Bombay High Court
Case BriefsHigh Courts

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

Background

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

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

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

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

Contentions of the Petitioners

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

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

Contentions of the Respondent

Meanwhile the respondents contended that-

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

Findings

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

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

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

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

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

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

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


Appearances

For State: AS Pai, PP


*Sucheta Sarkar Editorial Assistant has prepared this brief

 

 

Case BriefsSupreme Court

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

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

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

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

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

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


For Sidhique Kappan: Senior Advocate Kapil Sibal

For State: Senior Advocate Mahesh Jethmalani

Also Read

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

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: In deciding the instant bail application filed by a juvenile applicant by invoking Section 12 of Juvenile Justice (Care and Protection of Children) Act, 2015, the Bench of Bharati Dangre, J., while invoking the principles of repatriation and restoration, granted bail to the applicant. It was observed that since the applicant had positively responded to the rehabilitative efforts during his stay in the Observation Home, he therefore deserves to be reunited and restored with his family and it would be in his best interest so that he can develop himself with full potential.

Facts of the Case: The applicant along with five adults, were arrested for gang-raping a 7-year-old girl and were charged under Sections 376-D, 376(1)(n), 354, 354-D, 114, 509, 506 of IPC and Sections 6, 8 and 12 of the Protection of Children from Sexual Offences Act (POCSO Act). Upon the applicant’s arrest, he was produced before the Juvenile Justice Board constituted under the Juvenile Justice Act, 2015 and was placed in the Observation Home.

The applicant filed two bail applications before the Juvenile Justice Board, but both the applications were rejected. The Board observed that the adult accused persons are the family members of the applicant, and if the applicant is released on bail, he may again come in contact with these people or other people of similar criminal tendencies. The Board held that the applicant’s safety can only be ensured if he is inside the Observation Home.

Contentions of the Applicant:

  • The counsels for the applicant contended that the juvenile applicant belongs to a lower- middle socio-economic background, with his father working as a watchman and his mother being a homemaker. It was also submitted that the applicant had passed his 10th Standard but could not further pursue his education due to financial issues and mother’s illness.

  • It was contended that the applicant’s involvement in the crime is doubtful as the prosecution hasn’t been able to establish the same.

  • The applicant’s side also presented his physical and psychological status report by the Child Guidance Clinic wherein the Probation Officer stated that the applicant is not a danger to the society and has shown good potential to excel, if right kind of opportunities, guidance, support and education are made available to him. It was stated in the report that the applicant has been deprived of his education during his long detention in the Observation Home and the same has caused disruption to his life.

  • The applicant also drew the attention of the Court towards the objectives of Juvenile Justice Act, 2015, which considers a child as distinct from an adult, who has to undergo through the normal procedure on being accused of an offence. It was submitted that the principle of repatriation and restoration which has been recognized as an essential principle by the legislature through the 2015 Act has been violated.

  • It was also submitted that the prolonged detention of the applicant is hampering his progress and also affecting his mental health as it has caused him undue anxiety and that his further stay in the Observation Home is against his interest.

Contentions of the Respondent:

  • Vehemently opposing the bail application, the respondents submitted that the offence that has been committed i.e., gang-rape of a 7-year-old, the crime is heinous in nature. Thus, the applicant does not deserve his release on bail.

  • It was further argued that if released on bail, the applicant would pose danger to the victim.

  • The respondents also pointed out that the Special Judge under the POCSO Act also rejected the application filed by the applicant under Section 439 of CrPC by recording that the accusations faced by the applicant are grave in nature and it is a case of gang rape- an aggravated sexual assault.

Observations and Decision: Perusing the facts and contentions presented, the Court made the following observations-

  • The Court observed that the Juvenile Justice Act, 2015 was enacted while noting that the justice system applicable for adults is not suitable to be applied to a child or a juvenile. Therefore, a new method was evolved to try juveniles, so as to protect their interest and also insulate them from being exposed to vagaries of police and the normal criminal system. The Court also took into account Articles 15, 39 (e) and (f), 45 and 47 of the Constitution and United Nations Convention on the Rights of Child and perused in detail the Juvenile Justice Act, 2015.

  • The Court noted that, “Section 12 (1) of the 2015 Act, makes a provision to the exclusion of anything contained in the CrPC or any other law for the time being in force and is a special provision for a child who is alleged to have committed a bailable or non-bailable offence”. The only embargo is in the proviso to Section 12 stating that where there are reasonable grounds for believing that the release is likely to bring that person into association with a known criminal or expose the said person to moral, physical and psychological danger or the person’s release would defeat the ends of justice. “In the scheme of enactment, it can be seen that Section 12 contains an imperative mandate to release a child on bail, when he is apprehended or detained in connection with an offence and it is a special provision, which stands to the exclusion of the CrPC”. It was pointed out by the Court that Juvenile Justice Act, 2015 is a special statute providing a special procedure to protect children in need and children in conflict with the law. Thus, it is important that while construing its provisions, the core objective of this legislation must not be forgotten.

  • The Court noted the Report presented by the Probation Officer vis-a-vis the applicant’s physical and psychological parameters and observed that the applicant does not fulfill the criteria stated in the embargo contained in Section 12. It was observed that the Report does not reflect him as a desperado or a person misfit in the society, and it recommends that if an opportunity is given to the applicant, he will be a better person.

    “The accusations faced by the applicant are undisputedly serious, but he must also derive the benefit of being a ‘child’, despite he is being tried as an adult and the benefit of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 cannot be denied to him”.

  • Stating that the applicant’s education has suffered due to his detention and the same could not be allowed, the Court granted bail to the applicant.

[Sandeep Ayodhya Prasad Rajak v. State of Maharashtra, 2022 SCC OnLine Bom 1825, decided on 22-08-2022]


Advocates who appeared in this case :

Maharukh Adenwalla, Advocate, for the Applicant;

A.A.Takalkar, A.P.P., Advocate, for the State/Respondent;

Saveena Bedi, Advocate, for the Intervenor.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Op EdsOP. ED.

   

Introduction

A cross-criminal case or a counter criminal case refers to an interesting situation wherein two criminal cases relate to the same incident and/or happening at the same location. Any man of reasonable prudence recognises it to have occurred together or at the same time either in whole or in parts.  

This counter criminal case is a complex legal procedural situation that conventionally occurs in many cases and happens to not have been addressed adequately. The Code of Criminal Procedure, 1973 (CrPC)1provides for different types of trials and their consequent procedure. The closest provision that could be invoked pertains to provisions relating to joint trials but, the same is not designed exclusively and therefore incapable of dealing with counter criminal cases.

According to the common law jurisprudence, an accused is presumed to be innocent until proved guilty and the standard of proof is beyond all reasonable doubt. In a counter criminal case, an accused in one case could pose as a victim in another. Henceforth, it poses complicated logical questions as to the presumption of innocence and conclusion of facts.

The authors through this paper attempt to bring out the nuances of a cross-criminal case/counter criminal case. Part II discusses the position of law in India as the Supreme Court through a few notable decisions has tried to address this issue, thereby setting up the tone for further discussions. Part III briefly describes certain problematic instances in counter cases, strategies that are being adopted to overcome, and tries to explore the crucial role of the participants — the courts, the prosecutors, and the investigators who are material to the justice-delivery system. Part IV concludes with suggestions on types of reform that may be considered to address the issue.

