crpc

Case BriefsHigh Courts

Karnataka High Court: M Nagaprasanna, J., dismissed the petition and refused to grant prayer as the case is at a pre matured stage and is not the right time to post the matter for examination.

The facts of the case are such that the respondent-wife registered a complaint on 7-12-2020 alleging offences punishable under Sections 498A, 504 read with 34 of IPC and preferred application seeking maintenance from the hands of the husband invoking Section 125 of the CrPC. The petitioner thus challenged the entertaining of the proceedings in the case registered by the respondent-wife.

Counsel for petitioner Mr Shivanna submitted that wife on her own consent or with the consent of the husband moved out of the matrimonial house and therefore, the husband –petitioner is not liable to pay any maintenance.

Counsel for respondent Mr Umesh BN submitted incidents of unbearable harassment and ill-treatment from both by the husband and mother- in- law has resulted in her going away from the matrimonial house. This can by no stretch mean moving away of the wife by mutual consent for the petitioner to contend that proceedings were not maintainable.

The Court reiterates what the Trial Court observed that the proviso to Section 125 CrPC provides discretion to court to order for interim maintenance during the pendency of proceedings and at this pre matured stage court feels it is not just to post the matter for examination. Further granting or non granting of interim maintenance is not punishing any litigant. Prima-facie at this juncture petition shows that petitioner and respondent are not living together since two year and petitioner is living in her maternal house. Hence, the application filed by the respondent under Sections 125 and 126 of CrPC is concerned it will be considered at the time of hearing on main petition.

Hence, the application filed by the respondent under Sections 125 and 126 of CrPC is kept in abeyance as examination of the parties is not at all necessary for deciding interim application is maintenance.

The Court thus held “no grounds to interfere at this juncture, the petition stands dismissed.” [Sathish v. Ambika, Criminal Petition No. 474 of 2022, decided on 12-04-2022]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a significant case relating to State’s power of remission under Section 432 of CrPC, the Division Bench of Dr Dhananjaya Y Chandrachud* and Aniruddha Bose, JJ., directed the presiding officer concerned to re-assess the matter— holding that an opinion accompanied by inadequate reasoning would not serve the purpose for which the exercise under Section 432 (2) is to be undertaken, which is to enable the executive to make an informed decision taking into consideration all the relevant factors.

The instant petition was filed by a convict—who was undergoing imprisonment for life upon being convicted u/s 302 read with S. 149 of the Penal Code, 1860—to seek for issuance of a writ directing the State government to grant him pre-mature release.

Evidently, on 25-09-2021, the petitioner completed 16 years of imprisonment without remission and submitted an application for premature release under Rule 358 of the Chhattisgarh Prisons Rule 1968. Pursuant to which opinion of the Special Judge, Durg was sought by the government as mandated u/s 432 of the CrPC on whether the petitioner could be released on remission which was answered in negative. Resultantly, the petitioner’s application for remission was rejected by the government.

Judicial Review vis-à-vis Power of Remission

Though the appropriate government has the absolute discretion to decide whether the application for remission should be allowed, it had been clarified by the Supreme Court in catena of judgments that while the grant of remission is the exclusive prerogative of the executive and the court cannot supplant its view, the Court can direct the authorities to re-consider the representation of the convict. Therefore, the prerogative of the executive is subject to the rule of law and fairness in state action embodied in Article 14 of the Constitution.

Hence, the Court concluded that though the Courts cannot usurp the power of the government and grant remission itself, they can review the decision of the government to determine whether it was arbitrary and ask the government to reconsider the matter.

Duty of the Presiding Judge and Value attached to his Opinion

Sub-section (2) of Section 432 of the CrPC provides that the appropriate government may take the opinion of the presiding judge of the court before or by which the person making an application for remission has been convicted on whether the application should be allowed or rejected, together with the reasons for such opinion.

In Union of India v. Sriharan, (2016) 7 SCC 1, the Constitution Bench had held that the procedure stipulated in Section 432(2) is mandatory and the decision of the government on remission should be guided by the opinion of the presiding officer of the concerned court. Crucially, the Court observed that the opinion of the presiding judge would enable the government to take the ‘right’ decision as to whether or not the sentence should be remitted.

Hence, the Bench opined that it could not be said that the opinion of the presiding judge is only a relevant factor, which does not have any determinative effect on the application for remission. The Bench remarked,

“Section 432 (2) of the CrPC would stand defeated if the opinion of the presiding judge becomes just another factor that may be taken into consideration by the government while deciding the application for remission. It is possible then that the procedure under Section 432 (2) would become a mere formality.”

However, the Bench clarified that the provision does not mean that the appropriate government should mechanically follow the opinion of the presiding judge and held that if the opinion of the presiding judge does not comply with the requirements of Section 432 (2) or if the judge does not consider the relevant factors for grant of remission that had been laid down in Laxman Naskar v. Union of India, (2000) 2 SCC 595, the government may request the presiding judge to consider the matter afresh.

Noticeably, in Laxman Naskar’s case (supra), the Court had laid down following factors to be considered by the presiding officer—assessing (i) whether the offence affects the society at large; (ii) the probability of the crime being repeated; (iii) the potential of the convict to commit crimes in future; (iv) if any fruitful purpose is being served by keeping the convict in prison; and (v) the socio-economic condition of the convict’s family.

Factual Analysis and Conclusion

In the instant case, the Special Judge, Durg had referred to the crime for which the petitioner was convicted and had simply stated that—“in view of the facts and circumstances of the case it would not be appropriate to grant remission.”

Hence, the Bench opined that there was nothing to indicate that the presiding judge took into account the factors laid down in Laxman Naskar’s case (supra), which had rendered the opinion to be in the teeth of the provisions of Section 432 (2) of the CrPC which require that the presiding judge’s opinion must be accompanied by reasons. The Bench stated,

“…an opinion accompanied by inadequate reasoning would not satisfy the requirements of Section 432 (2) of the CrPC. Further, it will not serve the purpose for which the exercise under Section 432 (2) is to be undertaken, which is to enable the executive to make an informed decision taking into consideration all the relevant factors.”

In view of the above, the Bench concluded that the petitioner’s application for remission should be re-considered and directed the Special Judge, Durg to provide an opinion on the application afresh accompanied by adequate reasoning while taking into consideration all the relevant factors that govern the grant of remission as laid down in Laxman Naskar’s case (supra).

Additionally, the Bench directed that the Special Judge, Durg must provide his opinion within a month and the State of Chhattisgarh must take a final decision on the petitioner’s application for remission afresh within a month of receiving the opinion of the Special Judge, Durg.

[Ram Chander v. State of Chhattisgarh, 2022 SCC OnLine SC 500, decided on 22-04-2022]

*Judgment by: Justice Dr Dhananjaya Y Chandrachud

Appearance by:

For the Petitioner: Advocate MD Irshad Hanif

For the State of Chhattisgarh: Advocate Sumeer Sodhi

Kamini Sharma, Editorial Assistant has put this report together

Case BriefsSupreme Court

Supreme Court: The bench of Indira Banerjee and JK Maheshwari, JJ has given split verdict on the issue as to whether the Special Court is debarred from taking cognizance of an offence under Section 23 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and obliged to discharge the accused under Section 227 CrPC, only because of want of permission of the jurisdictional Magistrate to the police, to investigate into the offence.

Factual Background

The Court was hearing the appeal is against a judgment by the High Court of Karnataka, upholding an order dated 19th April 2018 passed by the Principal District Judge, Uttar Kannada, Karwar, taking cognizance against the Appellant of offence under Section 23 of POCSO.

On or about 27th October 2017, a news report was published in the Newspaper, Karavali Munjavu, regarding the sexual harassment of a 16 year old girl. On or about 30th October 2017, the victim’s mother lodged a complaint, inter alia, against the appellant i.e. Editor of the said Newspaper for disclosing the identity of the victim under Section 23 of POCSO that deals with the procedure to be followed by the Media while reporting the POCSO related cases.

The Appellant filed an application for discharge under Section 227 of the Cr.P.C. on the purported ground that an offence under Section 23 of POCSO being non-cognizable, the police could not have investigated the offence without obtaining an order of the Magistrate under Section 155(2) of the Cr.P.C. The Trial Court dismissed the application of the Appellant, whereupon the Appellant filed a Criminal Petition in the High Court under Section 482 of the Cr.P.C.

The High Court dismissed the Criminal Petition, holding that the non obstante provision of Section 19 of POCSO overrides the provisions of the Cr.P.C., including Section 155 thereof. The High Court refused to quash the proceedings initiated against the Appellant under Section 23 of POCSO.

Relevant Provision under POCSO Act

  1. Section 23 deals with the procedure to be followed by the Media while reporting the POCSO related cases.
  2. Section 19(5) provides that where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed, is in need of care and protection it shall, after recording reasons in writing, make immediate arrangements to give the child such care and protection including admitting the child into a shelter home or hospital within 24 hours of the report.
  3. Section 19(6) requires the Special Juvenile Police Unit or local police, as the case may be, to report information to the Child Welfare Committee and the Special Court or where no Special Court has been designated to the Court of Sessions without unnecessary delay, within 24 hours from the receipt of information. The report is to include need, if any, of the concerned child for care and protection and steps taken in this regard.
  4. Section 31 of POCSO, provides that the provisions of the Cr.P.C., including provisions as to bail and bonds are to apply to the proceedings before a Special Court, and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting prosecution before a Special Court shall be deemed to be a Public Prosecutor.
  5. Section 33(9) of POCSO confers powers of a Court of Sessions on the Special Court to try offences under POCSO, also has nothing to do with the reporting or investigation of an offence. Subject to the provisions of POCSO, the Special Court is to try an offence under POCSO, as if it were a Court of Sessions “as far as may be”, in accordance with the procedure 17 specified in the Cr.P.C. for trial before a Sessions Court. Neither Section 31 nor Section 33(9) of POCSO makes any reference to investigation.

