Case BriefsHigh Courts

Orissa High Court: V Narasingh, J. disposed of the bail application and restrained the Court to not grant any further adjournments and released the petitioner on bail.

The facts of the case are such that the petitioner is an CCL i.e. child in conflict with law and an accused on the files of Additional Session Judge-Cum- Special Judge Protection of Children from Sexual Offences Act i.e. POCSO Act, Bargarh, arising out of J.G.R. under Sections 450/307/302/34/120-B of Penal Code, 1860 i.e. IPC and is in custody since 08-12-2018. Being aggrieved by the rejection of her application for bail U/s.439 Cr.P.C. by the Additional Session Judge-Cum- Special Judge POCSO Act, Bargarh, by order dated 23-07-2019 in the aforementioned case, the present BLAPL was filed.

The petitioner is in custody since 08-12-2018. The Court called for up to date information of the investigation and the case by various notices but the case diary was not made available to this Court.

The Court observed that as the petitioner is in custody since 08-12-2018, she cannot be allowed to suffer because of the apathy of investigating agency. The proceedings of the High Court cannot be held hostage to the whims of the investigating agency and for their lackadaisical attitude, rights of an accused cannot be marginalized, needs no emphasis.

The Court remarked “It is indeed disconcerting that the concerned District police administration have scant regard for the orders passed by this Court and have chosen to disregard repeated communication from the office of the Advocate General for submission of Case Diary for which the Case has to suffer adjournments.”

The Court further remarked It is fervently hoped that necessary corrective action shall be taken so as to make the Police machinery more responsive to the needs of administration of justice.

The Court thus held “Considering the age of the petitioner and the period of custody this Court is constrained not to grant any further adjournment to the counsel for the State.”

It was directed to the authorities “the petitioner to be released on bail on such terms to be fixed” [Roshni Meher  v. State of Odisha, 2022 SCC OnLine Ori 1393, decided on 12.05.2022]


Appearances

For Petitioner: Mr. D.P. Pattanaik

For Opposite Party: Ms. S. Mishra


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: While expressing that a LOC is a coercive measure to make a person surrender, Chandra Dhari Singh, J., noting that the petitioner had appeared on each and every date before the Investigating Agency when summoned, quashed the LOC issued against Rana Ayyub.

Petitioner approached the Court seeking quashing of the Look Out Circular issued against her that restrained her from travelling abroad.

Counsel for the petitioner submitted that the petitioner is a globally renowned journalist and was being persecuted for speaking truth to power and being critical of the incumbent establishment.

It was stated that upon the petitioner’s arrival at the airport and after passport-visa check her travel was approved, however, at 12 noon she was detained by the Bureau of Immigration and officers told her that they have instructions from the ED to not allow her to board the flight and was conveyed that she would be receiving summons from the ED. Soon after, her immigration stamp was cancelled. The summons arrived in her email.

Analysis and Decision

High Court held that it was evident that the LOC was issued in haste and despite the absence of any pre-condition necessitating such a measure.

Bench expressed that,

An LOC is a coercive measure to make a person surrender and consequentially interferes with petitioner’s right of personal liberty and free movement. It is to be issued in cases where the accused is deliberately evading summons/arrest or where such person fails to appear in Court despite a Non-Bailable Warrant. 

It was noted that the petitioner had appeared on each and every date before the Investigating Agency when summoned, and hence there was no cogent reason for presuming that the petitioner would not appear before the Investigation Agency, therefore no case was made out for issuing the impugned LOC.

Therefore, the impugned LOC was set aside as being devoid of merits as well as infringing the Human right of the petitioner to travel abroad and to exercise her freedom of speech and expression.

Petition was allowed in view of the following conditions:

(a) The petitioner shall intimate her travel dates and detailed itinerary to the Investigation Agency forthwith along with the address of the places that the petitioner shall be visiting;

(b)The petitioner shall deposit an FDR to the tune of Rs. 1 lakh before the Enforcement Directorate at Mumbai;

(c)The petitioner shall not attempt to tamper with the evidence or influence the witnesses in any manner;

(d) The petitioner shall return to India on the date specified i.e. 11th April 2022; and

(e)The petitioner shall give an undertaking to appear before the Investigation Agency immediately on her return and on dates that might be fixed by the Investigation Agency for interrogation, if any, after the travel period.

[Rana Ayyub v. Union of India, 2022 SCC OnLine Del 961, decided on 4-4-2022]


Advocates before the Court:

For the Petitioner:

Ms. Vrinda Grover, Mr. Soutik Banerjee, Ms. Mannat Tipnis and Ms. Devika Tulsiani, Advocates

For the Respondent:

Mr. Mukul Singh, CGSC with Mr. Devesh Dubey, GP and Mr. Bharat Singh, Advocates for R-1/UOI.