Position of law

In India, the courts have made an earnest attempt in formulating a procedure for dealing with counter criminal cases recognising the absence of any specific provisions.

One of the earliest cases2, even before the commencement of the Code of Criminal Procedure, 1973, was dealt with by the Madras High Court which had taken the view that a case and counter-case derived from the same affair should be tried by the same court to the extent possible. In this case, each party might represent themselves as the innocent victims of the act of the other.

Furthermore, in Krishna Pannadi, In re3, the Madras High Court had once again expressed its concern for not having a proper procedure to deal with counter criminal cases and held that the Judge should hear both cases and not pronounce the judgment till both the cases are being heard. The Court felt that this way it could prevent two contrary judgments on the same facts and avert the danger of an accused being convicted without hearing the whole facts. The High Court had also remarked that counter criminal case procedure is against the cardinal principle of the law holding that facts on one case should not be considered in the other case. The High Court further observed:

To take an illustration, suppose in the first of the cases the accused succeeds in showing that the prosecution has failed to prove its charge, and then in the second case the same accused as complainant goes into the witness box and breaks down in cross-examination to convince the court that the truth lies with the other side: Can the court be expected to dismiss this circumstance from its mind, and if it does not do so, what legal justification is there for importing it into the case already heard?4

In the instant case, the same prosecutor conducted the prosecution of both the cases numbered 157 and 158respectively. Upon the Magistrate first trying Case No. 158 which led to a conviction the prosecutor consequently withdrew Case No.157. Subsequently, upon appeal, the Sessions Judge who heard the matter found no prejudice to the accused in the matter. The Sessions Court even went to extent of saying that the accused in Case No.158 which resulted in conviction would have called and examined all his prosecution witnesses in Case No.157 as defence witnesses in Case No.158 itself. The High Court5 rightfully repelled this view of the Sessions Court thereby holding that the accused in Case No.158 cannot be compelled to examine all his prosecution witnesses in Case No.157 as a defence witness in Case No.158 as he may wish to avoid an earlier cross-examination of his witnesses. Moreover, the Court also held that the accused in Case No. 158 might not have been warned by the trial Judge that if he were against him, Case No. 157 in which he is a victim would be dropped. The Madras High Court had finally ordered a retrial in this case.

The Madras High Court has taken a view that in the case of counter-case both cases should be considered as one case by legal fiction and that only the legislature can intervene in this matter. Whereas these decisions were rendered before the enactment of the Code of Criminal Procedure, 1973, the legislature had somehow missed on this important aspect of procedural law.

Further again in Nathi Lal v. State of U.P.6, the Supreme Court had to come up with certain guidelines to be followed in counter-cases after the Code of Criminal Procedure, 1973 came into force realising the absence of a such provision in the then recently codified legislation.

In Nathi Lal v. State of U.P.7, the Supreme Court issued the following guidelines:

(1) The same Judge should try both cases.

(2) The learned Judge should hear one case after the other.

(3) The evidence should be heard first and then the Judge should go to hear the arguments. However, he should reserve the judgment in that case.

(4) He should then hear the counter-case, record the evidence, and hear the arguments. Here he should reserve the judgment.

(5) Later pronounce two separate judgments.

(6) However, the evidence recorded, or arguments made in one case cannot be looked into while deciding another case.

(7) The Judge should pronounce both the judgments one after the other.

With all humbleness, the authors of this paper find the view of the Supreme Court of referring to the evidence in the cross-case while deciding one case may not result in finding the truth. The authors are raising the same doubts as those raised by the Madras High Court in Krishna Pannadi, In re8. How can it be logical if the court is not considering the evidence in another case when both are two different versions of the facts? The authors even doubt the necessity of conducting a trial by the same court when one case is not influencing the other. The criminal cases are to be proved beyond all reasonable doubts and henceforth if A alleges that B attacked him and B had a counter-case that A attacked him; the criminal court can acquit both of them if the court is not satisfied beyond all reasonable doubts about both the stories. However, it does not mean that the court need not consider the evidence in the other case.

The problems and legal strategies

When there is a lack of proper provision the court has to design a procedure without disturbing the existing norm that one case should influence the other case. Given below is the list of instances where the ruling of the Supreme Court had caused some practical difficulty.

Cases involving different triability

In another notable decision of the Supreme Court of Sudhir v. State of M.P.9 wherein the problem was that one among the case was exclusively triable by the Court of Session as it involved the charge of Section 30710 IPC while the other cross-case was triable by Judicial Magistrate. In this case, the Chief Judicial Magistrate committed both the cases to the Court of Session while the Court of Session transferred the case under Section 228(1)11 of the Code of Criminal Procedure, 1973 to the Chief Judicial Magistrate.

The Supreme Court explained Section 228(1)(a) and interpreted that the expression “he may” indicates that a case not exclusively triable by the Court of Session may be transferred to the Chief Judicial Magistrate or any other Judicial Magistrate of First Class. The Court held that it is an option and discretion of the Court of Session and in cases of counter-case where one is a case triable exclusively by the Court of Session and the other is not, the guidelines in Nathi Lal v. State of U.P.12 should be followed and both the cases are to be tried by the Court of Session. The Supreme Court held that the Court of Session can try any offence under Section 2613 of the Code of Criminal Procedure, 1973. Moreover, the Court even held that a Judicial Magistrate may invoke Section 32314 of the Code of Criminal Procedure, 1973 and commit the counter-case along with the case triable exclusively by the Court of Session. Section 323 of the Code of Criminal Procedure, 1973 empowers a Magistrate to commit a case to the Court of Session during inquiry or trial if he finds that the case ought to be tried by the Court of Session.

The expression “ought to be tried by the Court of Session” could be interpreted as different from exclusively triable by the Court of Session. Henceforth, this kind of counter-case could be committed to the Court of Session. In State of M.P.v.Mishrilal15, the Supreme Court reiterated the necessity of following the guidelines in Nathi Lal v. State of U.P.16 and held that in cross criminal cases the same Judge should try both the cases.

Cases involving presumption of culpability

Some enactments like the Protection of Children from Sexual Offences Act, 2012 (POCSO)17 have presumptions against the accused. In such situations, the problem is much more complicated. If a counter-case arose in such kinds of cases, there would be great difficulty in applying the law. The POCSO Act, 2012 is gender neutral. There is no exception given to child offenders, of course, the Juvenile Justice (Care and Protection of Children) Act, 201518 would be available in appropriate cases. If both children involved in a sexual act (consider both above 16 years also) claim sexual abuse from the other side as a case and counter-case, it would be a debatable legal issue.

Role of the court

The Magistrates could play a vital role in dealing with counter-cases. When a case is instituted, whether generally or otherwise than on a police report under Section 17319 of the Code of Criminal Procedure, 1973 and it is made to appear to Magistrate currently conducting the inquiry or trial of such a case that an investigation by the police on that subject-matter is in process, the Magistrate will stay the inquiry or trial pending before him. He shall call for the report from the police officer conducting the investigation. If such Magistrate has taken cognizance on such report against any person who is an accused in the earlier complaint case, the Magistrate shall inquire into or try together both the cases as if one of them were derived from the police report. If he has not taken any such cognizance as mentioned earlier against any person accused in the earlier complaint case, based on that police report, the Magistrate shall proceed with the trial of the complaint case.