Relevant provisions of CrPC

  1. Section 4(1) requires all offences under the Penal Code, 1860 to be investigated, inquired into, tried or otherwise dealt with according to the CrPC.
  2. Section 4(2) requires all offences under any other law to be investigated, inquired into, tried or otherwise dealt with according to the provisions of the CrPC, subject to any enactment for the time being in force, regulating the manner and place of investigating, inquiring into, trying or otherwise dealing with offences.
  3. Section 5 categorically states that nothing in the CrPC shall, in the absence of a specific provision to the contrary, affect any special law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force.
  4. As per Section 155(2), for non-cognizable offence, the order is required to be taken from the Magistrate.

Justice Banerjee’s opinion

Banerjee, J refused to accept the argument of the Appellant that the proceedings were vitiated and liable to be quashed or the Appellant was liable to be discharged without trial, only because of want of prior permission of the jurisdictional Magistrate to investigate into the alleged offence.

On a combined reading of Sections 4(1) and (2) with Section 5 of the Cr.P.C., all offences under the IPC are to be investigated into, tried or otherwise dealt with in accordance with the provisions of the Cr.P.C. and all offences under any other law are to be investigated, inquired into, tried or otherwise dealt with, according to the same provisions of the Cr.P.C., subject to any enactment for the time being in force, regulating the manner of investigating, inquiring into, trying or otherwise dealing with such offences. POCSO is a special law for protection of children against sexual abuse.

Applying the well settled principle that legislative intent is to be construed from the words used in the statute, as per their plain meaning, Banerjee. J observed that had Legislature intended that the CrPC should apply to investigation of an offence under Section 23 of POCSO, would specifically have provided so. The expression “investigation” would, as in Section 4(1) or (2) of the CrPC, have expressly been incorporated in Section 31 or Section 33(9) or elsewhere in POCSO.

She explained that the language and tenor of Section 19 of POCSO, that deals with reporting of offence, and sub-sections thereof makes it absolutely clear that the said Section does not exclude offence under Section 23 of POCSO. This is patently clear from the language and tenor of Section 19(1), which reads “…. any person who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed……”. The expression “offence” in Section 19 of POCSO would include all offences under POCSO including offence under Section 23 of POCSO of publication of a news report, disclosing the identity of a child victim of sexual assault.

Banerjee, J was of the opinion that a child against whom offence under Section 23 of POCSO has been committed, by disclosure of her identity, may require special protection, care and even shelter, necessitating expeditious investigation for compliance of sub-sections (5) and (6) of Section 19 of POCSO.

“POCSO not only protects children from sexual offences but also protects the interests of children in general, as victims as well as witnesses. The right of a child to dignity not only requires that the child be protected from offences of sexual assault, sexual harassment and pornography but also requires that the dignity of a child be safeguarded. Disclosure of the identity of a child who is a victim of sexual offences or who is in conflict with the law is in fundamental breach of the right of the child to dignity, the right not to be embarrassed.”

Justice Maheshwari’s Opinion

Under the POSCO Act, it is not clear all the offences under the said Act are cognizable or some are non-cognizable. However, the Court may have to take the assistance from the provisions of CrPC on the said issue.

The offence under Section 23 is non-cognizable and Section 19 or other provisions of POCSO Act do not confer power for investigation except to specify the manner of reporting the offence. However, in absence of having any procedure for investigation under the POCSO Act, either for cognizable or non-cognizable offences, as mandated by sub-section (2) of Section 4 of CrPC, the procedure prescribed in CrPC ought to be followed in the matter of investigation enquiring into and trial. Section 5 of CrPC is a saving clause by which the procedure prescribed in the special enactment will prevail otherwise in absence of the provision and the procedure specified in CrPC may be applicable.

To state that all offences under POCSO Act are cognizable, would not be justified without taking note of the provisions of CrPC. It is true that to decide the cognizability and non-cognizability, the maximum sentence prescribed for the offence would be taken into consideration, but if the sentence prescribed for the offence is less than 3 years then those offences of POCSO Act would be non-cognizable. It is clarified, Section 19 of the POCSO Act overrides the provisions of Cr.P.C. only to the extent of reporting the matters to the police or SJPU and other ancillary points so specified in Section 19.

Therefore, the procedure of Section 155(2) is required to be followed in an offence of POCSO Act under Section 23 which is non-cognizable and the Special Court is required to look into the procedure followed in the investigation. As per Section 155(2), for non-cognizable offence, the order is required to be taken from the Magistrate but in the light of Sections 2(l) and 28 of POCSO Act, the Special Courts are required to be designated to deal with offences under POCSO Act and they have been authorized under Section 33, conferring a power to such Special Courts to take cognizance. Therefore, Maheshwari, J was of the opinion that the word used in Section 155(2) be read as “Special Courts” in place of “Magistrate”, which may take cognizance of any offence under POCSO Act.

Conclusion

In view of the split verdict in the case at hand, the matter will now be placed before a larger bench.

[Gangadhar Narayan Nayak v. State of Karnataka, 2022 SCC OnLine SC 337, decided on 21.03.2022]

For appellant: Senior Advocate Devdutt Kamat

Case BriefsHigh Courts

Karnataka High Court: M. Nagaprasanna, J. allowed the criminal petition and quashed both the orders by the Magistrate and the Sessions Judge.

The facts of the case are such that the petitioner and the respondent are husband and Wife and the marital life between the couple have turned sore, pursuant to which respondent-wife filed a petition invoking Section 12 of the Protection of Women from Domestic Violence Act, 2005. The Magistrate awarded maintenance of Rs.1,000/-. After invoking the provisions of the Act, the respondent-wife filed a invoking Section 127 of the Cr.PC. for enhancement of the maintenance amount awarded under the Act. The petition was allowed and the respondent-wife was awarded maintenance of Rs.5,000/- from the date of the order. Feeling aggrieved by the order, Criminal Revision Petition invoking Section 397 Cr.PC was filed. The Sessions Judge dismissed the said Revision Petition confirming the order passed by the Magistrate enhancing maintenance to the wife from Rs 1,000/- to Rs 5,000/-. It is these two orders that are called in question in the subject petition.

Counsel for the petitioner submitted that the respondent once having invoked the provisions of the Act could not have filed an application seeking enhancement under Section 127 of the Cr.P.C. The order passed by the learned Magistrate as affirmed by the learned Sessions Judge is orders without jurisdiction.

The Court observed that Section 125 of the Cr.P.C. enables the wife to seek maintenance at the hands of the husband inter alia. Invoking this provision, the learned Magistrate can award maintenance. Section 127 of the Cr.P.C. deals with alteration in allowance. Maintenance that is awarded under Section 125 of the Cr.P.C. can be varied in an application filed under Section 127 of the Cr.P.C. What is sine qua non is that an order of maintenance should precede a petition under Section 127 of the Cr.P.C., failing which, a petition under Section 127 of the Cr.P.C. seeking enhancement of maintenance is not available.

The Court further observed that it is an undisputed fact that the respondent-wife invoked the provisions of the Act in which maintenance was awarded. It is also an admitted fact that there is no proceeding initiated by the respondent-wife invoking Section 125 of the Cr.P.C. Therefore, without there being any determination of maintenance under Section 125 of the Cr.P.C. petition under Section 127 of the Cr.P.C. is not maintainable. The language employed in Section 127 of the Cr.P.C. is unequivocal as on a proof of change in the circumstances of any person receiving allowance under Section 125 of Cr.P.C. can maintain a petition under Section 127 of the Cr.P.C. A proceeding under Section 125 of the Cr.P.C. therefore should precede a proceeding under Section 127 of the Cr.P.C. The fact that a provision of Act was invoked for grant of maintenance and provisions of Cr.P.C. are invoked seeking enhancement of maintenance cannot be countenanced in law.

The Court thus held “the order passed by the learned Magistrate enhancing maintenance under Section 127 of the Cr.P.C. was without jurisdiction and a nullity in law. The foundation being a nullity in law, a super structure to it affirming the order of the learned Magistrate, by the learned Sessions Judge will have to follow suit – is to be declared a nullity in law.”

[Shivanand v. Basavva, Criminal Petition No. 101378 of 2019, decided on 17-02-2022]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Andhra Pradesh High Court: Cheekathi Manavendranath Roy J. dismissed the criminal petition and granted bail to the accused advocates and denied bail to accused software engineer.

The facts of the case are such that several persons have posted comments in the social media like Facebook, Twitter, YouTube etc., making certain wild and reckless allegations against the High Court and Judges of the High Court and the Judges of the Supreme Court with certain aspersions relating to the Judgments delivered by the Judges of the High Court and thereby that they indulged in the acts of bringing down the image of the judiciary and the High Court in the estimation of the members of the society, about 12 crimes were registered by the C.I.D., Amaravati. A case under Sections 153A, 504, 505(2), 506 of the Indian Penal Code, 1860 and under Section 67 of the Information Technology Act, 2000, was registered against the Petitioners. These three criminal petitions under Section 439 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”), are filed to enlarge the petitioners on bail.

