CrPC will end the issue and would lead the route only to the guilt of the accused without prosecution establishing its case beyond reasonable doubt against him through cogent, reliable and admissible evidence.”

The Court was of the opinion that the accused-appellant deserves to be extended the benefit of doubt. The appeal was allowed.

[Gabbar Patel v. State, Jail Appeal No. – 5752 of 2007, decided on 11-08-2022]


Advocates who appeared in this case :

From Jail, Bhanu Pratap Singh A/C, Advocate, Counsel for the Appellant;

S.B. Maurya, Advocate, Counsel for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a complex case where both the parties claimed to be disabled to get the matrimonial case transferred to the court of their convenience, V. Ramasubramanian, J., held that once the order fixing maintenance has attained finality, the petitioner cannot seek a transfer of the execution pending under Section 125(3) the CrPC to another Court.

In a collateral proceeding, the marriage between the parties had been dissolved by the Family Court and the petitioner-husband was directed to pay the maintenance to the respondent-wife under Section 125(1) CrPC. The said order has attained finality.

Later on, the respondent-wife approached the Family Court on the ground that the maintenance so fixed in the original order had not been. The petition for enforcement was taken up by the Family Court along with an application for modification of the maintenance, filed by the petitioner-husband.

The Family Court passed an order on 18-01-2019 directing the petitioner-husband to pay the entire arrears of maintenance within one month as a condition precedent for deciding the application for modification. Though the petitioner did not challenge the said order dated 18-01-2019, he has come up with the instant petition for transfer of the proceedings on the ground that he is suffering from bone cancer and that he is not in a position to undertake travel from Delhi to Nagpur, Maharashtra. The Petitioner also contended that he is wheelchair-bound and the Family Court in Nagpur is not disabled-friendly. The averments made by the petitioner were disputed by the respondent-wife. In contrast, she claimed to be suffering from a serious kidney disorder forcing her to undergo dialysis.

Considering the contentions of the parties, the Court said,

“The question as to whether the petitioner or the first respondent, who is more disabled has itself become a serious matter of challenge. It is not possible for this Court while dealing with a transfer Petition, to undertake a roving inquiry to find out who is more disabled.”

Noticing that the conditional order dated 18-01-2019 for taking up the application for modification has also not been complied with and a period of more than three years has passed, the Court opined that even if the transfer is ordered, as prayed for, the order dated 18-01-2019 will stare at the face of the petitioner.

Therefore, the Court concluded that however unfortunate the case may be on either side or on both sides, the petitioner did not deserve the indulgence of the Court for transfer. Therefore, the Transfer Petition was dismissed.

[Navneet Wadhwa V. Simran Wadhwa, 2022 SCC OnLine SC 1078, decided on 16-08-2022]


Advocates who appeared in this case :

AOR Krishan Kumar,and Advocates Vidur Kamra and Jyoti Taneja, Advocates , for the Petitioner;

Senior Advocate V. Mohana, Advocates Satyajit A. Desai, Devdeep, and AOR Anagha S. Desai, Advocates, for the Respondent(s).


*Kamini Sharma, Editorial Assistant has put this report together.

Case BriefsSupreme Court

Supreme Court: While determining the powers of the Courts under Section 311 CrPC, the Division Bench of Dhananjaya Y Chandrachud* and AS Bopanna, JJ., held that the Court is vested with broad and wholesome power to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. 

Background 

The instant appeal was filed by the appellant—the spouse of an advocate who was brutally murdered outside his office on 18-11-2015—to assail the impugned orders of the M.P. High Court rejecting an application under Section 311 CrPC seeking to summon the nodal officers of certain cellular entities along with the decoding register to trace the mobile location of the accused persons.  

An FIR was filed regarding the incident dated 18-11-2015 for an offence punishable under Section 302 read with Section 34 of the Penal Code 1860. The investigation was initiated. The post mortem report indicated that the homicide was caused due to a firearm injury and following persons were arrested during the course of the investigation: Vikas, Sawan, Mangilal, Suresh and Raju.  

Among the enclosures to the supplementary charge-sheet were certificates of the nodal officers of certain cellular companies, namely Airtel, Reliance, Idea, and Vodafone. Upon the commencement of the recording of evidence at the trial, the nodal officers were examined.  

The Impugned Order 

The genesis of the issue was that an application was filed by the prosecution under Section 311 CrPC to summon the nodal officer of Idea and under Section 91 to produce the call data records of two mobile numbers. A similar application was filed under Section 311 seeking to call for the production of the decoding register.  

