Op EdsOP. ED.

The Supreme Court in Asian Resurfacing of Road Agency (P)  Ltd. v. CBI[1] pronounced a landmark judgment in a batch of important matters where it resolved a long-drawn controversy pertaining to Section 19(3)(c) of the Prevention of Corruption Act,1988[2] (also referred to as ‘the PC Act’). Although the judgment was rendered in the context of the PC Act, 1988, the Supreme Court issued directions for all civil and criminal matters in an attempt to reduce delay in disposing of the matters. The present article attempts to discuss various issues leading to the aforesaid judgment and additionally discusses few friction areas which are seemingly unresolved in the judgment. The article would broadly focus on the following issues:

  1. Concept of intermediate/interlocutory/final orders;
  2. Power to grant of stay of the trial proceedings in respect of the PC Act;
  3. Exercise of inherent/constitutional powers when there is an express bar in the statute i.e. Section 482 of the Code of Criminal Procedure, 1973 and Articles 226 and 227 of the Constitution. 

Litigations before the Delhi High Court

In order to fully understand why the aforesaid issues were challenged before the Supreme Court, it is important to have an overview of the litigations before the Delhi High Court. Conflicting views in Dharambir Khattar[3] and R.C. Sabharwal[4] constrained the Single Judge in Asian Resurfacing[5] (Delhi High Court) to refer the matter to the  Chief Justice and which culminated in Anur Kumar Jain[6].

In Dharambir Khattar v. CBI[7], criminal revision petitions were filed before the Delhi High Court against an order of charge. The principal question that arose before the Court was whether an order on charge or an order framing charges in terms of Section 19(3)(c) of the Prevention of Corruption Act, 1988 is an interlocutory order. The Court perused Section 11 of the Special Courts Act (SCA), 1979, Section 34 of the Prevention of Terrorism Act, 2002 (POTA) and Section 19(3) of the Prevention of Corruption Act, 1988 and the non-obstante clause therein and did not agree that these are not pari materia. The Court also observed that the expression ‘interlocutory order’ is nowhere defined in these statutes and also in the Code of Criminal Procedure. That after referring to the judgments of the Supreme Court in V.C. Shukla v. State through CBI[8], Satya Narayan Sharma v. State of Rajasthan[9] and State v. Navjot Sandhu[10] concluded that the order framing charges is an interlocutory order and therefore no revision petition would be maintainable against it. The Court also did not agree that the powers of the Court under Articles 226 and 227 of the Constitution and Section 482 of the Code could be invoked in appropriate casses to challenge an order of revision.

That subsequently in R.C. Sabharwal v. CBI[11], similar questions again arose before the Delhi High Court and the Single Judge agreed with the view taken by the Single Judge in Dharambir Khattar[12] as regards to the interpretation of the expression ‘interlocutory order’ used in Section 19(3)(c) of the PCA, 1988 and therefore held the revisional powers to be not maintainable. The Court further agreed with Dharambir Khattar[13] that the inherent powers under Section 482 of the Code cannot be used to interfere with an order framing charge or directing the framing of charge in a case attracting the provisions of Prevention of Corruption Act but in the context of powers under Articles 226 and 227 (and also Article 136) of the Constitution, the Court held that the same could be exercised, but sparingly, cautiously and in exceptional circumstances, to challenge an interlocutory order, including an order on charge irrespective of an embargo in Section 19(3)(c) of the PC Act. The Court emphasised self-restriction and stated that the solution does not lie in denying the constitutional remedy. Therefore R.C. Sabharwal[14] marked a shift in holding the constitutional powers under Articles 226/227/136 to be maintainable against an interlocutory order.

In a later case of Asian Resurfacing of Road Agency v. CBI[15], petitions were filed before the Delhi High Court against the order framing charge. The Court noticed the conflict between Dharambir Khattar[16] and R.C Sabharwal[17] but was of the opinion that if petitions under Articles 226/227 are allowed against an order of charge, it would amount to doing indirectly the same thing which cannot be done directly. The Court observed that

“25. …once this Court holds that a petition under Article 227 would lie, the result would be as evident from the above petitions that every order on charge which earlier used to be assailed by way of revision would be assailed in a camouflaged manner under Article 227 of the Constitution and the result would be same that proceedings before the trial court shall not proceed…”

The Court considered it fit to refer the controversy to the Chief Justice for referring it to a larger Bench.

When the matter was taken up by the Division Bench of the Delhi High Court[18], the following questions were framed:

  1. Whether an order framing charge under the 1988 Act would be treated as an interlocutory order thereby barring the exercise of revisional power of this Court?
  2. Whether the language employed in Section 19 of the 1988 Act which bars the revision would also bar the exercise of power under Section 482 of the Code of Criminal Procedure for all purposes?
  3. Whether the order framing charge can be assailed under Article 227 of the Constitution of India?

The Court answered[19] the reference in the following manner:

  1. An order framing charge under the Prevention of Corruption Act, 1988 is an interlocutory order.
  2. As Section 19(3)(c) clearly bars revision against an interlocutory order and framing of charge being an interlocutory order, a revision will not be maintainable.
  3. A petition under Section 482 of the Code of Criminal Procedure and a writ petition preferred under Article 227 of the Constitution of India are maintainable.
  4. Even if a petition under Section 482 of the Code of Criminal Procedure or a writ petition under Article 227 of the Constitution of India is entertained by the High Court, under no circumstances an order of stay should be passed regard being had to the prohibition contained in Section 19(3)(c) of the 1988 Act.
  5. The exercise of power either under Section 482 of the Code of Criminal Procedure or under Article 227 of the Constitution of India should be exercised sparingly and in exceptional circumstances.
  6. It is settled law that jurisdiction under Section 482 of the Code of Criminal Procedure or under Article 227 of the Constitution of India cannot be exercised as a “cloak of an appeal in disguise” or to re-appreciate evidence. The aforesaid proceedings should be used sparingly with great care, caution, circumspection and only to prevent grave miscarriage of justice.

The matter and the questions involved were then challenged before the Supreme Court. It is important to highlight that vide order dated 09.09.2013[20] the two- Judges of the Supreme Court noticed difference of opinion among the different Benches of the Supreme Court and the High Courts on the question of law involved and referred the matter to the  Chief Justice of India for constituting a larger Bench.