Mr. S.V. Raju, ASG with Mr. Amit Mahajan, CGSC, Mr. Nitesh Rana, SPP, Mr. Dhruv Pande, Mr. Ali Khan and Mr. Imon Bhattacharya, Advocates for R-2.

Case BriefsHigh Courts

Allahabad High Court: Dr Y.K. Srivastava, J., while examining the ambit and scope of Section 319 of the Code of Criminal Procedure, 1973 explained that,

“…broad principles which have been laid down for exercise of powers under Section 319 of the Code underline the object of the enactment that the real perpetrator of the offence should not get away unpunished and in a situation where the investigating agency for any reason does not array any culprit as an accused the court would not be powerless in calling the accused to face trial.”

Instant criminal revision had been filed seeking to set aside the decision passed by Additional Sessions Judge under Sections 307, 504 of Penal Code 1860 arising out of a case on the application of OP 2 filed under Section 319 of the Code of Criminal Procedure, 1973.

Ambit and Scope of Magistrates’ powers

Scope and the ambit of the powers of the Magistrate under Section 319 of the Code were considered in the Constitution Bench judgment of the Supreme Court in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92. Referring to the object of the provision it was held that the object of the provision was that the real culprit should not get away unpunished and in a situation where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial.

Further, with regard to the degree of satisfaction required for invoking the powers under Section 319 of the Code, it was held that the test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, is goes unrebutted, would lead to conviction.

The question as to what situations power under the Section 319 of the Code of Criminal Procedure, 1973 can be exercised in respect of persons not named in the FIR or named in FIR, but not charge-sheeted or discharged was also considered, and it was held that a person whose name does not appear even in the FIR or the charge-sheet or whose name appears on the FIR and not in the charge sheet, can still be summoned by the Court provided the conditions under the said Section stand fulfilled.

Elaborating further, power to proceed against persons named in FIR with specific allegations against them, but not charge-sheeted, was reiterated in Rajesh v. State of Haryana, (2019) 6 SCC 368 and it was held that persons named in the FIR but not implicated in charge- sheet can be summoned to face trial, provided during the trial some evidence surfaces against the proposed accused.

The court below had taken note of the fact that the revisionist was not only named in the F.I.R. but was also assigned a role in the incident.

Upon considering the settled legal position with regard to exercise of powers under Section 319, the court below passed the order summoning the revisionist.

Moving further, the Bench expressed that Section 319 (1) of the Code envisages that where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

High Court held that power under Section 319 of the Code to summon even those persons who are not named in the charge-sheet to appear and face trial, being unquestionable and the object of the provision being not to allow a person who deserves to be tried to go scot-free by being not arraigned in the trial inspite of possibility of his complicity which can be gathered from the evidence during the course of trial, the order passed under Section 319 of the Code summoning the revisionist does not contain any material error so as to warrant inference.

Applicant’s counsel stated that it would not dispute the aforementioned legal position with regard to the exercise of powers under Section 319 of the Code and stated that the applicant would submit to the jurisdiction of the court below and seek bail.

In view of the above discussion, the revision stood dismissed. [Mishri Lal v. State of U.P., 2021 SCC OnLine All 839, decided on 4-12-2021]


Advocates before the Court:

Counsel for Revisionist: Kamal Dev Rai

Counsel for Opposite Party: G.A.

Case BriefsHigh Courts

Bombay High Court: While laying down the detailed reasons of bail in the infamous Aryan Khan case, Nitin W. Sambre, J., held that,

Merely because of Applicants were travelling on the cruise, that by itself cannot be termed as satisfying foundation for invoking provisions of Section 29 against the Applicants.

Instant applications were filed under Section 439 of the Criminal Procedure Code for grant of bail for the offence punishable under Section 8 (c) read with Section 20 (b), Sections 27, 28, 29 and 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Applicants were apprehended while they were about to board or had already boarded a Cruise from Mumbai to Goa. Further, it was stated that from Accused 2 – Arbaaz 6 grams of charas, and from Accused 3 – Munmun 5 grams of charas was recovered.

It was claimed that complete and correct grounds of arrest were not communicated and that being so, arrest of the applicants was rendered illegal.

Analysis, Law and Decision

Whether there is enough material to ascertain whether there is enough material on record to prima facie infer that the applicants have hatched a conspiracy and that the prosecution was justified in invoking provisions of Section 29 of the NDPS Act?