The aforesaid applications were dismissed by the Trial Court on the ground that the document which the prosecution desired to summon did not form a part of the investigation; and that the document had not been obtained during the course of the investigation. In appeal, the High Court, while affirming the order of the Trial Court held:   

  • The decoding registers are not part of the case diary or the charge-sheet;  
  • The prosecution has closed its evidence; and  
  • The application has been filed at a belated stage without collecting all the relevant information (for instance, whether the decoding register is available with the service provider or not). 

Analysis and Findings  

Rejecting the contention of the defendant that it was not open for the appellant, wife of the deceased to pursue the proceedings owing to the bar in Section 301 of the CrPC, the Court observed that in the case at hand, the application for the summoning of witness and for production of the decoding register was submitted by the State. Hence, the bar contained in Section 301 does not stand in the way.  

Power of Court under Section 311 CrPC 

Examining the Statutory interpretation of Section 311, the Court observed the following: 

  • The power can be exercised at any stage of any inquiry, trial, or proceeding; 
  • The power of the court is not constrained by the closure of evidence. The broad powers under Section 311 are to be governed by the requirement of justice;  
  • The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. 

The Court expressed, 

“Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitutes the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory.” 

Considering the above, the Court observed the following reasons to allow the application of the appellant:  

  • The decoding registers are sought to be produced through the representatives of the cellular companies in whose custody or possession they are found.  
  • The decoding registers are a relevant piece of evidence to establish the co-relationship between the location of the accused and the cell phone tower.  
  • The reasons which weighed with the High Court and the Trial Court in dismissing the application are extraneous to the power which is conferred under Section 91 on the one hand and Section 311 on the other.  
  • The summons to produce a document or other thing under Section 91 can be issued where the Court finds that the production of the document or thing ―is necessary or desirable for the purpose of any investigation, trial or other proceedings under CrPC.  
  • The effort of the prosecution to produce the decoding register which is a crucial and vital piece of evidence ought not to have been obstructed. 
  • The summoning of the witness for the purpose of producing the decoding register was essential for the just decision of the case.  

Regarding the objection that the application should not be allowed as it will lead to filling in the lacunae of the prosecution‘s case, the Court opined that the said reason cannot be an absolute bar to allowing an application under Section 311. Relying on Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374, and Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd., (2008) 11 SCC 108, the Court observed that the resultant filling of loopholes on account of allowing an application under Section 311 is merely a subsidiary factor and the Court‘s determination of the application should only be based on the test of the essentiality of the evidence. 

Hence, the Court held that the decoding registers merely being additional documents required to appreciate the existing evidence in form of the call details which are already on record—but use codes to signify the location of accused, a crucial detail—the production of the decoding registers fit into the requirement of being relevant material which was not brought on record due to inadvertence and production of the registers would not prejudice the accused persons’ right to fair trial. 

Whether the Application was filed after the Closure of Evidence? 

Rejecting the contention that the application was filed after the closure of the evidence of the prosecution as manifestly erroneous, the Court observed that the closure of the evidence of the prosecution took place after the application for the production of the decoding register and for summoning of the witness under Section 311 was dismissed. The Court noted that though the dismissal of the application and the closure of the prosecution evidence both took place the same date, the application by the prosecution had been filed nearly eight months earlier.  

Further, the Court held that the Court is vested with a broad and wholesome power, in terms of Section 311 of the CrPC, to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. 

Conclusion 

In the backdrop of above, the impugned decision of the High Court, as well as that of the Trial Court, were set aside. The application filed by the prosecution for the production of the decoding registers and for the summoning of the witnesses of the cellular companies for that purpose was allowed. 

[Varsha Garg v. State of M.P., 2022 SCC OnLine SC 986, decided on 08-08-2022]  


*Judgment by: Justice Dhananjaya Y Chandrachud 


Appearance:  

For the Appellant: Ramakrishnan Viraraghavan, Senior Counsel 

For the State of M.P.: Shreeyash U Lalit, Counsel 

For Respondents 2nd, 3rd, 6th: SK Gangele, Senior Counsel  

For Respondents 4th and 5th: Bansuri Swaraj, Counsel  


Kamini Sharma, Editorial Assistant has put this report together. 

Andhra Pradesh High Court
Case BriefsHigh Courts

   

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

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

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

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

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

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

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


Advocates who appeared in this case :

O Kailashnath Reddy, Advocate, for the Petitioner.


*Arunima Bose, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: Krishan Pahal, J. dismissed the bail application of Sidhique Kappan, the journalist who was arrested along with three others in October 2020 while on his way to Hathras, Uttar Pradesh allegedly to report on the gang-rape and murder of a 19-year-old Dalit girl noting that he had no work being in Hathras and that there were reasonable grounds to believe that the accusations against such person are prima facie true.