The court observed that both A-18 and A- 19 who are advocates by profession have in writing tendered unconditional apology to the High Court and requested to drop the proceedings against them. The Court has accepted the said apology and closed the contempt proceedings. Additionally, as the major part of investigation relating to the role played by A-18 and A-19 is concerned, has been completed, thus, A-18 and A-19 are entitled to bail.

The Court further observed that as regards the petitioner/A-20 is concerned, he tendering unconditional apology in the contempt proceedings is pending for consideration. The High Court did not accept the same and did not close the contempt proceedings against him. Therefore, he is not similarly placed with A-18 and A-19. Further, the comment that was posted by him in the social media is of serious nature which got effect of bringing down the image of judiciary and the High Court and Judges in the estimation of the members of the society. He being an educated man and Software Engineer is not justified in making such irresponsible comments against the Judiciary and the High Court. Therefore, as his request to accept his apology is still pending before the High Court and as investigation in this case is pending against him, this Court is not inclined to enlarge A-20 on bail at this stage.

The Court thus held “The petitioners, who are A-18 and A-19 are ordered to be enlarged on bail on execution of self bond for Rs.50,000/- (Rupees fifty thousand only) each with two sureties for a like sum each to the satisfaction of IV Additional Junior Civil Judge, Guntur.”

[Gopala Krishna Kalanidhi v. State of Andhra Pradesh, 2022 SCC OnLine AP 419, decided on 25-02-2022]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Andhra Pradesh  High Court: Cheekati Manavendranath Roy, J., dismissed the criminal petition being devoid of merits.

This criminal petition under Section 439(2) of the Code of Criminal Procedure, 1973, is filed to cancel the bail that was granted to the accused in a case registered under Sections 147, 148, 324, 307, 302 r/w 149 of the Indian Penal Code, 1860. It is a case of double murder. It is the version of the prosecution that the respondents 3 to 8 herein along with other accused formed themselves into an unlawful assembly and attacked the two deceased persons, who are brothers and committed murder of the said two persons.

It was submitted by the wife of one of the deceased that there are no change of circumstances for grant of bail after dismissal of the earlier bail application. It was also alleged that the accused through their men have been threatening the witnesses and interfering with the process of investigation. Therefore, on the aforesaid two grounds, the bail that was granted to the said accused is now sought to be cancelled.

The Court relied on judgment Raghubir Singh v. State of Bihar, (1986) 4 SCC 481; wherein it was held that “… bail can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency and (vii) attempts to place himself beyond the reach of his surety, etc….”.

The Court observed that nothing was brought to the notice of the police or the investigating agency stating that the accused are interfering with course of investigation by way of threatening the witnesses through their men. Therefore, in the absence of any valid material to substantiate the said allegation, the bail that was granted to the accused earlier cannot be cancelled on the basis of the said vague allegation.

The Court observed that none of the grounds which are enumerated in the Raghubir Singh v. State of Bihar, (1986) 4 SCC 481 case is found to be existing in the present case. Although it is alleged that the accused are making an attempt to threaten the witnesses through their men, it appears to be a vague allegation without any valid basis.

The Court held “this Court finds no valid reasons emanating from the record to cancel the bail that was earlier granted to the accused.”

The Court directed “….the accused, who are on bail, shall not enter the Pesaravayi village, where police are deploying, till the charge sheet is filed in this case.” [Vaddu Lakshmidevamma v. State of Andhra Pradesh, Criminal Petition No. 7029 of 2021; decided on 24-02-2022]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a loan default case, the Division Bench of L. Nageswara Rao* and B.R. Gavai, JJ., rejected pleas of Rahul Modi of Adarsh Group and Rahul Kothari of Rotomac Global for default bail on the ground that the Trial Court failed to take cognizance within stipulated 60/90 days time under CrPC. The Bench held that the provision is not for the trial courts and filing of the charge-sheet within the stipulated period is sufficient compliance under S. 167 of CrPC.

Background

The Serious Fraud Investigation Office-appellant had assailed the order of the Punjab and Haryana High Court granting bail to Respondents 1 and 2. An investigation was directed to be conducted into the affairs of Adarsh Group of Companies and LLPs by the Central Government in exercise of the powers conferred under Section 212(1)(c) of the Companies Act, 2013 and subsections (2) and (3)(c)(i) of Section 43 of the Limited Liability Partnership Act, 2008 which led to the arrest of respondents 1 and 2.

Respondents 1 and 2 were remanded to 14 days’ judicial custody on 05-04-2019 which was extended to 16-05-2019 and further till 30-05-2019. Noticeably, the Sessions Judge had dismissed the respondents’ applications for statutory bail under Section 167(2) of the CrPC on the ground that the complaint under Section 439(2) of the Companies Act, 2013 was filed on 18.05.2019, i.e., before the expiry of the 60-day period prescribed in proviso (a) to Section 167(2) of the CrPC. However, the High Court considered the regular bail applications of the respondents and directed their release on the ground that they were entitled to statutory bail. The sole reason given for grant of bail by the High Court was that the Trial Court had not taken cognizance of the complaint before the expiry of the 60-day period, which entitled the respondents to statutory bail, as a matter of indefeasible right.

Conflict Involved

One Rahul Kothari had filed application for intervention for as his application for statutory bail was rejected by the Trial Court and upheld by the High Court. It was submitted by the intervener that his case (SLP (Cr) Diary No. 12089 of 2021) raised the same issue, i.e., the right of an accused to claim statutory bail in case cognizance is not taken before the expiry of the prescribed period of 60 or 90 days.

Claiming that there were conflict of opinion regarding the interpretation of Section 167(2), CrPC as the Supreme Court in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, (1996) 1 SCC 722, and Sanjay Dutt v. State, (1994) 5 SCC 410, had taken a view that an accused can invoke his right for statutory bail if the court has not taken cognizance of the complaint before the expiry of the statutory period from the date of remand while a completely different view had been taken in Suresh Kumar Bhikamchand Jain v. Stateof Maharashtra, (2013) 3 SCC 77. Further, in different cases the similar issue had been referred to a larger Bench.

Factual Analysis

The Court made the following observations:

  1. The complaint under Section 439(2) of the Companies Act, 2013 was filed before the expiry of the 60-day period from the date of the remand.
  2. The applications filed for statutory bail were dismissed by the Special Court on the ground that the charge-sheet was filed before the expiry of 60 days.
  3. Respondents did not argue before the Special Court that they were entitled for statutory bail, even after filing of the charge-sheet before the expiry of the 60-day period, as cognizance had not been taken.

Hence, the Bench opined that the High Court had failed to consider the order passed by the Trial Court dismissing the applications seeking statutory bail.

Regular Bail vis-à-vis Statutory Bail

Observing that the scheme of the provisions relating to remand of an accused first during the stage of investigation and thereafter, after cognizance is taken, indicates that the legislature intended investigation of certain crimes to be completed within the period prescribed therein, the Bench stated that once the chargesheet is filed within the stipulated period, the right of the accused to statutory bail come to an end and the accused would be entitled to pray for regular bail on merits.

Clarifying that the two stages are different, with one following the other so as to maintain continuity of the custody of the accused with a court, the Supreme Court in Bhikamchand Jain’s case had held that in the event of investigation not being completed by the investigating authorities within the prescribed period, the accused acquires an indefeasible right to be granted bail, if he offers to furnish bail and the court has no option but to release the accused on bail. However, on filing of the charge-sheet within the stipulated period, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Section 309, CrPC.

On the issue as to whether the Court had taken a different view in the cases relied on by the intervenor, the Bench observed that in Sanjay Dutt (supra), the Court held that the custody of the accused after the challan has been filed is not governed by Section 167(2) but different provisions of the CrPC while in Madar Sheikh, it was held that the right conferred on an accused under Section 167(2) cannot be exercised after the charge-sheet has been submitted and cognizance has been taken.

Pertinently, filing of charge-sheet is sufficient compliance with the provisions of proviso (a) to Section 167(2), CrPC and that taking of cognizance is not material to Section 167.

Conclusion

The Bench noted that reference to a larger bench pertains to the issue of exclusion or inclusion of the date of remand for computation of the period prescribed under Section 167, therefore differentiating the same the Bench applied the law as laid down in Bhikamchand Jain’s case to hold that the conclusion of the High Court that the accused cannot be remanded beyond the period of 60 days under Section 167 and that further remand could only be at the post-cognizance stage, was not correct. Accordingly, the impugned order was set aside.

[Serious Fraud Investigation Office v. Rahul Modi, 2022 SCC OnLine SC 153, decided on 07-02-2022]

*Judgment by: Justice L. Nageswara Rao

Appearance by:

For the Appellant: Aman Lekhi, Additional Solicitor General

For Respondents 1 and 2: Vikram Choudhri, Senior Advocate

For the Intervenor: Mukul Rohatgi

Kamini Sharma, Editorial Assistant has put this report together

 

Case BriefsHigh Courts

Jharkhand High Court: Anubha Rawat Choudhary, J., held that right to claim maintenance must date back to the date of filing the application since the period during which the maintenance proceedings remained pending is not within the control of the applicant.

The facts of the case were such that the Family Court had allowed the application filed under Section 125 of the Criminal Procedure Code, 1973 and directed the opposite party to pay an amount of Rs 1500 per month to the petitioner from the date of passing of the judgement and had further directed to pay Rs 5,000 lump sum as litigation cost and had also directed the opposite party to make payment of monthly allowance on or before 10th day of each month of English calendar.

By an order dated 31-01-2020, the High Court had refused to interfere with the quantum of maintenance. However, the notice was issued on the point regarding effective date of grant of maintenance whether it should have been from the date of passing of the impugned judgement or from the date of filing of the maintenance application.