 Review of cases leading to Asian Resurfacing of Road Agency (P) Ltd v. CBI[21] (Supreme Court)

Before we enter into a discussion into the various issues involved and other important cases, it is important to highlight that in the Criminal Procedure Codes prior to the 1973 Code, the word ‘interlocutory order’ was not used at all. Section 397(2) of the Code of Criminal Procedure, 1973 (also referred to as ‘the Code’), which barred revision against an interlocutory order, was incorporated with a view to expedite trial and cut out the delays.

In Mohan Lal Magan Lal Thacker v. State of Gujarat[22], while discussing interlocutory orders the Court observed that there could be certain orders which are interlocutory in character but are held to be final if they finally disposed of the proceedings though the main controversy between the parties remain undisposed of. The finality of an order it said is not to be judged by correlating that order with the controversy in the complaint. The fact that that the controversy still remained alive is irrelevant.

The  Supreme Court in Amar Nath  v. State of Haryana [23]  further explored the concept of interlocutory orders to introduce ‘orders which are matters of moment’ and which substantially affect the rights of an accused or which affect or adjudicate the rights of an accused or a particular aspect of the trial. The Court identified these orders to be not interlocutory so as to be outside the purview of revisional jurisdiction of the Court. In the said case the summoning order of the Magistrate was held to be not interlocutory. In respect of powers of the Court under Section 482 of the Code, the Court also held that if there is an express provision barring a particular remedy, the Court cannot exercise inherent powers. Therefore powers under Section 482 of the Code were held to be not available to defeat the bar contained in Section 397(2) of the Code. In Amar Nath[24] a subtle position emerged that there are certain orders which are neither final nor interlocutory. These were for now termed as ‘ matters of moment’.

In Madhu Limaye v.  State of Maharashtra[25] the Supreme court modified the view of the Court in Amar Nath[26] in respect of exercise of inherent powers to hold that powers under Section 482 of the Code could be used in case the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice. But it also cautioned such a use or exercise to be rare and sparing. The Court further built on Amar Nath[27] and highlighted that there could be certain orders which are neither final nor interlocutory – pure and simple and therefore would fall between the two. Bar under Section 397(2) of the Code it said is not meant to be attracted to such ‘intermediate orders’. It will be interesting to see that Madhu Limaye[28] although agreeing with Amar Nath[29] on orders which are ‘matters of moment’, termed them as ‘intermediate’. The charges framing order in the said case was held to be neither final nor interlocutory.

In V.C. Shukla v. State through CBI[30] the Supreme Court had to interpret the concept of interlocutory order in reference to Section 11(1)[31] of the Special Courts Act, 1979. The appeal in this case was directed against a charge framing order passed by a Special Judge under the SCA. The Court referred to Amar Nath[32] and Madhu Limaye[33] and the non-obstante clause in Section 11 of SCA and held that the judgments in the said cases were given in the context of the Code, particularly Section 397(2) and were correctly decided and would have no application to the interpretation of Section 11(1) of SCA which expressly excludes the Code. The Court considered the scheme of SCA as a special case which had the objective of expeditious trial and quick dispatch of cases. Moreover, the Court also held that the expression interlocutory order appearing in Section 11(1) of SCA has been used in its natural sense and not in a special or wider sense as used by the Code in Section 397(2). Based on the said reasoning the charges framing order passed by the Special Judge was held to be interlocutory. Therefore, even though conclusions in Madhu Limaye[34] and V.C. Shukla[35] were exactly opposite, V.C. Shukla[36] was held to be a special case of the Special Courts Act and the term interlocutory in SCA used differently from the one used in Section 397(2) of the Code.

In Satya Narayan Sharma v. State of Rajasthan[37] the Supreme Court was considering the issue of bar on stay of the trial proceedings under Section 19(3)(c) of the PC Act, 1988. The Court observed and held that if an enactment contains a specific bar, the inherent jurisdiction cannot be exercised to get over that bar and that there could be no stay of the trial proceedings.

That further in State v. Navjot Sandhu[38], the Supreme Court considered Section 34[39] of the Prevention of Terrorism Act, 2002 (POTA) which bars appeal from an interlocutory order. Considering the special nature of POTA, the Court observed that even if the powers under Article 227 or Section 482 could have been exercised, the interlocutory order by virtue of Section 34 of POTA should have been challenged only in the appeal filed against the final judgment. Therefore, the Supreme Court again held that the challenge to any order passed in proceedings under POTA could be allowed only in an appeal filed against a final judgment by virtue of Section 34 of POTA.

In Girish Kumar Suneja v. Central Bureau of Investigation[40], the Supreme Court had earlier passed an order dated 25.07.2014[41] where in para 10[42] of the order it had made clear that any prayer for stay, etc shall be entertained only before the Supreme Court. The accused had approached the Delhi High Court against the charges framing order but the said petition was dismissed in view of para 10 above. Girish Kumar Suneja[43]  revisited the judgments in Amar Nath[44] and Madhu Limaye[45] and the concept of interlocutory orders and talked about three kinds of orders: final, intermediate and interlocutory orders.

An intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. For example,  an order taking cognizance and summoning an accused and order framing charges. That further an intermediate order is one “…which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceedings would continue. …The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code…”  Girish Kumar Suneja[46] clarified and further developed on the three types of orders and it became clear that there could be orders which are neither final not interlocutory. It preferred the expression ‘intermediate’.

It appears from paras 25, 29 and 38 of the judgment in Girish Kumar Suneja[47] that  seemingly contradictory observations were made by the Supreme Court but after careful perusal of para 38 it is clear that the Court has allowed the exercise of Section 482 of the Code in respect of interlocutory orders to prevent abuse of process of court or to serve the ends of justice in the rarest of rare cases. The same being in conformity with Madhu Limaye[48].The Court further held that  Articles 226/227 of the Constitution can be resorted to in the rarest of rare cases but defended (in para 41) that in certain category of cases the High Court ought not to interfere in larger public interest. The appellants argued that legal and constitutional remedies have been denied by para 10 in the order dated 25.07.2014[49]. The Court stated that the remedies continue to be available except that the forum has been shifted from the High Court to the Supreme Court in larger public interest. The Court further held that there could be no stay of the trial proceedings under the PC Act as intended by Parliament under Section 19(3)(c).