The FIR alleged that the applicant and other co-accused persons were heading to Hathras where the ill-fated incident had been committed with an intention to create caste struggle and to incite riots. The said persons were said to have been collecting funds and running a website ‘Carrd.com’. There was another website operated by the laptop which had the heading ‘Justice For Hathras’. It was also found that the incident of mob lynching, exodus of labourers and the Kashmir issues were also highlighted through the same website. The website also imparts training pertaining to concealing one’s identity during demonstrations and to ways to incite violence. The matter was registered under Sections 153-A, 295-A, 120-B Penal Code, 1860, Sections 17, 18 of Unlawful Activities (Prevention) Act, 1967 and Sections 65 and 72 of Information Technology Act, 2000.

Senior Counsel for the applicant contended that no pamphlets or printing papers were being carried out by the applicant or other co-accused persons in the car and that the applicant was unaware of any website with the name of ‘Carrd.com’ and ‘Justice For Hathras’. It was submitted that the applicant was going to Hathras to discharge his duty as a professional journalist and was illegally detained by Police in violation of his fundamental rights. It was further submitted that the applicant is an honest journalist and does not post any biased reports on the basis of his political leanings. The applicant has written several journalistic reports on the plights of dalits and minorities, but none of them promotes any sort of rivalry between the communities.

State has vehemently opposed the bail application on the ground that the applicant is a resident of Kerala and has nothing to do with the incident of Hathras and had deliberately with malafide intent come with the co-accused persons and was arrested at Mathura. It was further stated that the co-accused persons had collected funds from foreign national mediums which was utilized by co-accused persons for illegal activities. The applicant was in regular touch with co-accused persons and there were call detail records (CDRs) to corroborate the same. It was submitted that during the search of the house of the applicant at New Delhi 47 papers in Malyalam language were recovered pertaining to Students’ Islamic Movement of India (SIMI). Two AK-47 guns were also shown in the said documents, which also contained the popular slogan of SIMI ‘Welcome Mohammad Gajni’.

The Court noted that after the investigation it came up that the applicant had no work in Hathras. The Court believed that the State machinery was at tenterhooks owing to the tension prevailing due to various types of information being viral across all forums of media including the internet and the sojourn of the applicant with co-accused persons who did not belong to media fraternity was a crucial circumstance going against him.

The Court nullified the defence made by the applicant of him being a journalist and visiting Hathras for work by the claims made by the prosecution in the charge sheet and stated that tainted money being used by the applicant and his colleagues cannot be ruled out.

The Court considered the case of NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 where the Supreme Court while overturning the High Court’s order of granting bail to the accused, had stated that Section 43(D)(5) prohibits a Court from granting bail to accused if on a perusal of a final report filed under Section 173 Cr.P.C., the Court is of the opinion that there are reasonable grounds to believe that the accusations against such person are prima facie true.

The bail application was dismissed considering the facts and circumstances of the case, nature of offence, evidence on record, complicity of accused, severity of punishment and the settled law propounded by the Supreme Court in the case of NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1.

[Sidhique Kappan v. State of U.P., 2022 SCC OnLine All 511, decided on 02-08-2022]


Advocates who appeared in this case :

Mr I.B. Singh, Mr Ishan Baghel, Mr Avinash Singh Vishen, Advocates, Counsel for the Applicant;

Mr Vinod Kumar Shahi, Mr Shivnath Tilahari, Advocates, Counsel for the Opposite Party.


*Suchita Shukla, Editorial Assistant has reported this brief.

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: While deciding the instant petition wherein the Single Judge Bench of Justice Sanjay Dhar deliberated upon 2 important issues— firstly, approach of the Courts while examining allegations against relatives of a husband accused of matrimonial crimes; secondly, approach of investigating agencies while undertaking investigation of the offences stated to have taken place about few years prior to the lodging of the FIR. The Court held that, in matters of matrimonial crimes, allegations against a husband’s relatives must be carefully scrutinized by the Courts. Sanjay Dhar, J., also observed that Section 473, CrPC gives jurisdiction to a Court to take cognizance of an offence beyond the prescribed period of limitation in certain cases like cruelty to women etc.

Facts of the case: On 18-10-2021, an FIR was lodged with the Women’s Police Station, Rambagh, Srinagar, against the petitioners by the complainant-wife. In the report it was alleged that about seven years back, she had married the petitioner Azhar Hassan Masoodi out of which, a son was born. It was further alleged that she was being subjected to mental and physical torture after her marriage in connection with demands of dowry. The wife also levied allegations of harassment and stated that she was being threatened with divorce. In the report it was also alleged that on 29-09-2015 she was thrown out of her matrimonial house along with her minor child. As regards the delay in lodging FIR, the wife stated that there were talks of compromise going on between the parties, which is why she was unable to lodge FIR in the time.

The FIR was lodged against the husband and his brother, sister and brother-in-law.