For inferring the act of hatching conspiracy on the part of the applicants and co-accused, there has to be positive evidence about:

  • An agreement to do an unlawful act or to do lawful act by unlawful means
  • Such agreement must precede with meeting of minds.
  • Agreement can be expressed or implied or in parts.

High Court stated that on perusal of having gone through WhatsApp chats extracted from accused 1’s phone, nothing objectionable could be noticed to suggest that applicants 1 and 2 or all three applicants along with other accused persons in the agreement have meeting of minds and have hatched conspiracy committing the offence in question.

“Hardly any positive evidence on record to convince this Court that all the accused persons with common intention agreed to commit unlawful act.”

A very significant observation was that the investigation carried out till this date suggested that applicant/accused’s 1 and 2 were travelling independent of accused 3 and there was no meeting of minds on the aforesaid issue.

Conspiracy

With respect to conspiracy against the applicants, there was an absence of material on the record of applicants having such meeting of minds with other accused who were named in the offence.

Applicants were not even subjected to medical examination so as to determine whether at the relevant time, they had consumed drugs.

 Bench stated that Additional Solicitor General was justified in relying on the Supreme court decision in State of Orissa v. Mahimananda Mishra, (2018) 10 SCC 516, to claim that a high degree of evidence was not required at this stage of the proceedings to establish the case of conspiracy, however, this Court is required to be sensitive to the fact that there has to be the presence of basic material in the form of evidence so as to substantiate the case of conspiracy against the applicants.

Court prima facie did not notice any positive evidence against the applicants.

High Court opined that the claim put forth by the respondent that applicants should be considered to have intention to commit an offence under NDPS Act, having found in possession of commercial quantity, in the backdrop of case of hatching conspiracy is liable to be rejected.

Claim put forth by the Respondent that Accused persons have accepted their involvement in the crime was also liable to be rejected in view of the Supreme Court decision in Tofan Singh v. State of Tamil Nadu, (2013) 16 SCC 31.

“…such confessional statements can be considered by the investigating agency only for the investigation purpose and cannot be used as a tool for drawing an inference that Applicants have committed an offence under the NDPS Act…”

 Concluding the matter, Bench held that Section 37 prima facie will not be attracted as this Court had already observed that there was no material on record to infer that applicants hatched a conspiracy to commit an offence.

“Difficult to infer that applicants are involved in an offence of commercial quantity.”

[Aryan Shah Rukh khan v. Union of India, 2021 SCC OnLine Bom 4127, decided on 28-10-2021]

To read the conditions on which all the three applicants were granted bail, refer to the below link:

https://www.scconline.com/blog/post/2021/10/29/read-the-14-bail-conditions-in-the-aryan-khan-case/


Advocates before the Court:

Mr. Mukul Rohatgi Sr. Counsel a/w Mr. Amit Desai Sr. Counsel, @ Mr. Satish Maneshinde @ Mr. Rustam N. Mulla @Ms. Anandini Fernandes @Ms. Ruby Singh Ahuja @Mr. Sandeep Kapur @Mr. Gopalakrishna Shenoy, @Mr. Harshad Gada @ Ms. Namita Maneshinde @Mr. Sohan Kinkhabwala @ Mr. Nikhil Maneshinde, @ Mr. Deepal Thakkar @Mr. Yuvraj Dhole @ Shanice Mansukhani i/by Ms. Anandini Fernandes, Advocates for Applicant in BA/3624/2021.

Mr. Ali Kaashif Khan Deshmukh @ Mr. Ravi P. Singh @ Mr. Harsh G. Sheth @ Ms. Riya Jain @ Ms. Halima Khan, Advocates for Applicant in BA/3625/2021.

Mr. Amit Desai, Sr. Counsel i/by Adv. Taraq Sayed @ Mr. Gopalkrishna Shenoy @ Mr. Advait Tamhankar @ Ms. Lochan Chandka @ Ms. Alisha Parekh @ Ms. Ashwini Achari @ Ms. Bhumika Gada @ Mr. Sachin Shete, Advocates for Applicant in BA/3642/2021.

Mr. Anil C. Singh, Additional Solicitor General @ Adv. Mr. Advait M. Sethna @ Mr. Shreeram Shirsat, @ Mr. Aditya Thakkar, @ Mr. Pranav Thakur @ Ms. Smita Thakur @ Mr. Amandeep Singh Sra, @ Miss Ruju Thakker @ Mr. Pranav Gohil and Mr. Tanay Mandot for Respondent/ NCB in all the above BAIL APPLICATIONS.

Op EdsOP. ED.