The petitioner relied upon the judgement of the Supreme Court in Rajnesh v. Neha, (2021) 2 SCC 324, to submit that the law had been well-settled that in a case of maintenance, the maintenance is to be awarded from the date of filing of the application since the period during which maintenance proceeding remained pending, is not within the control of the applicant.

In the above mentioned case, the Supreme Court had issued direction to bring about uniformity and consistency in the orders passed by all courts by directing that maintenance be awarded from the date on which the application was made before court concerned, and the right to claim maintenance must date back to the date of filing the application since the period during which the maintenance proceedings remained pending is not within the control of the applicant.

In the backdrop of above, the High Court held that the impugned order was not sustainable in law to the extent it directed payment of monthly maintenance from the date of judgement, and consequently, the Bench modified by holding that the petitioner would be entitled for the payment of monthly allowance as fixed by the Family Court from the date of filing of application; i.e. 22-09-2014.

Since, the entire arrears of maintenance for 88 months till January, 2022 came to Rs 1,32,000 and by including litigation expenses, it became 1,37,000; the respondent was directed to remit the arrears of maintenance and litigation expenses amounting in monthly instalment of Rs 10,000 each with effect from 10-02-2022 along with the current monthly maintenance amount for each month in the bank account of the petitioner through RTGS mode. [Rinki Kumari v. Kundan Kumar, 2022 SCC OnLine Jhar 22, decided on 07-01-2022]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Arjun N. Deo, Advocate

For the Respondent: Vikas Kumar, Advocate

Case BriefsHigh Courts

Karnataka High Court: Sreenivas Harish Kumar J. dismissed the petition being devoid of merits.

The facts of the case are such that the 1st petitioner is the husband of 2nd respondent. On certain allegations that the petitioners subjected the 2nd respondent to harassment in connection with demand for dowry, FIR was registered in relation to offences punishable under sections 323, 504, 506 and 498-A of IPC and sections 3 and 4 of the Dowry Prohibition Act r/w section 34 of IPC. Investigation was taken up and charge sheet was been filed. This instant petition was filed under Section 482 of CrPC for quashing the charge sheet.

Counsel for the petitioner Mr. Arjun Rego submitted that if the entire charge sheet which is based on statements of witnesses is considered, it can be said that no offence against the petitioners is made out.

The Court observed that though under Section 482 of Cr.P.C. charge sheet can be quashed, the said jurisdiction cannot be invoked for quashing the charge sheet by appreciating the evidence. It is a settled principle that while deciding the petition under Section 482 of Cr.P.C., evidence cannot be appreciated as it lies within the domain of the Trial Court.

The Court held “I do not find any ground to entertain this petition. Accordingly, the petition is dismissed.” [Pradeep Moparthy v. State of Karnataka, Criminal Petition No. 2860 of 2021, decided on 15-12-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Appearances

For respondent: Mr. Rohith BJ

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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

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

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia J. disposed of the petition and quashed the FIR/complaint.

The facts of the case are such that marriage between Mukesh Sharma (son of petitioners 1 and 2 and brother of petitioner 3) and respondent No. 2/wife was solemnized on according to the Hindu rites and ceremonies and out of their wedlock one son namely, Master Kartik, was begotten. However, immediately after the marriage, differences arose between them and the wife has lodged a complaint against her husband and his family members, wherein allegations of harassment for bringing less dowry and maltreatment have been leveled. Consequently, F.I.R was registered under Sections 498A, 406, 120B and 506 Penal Code, 1860 i.e. IPC. However, the parties settled their dispute amicably, vide Compromise Deed, as per terms of the Compromise Deed, they do not want to continue with the present case. Hence, the present petition was filed under Section 482 of the Code of Criminal Procedure i.e CrPC for quashing the F.I.R.

Counsel for petitioner Mr. Ashok Kumar Thakur submitted that the parties have compromised the matter vide compromise deed, no purpose would be served by keeping the proceedings alive, therefore, the FIR, along with consequent proceedings arising out of the same, may be quashed and set aside.

Counsel for respondent Mr. C N Singh and Mr. Devender Sharma submitted that parties have settled their dispute amicably, the present petition may be allowed.

The Court relied on judgment Jitendra Raghuvanshi v. Babita Raghuvanshi, (2013) 4 SCC 58 wherein it was observed that “Even if the offences are non compoundable, If they relate to matrimonial disputes and the court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings.”

The Court thus observed that even if, the trial is allowed to be continued, as the parties have compromised the matter, there are bleak chances of conviction to secure the ends of justice. Thus, taking into consideration the law as discussed hereinabove and the compromise arrived at between the parties vide Compromise Deed, placed on record, I find that the interest of justice would be met, in case, the proceedings are quashed, as the parties have compromised the matter and do not want to proceed further with the case in order to live peacefully.

The Court held “present is a fit case to exercise jurisdiction vested in this Court, under Section 482 of the Code and, therefore, the present petition is allowed and F.I.R No. 105, dated 01.06.2013, under Sections 498A, 406, 120B and 506 of IPC, registered at Police Station Dehra, District Kangra, H.P., is ordered to be quashed.”

[Parkash Chand v. State of H P, 2021 SCC OnLine HP 7918, decided on 15-11-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and N. J. Jamadar, JJ., granted bail to activist Sudha Bhardwaj after three years detention in Elgar Parishad case. The Bench expressed,

“Once the period of detention expired and the accused manifested the intent to avail the right by making an application, no subterfuge to defeat the said indefeasible right can be countenanced. The factors like the bail application was not decided, or wrongly decided, or subsequently charge-sheet came to be fled, or a report seeking extension of period of detention came to be fled and allowed, are of no significance.”

Factual Backdrop

The applications for bail were filed under section 167(2) of the CrPC read with section 43-D(2) of the Unlawful Activities (Prevention) Act, 1967 (UAPA) in National Investigation Agency (NIA) Special Case, arising out of FIR in connection with a programme organized by the members of Kabir Kala Manch under the banner “Elgar Parishad” at  Shanivar Wada, Pune on 31-12-2017. The complainant alleged that the speeches and performances were provocative and had the effect of creating communal disharmony. It was further alleged that the said programme provoked the incidents of violence near Bhima Koregaon, Pune on 01-01-2018, resulting in the loss of life and property and creation of social disharmony. Resultantly, a case was filed against the applicants under sections 120B, 121, 121(A), 124(A), 153A, 505(1)(b), 117, 23 of Penal Code, 1860 and sections 13, 16, 17, 18, 18-B, 20, 38, 39 and 40 of UAPA.

The applicants had approached the Court seeking bail on the ground that the Judge, who extended the period for investigation under section 43-D(2) of UAPA and took cognizance of the offences was not legally empowered to grant such extension and take cognizance as he was not designated as a Special Judge either under section 11 or section 22 of the NIA Act.

Series of Events

Initially, the applicant, Ms. Sudha Bhardwaj was directed to be kept under house arrest by the order of Punjab & Haryana High Court. Later on the applicant was remanded to police custody. On 22-11-2018 the Public Prosecutor filed a report seeking extension of period for investigation. On 26-11-2018, the applicant filed an application for bail as 90 days period from the date of applicant’s arrest and production before the Magistrate had expired. The Sessions Judge passed an order on the report of the Public Prosecutor and extended the period of detention by 90 days.

Criminal Application No. 1458 of 2019

Similarly, the applicant 1 to 8 asserted that the UAPA does not contain any provision for the appointment of a Special Judge or for constitution of Special Courts. Thus, the usurpation of the jurisdiction by the Additional Sessions Judges, under a misnomer of Special Judge, was wholly illegal. The applicants contended that once the Special Court was constituted at Pune under section 22 of the NIA Act, only the said Special Court had jurisdiction to extend the period of detention under section 43-D(2) of the UAPA and no other.

Whether the Additional Sessions Judge had the jurisdictional competence?

Noticing that a conjoint reading and harmonious construction of the provisions contained in section 6 and section 10 of the NIA Act lead to a legitimate inference that till the NIA takes up the investigation of the case (necessarily involving a Scheduled Offence), the State Government is not divested of the authority to investigate and prosecute any Scheduled Offence, the Bench opined that in view of the provisions contained in section 13(1) of the NIA Act, if the Scheduled Offence is investigated by the NI Agency, it must be tried only by the Special Court set up by the Central Government under section 11 of the NIA Act. Similarly, even in case where the investigation is carried out by the State Investigation Agency into a Scheduled Offence, the trial shall be held by the Special Court constituted by the State Government under section 22(1) of the NIA Act, if available; and in the absence of such Special Court constituted under section 22(1) of the NIA Act, the trial shall be held before a Court of Session under section 22(3) of the NIA Act. Relying on the Supreme Court’s decision in Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616, the Bench stated,

“So far as all offences under the UAPA are concerned, the Magistrate’s jurisdiction to extend time under the first proviso in Section 43-D (2)(b) is non- existent”.

Consequently, it was held that so far “extension of time to complete investigation” was concerned, the Magistrate would not be competent to consider the request and the only competent authority to consider such request would be “the Court”, as specified in the proviso in Section 43-D(2)(b) of the UAPA. Resultantly, it was held that the Additional Sessions Judge had no jurisdiction to deal with the case at hand.