Contentions: The petitioners contended that the impugned FIR was filed six years after the complainant-wife was thrown out of her matrimonial home, therefore, the instant prosecution is barred under the provisions in Section 468 CrPC. The counsels also contended that impugned FIR and the material collected by the investigating agency does not disclose commission of any offence against the petitioners.

It was further submitted that the complainant has roped in all the relatives of her husband without there being any specific allegations against them.

Per contra, the respondents argued that the impugned FIR and the material collected by the investigating agency clearly discloses commission of cognizable offences against the petitioners. It was also submitted that offences alleged to have been committed by the petitioners are continuing in nature; therefore, the bar contained in Section 468, CrPC is not applicable to the instant case. It was further contended that the bar contained in Section 468 is regarding taking of cognizance and not about undertaking of investigation of an offence.

Observations and Decision: Perusing the facts and contentions, the Court observed that the impugned FIR contains very specific allegations against the husband; however, the allegations against relatives are very general in nature.

  • The High Court relied on K. Subba Rao v. State of Telangana, (2018) 14 SCC 452; Rajesh Sharma v. State of U.P., (2018) 10 SCC 472 and other related cases wherein it was observed that, “Courts should be careful in proceeding against the relatives in crimes pertaining to matrimonial disputes and dowry deaths (…) the relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out”.

  • It was thus held that allegations against husband’s relatives require careful scrutiny by the Courts. Since the impugned FIR does not mention any specific instances of cruelty alleged to have been committed by the relatives in the instant case, thus, the prosecution against them cannot be sustained.

  • Vis-a-vis the delay in lodging of FIR by the complainant-wife, the Court observed that Section 468, CrPC creates a bar to taking of cognizance after a lapse of period of limitation. Cognizance of an offence is taken only after final report of investigation of the FIR is laid before the Court. Registration of an FIR does not amount to taking of cognizance, therefore, the bar contained in Section 468 cannot be made applicable to the registration of FIR and undertaking investigation into an offence. The Court also noted the fact that there were talks of compromise going on between the parties, hence the delay.

  • The Court further stated under Section 473, CrPC, Courts can take cognizance of an offence beyond the prescribed period of limitation and mere delay on the part of the complainant in lodging the complaint, cannot by itself be a ground to quash the FIR [Skoda Auto Volkswagen (India) (P) Ltd. v. State of U.P., (2021) 5 SCC 795]

[Junaid Hassan Masoodi v. UT of J&K, 2022 SCC OnLine J&K 606, decided on 01-08-2022]


Advocates who appeared in this case :

Z. A. Qureshi, Sr. Advocate, with Ms. Farhana, Advocates, for the Petitioners;

Usman Gani, GA and Wajid Haseeb, Advocates, for the Respondents.


*Sucheta Sarkar, Editorial Assistant has prepared this brief

Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: M Nagaprasanna, J. quashed the proceedings initiated against a public servant working as an Executive Engineer in the Karnataka Power Transmission Corporation Limited, (‘the petitioner') as the entire process initiated by the Anti-Corruption Bureau (‘ACB') is contrary to the law. This is due to no preliminary inquiry being conducted as was necessary, moreover, source information report was prepared in haste without following necessary steps and disproportionate assets being alleged are displayed on the source report as zero. The dates in the present case are of significance.

A crime was registered against one J. Jnanendra Kumar on 15-03-2022 in connection with which the house of one Munavar Pasha was searched as preliminary enquiry conducted by the ACB. While searching the house of Munavar Pasha two travel bags and one carton box, neither belonging to Munavar Pasha nor J. Jnanendra Kumar were found. They allegedly belonged to the petitioner. The ACB immediately prepared a source report, registered an FIR and conducted searches in the house and office of the petitioner on 17-03-2022. The house of the petitioner was searched on the basis of FIR registered on 16-03-2022 for offences punishable under Section 13(1)(b) and 13(2) of the Prevention of Corruption Act, 1988 Act (‘PCA, 1988') after drawing up a source information report which also was prepared on 16-03-2022. The proceedings emanating from this FIR form the subject matter of the instant petition.

What is a Source Information Report (‘S.I.R')?

A source information report is a report which forms the basis to charge a public servant with Section 13(1) PCA, 1988 which deals with criminal misconduct, and being in possession of assets disproportionate to his known source of income. Thus, the report in corruption parlance is a source information report. The preparation of S.I.R is the responsible work of a responsible officer i.e., Inspector of Police, under the guidance and supervision of a superior police officer, a Deputy Superintendent of Police and it has to be drawn up after calculating entire period of service of a public servant and arrive at a conclusion albeit, prima facie, that he has amassed wealth disproportionate to his known source of income.