1. There is no definition of “perjury” either under the Penal Code, 18601 or for that matter the Criminal Procedure Code, 19732. However, the Supreme Court in Kishorbhai Gandubhai Pethani v. State of Gujarat3 has succinctly elaborated the meaning of perjury in para 9, which reads as under:

9. Perjury is an obstruction of justice. Deliberately making false statements which are material to the case, and that too under oath, amounts to crime of perjury….

The rate of conviction in our country is very minuscule as compared to the offences which are registered. One of the main reasons, for the rate of conviction being low can be attributed to the fact that the witness turns hostile during the trial.

2. The investigation of any offence starts on receipt of complaint regarding commission of an offence. The investigating officer then proceeds to collect evidence in respect of commission of an offence and also records statement/s of the witnesses. Based upon such statements and other materials, a charge-sheet is filed before the court and trial is proceeded. The witnesses who have given their statement under Section 161 CrPC4 are called upon to depose in the court in support of their statements taken during the investigation. Most of the times during the course of cross-examination, the witness disowns his statements, makes contradictions or omissions which compels the prosecutor to declare the said witnesses as hostile.

3. Some of the witness who depose are eyewitness to the crime/offence. Thus, the entire edifice of criminal case falls to the ground if such witness on whose statement the entire evidence is collected turns hostile. Therefore, a seminal question that begs consideration is as to why such witness cannot be prosecuted for perjury and why the investigating agency should not file proceedings under Sections 1915 and 192 of the Penal Code6?If the purity of criminal justice is to be maintained, it is necessary that the courts as also investigating agencies takes up the issue of witness turning hostile seriously. Unless the investigating machinery and courts do not take action against such hostile witnesses and send a message loud and clear that such conduct of witness will be frowned upon by the lodging prosecution, the rate of conviction will not improve and the social order will not be maintained.

4. There is always a subtle distinction between a complaint of giving false evidence before the investigating agency and giving false evidence in the court in view of provisions of Sections 195(1)(b)(i) and (ii) of the Criminal Procedure Code7. The Supreme Court in Bhima Razu Prasad v. State8 has considered the law and has relying upon the judgment of the Supreme Court in Bandekar Bros. (P) Ltd. v. Prasad Vassudev Keni9 has held that the bar under Section 195(1)(b)(i) of the Criminal Procedure Code will not apply to an offence punishable under Section193 of the Penal Code10 which is committed during the stage of investigation and if such prosecution is registered prior to commencement of proceedings and production of such evidence before the trial court. The Supreme Court has specifically held in para 44 of its judgment in Bhima Razu Prasad case11 that just like a private party who has been victim of forgery committed outside the precincts of the court, the investigating officer should not be let remediless against the persons who has produced false evidence.  In paras 45 and 46 the Supreme Court has clearly held that investigating agency is best placed to verify and prove such fabrication of evidence and that investigating agency cannot wait for the trial court to take chance to form his opinion.

5. It is pertinent to note that witness turns hostile only during his cross-examination and then the only course available is cognizance of such false evidence only by the court before whom false evidence is given. The court depending upon the impact of the evidence decides to lodge prosecution against such hostile witness.  However, such type of action is superlative. In fact, in my opinion, a time has come where the courts trying criminal offence needs to take up bold steps of lodging prosecution to ensure that the witness do not turn hostile whatever the impact of such evidence may be on the outcome of trial. The court can very well prior to the evidence of witness warn him about the consequences of turning hostile as at the times in cases which are based solely upon circumstantial evidence it is necessary that the witness are put to notice that any attempt on their part who turns hostile would invite criminal prosecution.

6. It is also necessary that investigating agency informs witness that they will have to stick to their version made in the statement, else the investigating agency would also lodge prosecution, this would ensure to an extent, the witness sticking up to his statement in the court.

7. As stated by the Supreme Court in Bhima Razu Prasad12 and Bandekar Bros.13 the interest of victim also needs to be protected and therefore, it is necessary that the offence of perjury and giving false evidence is looked upon seriously by both the investigating agency and court.

8. Most of the times a prosecution against a person tendering false evidence is scuttled on a technical plea of bar under Sections 195(1)(b)(i) or (ii) CrPC. However, in view of the law laid down in Bhima Razu Prasad’s case14 more particularly paras 41, 45, 46 and 51, the said bar will not extend to provide protection to a person who has been accused of tendering false evidence during investigative stage. Thus, a hostile witness who gives his statement to the investigating officer during the investigation and on whose statement the chain is completed if he turns hostile in my humble opinion can be prosecuted for tendering false evidence.