Pre-trial and Trial Proceedings

Rejecting the submission of the respondents that under section 11 of the NIA Act, the Special Courts are to be constituted for the trial of Scheduled Offences as the Special Courts so constituted are not meant for conduct of pre-trial proceedings; and since the extension of period of detention, pending completion of investigation, is squarely in the realm of investigation, the ordinary criminal Courts are not divested of the jurisdiction to deal with pre-trial proceedings, including the extension of period of detention, the Bench observed, the first proviso in section 43-D(2)(b) expressly confers the power to extend the period of detention of the accused up to 180 days upon the ‘Court’, which in turn is defined in section 2(d) as ‘a criminal court having jurisdiction to try offences’ under the said Act. Hence, the Bench clarified, the legislature has vested the authority to extend the period of detention in the Court which is competent to try the offences under UAPA. The Bench reminded,

“The exercise of the power to extend the period of detention is thus not envisaged as a matter of routine. The Court is expected to apply its mind to the necessity of further detention and extension of period of investigation. This implies that the said power shall be exercised only by the Court which is vested with special jurisdiction by the statute.”

Consequence of order passed by the Court sans Jurisdictional Competence

Having held that the Additional Sessions Judge had no jurisdiction to deal with the instant case, the next question before the Bench was whether the act of taking cognizance of the Scheduled Offences by the Additional Sessions Judge when a Special Court under S. 22 of NIA Act was in existence at Pune entailed the consequence of nullifying the whole proceeding? The Bench stated, Clause (e) of section 460 of the CrPC declares that if any Magistrate, not empowered by law, erroneously in good faith, takes cognizance under clause (a) or clause (b) of sub-section (1) of section 190, his proceedings shall not be set aside merely on the ground of his not being so empowered. In other words,

“The fact that the Additional Sessions Judge took cognizance of the Scheduled Offences, despite the existence of a Special Court at Pune, in the absence of material to demonstrate that there was resultant failure of justice, could not be exalted to such a pedestal as to hold that the very presentment of the charge-sheet by the investigating agency is non-est in the eye of law.”

Hence, the Bench held that the act of taking of cognizance, by the Additional Sessions Judge did not entail the consequence of the vitiation of the entire proceedings as, failure to take cognizance or defect in jurisdiction in taking cognizance, once the charge-sheet was laid, does not entail the consequence of default bail.

Findings of the Court

In M. Ravindran v. Directorate of Revenue Intelligence, (2021) 2 SCC 485, it was held that from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency, “the right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent fling of the charge sheet or a report seeking extension of time by the prosecution before the Court; or fling of the charge sheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.

However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a charge sheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty.” The Bench observed,

“Once, the twin conditions of default in fling the charge-sheet, within the prescribed period, and the action on the part of the accused to avail the right are satisfied, the statutory right under section 167(2) of the Code catapults into a fundamental right as the further detention falls foul of the personal liberty guaranteed under Article 21 of the Constitution.”

Accordingly, the Bench opined that once the period of detention expired and the accused manifested the intent to avail the right by making an application, no subterfuge to defeat the said indefeasible right can be countenanced. The factors like the bail application was not decided, or wrongly decided, or subsequently charge-sheet came to be fled, or a report seeking extension of period of detention came to be fled and allowed, are of no significance.

Decision

Considering the hard facts with regard to the application of Sudha Bharadwaj were: (i) that the period of detention of 90 days (excluding the period of house arrest) expired on 25-01-2019; (ii) no charge-sheet was lodged; (iii) there was no lawful order of extension of period of detention; and (iv) an application preferred by Sudha Bharadwaj for default bail awaited adjudication; the Bench opined that to deprive the applicant-Sudha Bharadwaj of the indefeasible right on the premise that the application preferred on 26-11-2018 was premature, would be taking a too technical and formalistic view of the matter. Accordingly, the Bench held that all the requisite conditions to release the applicant-Sudha Bharadwaj on default bail stood fully satisfied.

However, since neither applicants 1 to 5 claimed to have fled an application for default bail under section 167(2) of the Code, after the expiry of initial period of 90 days from the date of their production before the Additional Sessions Judge till the fling of the charge-sheet nor did applicants 6 60 8 availed the right of default bail, by fling an application, within the meaning of section 167(2) of the Code; the Bench held that the those applicants failed to apply for default bail when the right accrued to them.

In the light of the above, the bail application of applicants 1 to 8 was rejected whereas the application preferred by Sudha Bharadwaj was allowed. [Sudha Bharadwaj v. National Investigation Agency, 2021 SCC OnLine Bom 4568, decided on 01-12-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

Dr.Yug Mohit Chaudhary a/w. Ms. Payoshi Roy and Ms. Chandni Chawla for applicant in BA/2024/2021.

Mr.Anil C. Singh, ASG a/w. Mr. Sandesh Patil, Mr. Aditya Thakkar, Mr. Chintan Shah, Ms. Smita Thakur, Mr. Pranav Thakur and Mr. Vishal Gautam for respondent- NIA in APL/2024/2019.

Mr.Sudeep Pasbola a/w. Mr.Barun Kumar, Mr. Karl Rustomkhan and Ms. Susan Abraham i/b Mr. R. Sathyanarayanan for applicants in APL No.1458/2019 and IA/376/2020.

Mr.A.A. Kumbhakoni, Advocate General a/w. Smt. A.S. Pai, PP, Mrs. S.D. Shinde, APP and Mr. Akshay Shinde, “B” Panel Counsel for respondent-State.

Mr.Anil C. Singh, ASG a/w. Mr. Sandesh Patil, Mr. Aditya Thakkar, Mr. Chintan Shah and Mr. Pranav Thakur for respondent-NIA in APL/1458/2019.

Case BriefsHigh Courts

Karnataka High Court: H P Sandesh J. allowed the petition and quashed the proceedings initiated against the petitioners.

This petition is filed under Section 482 of Criminal Procedure Code i.e. Cr.P.C., praying this Court to quash the order of the Civil Judge and JMFC, Muddebihal, dated 13.07.2018 passed in C.C.No.167/2018 (Crime No.107/2018 of Muddebihal Police Station) taking cognizance against the petitioners   for the offences punishable under Section 171H of Penal Code, 1860 i.e. IPC and Section 3 of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981.

Counsel for the petitioner Mr. Rajesh G Doddamani submitted that the Act invoked i.e., the Karnataka Open Places (Prevention  of Disfigurement) Act, 1981 is not applicable to  Muddebihal and the said Act is applicable only in respect  of particular places. Unless the same is notified in respect of particular place of Muddebihal, the police ought not to have initiated proceedings against the petitioners under Section 3 of the Act. It was also submitted that the respondents have also invoked Section 171H of IPC. The complaint is not filed under Section 195 of Cr.P.C., but the case has been registered against the petitioners and based on the police report, cognizance was taken. Therefore, when non-cognizable offence is invoked, it requires permission from the Magistrate under Section 155(2) of Cr.P.C., and hence, it requires interference of this Court.

Counsel for respondents Mr. Gururaj V Hasilkar submitted that the election was declared in respect of Muddebihal assembly constituency in 2018. When the election notification was issued by the State, the order was passed by the District Election Officer and District Magistrate, Vijayapura dated 31.03.2018 appointing flying squads and the same includes Muddebihal  Constituency. The learned counsel also relied upon the  order of the State Government dated 10.04.2018 and so also the revised order dated 31.03.2018 appointing officers consisting of flying squads. The learned counsel also relied upon the Notification of Election Commission of India dated 02.05.2018 wherein it is clarified that as per Section 126(1)(b) of the Representative of People Act, 1951, there shall not be displaying of any stickers and flags of any particularly party and the said act is in  violation of the same and there is no specific notification  for applying the above Act but election notification is  issued. It is not in dispute that the petitioners herein came to the Tahsildar’s office in vehicles displaying stickers and flags of a particular party. Hence, the proceedings initiated against the petitioners cannot be quashed.Issue: Whether Karnataka Open Places (Prevention of Disfigurement) Act, 1991 is applicable to Muddebihal or not?

The Court observed that on perusal of Section 1(2)(i) of the Act makes it clear that the Act is applicable for the cities viz., Bangalore,  Mysore, Hubli-Dharwar, Mangalore and Belgaum constituted or continued under the Karnataka Municipal  Corporation Act, 1976 or under any other law, on the fifth day of May, 1981 and Section (1)(2)(ii) of the Act says that the same come into force in the municipalities, notified areas, sanitary boards, constituted or continued under the Karnataka Municipalities Act, 1964 or under any other law, or in any other local area, on such date, as the State Government may by notification appoint and different dates may be appointed in respect of different areas.

But, no such Notification was issued in respect of Muddebihal. Hence, unless the Act is applicable to particular city and municipal area, the initiation of proceedings under the said Act is unsustainable under law.

The Court further observed that Section 171H of IPC deals with illegal payments in connection with an election. But, in the  case on hand, the allegation against the petitioners is  that they came in vehicles with flag of political party and no allegations with regard to illegal payments in  connection with election are found in the complaint.  Under the circumstances, very initiation of proceedings against the petitioners is nothing but an abuse of process of law. Hence, it is appropriate to exercise power under Section 482 of Cr.P.C., or otherwise it leads to miscarriage of justice.

The Court having considered the allegation made in the complaint as well as in the charge sheet observed that it does not attract offence under Section 171H of IPC and so also Section 3 of the Act as there is no notification. “….complaint averments and charge sheet averments do not attract the offences invoked and apart from that, the above Act is not applicable to Muddebihal and without any notification for application of the Act, proceedings have been initiated.”

The Court held “….very initiation of  proceedings against the petitioners is not sustainable in the eye of law, as there was no notification for applicability of the above Act to Muddebihal and also no ingredients of offence under Section 171H of IPC.”