Duties as an investigator and the task of a prosecutor

Investigators in cross-criminal cases should find the truth of the matter and attempt to see the allegation and find out which side is right before submitting a charge-sheet20. In State of Karnataka v. Hosakeri Ningappa21, the Full Bench of the Karnataka High Court held that in cross-criminal cases the investigation should be conducted by one investigation officer and by two different Public Prosecutors.

A similar view was taken by the Karnataka High Court, as recently in Daya v. State of Karnataka22 on 16-1-2021. In this case, the Karnataka High Court while relying on the Full Bench decision in State of Karnataka v. Hosakeri Ningappa23, referred to the 1975 Circular issued by the Government of Karnataka and cited Gooti Sannaiah v. State of Karnataka24, in discrediting the process of the same prosecutor conducting cross-case prosecution. The Court observed:

5. … The prosecution in both the cases was conducted by the same prosecutor. What is said above would aptly attract the age-old saying that a person cannot ride on two horses running in opposite directions and if he attempts to do so, the earth would be his destination.

Provision under Police Standing Orders

The Madras High Court in this case encountered the provision Order 588-A of the Madras Police Standing Orders (hereinafter called “PSO 588-A”).25In Vellapady Thevar v. State26, the Madras High Court held that any contravention of the procedure mentioned in PSO 588-A would be illegal and bad in law. The same view was followed by the Madras High Court in Justin v. State27. In Vellapady Thevar case28, the Court held that contravention of PSO588-A would be bad in law.

In State of Punjab v. Charan Singh29, the Supreme Court had already declared that the Punjab Police Rules cannot override the Code of Criminal Procedure. In V. Karthikeyan v. State30, the Madras High Court held that PSO 588-A cannot override the Code of Criminal Procedure, 1973.

In Sujin v. State31, the Madras High Court took view that non-compliance with PSO 588-A is not illegality, and two police reports could be filed in appropriate cases by the police officer conducting the investigation. Unlike in the case of the investigator when both the prosecutions have been conducted by the same person it would be against the principle of the rule against bias. In Sujin v. State32, the Madras High Court further held that in appropriate cases the investigating officer can file two charge-sheets when he could not find the real aggressor in the investigation. In such circumstances, whether the court has to conduct the trial in both cases? The Madras High Court, in this case, observed:

“… it is not an illegality to file a final report in both the case and the counter-case, where the investigating officer is unable to find out as to who was the real aggressor. In such cases, it would require an appreciation of evidence for the trial court by conducting a simultaneous trial in both cases. In cases of this nature, the procedure that has been prescribed by the Supreme Court in Nathi Lal v. State of U.P.33 has to be followed.”34

Through these cases, the Madras High Court has evolved upon the view that filing a report on both the case and counter-case in a situation where the police officer cannot find who is the aggressor, is not an illegality but the correct procedure. The High Court in this case held that it is appropriate for the investigating officer to submit two police reports to the court when he could not find who the aggressor was. The High Court took a view that in such a case the trial court should come to a conclusion based on the evidence.

Conclusion

In the humble opinion of the authors, the legislature should intervene and legislate a separate chapter in the Code of Criminal Procedure, 1973 to deal with counter criminal case trials. Despite the observation made by the Madras High Court in Krishna Pannadi, In re35 in the pre-constitutional period, the legislature never chose to legislate on this even in the Code of Criminal Procedure, 1973. The legislature considering all the circumstances involved must enact such a chapter. It is also humbly suggested that the legislature has to think of enacting such a chapter/provision in special statutes where presumptions are created by the legislature against the accused persons. The legislature has to decide on considering the need for specific circumstances of such cases as to the burden of proof and presumptions in the trials of such counter-cases.


† Sr. Asst. Professor, School of Law, SASTRA Deemed to be University. Author can be reached at<sanjith@law.sastra.edu>.

† Professor, School of Management/Law, SASTRA Deemed to be University. Author can be reached at <balachandran@mba.sastra.edu>.

1. Criminal Procedure Code, 1973.

2. Goriparthi Krishtamma v. Emperor, 1929 SCC OnLine Mad 420.

3. 1929 SCC OnLine Mad 166.

4. Krishna Pannadi, In re, 1929 SCC OnLine Mad 166.

5. Krishna Pannadi, In re, 1929 SCC OnLine Mad 166.

6. 1990 Supp SCC 145.

7. 1990 Supp SCC 145, para 2.

8. Krishna Pannadi, In re, 1929 SCC OnLine Mad 166.

9. (2001) 2 SCC 688.

10. Penal Code, 1860, S. 307.

11. Criminal Procedure Code, 1973, “228. Framing of charge.— (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which —

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the First Class.… (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.”

12. 1990 Supp SCC 145.

13. Criminal Procedure Code, 1973, S. 26.

14. Criminal Procedure Code, 1973, S. 323.

15. (2003) 9 SCC 426.

16. 1990 Supp SCC 145.

17. POCSO Act, 2012.

18. Juvenile Justice (Care and Protection of Children) Act, 2015.

19. Criminal Procedure Code, 1973, S. 173.

20. State of M.P. v. Mishrilal, (2003) 9 SCC 426.

21. 2011 SCC OnLine Kar 3694.

22. 2021 SCC OnLine Kar 167.

23. 2011 SCC OnLine Kar 3694.

24. 1975 SCC OnLine Kar 90.

25. Order 588-A of Madras Police Standing Orders provides as follows—In a complaint and counter-complaint arising out of the same transaction, the investigation officer has to enquire into both of them and adopt one or the other of the two courses, namely, (1) to charge the case where the accused were the aggressors; or (2) to refer both the cases if he finds them untrue. If the investigating officer finds that either of the course is difficult, he should seek the opinion of the Public Prosecutor and act accordingly. A final report should be sent in respect of the case referred to as a mistake of law and the complainant or the counter-complainant, as the case may be, should be advised about the disposal by notice in Form 96 and to seek a remedy before the specified Magistrate if he is aggrieved by the disposal of the case by the police.

26. 1984 SCC OnLine Mad 508.

27. 1988 LW (Cri) 467.

28. 1984 SCC OnLine Mad 508.

29. (1981) 2 SCC 197.

30. 1991 SCC OnLine Mad 613.

31. 2019 SCC OnLine Mad 38972.

32. 2019 SCC OnLine Mad 38972.

33. 1990 Supp SCC 145.

34. 2019 SCC OnLine Mad 38972.

35. 1929 SCC OnLine Mad 166.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In an application filed by the applicant who is a UP Police official, charged under Section 302, 120-B and 34 Penal Code, 1860 (‘IPC') seeking regular bail on the ground that the applicant was granted interim bail and never misused his liberty, Rajnish Bhatnagar J. denied bail clarifying that grant of interim bail and grant of regular bail on merits are two different aspects and simply because the petitioner was on interim bail for a certain period of time does not entitle him to grant of regular bail when the facts of the case speak otherwise. The Court also remarked “at the time of grant of interim bail to the petitioner, the merits of the case were not considered.”