9. Only a proactive judiciary can curb the menace of witness turning hostile by taking stern action against such witness who turn hostile or give false evidence. The investigating machinery also needs to ensure that the witness sticks to his statements by forewarning the witness about the consequences of his turning hostile. It is also necessary to implement witness protection programme to prevent the witnesses turning hostile.


* Advocate, Bombay High Court.

1 Penal Code, 1860.

2 Criminal Procedure Code, 1973.

3(2014) 13 SCC 539, 540.

4http://www.scconline.com/DocumentLink/NbH2cGQv.

5http://www.scconline.com/DocumentLink/XLgL0vs9.

6http://www.scconline.com/DocumentLink/Iw3fvV32.

7http://www.scconline.com/DocumentLink/0581Rd5L.

82021 SCC OnLine SC 210.

92020 SCC OnLine SC 707

10http://www.scconline.com/DocumentLink/TU2r9S13.

112021 SCC OnLineSC 210.

122021 SCC OnLine SC 210.

132020 SCC OnLine SC 707.

142021 SCC OnLine SC 210.

Case BriefsSupreme Court

Supreme Court: The bench of MM Shantanagoudar* and Vineet Saran, JJ has held that Section 195(1)(b)(i) CrPC will not bar prosecution by the investigating agency for offence punishable under Section 193 IPC, which is committed during the stage of investigation. This is provided that the investigating agency has lodged complaint or registered the case under Section 193, IPC prior to commencement of proceedings and production of such evidence before the trial court. In such circumstance, the same would not be considered an offence committed in, or in relation to, any proceeding in any Court for the purpose of Section 195(1)(b)(i) CrPC.

Background and issues raised

A case was registered against the Appellant/Accused No. 1, who was working as Regional Manager (South) at Chennai with the Rashtriya Ispat Nigam Ltd, under Section 120B read with Sections 420, 467, 468 and 471 IPC; and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (PC Act).

In the present case, the Accused Nos. 2 and 3 had colluded with Appellant/Accused No. 1 to create a false sale deed, and gave false explanation of escrow arrangement amongst the three parties, to justify how the seized currency came to be in the Appellant’s possession. This was done to exonerate the Appellant/Accused No. 1 and recover the seized currency at the stage of investigation itself.

This gave rise to the question before the Court as to

  1. Whether Section 195(1)(b)(i), CrPC bars lodging of case by the investigating agency under Section 193, IPC, in respect of offence of giving false evidence which is committed at the stage of investigation, prior to production of such evidence before the Trial Court?
  2. Whether an offence under Section 193, IPC committed at the stage of investigation, prior to production of the false evidence before the Trial Court by a person who is not yet party to proceedings before the Trial Court, is an offence “in relation to” a proceeding in any court under Section 195(1)(b)(i), CrPC?
  3. Whether the words “stage of a judicial proceeding” under Explanation 2 to Section 193, IPC can be equated with “proceeding in any court” under Section 195(1)(b)(i), CrPC?

Analysis by the Court

Import of the Words “in relation to” in Section 195(1)(b) (i) CrPC

The construction of the words “in relation to” must be controlled by the overarching principle   applicable to Section 195(1)(b), CrPC i.e., even if the offence is committed prior to giving of the fabricated evidence in court, it must have a direct or reasonably close nexus with the court proceedings.

Section 195(1)(b)(i), CrPC may be attracted to the offence of fabricating false evidence prior to its production before the Court, provided that such evidence is led by a person who is party to the court proceedings, for the purpose of leading the Court to form a certain opinion based on such evidence. The bar against taking of cognizance under Section 195(1)(b)(i) may also apply where a person who is initially not a party to the court proceedings fabricates certain evidence, and

1) subsequently becomes a party and produces it before the Court; or;

2) falsely deposes as a witness before the Court on the strength of such evidence,

for the purpose of causing the Court to form an erroneous opinion on a point material to the result of the proceedings.

However, where a person fabricates false evidence for the purpose of misleading the investigating officer, this may not have any direct nexus with the subsequent court proceedings.

“There is an indirect nexus inasmuch as if the investigating agency does not suspect any wrongdoing, and the Court commits the case for trial, the evidence will be produced for the Court’s perusal and impact the judicial decision-making process. However, it may be equally possible that even if the fabricated evidence appears sufficiently convincing, the investigating agency may drop proceedings against the accused and divert its time and resources elsewhere. Therefore, the offence may never reach the stage of court proceedings. Further, if it subsequently comes to light that the evidence was falsely adduced, it will be the investigating agency which will suffer loss of face and be forced to conduct a fresh investigation.”