[Hanmagouda v. State of Karnataka, Criminal petition No. 200377 of 2019, decided on 26-11-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court: Sanjeev Kumar, J., held that the sentence of fine under Section 138 of N.I.Act must be sufficient to adequately compensate the complainant. The Bench stated,

“The prime object of enacting Chapter XVII, of the N.I. Act is to control and discourage the menace of cheque bouncing in the course of commercial transactions and to encourage the culture of use of cheques and enhancing the credibility of the instrument.”

The Trial Court had convicted and punished the respondent under Section 138 of Negotiable Instruments Act, 1981, and held him liable to pay compensation of Rs.2.00 lakh to the petitioner. The instant appeal had been filed by the petitioner with the grievance that the respondent-accused should have also been awarded fine sufficient enough to meet the liability of the cheque issued by him which was dishonoured. The petitioner contended that the compensation awarded was only one fifth (1/5th) of the value of the cheque as the cheque issued by the respondent was for the amount of Rs. 10 lakh.

Observation and Analysis

Apparently, Section 138 of N. I. Act states that, the Criminal Court after convicting the accused, is empowered to impose punishment of imprisonment for a term, which may extend to two years, or fine which may extend to twice the amount of cheque, or both. The Bench observed that, the Trial Court is, thus, given the discretion to impose the sentence of imprisonment or fine or both.

The Supreme Court in Assistant Commissioner, Assessment-II v. Velliappa Textiles Ltd., 2003 11 SCC 405, had held that, “where the legislature has granted discretion to the court in the matter of sentencing, it is open to the court to use its discretion. Where, however, the legislature, for reasons of policy, has done away with this discretion, it is not open to the court to impose only a part of the sentence prescribed by the legislature, for that would amount re-writing the provisions of the statute.”

Similarly, in Damoder S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663, the Supreme Court had observed, “The object of bringing Section 138 into the statute was to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. It was to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques due to insufficient arrangements made by the drawer, with adequate safeguards to prevent harassment of honest drawers.”

Reliance on the decision of the Supreme Court on the aforesaid case, the Bench observed that unlike other forms of crime, the punishment for commission of offence under Section 138 of N. I. Act is not a means of seeking retribution, but is more a means to ensure payment of money and, therefore, in respect of offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. The Bench opined that the Criminal Court while convicting an accused for commission of offence under Section 138 of N.I. Act, cannot ignore the compensatory aspect of remedy and the compensatory aspect can only be given due regard if the sentence imposed is at least commensurate to the amount of cheque, so that the fine, once imposed, can be appropriated towards payment of compensation to the complainant by having resort to Section 357 of CrPC.

Opinion and Findings       

The Bench opined that it the Court should not resort to Section 357(3) of CrPC while imposing sentence under Section 138 of N.I. Act, rather the Criminal Court should bear in mind the laudable object of engrafting Chapter XVII containing Section 138 to 142 of NI Act and give priority to the compensatory aspect of remedy. The Bench stated,

“Indisputably, the Legislature has given discretion to the Magistrate to impose a sentence of fine which may extend to double the  amount of cheque and, therefore, the sentence of fine whenever imposed by the Criminal Court upon conviction of accused under Section 138 of N.I.Act must be sufficient enough to adequately compensate the complainant.”

Therefore, the amount of cheque and the date from which the amount under the cheque had become payable along with payment of reasonable interest may serve as good guide in this regard. To make it consistent and uniform, the Bench advised to impose a fine equivalent to the amount of cheque plus at least 6% interest per annum.

Decision

Considering that the Trial Court had awarded Rs.2.00 lakh, to be paid as compensation to the complainant, when admittedly the cheque amount was to the tune of Rs.10.00 lakhs, the Bench remanded back the matter to the trial Court for considering the imposition of sentence upon the respondent de novo in the light of legal position discussed and the observations made in the instant judgment. The appeal was allowed and the impugned order was quashed to the extent it awarded sentence to the accused. [Yasir Amin Khan v. Abdul Rashid Ganie, 2021 SCC OnLine J&K 934, decided on 22-11-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Appellant: F.A.Wani, Advocate

For the Respondent: None

Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court: Rajnesh Oswal, J., quashed the FIR against activist Sushil Pandit with regard to one of his tweets, stating it to be an abuse of process of law. The Bench stated,

“At the most from the tweet in question, it can be inferred that the petitioner was not in favour of the ceasefire during the holy month of Ramzan but the same can, by no means can be construed to be an act on the part of the petitioner to generate the consequences as envisaged by the section 505 RPC.”

The instant petition had been filed under section 561-A CrPC (now 482) for quashing FIR for commission of offence under section 505 Ranbir Penal Code (RPC).

The facts of the case were that the petitioner who was an activist and expert of Kashmir affairs had tweeted with regard to the killing of 5 CRPF jawans. It was stated that after a couple of hours, when the petitioner came to know that it was a rumour he immediately deleted the said tweet. The tweet in question reads as under:

“Just heard, five CRPF jawans martyred in Pampore. Ramzan ceasefire is working. Question is who is it working for?”

The petitioner alleged that the Ex-Chief Minister of J&K gave the intentional communal meaning to the tweet of the petitioner and if the tweet of the petitioner is taken on its face value to be true, it does not carry any communal inflammatory language, which can create or spread communal hatred between two religious communities. Therefore, the petitioner had sought quashing of the FIR primarily on the ground that the FIR did not disclose the commission of any offence including the offence under section 505 RPC.

In Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769, the Supreme Court while upholding the constitutional validity of section 505 IPC had observed:  “…it will be found that the gravamen of the offence is making, publishing or circulating any statement, rumour or report (a) with intent to cause or which is likely to cause any member of the Army, Navy or Air Force to mutiny or otherwise disregard or fail in his duty as such; or

(b) to cause fear or alarm to the public or a section of the public which may induce the commission of an offence against the State or against public tranquility; or

(c) to incite or which is likely to incite one class or community of persons to commit an offence against any other class or community…”

Thus mens rea is an essential ingredient of offence under Section 505 RPC and intention to generate the consequences as envisaged by section 505 RPC must be forthcoming from the plain reading of the statement/report or rumour and should not left at the discretion of a particular person. The Bench remarked,

“A perusal of the petitioner’s tweet would reveal that it begins with words “JUST HEARD”, meaning thereby that what was uploaded by him was just heard by him and he had no personal knowledge of the same respondents and this subsequent conduct of the petitioner also makes it ample clear that the said tweet was uploaded in a good faith without any criminal intention to generate the consequences as provided by section 505 RPC.”

Considering that exception to section 505 RPC clearly provides that it does not amount to an offence when a person making, publishing or circulating such report, rumour or report has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates in good faith and without any such intent, the Bench opined that the petitioner tweeted in good faith what he heard, believing it to be true, hence the impugned FIR was nothing but an abuse of process of law and the case of the petitioner fell within given exception.

Hence, the FIR was quashed. [Sushil Pandit v. UT of J&K, 2021 SCC OnLine J&K 696, decided on 22-09-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Ankur Sharma, Advocate

For UT of J&K: Sunil Malhotra, Dy.A.G

Case BriefsHigh Courts

Chhattisgarh High Court: Rajendra Singh Samant, J., dismissed the petition being devoid of merits.

The facts of the case are such that the applicant was charge-sheeted for trial in offence under Sections 13(1)(e) read with 13(2) of Prevention of Corruption Act which was challenged before this Court and was disposed off vide directions to receive the passbooks of the bank accounts, which were under seizure nut will not be able to operate the bank accounts, as there is no specific direction of the Special Court for operation of the accounts. The instant Criminal Revision was filed challenging the legality, propriety and correctness of this order by Special Judge (Prevention of Corruption Act), Raipur, by dismissing the prayer of the applicant to defreeze the bank account, which has been seized by the respondent.

Counsel for the petitioners Mr Kishore Bhaduri and Sunny Agrawal submitted that the prohibitory order of the respondent regarding operation of the bank account is uncalled for in the present situation, hence, it is prayed that the revision petition may be allowed and the impugned order may be set aside and relief be granted to the applicant.

Counsel for the respondent Mr Adil Minhaj submitted that the amount in the bank accounts can be regarded as property under seizure has been acquired unlawfully, cannot be allowed to be disbursed or disposed when the charge sheet has been filed and the prosecution has not come to an end.

The Court relied on judgment State of Maharashtra v. Tapas D. Neogy, (1999) 7 SCC 685 wherein it was held as under

“Then again the time consumed by the Courts in concluding the trials is another factor which should be borne in mind in  interpreting the provisions of Section 102 of the Criminal Procedure Code and the underlying object engrafted therein, inasmuch as if there can be no order of seizure of the bank account of the accused then the entire money deposited in a bank which is ultimately held in the trial to be the outcome of the illegal gratification, could be withdrawn by the accused and the Courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the accused as a public officer. We are, therefore, persuaded to take the view that the bank account of the accused or any of his relation is `property’ within the meaning of Section 102 of the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into.”

The Court observed that the money in the bank account may be regarded as a property and the seizure of such property on suspicion that it is connected with commission of offence held as property within the meaning of Section 102 of Criminal Procedure Code i.e. Cr.PC and the police officer also has power to prohibit the operation of such account, if such assets have linkages with the commission of offence.

The Court thus held that there is a clear conclusion of the Investigation Agency against the applicant that he has amassed wealth, acquired assets, which are disproportionate to his income “…and the prosecution against the applicant is under contemplation by the respondent side, therefore, no order can be passed to defreeze the bank accounts, which have been seized from this applicant.”