Asian Resurfacing of Road Agency (P) Ltd. v. CBI (Supreme Court)

The judgment in Asian Resurfacing of Road Agency (P) Ltd.[50] was delivered on 28-3-2018 by Adarsh Kumar Goel, J. on behalf of himself and  Navin Sinha, J.   Rohinton Fali Nariman, J.  gave a separate concurring  opinion. The Court held that the principles laid down in Madhu Limaye[51] still hold the field and have not been diluted in any manner either in V.C. Shukla[52] or in Girish Kumar Suneja[53]. The Court held and observed:

  1. Order framing charge is neither a purely interlocutory order nor a final order and therefore can be interfered under Sections 397 or 482 of the Code or Article 227 of the Constitution;
  2. Jurisdiction of the High Court is not barred irrespective of the label of the petition;
  • High Court must interfere only in exceptional circumstances and could grant stay in appropriate cases;
  1. There must be a speaking order while granting stay of the proceedings;
  2. Once stay is granted, the challenge should be decided in 2-3 months and matter should be taken on a day-to-day basis;
  3. Stay should not be unconditional or indefinite. Conditions may be imposed;
  • Stay will stand vacated on the expiry of 6 months;
  • Extension of stay can be granted only by a speaking order showing extraordinary situation;
  1. Directions were extended to all civil and criminal cases;
  2. Proceedings before trial court shall commence automatically after 6 months if no extension is granted;
  3. Where stay is operating as on the date of the judgment, it will automatically lapse after 6 months from the date of the judgment;
  • Same course to be adopted by civil and criminal appellate/revisional courts under the jurisdiction of the High Courts;
  • Although the Court interpreted the words “on any other ground” mentioned in Section 19(3)(c) of the PC Act as referring to all the grounds that are available in proceedings under the Act other than the grounds which relate to sanction and therefore holding that the legislative mandate is that the proceedings under the PC Act could be stayed only when it relates to sanction, it held that the trials could be stayed expressly overruling Satya Narayan Sharma[54].
  • The Supreme court noticed some conflict in different paras of Girish Kumar Suneja[55] but resolved it by holding that the correct ratio is found in para 38 and which is in consonance with Madhu Limaye[56].

The judgment thus set aside conclusions in paras 36(a), (b) and (d) of the impugned judgment in Anur Kumar Jain[57] passed by the Division Bench of the Delhi High Court.

Asian Resurfacing of Road Agency[58] (Supreme Court) has attempted to balance the objectives of the PC Act with the rights of an accused and allows challenge to an order framing charge only in exceptional circumstances. It not only resolved the controversy around the stay of the trial proceedings under Section 19(3)(c) of the PC Act but also issued directions for all civil and criminal cases and ensured that proceedings are not stayed indefinitely.

It is also pertinent to highlight that the judgment in Asian Resurfacing[59] (Supreme Court) did not appreciate that V.C. Shukla[60] had upheld Madhu Limaye[61] and Amar Nath[62] stating that these were rendered in the context of the Code of Criminal Procedure and therefore would have no application to the interpretation of Section 11(1) of SCA which expressly excludes the Code through the non-obstante clause. A similar non-obstante clause is found in Section 19(3) of PC Act as well but the judgment did not enter into a discussion on the same. Although the judgment relied on para 38 of Girish Kumar Suneja[63] to resolve the apparent conflict, it did not discuss Girish Kumar Suneja’s position on Section 19(3)(c) PC Act i.e. bar on stay of the trial proceedings. The judgment also did not go into the issue of stay granted by the Supreme Court itself and as to whether the same shall also stand vacated after six months. In a recent order of the Supreme Court, this has been clarified that stay granted by the Supreme Court shall continue unless vacated by the Supreme Court. Moreover, it is also not very clear whether directions pertaining to stay are applicable only to trial proceedings and not proceedings in other fora. The High Court of Allahabad in a recent case[64] has held that the judgment of the Supreme Court in Asian Resurfacing[65] is not applicable to tax matters.

Although the judgment has attempted to cut down on delay in disposal of pending cases especially in matters which have been stayed for longer periods, it may be achievable only if it is accompanied by a persistent effort in improving judicial infrastructure.


*Abhinav Sharma is a law graduate from Campus Law Centre, Faculty of Law, University of Delhi and a graduate Engineer from National Institute of Technology. He currently practices in Delhi and Chandigarh. He was assisted by Prajwal Shukla who is a law student.

[1] (2018) 16 SCC 299

[2] Prevention of Corruption Act,1988

[3] Dharambir Khattar v. Central Bureau of Investigation, 2009 SCC OnLine Del 1292

[4] R.C. Sabharwal v. Central Bureau of Investigation, 2010 SCC OnLine Del 3

[5] Asian Resurfacing of Road Agency  (P) Ltd. v. CBI, 2010 SCC OnLine Del 3203

[6] Anur Kumar Jain v. Central Bureau of Investigation,  2011 SCC OnLine Del 1574 

[7] 2009 SCC OnLine Del 1292

[8] 1980 Supp SCC 92

[9] (2001) 8 SCC 607

[10] (2003) 6 SCC 641

[11]  2010 SCC OnLine Del 3 

[12] 2009 SCC OnLine Del 1292

[13] Ibid

[14] 2010 SCC OnLine Del 3

[15] 2010 SCC OnLine Del 3203

[16] 2009 SCC OnLine Del 1292

[17] 2010 SCC OnLine Del 3

[18]Anur Kumar Jain v. CBI, 2011 SCC OnLine Del 1574

[19] Ibid

[20] Asian Resurfacing of Road Agency v. CBI, Criminal Appeal No. 1375 of 2013, order dated 9-9-2013 (SC)

[21] (2018) 16 SCC 299

[22] AIR 1968 SC 733 

[23] (1977) 4 SCC 137

[24] Ibid.

[25] (1977) 4 SCC 551

[26] (1977) 4 SCC 137

[27] Ibid

[28] (1977) 4 SCC 551

[29] (1977) 4 SCC 137

[30]  1980 Supp SCC 92

[31](1) Notwithstanding anything in the Code, an appeal shall lie as of right from any judgment, sentence or order, not being interlocutory order, of a Special Court to the Supreme Court both on facts and on law. (Read Code as the 1973 Code.)

[32] (1977) 4 SCC 137

[33] (1977) 4 SCC 551

[34] Ibid

[35] 1980 Supp SCC 92

[36] Ibid

[37] (2001) 8 SCC 607

[38] (2003) 6 SCC 641

[39]Section 34(1).– Notwithstanding anything in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.

[40] (2017)  14 SCC 809

[41] Manohar Lal Sharma v. Union of India, (2015) 13 SCC 35 : (2015) 13 SCC 37

[42]10. We also make it clear that any prayer for stay or impeding the progress in the investigation/trial can be made only before this Court and no other Court shall entertain the same.”