The complainant, Ramesh Chand who is father of the deceased alleged that his son aged 25 years who was working as an LIC agent went to the house of Ajay Singh and his friend Sarvesh (‘bail applicant’) regarding policy on 19-07-2018 and went missing. An FIR was registered under Sections 364 and 34 Penal Code, 1860 (‘IPC'). The investigation was conducted and two were arrested, out of which the petitioner is employed in U.P. Police and his co-accused is employed in Reserve Police Forces (‘RPF'). The charges framed in the charge sheet were under Sections 302, 120-B and 34 IPC.

Thus, instant bail application was filed by the petitioner under Section 439 read with section 482 Criminal Procedure Code (‘CrPC').

Counsel for petitioner contended that the petitioner/accused who is on interim bail can be granted regular bail. The State, however, opposed the application by contending that the petitioner, despite being the member of a disciplined force, he, along with the co-accused have committed a heinous offence.

The Court, on perusing the evidence placed on record and examining the witnesses and their statements, noted that the allegations against the petitioner are grave and serious in nature and according to the prosecution, the petitioner who is employed in UP Police has killed and disposed of the body of deceased Prem Kumar aged around 25 years along with his co-accused one of whom namely Ajay Singh is also a constable in RPF.

The Court further noted that that grant of interim bail and grant of regular bail on merits are two different aspects and simply because the petitioner was on interim bail for a certain period of time does not entitle him to grant of regular bail when the facts of the case speak otherwise.

Placing reliance on Satish Jaggi v. State of Chhattisgarh, (2007) 11 SCC 195, the Court dismissed the bail application in view of the nature and gravity of the offence, its impact on society and severity of the punishment of the offence.

[Sarvesh Singh v. State NCT of Delhi, 2022 SCC OnLine Del 2651, decided on 31-08-2022]


Advocates who appeared in this case :

Mr. Gopal Jha and Mr. Umesh Kumar Yadav, Advocates, for the Petitioner;

Mr. Raghuvinder Varma, APP for the State with Inspector Rahul Raushan, Advocates, for the Respondent.


*Arunima Bose, Editorial Assistant has put this report together.

Allahabad High Court
Case BriefsHigh Courts

   

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

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

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

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

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

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

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

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

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

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


Advocates who appeared in this case :

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

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


*Suchita Shukla, Editorial Assistant has reported this brief.

SCC Part
Cases ReportedSupreme Court Cases

   

Constitution of India — Arts. 300-A and 31 — Expropriation of private property by State — Compensation — Entitlement: State on ground of delay and laches cannot evade its legal responsibility towards those from whom private property has been expropriated. Right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Art. 300-A. It is cardinal principle of rule of law, that nobody can be deprived of liberty or property without due process, or authorisation of law. When it comes to subject of private property, high threshold of legality must be met, to dispossess an individual of their property, and even more so when done by State. [Sukh Dutt Ratra v. State of H.P., (2022) 7 SCC 508]

Criminal Law — Criminal Trial — Sentence — Principles for sentencing — Victimology — Just punishment — Recognises protection of victim’s right — Right of victim or their near and dear ones to seek enhancement of sentence: Victim’s right (including that of victim’s relations, heir or guardian), is a facet of human rights, a substantive and enforceable right and deserves equal regard. Criminal cannot be treated leniently solely on the ground of discretion vested in court. Victim’s relations, heir or guardian should be treated as victim. [Jaswinder Singh v. Navjot Singh Sidhu, (2022) 7 SCC 628]

Debt, Financial and Monetary Laws — Debt, Debt Recovery and Relief — Sale of debtor’s property — Maintainability of writ petition to set aside auction-sale: Hearing of writ petition challenging the auction-sale is not permissible, when proceedings invoked by petitioner in fora below were themselves found non-maintainable. [Deenadayal Nagari Sahakari Bank Ltd. v. Munjaji, (2022) 7 SCC 594]

Evidence Act, 1872 — Ss. 65-A and 65-B — Admissibility of electronic records — Non-compliance with requirement of certification of electronic evidence: Certificate under S. 65-B(4), Evidence Act is mandatory for production of electronic evidence, oral evidence in place of such certificate cannot suffice. [Ravinder Singh v. State of Punjab, (2022) 7 SCC 581]

Insolvency and Bankruptcy Code, 2016 — Ss. 5(13) and 53 — Claims of workmen/employees towards their wages/salaries during CIRP — Payability of, as CIRP costs: While considering the claims of the workmen/employees concerned towards the wages/salaries payable during CIRP, first of all it has to be established and proved that during CIRP, the corporate debtor was a going concern and that the workmen/employees concerned actually worked while the corporate debtor was a going concern during CIRP. Further, as per S. 5(13) only with respect to those workmen/employees who actually worked during CIRP when the corporate debtor was a going concern, their wages/salaries are to be included in CIRP costs and they shall have the first priority over all other dues as per S. 53(1)(a). Also, any other dues towards wages and salaries of the employees/workmen of the corporate debtor shall have to be governed by Ss. 53(1)(b) and 53(1)(c). [Sunil Kumar Jain v. Sundaresh Bhatt, (2022) 7 SCC 540]

Land Acquisition Act, 1894 — S. 23 — Compensation — Determination — Sale exemplars which may be considered: Sale instances of adjacent village either subsequent to land acquired or with respect to small areas of land — Whether may be considered, explained. [Ramrao Shankar Tapase v. Maharashtra Industrial Development Corpn., (2022) 7 SCC 563]

Negotiable Instruments Act, 1881 — S. 138 r/w S. 142 — Dishonour of cheque where a company is payee of that cheque — Filing of complaint in such a case — Maintainability — Prerequisites: When a company is payee of cheque based on which a complaint is filed under S. 138 of the NI Act, the complainant necessarily should be the company represented by an authorised employee. For maintainability of complaint in such cases, prima facie indication in complaint and sworn statement (either orally or by an affidavit) before court to the effect that complainant company is represented by an authorised person who has knowledge about transaction in question, would be sufficient. Such averment and prima facie material is enough to take cognizance and issue process. Issue as to whether aforesaid authorisation and knowledge about transaction is proper, is a matter for trial. [TRL Krosaki Refractories Ltd. v. SMS Asia (P) Ltd., (2022) 7 SCC 612]

Penal Code, 1860 — S. 300 [S. 300 Thirdly] and Ss. 341, 447, 504 and 506 — Case whether one of murder, when the assault is not made with any weapon, but only by legs and hands — Determination of: In this case, material clearly established that after deceased fell down with the help of co-accused, accused K kicked and assaulted deceased on his neck with his legs and hands. Ocular version supported by medical evidence, which indicated that the deceased suffered abraded contusion of reddish blue colour on the neck area and abraded contusion reddish in colour on the left side of the chest. Further, internal dissection revealed profuse bleeding over the muscles of the neck surrounding the arteries that were ruptured. Further, certain left side ribs also fractured. Ventral part of the sternum also broken into two pieces and the spinal cord at certain level also contused, edematous and elongated. Cause of death opined as haemorrhagic shock as a result of multiple injuries, hence, conviction of accused K under Ss. 302, 341, 447, 504 and 506, held, justified. [Krishnamurthy v. State of Karnataka, (2022) 7 SCC 521]

Rent Control and Eviction — Mesne Profits/Compensation/Occupation charges/Damages for wrongful use/trespass: Principles clarified regarding proper basis and reasonable manner of determination of mesne profits of residential property on termination of leave and licence agreement pending first appeal. [Anar Devi v. Vasudev Mangal, (2022) 7 SCC 504]