The Court noted that on perusal of the SIR, the column total years of service of the petitioner reads ‘not yet ascertained’. Therefore, the ACB did not even know how many years of service a public servant has put in. The check period which is the most important ingredient of a source information report is left vague by stating ‘from the date of joining service to till date'. Wife's designation, salary particulars, Annual Property Returns (‘APR') etc. are not even looked into. The official income that is petitioner's salary and petitioner's wife's salary read as ‘yet to be ascertained’. The value of total property is mentioned, and the percentage of disproportionate income is zero as it is left completely blank. It is this source information report that becomes a FIR under Section 13(1)(b) and 13(2) PCA, 1988. Section 13(1)(b) PCA, 1988 deals with criminal misconduct against a public servant. The basis being the source information report, it is trite that the report assumes a great significance while imputing allegations of criminal misconduct.

Thus, placing reliance on P. Sirajuddin v. State of Madras, (1970) 1 SCC 595, Lalita Kumari v. Government of UP, (2014) 2 SCC 1 and Charansingh v. State of Maharashtra, (2021) 5 SCC 469, the Court observed that the Anti-Corruption Bureau which performs a very significant role in checking corruption amongst public servants cannot indulge itself in such casual act of drawing up the source information report on the instant, registering the FIR and conducting the search. The entire narration of the allegation which would become criminal misconduct against the petitioner is on the basis of the records found in somebody else's house in connection with someone else's crime. Such a source information report against the petitioner is no report in the eye of law.

The Court concluded that there was no preliminary inquiry worth the name that was even conducted by the ACB in the case of the petitioner as every act of the ACB i.e., preparation of the source information report, registration of FIR and conduct of search on the house of the petitioner have all happened on one single day — 24 hours.

The Court thus held it was a fit case, where “the Court cannot turn a blind eye to the plea of petitioner for exercise of jurisdiction of this Court under Section 482 Criminal Procedure Code and obliterate registration of crime against the petitioner.”

[K R Kumar Naik v. State, WP No. 7911 of 2022, decided on 26-06-2022]


Advocates who appeared in this case :

Satish K, Advocate, for the Petitioner;

Manmohan PN SPl. PP, Advocate, for State.


*Arunima Bose, Editorial Assistant has reported this brief.

Sedition Stay Order
Op EdsOP. ED.

   

Introduction

The Supreme Court of India in an unprecedented order in S.G. Vombatkere v. Union of India2 stayed the operation of the contentious Section 124-A3 of the Penal Code, 18604 (hereinafter “IPC”). The Supreme Court in a bunch of petitions challenging the constitutionality of Section 124-A IPC relating to the offence of sedition decided to keep in abeyance all pending trials, appeals and proceedings with respect to the charge framed under Section 124-A IPC. The Supreme Court also put an embargo on fresh registration of first information report (hereinafter “FIR”) by the police, failing which appropriate relief could be sought by the aggrieved by way of approaching the jurisdictional courts. The above directions passed by the Supreme Court shall continue till further orders are passed.

It is a case in point that the Supreme Court while issuing slew of directions left remarkable lacunae in the order. The author tries to point out in the paper that there are no specific directions issued by the Supreme Court with respect to the accused persons already incarcerated in prison charged under Section 124-A IPC, whose trial is pending before a competent court. The author would endeavour to demonstrate that failure to issue directions in the impugned order pertaining to bail may impede a prisoner's right to life and liberty on irrational grounds.

The first section of the paper summarises the background leading to the impugned order. The second section examines the lacunae in the order by the Court. The author concludes by proposing solutions to remove ambiguity inherent in the order. It is pertinent to state at the outset that the scope of the article is restricted to pointing out glaring lacunae in the impugned order and does not touch upon the discourse on sedition.

Background leading to the Supreme Court's fallacious order in S.G. Vombatkere

The original IPC, 1860 did not have an express provision to punish seditious speech or libel. Section 124-A was later engrafted in IPC in 1870.

Kedar Nath Singh v. State of Bihar5 was the first post-independence case in which the constitutionality of Section 124-A IPC was challenged. The court read down in Section 124-A that “only those expressions that either intend to or have the tendency of causing violence are punishable”. However, the continued unscrupulous use of Section 124-A brought to the fore the misuse of the sedition law in the political landscape. It compelled the Supreme Court in Common Cause v. Union of India6 to issue a direction to all the authorities dealing with the offences under Section 124-A IPC to be guided by the principles laid down by the Constitutional Bench in Kedar Nath Singh v. State of Bihar7.

The Allahabad High Court in Inayat Altaf Shekh v. State of U.P.8 sweepingly expressed that “the unity of India is not made of bamboo reeds which will bend to the passing winds of empty slogans”. The order of Allahabad High Court aptly demonstrates the misuse of sedition law on trivial issues such as sloganeering between students in an India-Pakistan cricket match.