In view of the above, the instant petition was dismissed and disposed off.[Ramesh Kumar Sharma v. State of Chhattisgarh, 2021 SCC OnLine Chh 902, decided on 12-04-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Yogesh Khanna, J., reiterated that there is no provision in the Criminal Procedure Code to amend a criminal complaint, but amendment can be allowed if the amendment is sought before taking of cognizance.

Petitioner (Aroon Purie, Editor-in-Chief, India Today) filed an application for amendment challenging the order dated 26-02-2020 whereby the trial court directed to issue notice against the petitioner for offences under Sections 500/501/502 read with Section 120-B IPC.

Factual matrix

India Today Magazine in its edition dated 30-04-2007 had published a news item under the title “Mission Misconduct”. The said item asserted allegations, against the complainant, of soliciting sexual favour leading to a probe that revealed financial irregularities and fudging of bills. It was also reported that consequently, the official (complainant) is back in India is facing disciplinary action.

Petitioner’s arguments

(a)       As per Section 7 of the Press and Registration of Books Act, 1867, normally an editor, printer can only be prosecuted. The petitioner is the editor-in-chief and therefore could never be prosecuted. The news item itself shows the petitioner is editor-in-chief and not an editor.

(b)       The news item merely reported the facts and hence it cannot be said to be defamatory. Facts were accurate and reflected the public record and hence no defamation case could be made out.

(c)        Violation of Section 196(2) CrPC: It was argued that it prohibited any Court from taking cognizance of an offence of conspiracy, other than criminal conspiracy to commit an offence punishable with death or imprisonment for life or rigorous imprisonment for two years or above. Such cognizance can be taken only in a case where the State Government or the District Magistrate has consented in writing and since there is no consent of the State Government or by the District Magistrate, the cognizance in the present case is barred under Section 196(2) CrPC.

(d) Challanege was also based on the grounds of violation of Section 197 CrPC. It was contended that necessary sanction for prosecution was not obtained.

(e) Lastly, it was asserted that the instant petition under Section 482 CrPC was maintainable despite availability of the remedy under Section 397 CrPC.

Complainant’s story

As per the complainant, information about allegation of “sexual harassment at work place” was conveyed to him only in the form of a show cause notice. On the basis of his reply, the Ministry of External Affairs conveyed to the complainant that they would not pursue the matter further at that stage. Thus, without any basis, India Today went ahead with the publication of an unsubstantiated and unverified defamatory story and splashed it all over the world through the medium of the internet.

Act of Defamation was done on 30-04-2007 on which date there were no charges of any financial irregularities or of fudging of bills, etc, against the complainant. Such charges were created and disciplinary action initiated and pursued by the Department under the shadow of a democles sword in the form of the publication of the defamatory news story which ignited the flame and the resultant fire engulfed the whole unblemished service career, jeopardized his chances of promotion and, above all, assassinated his precious reputation.

As per the complainant, the so-called complaint dated 10.07.2005 (2006) never existed and was subsequently planted. Further, it was alleged that on the date of publication of story in India Today dated 30-04-2007, no show cause notice much less the memorandum of charges were issued to him.

Whatever information with regard to any allegations was available to the accused/officers of the MEA, who were privy to such classified/confidential information; they rather provided such classified information to India Today in an unauthorized manner and in violation of the GOI Conduct Rules applicable to them, which specifically prohibits sharing any information about service matters of its officer with the media. Thus the assertion the news story on 30-04-2007 was only reporting of a fact which was in public record, was completely misleading.

Analysis, Law and Decision

(a) The High Court was of the opinion that the argument that as per Section 7 of the Press and Registration of Books Act, 1867, normally an editor can only be prosecuted cannot be adhered to. It was reiterated that it is matter of evidence in each case and if the complaint is allowed to proceed only against the editor whose name is printed in the newspaper against whom there is a statutory presumption under Section 7 and in case such editor succeeds in proving that he was not the editor having control over the selection of alleged libelous matter published in the newspaper, the complainant would be left without any remedy left to redress the arguments against the real culprits.

(b) On the second issue, the Court said that the assertions that the news item merely reported facts which were accurate and reflected public records and cannot be held to be defamatory, cannot be accepted. Rather such assertion and who was responsible for its publication and has it came to the fore of editors require critical examination and hence evidence of these issues is required.

The ingredients of Section 499 IPC clearly point out towards the imputation published in any form which also include newspaper. In case the petitioner seeks the protection of an exception under Section 499, that stage is yet to come, meaning thereby the submissions made by the petitioners are not applicable at this stage.

It was noted that as per record available before the Court, the story by the petitioner against the complainant, was allegedly published much prior to the issue of show cause notice. Subsequent to this, the complainant was exonerated from all the allegations vide an order dated 04-04-2008, but as per the complainant, with the publication of the article in question, the complainant was allegedly defamed in the eyes of his wife, his family, his friends and colleagues and society, in India and all over the world. Till date the defamatory article allegedly haunts him and that is the reason the complainant has been vigorously pursuing litigation.

(c) Further, the Court doubted whether Section 196(2) CrPC will be applicable in the present case. Anyhow, in this case, the Magistrate after due process of law and after applying her mind to the facts and circumstances of the complaint, has taken cognizance and thus has consented in writing to the initiation of the proceedings against the petitioner vide a summoning order dated 20.04.2013, hence this objection was not relevant at this stage.

(d) With respect to the objection qua violation of Section 197 CrPC, the High Court expressed that in the present matter, petitioner was neither a judge nor a public servant, therefore no sanction was required to initiate criminal action by the Magistrate against the petitioner.

Relying on the Supreme Court decision in State v. Battenapatla Venata Ratnam, (2015) 13 SCC 87, the Court opined that as the allegations against the government official are of leaking of the confidential information of complainant to block his career, and allegedly for their own pleasure, hence, prima facie, at this stage, per allegations, sanction was not required.

(e) On the question of maintainability of the instant petition, the Court was of the view that allegations and counter allegations in the present matter raised disputed questions of facts and cannot be dwelled into by the High Court under Section 482 CrPC.

All the defenses raised in the instant petition, can very well be taken up by the petitioner during the course of trial, said the High Court.

Whether amendment can be allowed at the instant stage

In the present case, the trial court had already taken cognizance of the complaint and proceeded with the trial. As per the High Court, the amendment which was now sought is illegal and against the provisions of law.

In the present matter, the amendment were sought when the Magistrate had already taken cognizance of the complaint and had proceeded with trial. The High Court relied on the Supreme Court decision in S.R. Sukumar v. S. Sunaad Raghuram, (2015) 9 SCC 609, wherein it was held that, there is no provision in CrPC to amend criminal complaint, but amendment can be allowed if the amendment is sought before taking cognizance.

Therefore, the present petition was dismissed as no ground to interfere under Section 482 CrPC was found. [Aroon Purie v. State, Crl. MC No. 3492 of 2013, decided on 07-04-2021]

Advocates before the Court:

[CRL.M.C. 3492/2013 CRL.M.As. 12820/2013 & 18912/2014]

For the Petitioner: Mr. Siddharth Luthra, Senior Advocate with Mr.Hrishikesh Baruah, Mr. Pranav Jain.

For the Respondents: Mr. Amit Ahlawat, APP for State. Mr.SS.Ahluwalia, Advocate for R2/ Amicus Curie.

[CRL.M.C. 4636/2013, CRL.M.A.Nos.16659/2013, 17386/2020]

For the Petitioner: Mr. Ajay Digpaul, CGSC with Mr. Kamal R.Digpaul, Advocate

For the Respondents: Mr. S.S. Ahluwalia, Advocate/ amicus curie and Mr. Mohit Bansal, Advocate.

[CRL.M.C. 1762/2014, CRL.M.A.Nos.5882/2014, 17297/2020, 17299/2020]

For the Petitioner: Mr. Hrishikesh Baruah, Mr. Ajay P.Tushir, Mr. Shailendra Singh, Mr. Pranav Jain, Mr. Shahrukh, Advocates.

For the Respondents: Mr. Amit Ahlawat, APP for State. Mr.S.S.Ahluwalia, Advocate/ amicus curie and Mr. Mohit Bansal, Advocate for Mr. O.P.Bhola

Case BriefsDistrict Court

Court of Sessions Judge, Gondia: Suhas V. Mane, Sessions Judge, remanded the matter to Magistrate on noting no foundation in the Magistrate’s observation.

Factual Matrix

Applicant who was the husband of respondent 1 had filed a missing complaint stating that his wife was missing and he suspected that respondent 2 kidnapped her. But no cognizance for the same was taken by the Police, therefore complainant approached the Magistrate by filing the application under Sections 97 and 98 of the Code of Criminal Procedure for issuing search warrant.

It was alleged in the application that respondent 2 seduced respondent 1 and forced her to flee away with him. Further, it was also alleged that respondent 2 wrongfully confined respondent 1.

Magistrate rejected the application by observing that the applicant mentioned in the report that there was a love affair between respondent 1 and 2. Prima Facie it was revealed that respondent 1 voluntarily went with respondent 2.

Magistrate did not issue search warrant, though it was alleged that his wife was wrongfully confined.

“…provisions of section 97 and 98 of the Code of Criminal Procedure are identical with the provisions of Article 32 of the Constitution of India as there are concerns with life of person and liberty of the person.”

 Revision Petitioner submitted that rejection of application was not legal and proper, hence the request was made to set aside the order and allow the revision petition.