Service Law — Appointment — Invalid appointment/Wrong appointment/Illegal appointment: Appointment dehors statutory rules, reiterated, is void ab initio. [State of Odisha v. Sulekh Chandra Pradhan, (2022) 7 SCC 482]

Service Law — Judiciary — Promotion: In this case, for promotion to 25% of posts of Higher Judicial Service strictly on basis of merit through Limited Departmental Competitive Examination (LDCE) from Civil Judges (Senior Division), eligibility criteria applicable, only for Delhi Higher Judicial Service (DHJS), was modified, both in terms of: (A) Civil Judges who would be eligible, and (B) Period of qualifying service re different categories of Civil Judges, due to non-availability of candidates as per the existing prescribed criteria, and, parity of work performed by Civil Judge (Junior Division) and Civil Judge (Senior Division) in Delhi. Civil Judges (Junior Division), held, also to be eligible for promotion to DHJS via this channel if they satisfied the norms as specified herein. [All India Judges Assn. v. Union of India, (2022) 7 SCC 494]

Case BriefsSupreme Court

Supreme Court: In a significant case relating to an organized crime syndicate allegedly involved in funding underworld dons, the Division Bench of Dr Dhananjaya Y Chandrachud* and Surya Kant, JJ., upheld the impugned order of the Bombay High Court declining to quash FIRs against the accused persons.

The Court held that the stipulation under Section 18 of the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) that only the confessions made to a police officer, not below the rank of Superintendent of Police (SP) are admissible in evidence will not make the confessions made to Addl. SP inadmissible. The Court said,

“The expression “rank” must be understood as a class or category which encompasses multiple posts and that the posts of SP, Addl. SP, and DCP all fall within the same rank as they exercise similar functions and powers and operate within similar spheres of authority.”

Mumbai Matka

The prosecution alleged that the appellants are members of an organized crime syndicate which has engaged in a systematic course of activities for cheating members of the public by conducting the ‘Mumbai Matka1‘. The prosecution case was that what appeared to be a case of gambling at the outset, was an organized crime syndicate involved in funding underworld dons/criminal gangs by the proceeds from the Matka business.

Invocation of MCOCA

The Assistant SP, Kolhapur and a team of police personnel raided a gambling den controlled by one Salim Mulla. Consequently, an FIR was filed for offences punishable under Sections 143, 147, 149, 395, 307, 353, 332, 155, 109, 324, 323 and 427 of the Penal Code 1860, Sections 4 and 5 of the Maharashtra Prevention of Gambling Act 1887, Section 65(e) of the Maharashtra Prohibition Act 1949 and Sections 37 and 135 of the Bombay Police Act 1951.

Later on, with the approval of the competent authority Sections 3(1)(ii), 3(2), 3(4), and 3(5) the MCOCA was added to the FIR as the Investigating Officer opinioned that the accused were members of an organized crime syndicate.

Aggrieved thereby, the appellants approached the Bombay High Court with a petition for quashing the FIR, which was dismissed by the Court.

Issues

Assailing the impugned order of the High Court, the appellants raised the following questions:

a. Whether a confession recorded by an Addl. SP admissible under Section 18 MCOCA; and

b. Whether the provisions of MCOCA have been validly invoked.

Analysis and Findings

a. Whether confession made before Addl. SP are valid under Section 18 MCOCA

Section 18 MCOCA stipulates that the confessions made to — a police officer not below the rank of Superintendent of Police are admissible in evidence. The Section begins with a non-obstante clause overriding the Evidence Act because Section 25 of the Evidence Act stipulates that no confession made to a police officer shall be proved as against a person accused of an offence.

Relying on para 25 (2) of the Police Manual, the appellants contended that Addl. SP is not in the same rank as the SP; therefore, the confession made before the Addl. SP would not be admissible.

The Court opined that the reliance on para 25(2) of the Police Manual was misconceived because MCOCA is a special Act enacted with an overriding provision in Section 25. The tenability of the submission that an Addl. SP does not fit the description of an officer not below the rank of SP cannot be determined by reading into the MCOCA provisions for authorization contained either in the Police Manual (para 25(2) as noticed above) or in another statute (Section 8(2) of the Police Act). The answer to the challenge must turn on the interpretation of the provisions of Section 18(1) MCOCA itself.

Observing that Section 18(1) MCOCA uses the expression “rank” which cannot be conflated or equated with a designation or post, the Court opined that the true question should be whether the rank of the SP comprehends within it an Addl. SP?

The Court noted that a DCP is competent to record confessions under the MCOCA. Observing that if an SP or Addl. SP is transferred to the area of a Commissionerate, he/she is posted as a DCP and is competent to record the confession under the MCOCA, the Court opined that there is therefore no basis to conclude that an Addl. SP does not fulfil the description specified in Section 18(1) MCOCA as being — a police officer not below the rank of the Superintendent of Police. The Court further remarked,

“The authority which attaches to the post of a DCP to record a confession under Section 18(1) is not diluted when the posting is in a district either as an Addl. SP or, as the case may be, as an SP.”

The Court referred to Nyadar Singh v. Union of India, (1988) 4 SCC 170, wherein the Supreme Court observed that the expression “rank” in “reduction in rank” for purposes of Article 311(2) has an obvious reference to the stratification of the posts or grades or categories in the official hierarchy. It does not refer to the mere seniority of the government servant in the same class or grade or category.

Hence, the Court held that the expression “rank” must be understood as a class or category which encompasses multiple posts and that the posts of SP, Addl. SP, and DCP all fall within the same rank as they exercise similar functions and powers and operate within similar spheres of authority. The Court clarified that every person within a particular rank will not be of the same seniority. Officers of the same rank may have been in service for a different number of years. At times, this may even bear on the post to which they are appointed but their rank remains undisturbed. A difference in the seniority of a particular officer is not the same as a difference in their ranks.

b. Conditions for invocation of the MCOCA

Approval Order under Section 23(1)(a) MCOCA

The appellants contended that the provisions of the MCOCA had not been validly invoked since some of the appellants had not been named in the FIR and/or in the order granting approval under Section 23(1)(a) MCOCA.

Considering that often, limited information is available to the investigating authorities at the time of recording information about the commission of an offence; and the involvement of persons other than those named initially might come to light during the course of investigation by the police, the Court said that the very purpose of an investigation is to determine whether a crime has been committed and if so, to shed light on the details of the crime including the identity of the perpetrators. The Court expressed,

Section 23(1)(a) MCOCA speaks of recording information about the commission of an offence of organized crime, and not of recording information about the offender.”

Therefore, the Court held that the approval order under Section 23(1)(a) MCOCA is with respect to the offence and not with respect to the offender and it need not name every accused person at the outset.

Whether Gambling an Organized Crime

Rejecting the contention of the appellants that gambling is punishable with a maximum sentence of 2 years and does not, therefore, fall within the scope of MCOCA (which requires the commission of a crime punishable with imprisonment of 3 years or more), hence the allegation of engaging in illegal gambling would not sustain invocation of the penal provisions of Section 3(2) MCOCA.

Section 2(1)(e) MCOCA indicates that persons are said to commit an organized crime when they are involved in continuing unlawful activity which means a prohibited activity which is a cognizable offence punishable with imprisonment of at least three years.