Petitions challenging the constitutionality of Section 124 IPC were filed successively in the Supreme Court. The Supreme Court constituting N.V. Ramana, C.J., Surya Kant, J. and Hima Kohli, J. heard the pleas and stayed the operation of Section 124-A IPC until further orders.

Analysis of the order

In the writ petition challenging constitutionality of Section 124-A IPC, the Supreme Court directed the parties to submit written submissions. An affidavit filed on behalf of Union of India averred:

The Government of India is fully cognizant of unintended use of sedition law. It has decided to re-examine and reconsider the provision of Section 124-A IPC which can only be done before competent forum. The Attorney General had also, on an earlier date of hearing, given some instances of glaring misuse of this provision, like in the case of recital of the Hanuman Chalisa.

In para 5 of the order, the Supreme Court prima facie agreed with the stand of Union of India that the rigours of Section 124-A IPC are not in tune with the current social milieu and was intended for a time when this country was under the colonial regime. It also suggested that the Union of India may reconsider the aforesaid provision of law.

The Supreme Court, further in para 7 stayed the operation of Section 124-A IPC till the re-examination of the section is complete and passed the following orders in the interest of justice:

(a)***

(b) State and Central Governments will refrain from registering any FIR, continuing any investigation, or taking any coercive measures by invoking Section 124-A IPC while the aforesaid provision of law is under consideration.

(c) No fresh case shall be registered under Section 124-A. If any fresh case is registered against any individual person under Section 124-A, he may approach the court concerned for appropriate relief. The courts are requested to examine the relief sought in light of the order of this Court in the present case.

(d) All pending trials, appeals and proceedings with respect to the charge framed under Section 124-A IPC be kept in abeyance. Adjudication with respect to other sections, if any, could proceed if the courts are of the opinion that no prejudice would be caused to the accused.

(e)***

(f) The above directions may continue till further orders are passed.

Direction (c) does not pose any problem since it specifically states that no fresh FIR shall be registered by the police. In an event where a fresh FIR is registered by the police, the aggrieved person may approach the High Court under Section 4829 of the Criminal Procedure Code, 1973 (hereinafter “CrPC”) for quashing the FIR or the Magistrate before whom that person may be produced may release the person booked under Section 124-A on bail and to not take cognizance of the matter any further.

However, direction (d) is problematic since it grants stay on pending trials, appeals and proceedings with respect to the charge framed under Section 124-A without deciding the corollary issues such as grant of bail to the person already incarcerated in prison under Section 124-A IPC.

For example, an FIR was lodged in 2021 against Z under Section 124-A IPC. The trial court took cognizance and trial started against Z. The court remanded Mr Z to judicial custody after the commencement of the trial under Section 30910 CrPC. The Supreme Court later stayed all the pending trials under Section 124-A IPC. What will be the effect of stay on the liberty of Z who is incarcerated in the prison during the pendency of stay order of the Supreme Court? Can he seek bail as a matter of right on the ground that all pending trials under Section 124-A IPC have been stayed by the Supreme Court or will he remain incarcerated in prison during the embargo put by the Supreme Court, both of which substantially affects the right to life and liberty of the prisoner? This issue failed to find any place in the impugned order of the Supreme Court. The court has not specifically issued any directions for the grant of bail to persons already in prison whose trial appeal is still pending in the court of law.

Another problematic proposition is for example, an accused person was acquitted by the trial court under Section 124-A IPC. The State preferred an appeal under Section 37811 CrPC12 against the acquittal order of trial court. The High Court under Section 390 CrPC13 may commit the accused person to prison pending the disposal of the appeal. Let us say, Mr Z was committed to prison by the High Court before the stay on appeal was granted by the Supreme Court in the impugned order. What will be the effect on his liberty? Can he approach the High Court for grant of bail, or will he be incarcerated in prison during the stay order as the High Court cannot hear the appeal in light of direction (d) of the impugned order?

The invidious problem is that the courts may refuse to grant bail to the incarcerated prisoners on the ground that the Supreme Court has not issued any specific directions to release an accused on bail pending the adjudication of constitutionality of sedition law by the Supreme Court, which would affect the right of the accused person of speedy justice guaranteed by Article 2114 of the Constitution.15

The effect of stay order of the Supreme Court is that the pending cases under Section 124-A will be delayed and the effect of it is to release an accused person on bail which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21 as held by Constitutional Bench of this Court in A.R. Antulay v. R.S. Nayak.16

The author argues that an accused person's incarcerated years in prison cannot be restored if the Supreme Court decides the sedition law to be constitutional ultimately. The pending trial, from thereon will proceed, but the incarceration in prison between the stay and revocation of stay order will prejudice the accused, if he is acquitted in any case later on, under the charged section.