Bench laid down the following points for consideration:

1] Whether the impugned order passed by Judicial Magistrate First Class, Tiroda in Miscellaneous Criminal Case No. 58/2021 dated 02-03-2021relating to rejecting the application, is legal, valid and proper?

2] Whether any interference is required in the said order?

3] What order?

Bench noted that when it was alleged in the application that respondent 2 seduced and wrongfully confined respondent 1 in a secret place, then without recording the statement of respondent 1, how did the magistrate conclude that prima facie it reveals that respondent 1 voluntarily went with respondent 2.

The above observation of Magistrate had no foundation, he ought to have followed the procedure when it was pointed out to him that the applicant’s wife had been wrongfully confined by a particular person.

Hence, Magistrate erred and did not follow proper procedure, therefore interference was required.

Adding to the above Sessions Judge expressed that issuance of search warrant directing police to produce respondent 1 before the Magistrate is necessary and after that recording of respondent 1’s statement.

Conclusion

  • Revision Petition was allowed.
  • Order of the Magistrate was set aside.
  • Matter remanded to the Judicial Magistrate with direction that he shall issue a search warrant and after production of respondent 1 appropriate steps may be taken.

[Kavidas v. Varsha, Criminal Revision Application No. 9 of 2021, decided on 18-03-2021]

Advocates who appeared before the Court:

Advocate Shri. S. J. Chavhan, for Petitioner. Ld. APP Shri Khandelwal for Respondents.

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench comprising of Ashok Bhushan*, R. Subhash Reddy and M.R. Shah allowed the instant appeal against the order of High Court of Uttrakhand regarding summon issued under S. 319 of CrPC. The Bench said,

“Order dated 18-09-2019 by which the Trial Court has directed appearance of the accused-appellant is to be taken to its logical end but that order cannot provide a shield of protection to earlier order dated 17-08-2019 by which appellant has been summoned.”

The appellant was made an accused under Ss. 147, 148, 149, 323, 324, 307, 452, 504 and 506 of IPC along with six other accused. Police, after carrying out investigation submitted a charge-sheet exonerating the appellant. During trial, the informant was examined as PW-1. In his Statement, the informant implicated all accused including the appellant but no specific role was assigned to the appellant.

An application under S. 319 CrPC was filed by the informant before the Sessions Judge praying that appellant be also summoned in the case. The Trial Court rejected the said application, pursuant to which the applicant approached the High Court by revision appeal to take actions against the appellant. The High Court, while relying on Rajesh v.State of Haryana, (2019) 6 SCC 368, remitted the matter back to the Trial Court and directed that the application under Section 319 CrPC to should be considered afresh.

Pursuant to the order of the High Court, the Trial Court allowed the application and summoned the appellants by Order dated 17-08-2019. On non-appearance of the appellant, the Trial Court had issued non-bailable warrant to the appellant and a notice under S. 446 CrPC was also issued.

The appellant filed Criminal Revision before the High Court against the order dated 17-08-2019 which was dismissed by the High Court on the ground that since the proceeding in pursuance to allowing the application under Section 319 CrPC had already been initiated, revision appeal could not be entertained.

In Hardeep Singh versus State of Punjab, (2014) 3 SCC 92, the Constitution Bench had elaborately considered all contours of Section 319 CrPC. The Court had held,

“power under S. 319 CrPC is a discretionary and extra-ordinary power which has to be exercised sparingly. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised and not in a casual and cavalier manner.”

Hence, the Bench opined that the High Court had completely erred in holding that since the proceedings in pursuance of Section 319 CrPC had already been initiated, no simultaneous challenge to the impugned order dated 17-08-2019 summoning the revisionists under Section 319 CrPC would be tenable before the High Court till the order dated 18-09-2019 subsist. The Bench held that,

“Subsequent proceedings, in no manner could be a ground to not consider the correctness and validity of order dated 17-08-2019 and when it is found that order dated 17-08-2019 could not have been passed in exercise of jurisdiction under S. 319 CrPC, all subsequent proceedings thereto shall automatically come to an end.”

Therefore, the order of the High Court was held to unsustainable and deserving to be set aside. The High Court was directed to consider the Criminal Revision afresh.

[Ajay Kumar v. State of Uttarakhand,  2021 SCC OnLine SC 48, decided on 29-01-2021]

Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice Ashok Bhushan

Case BriefsHigh Courts

Punjab and Haryana High Court: Gurvinder Singh Gill, J., observed that,

Right to appeal against conviction is an invaluable statutory right vested upon a convict by Criminal Procedure Code which cannot be allowed to be defeated by imposing any condition for availing such right.

“..depriving a convict of his right to appeal by imposing any pre-requisite for availing his statutory right to challenge conviction in a higher Court would amount to depriving his liberty without adhering to the established procedure of law.”

Petitioners were arrayed as accused in the complaint filed by the respondent under Section 138 of Negotiable Instruments Act, 1881.

It was alleged that the cheques drawn by the accused upon their presentation in the bank by the complainant for their encashment were dishonoured.

In light of the above background, accused were tried by the Judicial Magistrate and directed to pay compensation.

Accused, on being aggrieved by the above decision preferred appeals before the Sessions Court, wherein at the time of admission of appeals, impugned orders dated 28-2-2020 were passed, wherein following was stated:

“Criminal Appeal received by entrustment. As there are fairly arguable points involved in the adjudication of the present appeal, hence, the present appeal is admitted for hearing, subject to just exceptions and to deposit of 20% of the compensation amount in view of latest amendment in Section 148 of Negotiable Instruments Act (applicable w.e.f. 01.09.2018), within one month from today. It is registered as Criminal Appeal. Now notice of this appeal be issued to the respondent through ordinary process as well as speed post on furnishing of speed post charges and copies of grounds of appeal within a week for 02-07-2020. Trial Court Record be also called for that date.”

Counsel representing the complainant argued that the lower Appellate Court having passed the orders in question in exercise of jurisdiction under statutory provisions of Section 148 of the Act, the same cannot be called to question.

Analysis, Law and Decision

The language of Section 148 of the NI Act would show that the amended provisions vest the Appellate Court with a discretion to direct deposit of an amount not less than 20% of the compensation amount as awarded by the trial Court. Although the word ‘may’ has been used in the Section but the Supreme Court in Surinder Singh Deswal v. Virender Gandhi, (2019) 11 SCC 341 has interpreted the said provisions to mean that issuance of such a direction is more in the nature of a mandate.

In view of the above-stated Supreme Court decision, power of Appellate Court, though discretionary is supposed to be a ‘rule’ and said discretion should be exercised in all the cases unless there are some exceptional circumstances

In the instant case, there were no exceptional circumstances before the lower Appellate Court so as to justify non-deposit of an amount as provided under Section 148 of the Act.

Section 148(2) of the Act would show that it is provided in unambiguous terms that the amount is required to be deposited within a period of 60 days which may further be extended by another 30 days.

In the instant case, lower Appellate Court having granted only 1 month’s period for depositing the amount, the same is contrary to the above-stated provisions.

Right of Appeal

Section 374 CrPC does not prescribe any condition for admission of an appeal.

Provisions of the statute which vests a convict with a valuable right to challenge his conviction are not circumscribed by any conditions.

Nor does any provision of the Negotiable Instruments Act, 1881 refer to any pre-condition for availing a valuable right of the first appeal.

Further, the Bench expressed that Section 148 of the Act just vests the Appellate Court with the power to direct the appellant to deposit an amount not less than 20% of the compensation amount but under no circumstances the same can be interpreted to be a condition pre-requisite for availing the right of appeal.

Imposition of any condition at the time of suspending of sentence may be a different matter and the trial Court may in its wisdom, impose such a condition failing which the order suspending sentence may be vacated.

Supreme Court in Babu Rajirao Shinde v. State of Maharashtra, (1971) 3 SCC 337, observed that a convicted person must be held to be at least entitled to one appeal as a substantial right.

High Court also made another significant observation:

Even though the Negotiable Instruments Act, 1881 is a special Act and could override provisions of Cr.P.C., but there is no such specific provision in the Act which could be interpreted to mean that availing of right to appeal by a person convicted for an offence under the Act, has been made subject to some conditions.

While parting with the decision, Court held that:

(i) The condition made in the impugned orders wherein the admission of appeal has been made subject to deposit of 20% of the compensation amount is set aside and it is ordered that the appeals shall stand admitted before the lower Appellate Court. The petitioners are, however, directed to deposit an amount equivalent to 20% of the amount of compensation awarded by the trial Court within 60 days from today.

(ii)  In case the aforesaid amount is deposited within 60 days from today, the bail already granted vide order dated 28.2.2020 by lower Appellate Court shall continue subject to any such fresh conditions as may be imposed by lower Appellate Court.

(iii)  In case bail of any of the petitioner has been cancelled on account of non-deposit of the amount or has already been taken into custody, he shall be released forthwith on bail subject to any such conditions as may be imposed by the lower Appellate Court. He shall, however, deposit the amount of 20% within 60 days from today.

(iv) In case of failure to deposit the amount in question within a period of 60 days from today, it shall be open to the lower Appellate Court to cancel bail and to hear the appeal on merits, provided, however, subject to any such general directions issued by the High Court in the matter of hearing of cases, having regard to the present circumstances of spread of pandemic COVID-19.[Sudarshan Kumar v. Manish Manchanda, 2020 SCC OnLine P&H 2321, decided on 15-12-2020]

Advocates who appeared before the matter:

Vaibhav Sehgal, Advocate, counsel for the petitioner(s).

Nitin Thatai, Advocate for the respondent (s)