Hence, though the offence is one which affects the administration of justice, it is the investigating agency, and not the Court, which is the aggrieved party in such circumstance.

“Just like a private party who has been a victim of forgery committed outside the precincts of the Court, the investigative agency should not be left remediless against persons producing false evidence for the purpose of interfering with the investigation process. Moreover, the present case concerns offences alleged to have been committed under the PC Act. Public interest and the reputation of the State will suffer significant harm if corrupt public servants are facilitated by third parties in hiding their assets from scrutiny. Hence any interpretation which negates against the speedy and effective trial of such persons must be avoided.”

Whether “stage of a judicial proceeding” under Explanation 2 to Section 193 IPC is synonymous   with “ proceeding in any court” under Section 195(1)(b)(i) CrPC?

Section 195(1)(b) is meant to restrict the right to make complaint in respect of certain offences to public servants, or to the relevant Court, as they are considered to be the only party who is directly aggrieved or impacted by those offences. Furthermore, for the purpose of Section 195(1)(b)(i), CrPC, there must be an intention on part of the alleged offender to directly mislead the Court into forming a certain opinion by commission of offence under Section 193 IPC.

“Though a criminal investigation is certainly a stage of a judicial proceeding insofar as it may culminate in issue of process and trial against the accused, it would not be a proceeding in relation to a certain Court under Section 195(1)(b) (i), CrPC before the Court has even taken judicial notice of such investigation.”

Section 2(i) CrPC defines “judicial proceeding” as including any proceeding in the course of which evidence is or may be legally taken by oath. The investigation under the PC Act was admittedly a stage of a judicial proceeding by virtue of Explanation 2 to Section 193 IPC. However, neither was the fabricated evidence in the present case given on oath before the investigating officer, nor is the investigating authority under the PC Act deemed to be a “court” for the purpose of Section 195(1) (b), CrPC.

In the present case, it is not the Trial Court but the Investigating authority/agency which has been directly impacted due to fabrication of evidence by the Appellants/accused.

“The Appellants’ intention was not to mislead the Trial Court, at least not at the first instance. Rather, their goal was to ensure that the Appellant/Accused No. 1 was cleared of wrongdoing at the stage of investigation itself. It was after being charged under Section 193 IPC, that the Appellants/accused reiterated the fictitious escrow arrangement story before the Trial Court so as to prove their innocence. Hence it cannot be said that the offence under Sections 120B read with 193 IPC was committed by the Appellants “in relation to” a proceeding in a court under Section 195(1)(b)(i), CrPC.”

Thus, the investigation conducted by the agency under the PC Act cannot be equated with a proceeding in a court of law under Section 195(1) (b)(i) CrPC, though it is deemed to be a stage of a judicial proceeding under Section 193, IPC.

“Had this been a case wherein the Investigating agency had not developed any suspicion against Accused Nos. 2 and 3, and the Trial Court had subsequently discovered the subterfuge caused by them, we may have taken a different view.”

[Bhima Razu Prasad v. State, 2021 SCC OnLine SC 210, decided on 12.03.2021]


*Judgment by: Justice MM Shantanagoudar

Appearance before the Court by:

For Appellants: Senior counsel Basava Prabhu Patil, and counsels Amit Anand Tiwari and B. Karunakaran

For State: Additional Solicitor General Aishwarya Bhati

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjay Dhar J., while allowing the present bail application, observed that given to the relationship shared between the prosecutrix and the petitioner, it cannot be determined at once whether physical relationship built therein was forced or consensual.

Through the present application, petitioner-accused has sought bail in the case arising out of an offence under Section 376 Penal Code, 1860 registered with Police Station, Katra. It is the case of prosecutrix that the petitioner cohabited and thereby developed physical relation with her on a false pretext of marriage. Upon coming to know that the petitioner is to enter into a wedlock with some other woman, the prosecutrix narrated the entire incident to her mother upon which a complaint under Section 376 IPC was registered against the petitioner. According to the petitioner, the allegations made in the FIR are vexatious and baseless and that no offence under Section 376 IPC is made out against him as even if it is assumed that there was any physical relationship between the petitioner and the prosecutrix, the same was consensual. Further, the petitioner has denied having made any false promise of marriage to the prosecutrix.

Court summarized the principles governing the grant or refusal of bail in the following points;

  1. The gravity of the offence and the nature of the accusation including severity of punishment in the case of conviction.
  2. The position and status of the accused vis-à-vis the victims or witnesses.
  3. The likelihood of the accused fleeing from justice.
  4. The possibility of the accused tampering with the evidence and/or witnesses and obstructing the course of justice.
  5. The possibility of repetition of the offence.
  6. The prima facie satisfaction of the Court in support of the charge including frivolity of the charge.
  7. Stage of the investigation.
  8. Larger interest of the public or the State.