Concluding remarks

The Rajasthan High Court in Aman Chopra v. State of Rajasthan17 quickly followed the suit and ordered the police to not investigate the matter for allegations covered by Section 124-A IPC on the same day the Supreme Court stayed the operation of Section 124-A IPC.

The author argues that the accused person may seek bail on the ground of “change in circumstances” under Section 439 CrPC.18 Another recourse could be had to Section 482 CrPC as there is no specific section in the CrPC which deals with situation wherein the Supreme Court has stayed all the proceedings under a particular section in general, and the proceedings has not been provided. In such cases, the High Court can use its inherent power to grant relief to the incarcerated prisoners while the stay order is in force.

The problem of conflicting opinions could also be resolved by the Supreme Court by filling the gap in the order by issuing a sweeping order for grant of bail to the accused persons incarcerated in prison, pending the adjudication on constitutionality of sedition law or till the re-examination of it is complete, which would uphold the cherished right of life and liberty of the prisoners.


† BA LLB (Hons.) National Law University, Odisha, Law Clerk-cum-Research Assistant, Supreme Court of India. Author can be reached at <advdeepaksingh20@gmail.com>.

2. 2022 SCC OnLine SC 609.

3. Penal Code, 1860, S. 124-A.

4. Penal Code, 1860.

5. AIR 1962 SC 955.

6. Common Cause v. Union of India, (2016) 15 SCC 269.

7. AIR 1962 SC 955.

8. 2022 SCC OnLine All 419.

9. Criminal Procedure Code, 1973, S. 482.

10. Criminal Procedure Code, 1973, S. 309.

11. Criminal Procedure Code, 1973, S. 378.

12. Criminal Procedure Code, 1973.

13. Criminal Procedure Code, 1973, S. 390.

14. Constitution of India, Art. 21.

15. Constitution of India.

16. (1988) 2 SCC 602.

17. 2022 SCC OnLine Raj 1056.

18. Criminal Procedure Code, 1973, S. 439.

Tis-hazari
Case BriefsDistrict Court

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

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

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

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

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

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


Advocates who appeared in this case :

Mr Pankaj Bhatia, Advocate, for the State;

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

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

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J. partly allowed a writ petition setting aside the judgment and order of Additional Sessions Judge and confirming the findings of Judicial Magistrate First Class further modifying the maintenance amount to Rs 3000/- per month.

The present petition was filed by a father intending to invoke the Constitutional powers of this Court to challenge the order passed by Additional Sessions Judge whereby the revision petition by son (present respondent) was allowed setting aside the order of grant of maintenance passed by Judicial Magistrate First Class under Section 125 of Criminal Procedure Code, 1973.

Petitioner had three daughters and only one son, wife of the petitioner is still alive, but she stays separately from the petitioner but with the respondent. Petitioner contended that he had no source of income and due to his old age he is unable to do any work therefore said application for maintenance was filed. Magistrate after taking into consideration the evidence on record had come to the conclusion that the petitioner is unable to maintain himself, respondent had refused to maintain his father even after being capable of maintaining father. He had granted maintenance of Rs. 5000/- per month. This order was challenged by the respondent and reversing all the findings of the Magistrate, the Additional Sessions Judge had set aside the order passed by the Magistrate and dismissed the original application. Hence, this writ petition.

A surrejoinder was filed by the respondent stating that petitioner had agricultural land admeasuring 57 R and he has sold the same to one Sunil Chandrabhan Admane on 09-11-2015 for a consideration of Rs.3 lakh. However, according to the him, actual consideration amount was Rs.7,50,000/-, but it has been shown less in the sale deed.

The Court from the submissions gathered that at present the age of the petitioner is around 73 to 75 years and it was on record that there is no land left with the petitioner. The Court further opined that even if for the sake of arguments its accepted that there was a piece of land for the petitioner the question still remains whether that is giving him sufficient income to sustain and whether his physical ability is allowing him to cultivate the land or get it cultivated through anybody so that he can earn.

The son cannot avoid his responsibilities to maintain the father. The Court further remarked that the respondent cannot impose a condition on him in exchange of providing maintenance. The respondent had pointed out that because of the vices of the father, there were differences between the mother and the father and they were not residing together and now he was demanding the money just to fulfill his vices to which the Court commented that it cannot go into disputed facts forever and the Court can only decide whether there is a source of income for the petitioner which could give him sufficient amount to support and then there is responsibilities of son to maintain the father, and therefore, the finding which has been arrived at by the revisional Court only on the technical basis that some amount was received by the petitioner in the past because of the sell and the so called admission of the petitioner that by doing labour work he is getting wages of Rs.20/- per day. The Court believed that the said order could not have been totally discarded and that the revisional Court by applying proper criteria could have reduced that amount to make it sustainable for both the parties.