The Court noted that the accused of abetting the commission of organized crime need not themselves be charged with committing a cognizable offence punishable with imprisonment of at least three years. They need only be abetting those who are guilty of committing a cognizable offence punishable with imprisonment of at least three years, which offence amounts to an organized crime. The definition of “abet” in Section 2(1)(a) MCOCA would be applicable in such cases. The Court observed,

“Although gambling may not, by itself, constitute an organized crime, it may be the route through which the accused are abetting the commission of organized crime.”

Hence, the Court opined that the questions of whether the appellants were in fact abetting organized crime and whether offences under the IPC would attract MCOCA are to be determined at the stage of the trial.

Requirement of More than One Charge-sheet

Rejecting another contention of the appellants was that in the preceding ten years, more than one charge-sheet has not been filed in respect of each of them, the Court held that such submission did not hold water as it is settled law that more than one charge sheet is required to be filed in respect of the organized crime syndicate and not in respect of each person who is alleged to be a member of such a syndicate. Rather, charge-sheets with respect to the organized crime syndicate are sufficient to fulfil the condition in Section 2(1)(d) MCOCA.

Conclusion

In the backdrop of above analysis, the Court held that the appeals were without any merit. Accordingly, the appeals were dismissed with the following directions that the appellants will be at liberty to approach the High Court for release on bail; and the evidentiary value of confessions alleged to have been made by the appellants shall be considered by the Trial Court and the mere validation of their being recorded by an officer in the rank of Superintendent of Police shall not be construed as the approval of the contents or voluntary nature of the alleged confessions by the Supreme Court.

[Zakir Abdul Mirajkar v. State of Maharashtra, 2022 SCC OnLine SC 1092, decided on 24-08-2022]

*Judgment by: Justice Dhananjaya Y Chandrachud


Advocates who appeared in this case :

Senior Counsels Amit Desai, Siddharth Luthra, Abad Ponda, V. Giri, Pradeep Rai, and ANS Nadkarni, Advocates, for the Appellants;

Senior Counsel Raja Thakare, Advocate, for the State.


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


1. Where those wishing to gamble bet on numbers/playing cards, at the end of the cycle, the results are to be declared based on a random draw of numbers/playing cards, and those who correctly guess the winning digits/playing cards win while the others lose.

SCC Part
Cases ReportedSupreme Court Cases

   

Advocates Act, 1961 — S. 16 — Procedure for designation of Senior Advocates: Clarification of Guidelines prescribed for Supreme Court and all High Courts in Indira Jaising, (2017) 9 SCC 766, given. Instead of ten marks to be allocated to a counsel who has put in between ten to twenty years of practice, held, marks be allocated commensurate with standing of person at Bar, that is to say, one mark each shall be allocated for every year of practice between ten to twenty years. [Amar Vivek Aggarwal v. High Court of P&H, (2022) 7 SCC 439]

Arbitration and Conciliation Act, 1996 — S. 34 r/w S. 19 of the MSMED Act, 2006 — Setting aside of award: Requirement of deposit of 75% of amount in terms of award as a pre-deposit as per S. 19 of the MSMED Act, is mandatory. [Tirupati Steels v. Shubh Industrial Component, (2022) 7 SCC 429]

Armed Forces — Pension — One Rank One Pension (OROP) Policy — Validity of OROP Policy Communication dt. 7-11-2015: OROP Scheme as originally envisaged, envisaging future enhancement in rates of pension to be automatically applied to past pensioners, while Communication dt. 7-11-2015 issued by Ministry of Defence to Chiefs of Army, Air Force & Navy stipulating future revision in pension to past pensioners “at periodic intervals” i.e. every 5 yrs, OROP Policy Communication dt. 7-11-2015, affirmed. Implications of Expression “automatically passed on” in original policy vis-à-vis “at periodic intervals” in Communication dt. 7-11-2015, explained. [Indian Ex-Servicemen Movement v. Union of India, (2022) 7 SCC 323]

Constitution of India — Arts. 21 and 39-A — Fair trial: Challenge to fairness of trial on account of trial being expedited by the trial court is not tenable, if the due procedure appears to be followed during the course of trial. [Mohd. Firoz v. State of M.P., (2022) 7 SCC 443]

Debt, Financial and Monetary Laws — Non-Scheduled Banks/NBFCs/Chit Funds/Saving Schemes/Financial leasing — Generally: Non-Banking Financial Companies (NBFCs) are solely and entirely regulated by RBI under the RBI Act, as opposed to under State regulations, namely, Kerala Money Lenders Act, 1958 and Gujarat Money Lenders Act, 2011. State enactments, as Kerala Act and the Gujarat Act are not applicable to NBFCs. [Nedumpilli Finance Co. Ltd. v. State of Kerala, (2022) 7 SCC 394]

Penal Code, 1860 — S. 124-A — Offence of sedition: In this case instances of glaring misuse of S. 124-A alleged and validity of S. 124-A was challenged on that ground. Union of India agreeing to re-examination to find out the manner in which the requirement of security interests and integrity of the State should be balanced with the civil liberties of citizens. Interim order pending such re-examination by Government, issued that: till the re-examination of S. 124-A IPC by the Government is complete, held, it will be appropriate not to continue the usage of the aforesaid provision of law by any of the Governments. Directions with regard to pending FIRs, investigations and criminal proceedings relating to S. 124-A IPC also issued. Central Government given liberty to issue directions to States/Union Territories to prevent misuse of S. 124-A IPC. [S.G. Vombatkere v. Union of India, (2022) 7 SCC 433]

Prevention of Money-Laundering Act, 2002 — Ss. 3, 4 and 8(5) r/w Ss. 2(1)(u), 5(1), 5(5) and 44(1) Expln. — Prosecution for offences under Ss. 3 and 4 of the PMLA — Maintainability of — Requirements of: It is the duty of court to look into the allegations and the material collected in support thereto and determine whether prima facie offence(s) under the PMLA are made out. Standard of proof for conviction for offences under Ss. 3 and 4 is that of proof beyond reasonable doubt. [J. Sekar v. Enforcement Directorate, (2022) 7 SCC 370]

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 — S. 24 — Lapse of acquisition proceeding — Claim for, by subsequent purchaser: Subsequent purchaser who purchased land after publication of notice under Ss. 4 and 6 of the Land Acquisition Act, 1894 and after award of Land Acquisition Collector, in view of law laid down in DDA, (2022) 8 SCC 771, held, not entitled to claim lapsing of proceedings under 2013 Act. [Delhi Admn. v. Pawan Kumar, (2022) 7 SCC 470]

Service Law — Penalty/Punishment — Judicial review/Validity — Interference with punishment imposed by disciplinary authority: Order of substitution of punishment of removal imposed by disciplinary authority to compulsory retirement by Tribunal which was affirmed by High Court on ground that respondent delinquent had completed 39 yrs of unblemished service and since entire defrauded amount was paid by him with interest and no loss was caused to Department, held unsustainable. [Union of India v. M. Duraisamy, (2022) 7 SCC 475]

Specific Relief Act, 1963 — Ss. 19(b), 10 and 20 — Specific performance of agreement to sell immovable property when property is sold to subsequent transferee with notice of the prior agreement to sell — Proper form of relief in such cases: It is not necessary for the prior buyer-agreement-holder to seek cancellation of sale deed executed in favour of a subsequent purchaser. It is sufficient to implead subsequent purchaser in suit and seek relief of specific performance against original owner and also seek direction to subsequent purchaser to join in execution of sale deed in order to completely convey title to the prior buyer-agreement-holder. [P. Ramasubbamma v. V. Vijayalakshmi, (2022) 7 SCC 384]

Measures
Op EdsOP. ED.