[43] (2017)  14 SCC 809

[44] (1977) 4 SCC 137

[45] (1977) 4 SCC 551

[46] (2017)  14 SCC 809

[47] Ibid

[48] (1977) 4 SCC 551

[49] Manohar Lal Sharma v. Union of India, (2015) 13 SCC 35 : (2015) 13 SCC 37

[50] (2018) 16 SCC 299

[51] (1977) 4 SCC 551

[52] 1980 Supp SCC 92

[53] (2017)  14 SCC 809

[54] (2001) 8 SCC 607

[55] (2017) 14 SCC 809

[56] (1977) 4 SCC 551

[57] 2011 SCC OnLine Del 1574

[58] (2018) 16 SCC 299

[59] Ibid.

[60] 1980 Supp SCC 92

[61] (1977) 4 SCC 551

[62] (1977) 4 SCC 137

[63] (2017) 14 SCC 809

[64] Mahesh Singh Patel v. CCE , Contempt No. 894/2019, order dated 30-7-2019 (All)

[65] (2018) 16 SCC 299

Case BriefsHigh Courts

Karnataka High Court: B.A. Patil, J., dismissing the present petition, observed,

“Taking into consideration the peculiar facts and circumstances under which the said speech has been delivered, the circumstances existing at that particular point of time and surrounding circumstances, have to be analyzed to come to a proper conclusion. At his pre-matured stage, it is not a fit case to exercise the power under Section 482 CrPC and thereby quash the proceedings.”

Brief Facts

The facts of the case are categorically stated hereunder;

  1. That on 17-02-2020 the ‘Popular Front of India’ organization held a function in the name of founding day at Derlakatter Ground, Belma village, Mangalore City.
  2. That the petitioner, in the aforementioned function, delivered a speech commenting upon the Supreme Court and its verdict on Ayodhya. Allegedly, the speech said to construct Babri Masjid at the same place, wearing uniform representing Allah and further called Home Minister and Prime Minister Modi as demons, who shall perish on their own.
  3. That the speech delivered was allegedly provocative, inflammable and derogatory to the Hindu belief system and carried the potential of spreading enmity between the two religious sects.
  4. That on the basis of such speech, a complaint was registered against the petitioner under Section 153A IPC.
  5. That the present Criminal Petition is filed under Section 482 CrPC, praying to quash the FIR under Section 154A IPC contending that the charge sheet does not disclose the ingredients of the said section and no material has been placed on records, so to conclude that the speech provoked enmity or communal disharmony between any religious sects.

Observations

The Court while examining the speech in question reproduced the language of Section 153A IPC. It further cited the following cases to evaluate the intention behind making such speech.

1. Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 SCC 1

“Section 153A covers a case where a person by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, disharmony or feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities or acts prejudicial to the maintenance of harmony or is likely to disturb the public tranquility. The gist of the offence is the intention to promote feelings of enmity or hatred between different classes of people. The intention to cause disorder or incite the people to violence is the sine qua non of the offences under Section 153A IPC and the prosecution has to prove prima facie the existence of mens rea on the part of the accused.”

2. While referring to Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997) 7 SCC 431 the Court remarked that, it is important to have atleast the reference of two religions in the alleged hate speech or literature. Mere inciting the feeling of one community without any mention of another group or community cannot attract the offence under Section 153A.

3. Deriving the element of intention in the present case, the Court observed,

“On close reading of the contentions of the speech, there are two religions involved. One is the Muslim community and another one has been indirectly, in the form of innuendo, stated as ‘other religions’. Whether he was having an intention or not, is a matter which has to be considered only at the time of trial. He has to come up and explain under what circumstances, with what intention he has made such statement. Since the matter has to be decided by the trial court, if a detailed discussion is made, it may affect both the parties to the proceeding. Perusing the contents of the complaint and other records, there appears a prima facie case against the said petitioner-accused.”

With respect to the cases pleaded by the counsel for the petitioner, the Court said that the applicability of those principles in the present case does not match.

Decision

While dismissing the criminal writ petition on lack of merits, the Court said that, it shall not be fit to exercise the power provided under Section 482 CrPC as the case is yet to be tried by the lower court and the prima facie records are reflective enough to further evaluate the said matter. [Mohammed Shariff v. State of Karnataka,  2020 SCC OnLine Kar 1532, decided on 1-10-2020]

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., addressed a matter with regard to the settlement of divorce proceedings.

Parties in the present petition have deposed before the Court below that they have entered into a compromise.

Hence, in view of the above, the petition is taken for final disposal.

It has been observed that certain offences were non-compoundable and they were within the power of Magistrate to compound namely under Sections 498-A of Penal Code, 1860 and 3/4 of the Dowry Prohibition Act.

Section 498A: Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine

Section 3: Penalty for giving or taking dowry

Section 4: Penalty for demanding dowry

Further, it was noted that both the parties, i.e. the husband and wife and other family members settled the matter and decided to leave in peace after taking divorce.

The Court was of the view that the settlement between the parties should be accepted and the offence compounded. The decision of the Supreme Court in Bitan Sengupta v. State of W.B., (2018) 18 SCC 366 was referred.

Therefore, proceedings were quashed and settlement was recorded under Section 482 CrPC. In Supreme Court’s decision in B.S. Joshi v. State of Haryana, (2003) 4 SCC 675, it was observed that in matrimonial offences, it becomes the duty of the Court to encourage genuine settlement of matrimonial disputes.

Bench exercising its powers under Section 482 read with 397 of CrPC, 1973 permitted the parties to leave in peace.

Section 482 CrPC: Saving of inherent powers of the High Court.

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Section 397 CrPC: Calling for records to exercise of powers of revision

(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation.—All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

Court quashed the proceedings under Section 397 CrPC and allowed the petition.

The petitioner’s counsel pointed the orders passed by the Court below and hence the bench defied the proceedings if not yet defied. [Deena Nath v. State of U.P., 2020 SCC OnLine All 1057, decided on 23-09-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Ravindra Maithani, J., while discussing the scope of Section 482 of the Code of Criminal Procedure, 1973 and the object of Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, held that,

“Violation under Rule 13 of the PCPNDT Rules will attract Section 23 of the PCPNDT Act.”

Petition in the instant matter was filed under Section 482 of the Code of Criminal Procedure, 1973 against the decision of Chief Judicial Magistrate, Haridwar.

Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994

Complaint under Section 23 of the PCPNDT Act was filed against the petitioner for violating Rule 13 of PCPNDT Rules, 1996. Hence in view of the said position, cognizance under Section 23 of the said Act was taken.