The approach taken by the revisional Court appears to be too hyper technical and when it comes to petitions under Section 125 , CrPC, the Courts cannot be so hyper technical in their approach.

The Court therefore considering all the situations partly allowed the petition setting aside the judgment and order of Additional Sessions Judge and confirming the findings of Judicial Magistrate First Class modifying the maintenance amount to Rs 3000/- per month.

[Jagannath Bhagnath Bedke v. Haribhau Jagannath Bedke, 2022 SCC OnLine Bom 1528, decided on 08-07-2022]


Advocates who appeared in this case :

Mr N. D. Batule, Advocate, for the Petitioner;

Mr D. R. Marked h/f Mr G. P. Darandale, Advocates, for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: The Single Judge Bench of Yogesh Khanna, J., ordered the release of a 27-year-old accused of rape on bail, as the prosecutrix has already been examined as per the requirements of Section 164, CrPC, thus there is no apprehension that the petitioner may influence the prosecutrix. The Court also pointed out that the arguments raised by the petitioner vis-a-vis delay in lodging of FIR; discrepancy in the place of incident and photographs taken thereafter and a legal notice regarding refund of ‘roka‘ expenses without there being an iota of rape allegation- such facts do make out a case for bail.

Facts of the Case: The petitioner is a businessman running a restaurant and beverage business. The petitioner and the prosecutrix met through mediators and their marriage was later fixed through the roka ceremony on 14-02-2021. At the petitioner’s birthday party, the two allegedly got intimate. It was also alleged that the prosecutrix entered into such intimacy, in order to save their relationship. The prosecutrix alleged that the petitioner demanded dowry from her. Thus, an FIR was registered alleging rape on the false pretext of marriage and demand for dowry under Sections 376/354-A/406/506/34 of IPC read with Section 4 of Dowry Prohibition Act, at Paschim Vihar West, Delhi Police Station.

It is also pertinent to mention that after the prosecutrix’s mother also issued a legal notice to the petitioner on 07-09-2021, seeking refund of the expenses incurred during the roka ceremony.

The petitioner’s bail application was already denied by the Tis Hazari Court; therefore, the High Court was approached to with the instant application.

Contentions: The State vehemently opposed the bail application on the grounds that once out, the petitioner may seek to influence the prosecutrix.

Per contra, the counsels for the petitioner argued that the petitioner is a law-abiding citizen with no criminal antecedents and the allegations of rape on the false pretext of marriage are an afterthought in as much the IO has not collected any exculpatory evidence for the same. The petitioner also contends that the legal notice to refund the expenses of roka ceremony also does not mention any allegations as to rape.

Observations: Though the Court did not give any opinion on the merits of the case, it took into consideration the facts related to the delay in lodging of FIR etc. The Court also pointed out that the prosecutrix has already recorded her deposition as per the requirements of CrPC. Hence, the Court ordered that the accused who was in custody since 27-11-2021, be released on bail during the pendency of the trial, upon execution of a personal bond of Rs. 1 Lac with surety. The petitioner was directed to not contact or threaten the prosecutrix in any way, which shall become grounds for cancellation of bail.

[Manmeet Singh v. State (N.C.T. of Delhi), 2022 SCC OnLine Del 2052, decided on 12-07-2022]


Advocates who appeared in this case :

Sanjay Vashistha, Shakir Khan, Rahul Kumar, Advocates, for the Petitioner;

Mukesh Kumar, APP for State and L.S. Saini, Advocate, for the Respondents.


*Sucheta Sarkar, Editorial Assistant has reported this brief.

Madras High Court
Case BriefsHigh Courts

   

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

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

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

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

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

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

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


Advocates who appeared in this case :

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

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


*Arunima Bose, Editorial Assistant has reported this brief.

Experts CornerKapil Madan

Background

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

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

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

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

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

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

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

Procedure to initiate perjury proceedings

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

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

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

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

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

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

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

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

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

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


† Kapil Madan, Partner, KMA Attorneys.

† Gurmukh Singh Arora, Senior Associate, KMA Attorneys.

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

1. (2014) 13 SCC 539, 542.

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

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

4. (1996) 3 SCC 533.

5. (2002) 1 SCC 253.

6. (2010) 15 SCC 290.

7. (2002) 1 SCC 253.

8. (2020) 12 SCC 96.

9. (2010) 15 SCC 290.

10. (2002) 1 SCC 253.

11. (2013) 6 SCC 384.

12. (2002) 1 SCC 253.

13. (2010) 15 SCC 290.

14. (2002) 1 SCC 253.