   

“Metrology” means the science of measurement and the “law of metrology” sets out the rules and regulations which govern the units, methods of weighment and measurement. In India, the law of measurement is set out under the Legal Metrology Act, 20091 (LMA/the Act) which also provides for a regulatory department under the Department of Consumer Affairs which deals with the rules relating to the units of weights and measurements that are utilised in commercial and trading activities such as sale or purchase of goods which are traded by the virtue of their weight, measure, or number. The Act was preceded by the Standards of Weights and Measures Act, 19762 and the Standards of Weights and Measures (Enforcement) Act, 19853.

It lays down the rules, regulations, requirements, and procedures required to be followed in order to ensure that the consumer buying any goods regulated by the Act is provided with symbols of measurements which are accurate, standard, and unambiguous along with being in compliance with the international system of units.4

All pre-packaged commodities need declaration5 under Rule 6 of the Legal Metrology (Packaged Commodities) Rules, 2011 wherein every package shall bear a label which should make a declaration of the net quantity of the commodity in terms of the standard unit of weight and measurement. The said declaration should be definite, plain, conspicuous and in accordance with the provisions of the aforesaid rules. In case where the commodity is sold by number, the number of the commodity contained in the package should be mentioned. In the absence of these, no person i.e. manufacturers/packer/seller/importer/distributor/dealer should sell any such pre-packaged commodity, as it will be considered an offence under Chapter V of the Act.

The standard units of weight, measure and numeration are provided under Section 76 of the Act which states that the standard unit of weights and measures would be the base unit as specified in Section 57, and the standard unit for numeration would be the base unit as specified in Section 68. Section 5 of the Act provides the base unit of weights and measures as (i) length shall be the meter; (ii) mass shall be the kilogram; (iii) time shall be the second; (iv) electric current shall be the ampere; (v) thermodynamic temperature shall be the kelvin; (vi) luminous intensity shall be the candela; and (vii) amount of substance shall be the mole.

The Act is applicable to documentations pertaining to transactions/industrial production which include contracts for sale and purchase, royalties, toll, duty, assessment of work done, wages due and services rendered. In accordance with Sections 109 and 1110 of the Act, the provisions would apply to all transaction, dealing, contracts, price list, invoice, cash memo, advertisement, poster, or any other document. Thereby every such document where the weight and measure are specified should be done in accordance with the Act.11 Moreover, it is clear from Section 11 of the Act that it applies to all organisations whose operations are in any way related to standard weights and measures. 

Further, Section 11 of the Act prohibits quotation, announcement, issuance, publication, indication in a manner otherwise than in terms of standard units of weight, measure or numeration stipulated under the Act. The said provision provides that no person in relation to goods, things or service shall quote or announce (by word of mouth or otherwise) any price or charge; issue or exhibit any price list, invoice, cash memo; prepare or publish any advertisement, poster; indicate the net quantity of a pre-packed commodity; express in relation to any transaction or protection, any quantity or dimension in any manner which is in deviation with the standard units of weight, measure or numeration stipulated under the Act.

The standard unit of weight is kilogram (kg), and length is meter (m) or centimeter (cm) and any deviation from the same is prohibited under Section 11. Thus, it is clear from the aforesaid provisions that the standard units of weights and measures would be the base units of weights and measures specified in Section 5 and any violation from the standard units would be penalised in terms of the provisions of the Act.

The Legal Metrology (Packaged Commodities) Rules, 2011, particularly Rule 1312 provides for smaller units of measurement wherein the unit of weight shall be “gram” and unit of length shall be “centimeter”. Therefore, it is clear that in terms of the LMA and Packaged Commodity Rules, standard unit of weights and measures are kilogram, gram, meter, centimeter. It is pertinent to point out Section 4 which provides that every unit of weight or measure shall be in accordance with the metric system based on the international system of units.

Quantity

Unit Name

Symbol

Length

meter

m

Mass

kilogram

kg

Time

second

S

Electric Current

ampere

A

Thermodynamic Temperature

kelvin

K

Amount of Substance

mole

mol

Luminous Intensity

candela

cd

Rule 13(5)(i) of the Legal Metrology (Packaged Commodities) Rules, 2011 make it sufficiently clear that only SI system of units shall be used in furnishing the quantity of the packages. It is stated that special attention needs to be given while mentioning symbols of the measurement units declared on the packing of the commodity. Rule 7 provides for guidelines for printing the symbols which are provided below:

(a) shall be printed in roman (upright) type irrespective of the type used in the rest of the text;

(b) shall remain unaltered in the plural;

(c) shall be written, without a final full stop(period) unless the context otherwise requires;

(d) shall be placed after the complete numerical value in the expression for a quantity, leaving a space between the numerical value and the unit; and

(e) the symbol for units of weight or measure shall be printed in lower case letters except that the first letter shall be printed in upper case when the name of the unit is derived from a proper name.

In view of the aforesaid, it may be noted that symbols of units shall remain altered in plural i.e. kilograms should be written as kg and not kgs. Similarly, centimeters should be written as cm and not cms. It further provides that it should be written without a full stop. Lastly it clarifies that symbol for units of weight or measure should be printed in lower case letters.

In light of frequent violations under the LMA by various business owners/traders/dealers with respect to the declaration of quantities and incorrect representation of the measurement units/symbols, the Ministry of Consumer Affairs, Food and Public Distribution vide Notification dated 30-4-2020 issued to all the Controllers of Legal Metrology of all States/UTs made a “Declaration of Symbol of Units” wherein it was stated that a reference has been received regarding declaration of symbol of units in under the Legal Metrology Rules, 2011. It thereby directed all field officers not to take any coercive action for declaration of units in small or capital letters, in full or short form, provided that the units are declared in SI system. In view of the aforediscussed provisions, rules, and regulations, it is clear that while it is mandatory to use the SI systems of unit and to use the symbols of such units in strict manner, however with the 30-4-2020 advisory, no coercive action can be taken by the Legal Metrology Department for using full form, capital letters in the units, etc.

In Cadbury India Ltd. v. Controller of Legal Metrology13 it was held by the Karnataka High Court that the use of “angula” for the advertisement of 5 Star chocolate even though was non-metric, would not be in violation of Section 11(1)(c) of the Legal Metrology Act as the commercial has a humorous tone and was not meant to mislead the viewer. The mention of this case was important as it is important to note that a lot of the offences mentioned in the act are unlikely to have mens rea, an element of criminality and will not affect the interests of the public at large.

In Sobha Developers Ltd. v. Inspector of Legal Metrology14 the issue was in regard to what would be considered as “goods” since the commodity in question was immovable, an apartment in advertisement. The measuring unit used was square feet instead of the standard square meter and hence it was not in accordance with the metric system. The advertisement in the newspaper was said to be in violation of Section 4815 of the Act. The case went on to Karnataka High Court by means of writ where the Court settled the issue by holding that the Act was applicable in the present situation as the petitioner was in the business of selling apartments by measurements.