Issues that arose for consideration on 30-06-2020:

Whether violation of Rule 13 of the Rules under the Act would attract the provisions of Section 25 of the PCPNDT Act or Section 23 of the PCPNDT Act? This question is not directly involved. But, then it also requires deliberation as to whether in this petition this aspect can be examined.

If cognizance is taken under Section 23 of the PCPNDT Act and subsequently charged under Section 25 of the PCPNDT Act is farmed, what should be the limitation for cognizance?

Petitioner’s counsel, V.B.S Negi, Senior Advocate assisted by Ayush Negi, Advocate contended that the charge was framed under Section 25 of the PCPNDT Act for which limitation period is 1 year, but cognizance was taken long thereafter.

For the offence under Section 25 of the PCPNDT Act, the limitation period is 1 year, but in the instant petition, cognizance was taken under Section 23 of the PCPNDT Act for which the limitation period is of 3 years.

Object of Limitation

The opening sentence of Section 468 of the Code in itself makes it abundantly clear that the limitation is applicable at the time of taking cognizance, not consequent thereupon.

There may be a situation where cognizance is taken of an offence and charge is framed of different offence and again conviction is held under a different section.

So can it be said that the subsequent offence(s) would be determining factors for counting the period of limitation? The answer is in NEGATIVE.

Supreme Court decision in Sara Mathew, v. Institute of Cardiovascular Diseases,(2014) 2 SCC 62, observed that,

“…the object of Chapter XXXVI inserted in the CrPC was to quicken the prosecutions of complaints and to rid the criminal justice system of inconsequential cases displaying extreme lethargy, inertia or indolence. The effort was to make the criminal justice system more orderly, efficient and just by providing period of limitation for certain offences.”

Position as laid down by the Supreme Court in the decision of State of Himachal Pradesh v. Tara Dutt, (2000) 1 SCC 230, it was held that,

“…it is the offence of which the cognizance has been taken, which determines the period of limitation and not the offence under which the person is convicted and its natural corollary is that for the purpose of determining the period of limitation, the offence charged is also not relevant. What is relevant is the offence(s) under which cognizance has been taken.”

Bench in view of the above-stated position held that the lower Court had rightly dismissed the applications filed by the petitioner since cognizance was not time-barred.

Another question that was posed by the Court was:

“Whether a violation of Rule 13 of the Rules under the Act would attract the provisions of Section 25 of the PCPNDT Act or Section 23 of the PCPNDT Act?”

Jurisdiction under Section 482 CrPC

Jurisdiction under Section 482 of the Code is of much larger magnitude. The basic purpose of Section 482 of the Code is to do real and substantive justice for the administration of which, it exists.

In the present matter, the lower court’s order which has been challenged did not mention as to why the violation of Rule 13 does not attract the provision of Section 23 of the PCPNDT Act.

The Court had observed that the question as to under which Section of the PCPNDT Act, the case falls, would be examined at the stage of framing of charge. But, it was not examined when the charge was framed.

High Court noted that the above decision of the lower court was not passed in accordance with the principles of Judicial Decision Making.

Objective of PCPNDT Act 

In view of the decreasing sex ratio, the PCPNDT Act was framed. To get an offender is not an easy task because the offences are done in secrecy and in collusion.

Allegations against the petitioner

Allegations against the petitioner are that he did not inform the appropriate authorities about the change of sinologist and also he did not seek re-issuance of the certificate of registration as required under Rule 13 of the PCPNDT Rules.

Rule 13: Intimation of changes in employees, place or equipment

Rule 9 deals with the maintenance and preservation of records.

Sinologist

Position of sinologist is very important because it is he who conducts pre-natal diagnostic techniques. It is he who has to fill the form of the women on which this technique is conducted and this is form ‘F’, which is most important.

It was also observed that in the absence of form ‘F’, appropriate authorities will have no tool to supervise the uses of the ultrasound machine.

Re-issuance of the certificate of registration

Rule 13 does not only require that the information about the change of employees is to be given thirty days prior to the said change but, it also requires that a request shall also be made seeking re-issuance of the certificate of registration. It was also not done by the petitioner.

Section 25 of the PCPNDT Act: Residual Section

If punishment is provided elsewhere in the Act, the provision of Section 25 will not come into play.

Section 23 of the PCPNDT Act provides punishment for contravention of any of the provision of the Act or rules made thereunder.

Therefore, in the present matter, a violation under Rule 13 of PCNPDT Rules will attract Section 23 and not Section 25 of the PCNPDT Act.  [Nitin Batra v. State of Uttarakhand, 2020 SCC OnLine Utt 352, decided on 20-07-2020]

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal, J. granted bail observing various provisions relating to the inherent powers of High Court regarding granting bail in the instant case.

The facts of the case are that the petitioner along with other co-accused was charged for offence under Section 420 read with Section 34 of the IPC along with Section 10 of the Chhattisgarh Protection of Interest of Depositors Act, 2005. Previously the petitioner’s application for anticipatory bail and regular bail has been rejected. Then he filed SLP which was also rejected by the Supreme Court on 11-03-2019 directing to conclude the trial within one year. Thereafter, the petitioner prayed for pardon under Section 306 (1) of CrPC which was granted by Judicial Magistrate First Class vide order dated 17-02-2020. After this, the petitioner applied for bail stating that since pardon has been granted his status has been changed from an accused to a witness and hence is liable to be granted bail which was rejected as the petitioner was not already on bail, in view of legislative bar engrafted under 306 (4)(b). Hence the present petition has been preferred to invoke the inherent jurisdiction of High court under Section 482 of CrPC for admitting bail.

Counsel Amit Kumar Chaki submitted that Sections 437 and 439 of the Code are not applicable for as after being granted pardon he has now attained the status of a witness i.e. has become ‘approver’ in view of Section 306(1) instead of an accused. He further submitted that the approver has been in jail for three years and in view of the present COVID situation the trial can take long as it has already been delayed in spite of the Supreme Court’s order for fast disposal. He further submitted that the bar engrafted under Section 306(4) (b) is confined to that of the Court of jurisdictional Magistrate only where the trial is pending. He further stated that power of the High Court under Section 482 of the Code is not in any way inhibited by Section 306(4)(b) of the Code, as its applicability is fully confined to that of the jurisdictional Magistrate considering the application under Section 306(1) CrPC.

Counsel Animesh Tiwari for respondents submitted that power under Section 482 CrPC has to be used sparingly in exceptional circumstances. He further submitted that most of the witnesses has been examined and hence it would not take much time for the conclusion of the trial and hence it is a fit case to be dismissed.