Further, the Court placed reliance on the case of, Mahipal v. Rajesh Kumar and another, (2020) 2 SCC 118, wherein it was said, “…No straight jacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused sub-serves the purpose of the criminal justice system.”

 Another case bearing similar facts was cited by the Court, Uday v. State of Karnataka, (2003) 4 SCC 46, wherein the Supreme Court observed,

It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances, the promise loses all significance, particularly when they are over come with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances, it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent

It was conclusively observed by the Court,

“The mystery that has to be unravelled by the investigating agency in such circumstances would be whether the consent of the prosecutrix to have sexual intercourse with petitioner was a consensual and deliberate choice on her part or it was obtained on account of misconception of fact on the basis of a false promise of marriage. This Court would not like to comment on this aspect of the matter at this stage, but then the material on record does suggest that there was deep-seated love between the petitioner and the prosecutrix.”

While allowing the present bail application Court said,

“Having regard to the long standing love affair between the prosecutrix and the petitioner coupled with the manner in which they have lived with each other for months together, a prima facie case for grant of bail is made out.”  [Rahul Raina v. Union Territory J&K, 2021 SCC OnLine J&K 13, decided on 27-01-2021]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Karnataka High Court: John Michael Cunha J., while rejecting the present petition, recorded no error or infirmity in the challenged order warranting interference under Articles 226 and 227 of the Constitution of India.

 Brief Facts

The Petitioner in the present case has filed this writ petition under Articles 226 and 227 of the Constitution of India, seeking to quash proceedings registered for the offences punishable under Section 120B read with Sections 409 and 420 of the Indian Penal Code, 1860, and Section 13(2) read with Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988. It is pleaded by the petitioner that, he is sought to be prosecuted for the alleged offences in his individual capacity whereas the material produced by the Investigating Agency on the face of it reveals that the entire transaction was entered into by the firm of which the petitioner was a nominal partner.  

Issue

Whether the charges framed against the petitioner are valid and sustainable in the eyes of law?

Observation

The Court, pursuant to its decision, cited relevant cases and made the following observations;

Sham Sunder v. State of Haryana, (1989) 4 SCC 630, “(…)The essential characteristic of a firm is that each partner is a representative of other partners. Each of the partners is an agent as well as a principal.  He is  an agent insofar as he can bind the other partners by his acts within the scope of the partnership agreement. He is a principal to the extent that he  is bound by acts of other partners. In fact, every partner is liable for an act of the firm. Section 2(a) of the Partnership Act defines as “act of a firm” to mean any act or omission by all the partners, or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm.”

Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530, “(…) The corporate bodies, such as a firm or company undertake a series of activities that affect the life, liberty and property of the citizens. Large-scale financial irregularities are done by various corporations. The corporate vehicle now occupies such a large portion of the industrial, commercial and sociological sectors that amenability of the corporation to a criminal law is essential to have a peaceful society with stable economy.”

Sunil Bharti Mittal v. CBI, (2015) 4 SCC 609,

“The Penal Code, 1860 save and except in some matters does not contemplate any vicarious liability on the part of a person. Commission of an offence by raising a legal fiction or by creating a vicarious liability in terms of the provisions of a statute must be expressly stated. The Managing Director or the Directors of the Company, thus, cannot be said to have committed an offence only because they are holders of offices. The learned Additional Chief Metropolitan Magistrate, therefore, in our opinion, was not correct in issuing summons without taking into consideration this aspect of the matter. The Managing Director and the Directors of the Company should not have been summoned only because some allegations were made against the Company.”

The Court further observed that, “The argument of learned counsel for petitioner that the contract entered into between Sri Lakshmi Venkateshwara Minerals (accused 2), of which petitioner is one of the partners, and Shree Mallikarjuna Shipping Pvt. Ltd., (accused 4) (Annexure- ‘H’) was concluded much before the seizure of the property is totally misplaced”

Decision

While dismissing the present petition, the Court said, the allegations made in the charge sheet clearly go to show that in addition to the Firm, petitioner 1 is implicated in the alleged offences in his individual capacity as is evident from the allegations found in the charge sheet.” [K. Mahesh Kumar v. State of Karnataka,  2020 SCC OnLine Kar 1637, decided on 16-10-2020]


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Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Manoj Misra and Virendra Kumar Srivastava, JJ. clarified that no protection shall be given and the investigating agency shall be free to take all steps to bring the investigation to its logical conclusion if the victim is not produced by the date fixed.