Counsel Anurag Dayal Srivastava appeared as amicus curiae and informed the Court that the applicability of Section 306(4) of the Code is confined only to that of a Magistrate trying the case, and the Sessions Judge while granting pardon under Section 307 of the Code is empowered only to enlarge the approver on bail. He further made clear that the provisions engrafted under Section 306(4) of the Code are not attracted if the accused has tendered pardon after the commitment of the case under Section 307 of the Code. 

Objective of Section 306 (4) (b) as stated by amicus curiae [Prem Chand v. State 1985 Cri. L.J. 1534]

The objective of the provision of Section 306(4) (b) of the Code is not meant to punish the person in whose favour pardon has been tendered but to protect him from the possible indignation, rage and resentment of his associates in a crime to whom he has chosen to expose as well as with a view to prevent him from the temptation of saving his one time friends and companions after he is granted pardon.

Objective of Section 306 CrPC [Bangaru Laxman v. State (2012) 1 SCC 500]

The main purpose is to prevent failure of justice by allowing the offender to escape from a lack of evidence and not to judge the extent of culpability of the persons to whom the pardon is tendered.

The Court further observed:

“….the provision under Section 306(4)(b) of the Code is applicable to the Judicial Magistrate First Class if the pardon is granted by him, but if the pardon is granted to accomplice by the learned Sessions Judge under Section 307, Section 306(4) particularly clause (b) mandating his continuation of custody till the termination of trial would not be applicable and the learned Sessions Judge would have the jurisdiction to release him on bail if found appropriate.”

The Court relied on the judgment titled Noor Taki v. State of Rajasthan 1986 SCC Online Raj 11 held that that detention of a person even by due process of law has to be reasonable, fair and just and if it is not so, it will amount to violation of Article 21 of the Constitution. The Court further held that if an approver is detained for a period which is longer than what can be considered to be reasonable in the circumstances of each case, then Section 482, CrPC gives wide power to this Court to declare his detention either illegal or enlarge him to bail while exercising its inherent powers.

In view of the above and taking note of the fact that the trial has been delayed even past the order of the Supreme Court for disposal, the Court deemed fit to enlarge the petitioner on bail, directing the trial court to dispose of the case expeditiously.[Rajkumar Sahu v. State of Chhattisgarh, 2020 SCC OnLine Chh 109, decided on 15-07-2020]


*Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Uttaranchal High Court: Ravindra Maithani, J., dismissed an appeal filed under Section 482 of the Code of Criminal Procedure, 1973 against the order passed in Criminal Revision No. 66 of 2016, Hemant Chaudhary v. Poonam Rani.

Respondents had filed complaint against the petitioners for the offences punishable under Sections 120B, 406, 420, 384, 504 and 506 of Penal Code, 1860 according to which petitioner’s 2 and 3 had persuaded the respondent 2 to marry with petitioner 1 and very hurriedly both were got married and after marriage respondent 2 noticed that petitioner 1 would speak to some person at odd hours and after inquiry, it was found that the petitioner was already married and a complaint was made and the trial court had dismissed the complaint which was yet again challenged in criminal revision where the trial court had directed to take the matter afresh.

The Court while dismissing the petition relied on the evidence that had been presented like that of the photographs and recorded the conversation and also the admission of the petitioners of the fact that the petitioner was already married thus the trial court was right in observing that an offence punishable under Section 494 was committed.[Poonam Rani v. State of Uttarakhand, 2020 SCC OnLine Utt 82, decided on 03-01-2020]

Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J., while exercising inherent powers under Section 482 CrPC quashed the criminal complaint filed against the petitioners for the offences punishable under Sections 405, 420 and 441 read with Section 120-B IPC. Warrants issued against the petitioners by the Magistrate in the same case were also quashed.

The parties were involved in a landlord-tenant dispute, pursuant to which the said complaint was filed by the landlord. Magistrate took cognizance and issued process against the petitioners. Aggrieved, they filed the instant petition. It was an admitted fact that the petitioners resided beyond the territorial jurisdiction of the Magistrate concerned.

Dismissing Chapter 15 of CrPC which deals with complaints to Magistrates, the High Court relied on Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., 2019 SCC OnLine SC 682, wherein the Supreme Court held that under the amended sub-section (1) to Section 202 CrPC, it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction. he shall inquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fir for finding out whether or not there is sufficient ground for proceeding against the accused. The Supreme Court also held that the order of the Magistrate must reflect that he has applied his mind to the facts of the case and the law applicable thereto. It was also held that the application of mind has to be indicated by disclosure of mind on the satisfaction and considering the duties of the magistrates for issuance of summons to accused in a complaint case, there must be sufficient indication of it. The Supreme Court after referring to a catena of its previous judgments held that summons may be issued if the allegations in the complaint, the complainant statement and other materials would show that there are sufficient grounds for proceeding against the accused.

The records of the instant matter, however, did not reveal that the Magistrate had complied with the provisions of Section 202 CrPC and applied her mind to the facts of the case and the law applicable thereto. The order of taking cognizance stated that “cognizance of the matter is taken against accused no. 1, 2, 3 and 4”. Section 190 CrPC deals with cognizance of offence by Magistrate, which provides that the Magistrate “may take cognizance of any offence.” It is settled law that cognizance is taken of the offence and not the offender. The Magistrate did not even mention which of the offences she had taken cognizance of.

It was, thus, held that the Magistrate failed to exercise her discretion to issue summons against the petitioners residing beyond her territorial jurisdiction in the manner required. Even otherwise, considering the allegations, it was found that there was no material before the Court to proceed under criminal jurisdiction. [Mohd. Yusufuddin Ahmed v. Ruth Karthak Lepchani, 2019 SCC OnLine Sikk 198, decided on 07-12-2019]

Case BriefsHigh Courts

Allahabad High Court: Applicant filed an application under Section 482 of Criminal Procedure Code which was contemplated by Dinesh Kumar Singh, J. where the prayer was to quash the Charges under certain Sections of Penal Code, 1860.