This instant petition was sought for the quashing of the FIR registered under Sections 363, 366, 506 IPC. The allegation entailed in the FIR is that the victim (Petitioner 5), a sixteen-year-old girl was enticed away by the accused person.

Counsel for the Petitioner, Ram Sajivan submitted that the girl is an adult and that she had voluntarily married Kishan Kumar (Petitioner 1). Reliance was placed on the Aadhaar Card of petitioner 5 to prove the age. The date of birth as per Aadhaar is 01.01.2000.

Government Advocate for the Respondent submitted that the date of birth as per Aadhar Card has not been conferred any conclusive status by law and, therefore, it would be appropriate that this petition be disposed of by requiring the investigating agency to determine the age of the Petitioner 5 and record her statement and, thereafter, take appropriate action as per law.

After analyzing the submissions of the parties, the Court observed that there is no satisfactory documentary evidence to hold the victim to be an adult. The Court also provided certain directions to petitioner 1, that he shall produce petitioner 5 before the court of Chief Judicial Magistrate, Farrukhabad to ascertain whether any force has been used on her or she has been voluntarily in the company of the petitioner 1. In case the victim deposes before the Chief Judicial Magistrate that force has been used on her, the Chief Judicial Magistrate shall proceed to pass appropriate orders immediately in respect of the custody/protection of the victim. However, in case the victim deposes that she has been voluntarily in the company of the petitioner 1 or any other person and that no force has been used on her, CJM shall call upon the Investigating Officer of the case and fix a date for appearance of the informant or the parents or natural guardian of the victim for the purpose of determining the age of the victim. Though in the event the victim is found to be a minor, the police would be free to take the investigation to its logical conclusion and may affect the arrest of the accused. [Kishan Kumar v. State of U.P., 2019 SCC OnLine All 4337, decided on 22-11-2019]

Case BriefsHigh Courts

Gujarat High Court: The Bench of Vipul M. Pancholi, J. allowed a petition seeking anticipatory bail subject to certain restrictions.

In the pertinent case, the allegations against the accused were of producing forged documents and of abetment. The counsel for the applicant stated that he is ready and willing to abide by all the conditions including the imposition of conditions with regard to powers of Investigating Agency. And considering the nature of the alleged offences, custodial interrogation was not needed at this stage.

The Court considered that the allegation against the applicant is that at the most he has abetted the main accused and there was an undue delay of 5 years in lodging the FIR. And since he is cooperating with the investigation agency, his custodial interrogation is not required. The Court relied on the law laid down by Shri Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 and thus, allowed the petition directing the release of the applicant on bail.[Gupta Anandkumar Satyanarayan v. State of Gujarat, 2019 SCC OnLine Guj 285, Order dated 21-02-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Mukta Gupta, J. allowed a bail application holding that the petitioner was entitled to default bail as the investigating agency failed to file chargesheet within 60 days.

The petitioner was alleged to be driving a white colour car at high speed without a license in an intoxicated state. On the fateful night, he lost control and rammed his car over the footpath. The car hit a tree and turned upside down. Four people, including the complainant and three other sleeping on the footpath, were injured. They were taken to hospital where two them were declared brought dead. The petitioner was arrested on 9-9-2018 and has been in custody since then. He filed an application seeking bail before the trial court. Besides the merits, he urged additional ground that he was entitled to default bail as chargesheet was not filed in the case. However, the trial court dismissed the application on the ground that it could not at that stage from an opinion whether the offence committed was under Section 304-I or 304-II IPC. Offence under Section 304-II IPC being punishable upto life imprisonment and 90 days from the date of arrest having not elapsed, the petitioner was not entitled to default bail. Aggrieved thereby, he filed the present petition.

The petitioner who was represented by R.K. Wadhwa, Vishesh Wadhwa and Meena Duggal, Advocates submitted that on the face of allegations, it could not be held that he committed the offence with any intention and at best knowledge could be attributed to him.

The High Court perused the record and observed that the facts of the case spoke for themselves that at best what was attributable to petitioner was the knowledge that his act was likely to cause the death of people sleeping on the footpath, in which case the offence was under Section 304-II. Such offence is punishable with imprisonment which may extend to 10 years. After referring to Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67, the Court held that since a period of 60 days has elapsed from the date of arrest of the petitioner and no chargesheet was filed by the investigating agency, he was entitled to default bail. Consequently, the petitioner was granted bail subject to the conditions imposed. [Devesh Kumar v. State, 2018 SCC OnLine Del 13073, dated 21-12-2018]