The applicant was charged under Sections 366, 376, 328, 506, 406 of IPC, in which the Chief Judicial Magistrate had taken cognizance. Santosh Yadav, counsel for the applicant argued that the accused was falsely implicated by the respondent-complainant who was the mother of the victim, the main reason cited by the counsel behind such baseless complaint was alleged desire to the victim to marry applicant. The counsel submitted the statements of the complainant and highlighted that she had stated that ‘she suspected the involvement of accused in the instant case.’ Another issue highlighted was alleged kidnapping by the accused-applicant, it was submitted that the victim was never abducted as she herself went to the police station to register the complaint. The attention of the Court was also drawn towards the other statement of the victim, recorded under Section 161 of CrPC. where the allegation of rape had been made upon the accused applicant who after committing rape had given assurance to marry her and subsequently when she asked to marry he committed assault and refused to marry.  In addition to these aforementioned evidences the applicant submitted an injury report, where it was stated that no marks to injury were found on the victim. Lastly, it was submitted by the learned counsel for the applicant that many facts were ignored by the Investigating Officer and the charge-sheet had been submitted in a routine manner, which was nothing but an abuse of the process of Court and in the interest of justice, the charge sheet deserved to be quashed.

Bhaiya Ghanshyam Singh, Advocate General for the state, had vehemently opposed the prayer for quashing of the charge- sheet and had stated that the evidence which was collected by the Investigating Officer cannot be looked into in this Application under Section 482 CrPC as the same will be required during the trial. It was submitted that High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of CrPC. “because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties.”

The Court held that the Investigating Officer had recorded the statements of as many as five witnesses have submitted the charge-sheet. It further opined that “the truthfulness of the statements of the witnesses cannot be scrutinized in Application under Section 482 CrPC” The Court relied upon the Judgment in Anurag Singh v. Chhatisgarh, 2019 SCC OnLine SC 509, where the Supreme Court had held that ‘position of law, was apparent that whether accused wanted to marry the victim right from very beginning or not and whether consent given by victim for sexual intercourse was a free-consent or not, was a subject matter of evidence, which is only possible to be decided after trial.’

Hence, the prayer for quashing the FIR was refused and the application was dismissed.[Kamal Pal v. State of U.P., 2019 SCC OnLine All 3539, decided on 25-09-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): A Bench of Justice S.J. Mukhopadhaya, Chairperson and Kanthi Narahari, Member (Technical), allowed an appeal seeking to quash the Corporate Insolvency Resolution Process against the Corporate Debtor.

The Operation Creditor had filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 which was admitted by the Adjudicating Authority and Corporate Insolvency Resolution Process was initiated against the Corporate Debtor.

Rajiv Shukla, Shivani Kapoor and Gorang Goyal, Advocates for the appellant submitted that the matter had been settled with the Operation Creditor. It was submitted that the Corporate Debtor had paid the entire amount shown in the Demand Notice before the Committee of Creditors was appointed.

The fact of settlement between the parties before the constitution of Committee of Creditors was accepted by Nikshubha Sethi, Advocate appearing for the Operational Creditor and Syed Sarfaraz Karim, Advocate appearing for the Interim Resolution Professional.

In view of the admitted settlement reached between the parties, the Appellate Tribunal exercised inherent powers under Rule 11 of the National Company Law Appellate Tribunal Rules, 2016 and set aside the impugned order whereby the Corporate Insolvency Resolution Process was initiated against the Corporate Debtor. The application under Section 9 IBC filed by the Operational Creditor was dismissed as withdrawn.[Girish Agarwal v. Lavis Signature Panel (P) Ltd., 2019 SCC OnLine NCLAT 490, decided on 13-09-2019]

Case BriefsHigh Courts

Patna High Court: A Bench of Ahsanuddin Amanullah, J. allowed the quashing of the criminal case owing to the amicable compromise between the parties.

The petitioners have approached this Court under Section 482 of the Code of Criminal Procedure, 1973 for the alleged offence under Section 498-A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. The petitioner has been alleged for demanding dowry from the opposite party for a motorcycle along with the fact that he assaulted the opposite party. It has also been alleged that he was in an illicit relationship with another woman. He has contended that there was an application filed for restitution of conjugal rights in view of the amicable settlement between the parties under which the petitioner would pay monthly maintenance to the opposite party and her son. Hence when a compromise on mutual terms has been arrived upon between the parties the criminal case shall not be followed upon.

Accordingly, having considered the facts of the case the Court was of the view that the court by using its inherent powers in order to reach the ends of justice simply when it was in the interest of both the parties shall allow for the above application.[Dhananjay Paswan v. State Of Bihar, 2019 SCC OnLine Pat 11, decided on 03-01-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Single Judge Bench comprising of Manoj K. Tiwari, J. allowed a compounding application as the offence involved was of a private nature and continuation of the criminal case would only cause oppression to the applicant.

This criminal miscellaneous application was filed by the applicant through his counsel Hemant Mehra and Vivek Pathak for setting aside the impugned order passed under Sections 9(b) and 37(2)(c) of Protection of Women from Domestic Violence Act, 2005 along with a compounding application which shows that the applicant and the respondent have entered into a compromise whereby they have settled their disputes amicably outside the court following which if the criminal case continued it would serve no purpose. Also, the respondent through her counsel Preeta Bhatt and Anjali Noliyal has agreed to compound the matter against the applicants.

Accordingly, the court said that the offence involved in this case was of a personal nature and thus was not an offence against the society and nonetheless was not a heinous offence showing extreme depravity therefore in order to prevent abuse of process of law inherent powers under Section 482 CrPC shall be exercised. Accordingly, the Court allowed the petition.[Asish Makhijani v. State of Uttarakhand,2018 SCC OnLine Utt 1021, decided on 14-12-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of M.K. Hanjura, J., allowed a petition under Section 561-A of CrPC, 1989 [Jammu & Kashmir], whereby petitioner sought quashing of FIR against him.

The main question that arose for consideration was whether a High Court exercising its inherent powers can quash an FIR without conducting a proper trial.

The Court observed that a High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would amount to abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. Further, the Court referred to the decision of the Supreme Court in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, wherein the Supreme Court elaborately considered the scope of Section 482 Cr. P.C. In that case, the Supreme Court held that inherent powers can be used by the High Courts to prevent the abuse of process of the Court and to secure the ends of justice.

The Court held that the list of cases where a High Court can exercise inherent powers under both civil and criminal laws is not exhaustive in nature. The Courts have the inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. The Court concluded by holding that Courts are invested with all such powers as are necessary to do right and to undo a wrong in the course of administration of justice on the principle of “Quando lex aliquid alicui concedit, conceditur et id Sine quo res ipsa esse non protest” (When the law gives the person anything, it gives him that without which it cannot exist). The petition was allowed and the impugned FIR was quashed.[Nisar Ahmad v. State of J&K,2018 SCC OnLine J&K 516, order dated 24-08-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge bench comprising of John Michael Cunha, J. decided a criminal petition filed under Section 482 CrPC, wherein the Court declined to quash the charge-sheet filed against the petitioner under Sections 417, 201, 504 and 506 of IPC.

The petitioner was accused of offences under the above-mentioned sections. It was alleged that he had regular sexual relation for more than six years with the complainant on the pretext of marrying her. However, the petitioner breached the promise and married someone else and hence, the complainant was constrained to initiate criminal action against him. Learned counsel for the petitioner submitted that the criminal prosecution initiated against the petitioner was ulteriorly motivated. Further, the charge-sheet does not make out any offence against the petitioner. He prayed that the charge-sheet filed against the petitioner may be quashed.

The High Court, after perusing the record and considering the submissions made on behalf of the parties, found that prima facie material was available in proof of the allegations made against the petitioner. The material collected in evidence by the prosecution make out the ingredients of the offences alleged against the petitioner. The contentions raised by the counsel for the petitioner had to be considered during course of the trial. The Court held it to be a settled law that the inherent powers under Section 482 should not be exercised to stifle a legitimate prosecution. From the material available on record it could not be said that the prosecution initiated against the petitioner was either false, vexatious or an abuse of the process of court.

In such circumstances, the Court declined to grant relief as prayed for by the petitioner and the petition was accordingly dismissed. [Kiran v. State of Karnataka, Crl. Petition No. 102483 of 2017, dated 16.04.2018]

Case BriefsHigh Courts

Delhi High Court: In the order passed by Indermeet Kaur, J., quashed the FIR i.e. FIR No. 0282/2016 registered under Sections 376/366/315/344 of the IPC, 1860 at Sonia Vihar Police Station.

The FIR was quashed on the submission that the FIR registered on 11.08.2016 contained same allegations which were the subject-matter of an earlier FIR i.e. FIR No. 0094/2016 registered at Salon District Police Station, Raebareli under Sections 376/315 of the IPC, which had earlier been quashed on merits by the Bench of Allahabad High Court on 04.07.2016 in Misc. Bench No. 8950 of 2016, as the investigation did not reveal commission of any offence, whereby the Court concluded that the subject-matter of both the FIRs are same, with the only difference being jurisdiction.

Furthermore, the Court held that it is a perfect case where High Court can exercise its inherent powers under Section 482 of CrPC, 1973 and that the entire scenario is nothing but an abuse of the process of court. Accordingly FIR No.0280/2016 stands quashed. [Anup Kumar v. State, 2018 SCC OnLine Del 7069 , decided on 29.01.2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench of the Delhi High Court comprising of Sangita Dhingra Sehgal, J dismissed a petition filed under Section 439(2) r/w Section 482 of the CrPC before it. The petition was filed against the anticipatory bail granted to the Respondent 2 by the Learned Addl. Sessions Judge, Special Judge, Special Fast Track Court, Rohini Courts, Delhi against an FIR under Sections 354, 354-A, 509, 506, 323 and 34 of the IPC.

The petitioner, on 25.03.2017, was on her way to her parental home along with her sister aged 10 years and son aged 2 ½ years. Along the way, allegedly, Respondent 2 along with 3 other co-accused molested her en route and Respondent 2 then took off his clothes and tried to rape her but she was saved by the public. Meanwhile, the petitioner’s father reached the spot to save her but was beaten up by Respondent 2 and the other co-accused. Subsequently, the FIR was recorded at the hospital.

The accused filed two petitions for grant of anticipatory bail. While the first was rejected, the second was granted by the learned Addl. Sessions Judge. Aggrieved by this order dated 27.04.2017, the petitioner had approached the High Court. Learned Counsel for the petitioner contended that the trial Court has erred in passing the order as it is based on conjectures and surmises, and that the second application granted had no new grounds compared to the first one, and hence, should be set aside. Per contra, learned counsel for Respondent 2 contended that the prosecution case was a complete fabrication and it was he who was the victim of a public beating by the petitioner and her family. Moreover, it was further contended that the petitioner has various FIRs against her by various persons of the locality, and in contrast, Respondent 2 is an educated boy aged 23 years having a whole career ahead of himself.

The Court considered the facts and circumstances of the case and went over the established principles regarding anticipatory bail. It noted that the court granting bail should exercise it’s discretion in a judicious manner and not as a matter of course. However, during granting of bail, a detailed examination of evidence and elaborate documentation of merit of the case is not required to be undertaken. Another principle is that enlargement on bail is the rule and committal to jail is an exception.

Moving ahead, the Court looked into the behaviour of Respondent 2. There were no allegations that the during this period he had tried to influence or threaten the witnesses. The mobile phone sent for investigation returned a ‘simple’ result. The Court moved on to hold that even when there is a serious charge leveled against the appellant, it by itself cannot be the reason to deny anticipatory bail. Also, the inherent powers of the Court under Section 482, under which the bail could be quashed, has to be exercised with caution and prudence. The Court found no need to interfere with the impugned order passed by the trial court. Petition dismissed. [Shivali Sharma v. State, 2017 SCC OnLine Del 11882,  decided on 20.11.2017]

Case BriefsSupreme Court

Supreme Court: Dealing with a pivotal question as to whether the High Court while refusing to exercise inherent powers under Section 482 of the CrPC to interfere in an application for quashment of the investigation, can restrain the investigating agency not to arrest the accused persons during the course of investigation, the Court said that this kind of order is really inappropriate and unseemly and has no sanction in law.

Stating that such direction “amounts” to an order granting anticipatory bail under Section 438 CrPC, albeit without satisfaction of the conditions of the said provision, the bench of Dipak Misra and Amitava Roy, JJ said that the court cannot issue a blanket order restraining arrest and it can only issue an interim order and the interim order must also conform to the requirement of the section and suitable conditions should be imposed.

It was held that the High Court should be well advised that while entertaining petitions under Article 226 of the Constitution or Section 482 CrPC, exercise judicial restraint. The Court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, has the jurisdiction to quash the investigation and may pass appropriate interim orders as thought apposite in law, but it is absolutely inconceivable and unthinkable to pass an order of the present nature while declining to interfere or expressing opinion that it is not appropriate to stay the investigation.  The Courts should oust and obstruct unscrupulous litigants from invoking the inherent jurisdiction of the Court on the drop of a hat to file an application for quashing of launching an FIR or investigation and then seek relief by an interim order. It is the obligation of the court to keep such unprincipled and unethical litigants at bay. [State of Telangana v. Habib Abdullah Jeelani, 2017 SCC OnLine SC 23, decided on 06.01.2017]