Offences and penalties

While the Act provides in detail of all compliances and the manners in which declaration of measurements/weight of commodities is to be made however even small and insignificant deviation from the provisions of the Act amounts to offence under the Act and can attract penalties as are mentioned under Chapter V of the Act. Section 11 of the Act prohibits declaring measurement units in any other manner from one stipulated under the Act. There is compounding of offences only if the offence is repeated within a period of three years. Corollary to that is any subsequent offence under Legal Metrology Act committed after a period of three years from the first offence would be treated as a fresh offence.

Section 4916 covers any offences that might be committed by a company. LMA lays down the need for nomination of directors to ensure that any breach of the provisions of the Act by the company can be taken up with the nominated Director of the company and such nomination continues until the Director either ceases to be a director or there is cancellation of the nomination by the company or the nominee himself. The penalty for a company who is in breach of the provisions of this Act is to publish an advertising such lapse at its own expense or as the court may direct.

Further, under Section 5117, the provisions of the Penal Code18 and Section 15319 of the Code of Criminal Procedure insofar as such provisions relate to offences with regard to weight or measure, shall not apply to any offence which is punishable under this Act.

It is pertinent to note that under Section 5020 of the Act any/all decisions or orders given by an officer of Legal Metrology are appealable to the Director of Metrology and from there to the Central Government. The time period for making such an appeal is sixty (60) days further extendable for a period of sixty (60) days by the appellate authority from the day of passing such order.

Exceptions on applicability

Certain goods which are not defined expressly under the Act would include “any goods” (movable/immovable) which requires any sort of measurement/weighing which includes even pre-packaged commodities.21

However, there are certain restrictions and limitations on the applicability of the Act. In terms of Section 5522 of the Act, it is specifically provided that the provisions pertaining to verification and stamping of weights and measures are not applicable in factories engaged in manufacture of arms and ammunitions, weights and measures used for scientific investigation or research and goods manufactured exclusively for export purposes.

Moreover, in Philips Electronics India Ltd. v. Govt. of A.P.23 the Madras High Court held that audiovisual equipment, television sets and electronic items would not come in the purview of the Act. Electronic items according to the Court are related to the field of science and therefore the Act of 2009 is not applicable to packages which are used to package electronics as it is for the customer's convenience.

Further the Legal Metrology (Packaged Commodities) Rules, 2011, do not apply on large consignments as provided under Rule 3, which stipulates that the rules would not apply on packages of commodities containing quantity of more than 25 kg or 25 litre and packaged commodities meant for industrial consumers or institutional consumers. However, cement and fertilizer industries are not covered under this provision and the Legal Metrology Rules are applicable on the same.

Conclusion

The objective of the Legal Metrology Act is to rationalise the metric system so as to have a uniform system which is unambiguous and therefore aids the consumer in understanding the measurements/quantity of the goods being bought/sold in transactions. Therefore, it is pertinent for business owners to ensure that (i) the declaration of weight and quantity of the product should be clear on the packaging and in compliance with the Act and Rules; (ii) every package should bear a label containing declaration of net quantity in terms of standard unit of weight or measure of commodity or number of commodity in package; (iii) the units should be SI units and the symbols for such units should be standard unit of weights and measures; and lastly (iv) it should be in small letters and not in plural.


† Partner at DSK Legal.

†† Principal Associate at DSK Legal.

1. Legal Metrology Act, 2009.

2. Standards of Weights and Measures Act, 1976.

3. Standards of Weights and Measures (Enforcement) Act, 1985.

4. Legal Metrology Act, 2009, S. 4. Units of weights and measures to be based on metric system. —Every unit of weight or measure shall be in accordance with the metric system based on the international system of units.

5. Legal Metrology (Packaged Commodities) Rules, 2011, R. 6 stipulate that declaration needs to be made on every package as follows:

  1. retail sale price of the commodity;

  2. size of the product;

  3. weight of the product;

  4. the common/generic name of the goods;

  5. details of the manufacturer;

  6. customer care number; and

  7. date of manufacturing/pre-packaged/imported item.

Any additional declarations required in the view of the specific commodity in question.

6. Legal Metrology Act, 2009, S. 7.

7. Legal Metrology Act, 2009, S. 5.

8. Legal Metrology Act, 2009, S. 6.

9. Legal Metrology Act, 2009, S. 10.

10. Legal Metrology Act, 2009, S. 11.

11. S. 11. Prohibition of quotation, etc., otherwise than in terms of standard units of weight, measure or numeration. — (1) No person shall, in relation to any goods, things or service, —

(a) quote, or make announcement of, whether by word of mouth or otherwise, any price or charge; or

(b) issue or exhibit any price list, invoice, cash memo or other document; or

(c) prepare or publish any advertisement, poster or other document; or

(d) indicate the net quantity of a pre-packaged commodity; or

(e) * * *

12. Legal Metrology (Packaged Commodities) Rules, 2011, R. 13.

13. 2013 SCC OnLine Kar 12.

14. 2019 SCC OnLine Kar 3559.

15. Legal Metrology Act, 2009, S. 48.

16. Legal Metrology Act, 2009, S. 49.

17. Legal Metrology Act, 2009, S. 51.

18. Penal Code, 1860.

19. Criminal Procedure Code, 1973, S. 153.

20. Legal Metrology Act, 2009, S. 50.

21. Legal Metrology Act, 2009, S. 2(l) “pre-packaged commodity” means a commodity which without the purchaser being present is placed in a package of whatever nature, whether sealed or not, so that the product contained therein has a pre-determined quantity.

22. Legal Metrology Act, 2009, S. 55.

23. 2012 SCC OnLine AP 341.

Case BriefsSupreme Court

Supreme Court: In a rape case that resulted in suicide by the victim, the Division Bench of D.Y. Chandrachud and J.B. Pardiwala*, JJ., reversed the M.P. High Court’s order discharging accused of all the charges on the ground that there was a delay in lodging the FIR and holding the entire case put up by the parents of the deceased was doubtful. The Court remarked,

“The facts of this litigation are quite heart-breaking and at the same time, more disturbing is the utterly incomprehensible impugned judgment of the High Court discharging the accused of the offence of rape essentially on the ground of delay in the registration of the FIR.”

Factual Matrix

The father of the deceased (the informant hereinafter) had assailed the impugned judgment and order of the M.P. High Court discharging the accused and setting aside the Special Court’s order framing charge against the accused for offences punishable under Section 376 of the Penal Code, 1860 and Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

On 27-04-2020, the deceased complained of severe stomach ache. Suspecting a stomach tumor, the informant immediately rushed to the hospital with his daughter for medical treatment. The informant made the deceased sit on a bench outside the hospital and went to talk to the doctor. However, before the doctor could attend the deceased, she delivered a baby.

Later on, the deceased disclosed to the informant that she had conceived through one Amit Tiwari and would take a room on rent and start living life along with Amit and the newborn. On the same evening, the deceased committed suicide by hanging herself on the rod of the OT light affixed to the ceiling with a dupatta.

Evidence Adduced

The following evidence was adduced by the prosecution to prove the offences alleged:

  • The school record indicates that the deceased was born on 20-07-2001;
  • The mother of the deceased revealed that on 07-07-2019 the deceased revealed that she had missed her period (menstruation) for the past one and a half months and that she had conceived through Amit Tiwari (the accused);
  • (C) The deceased attained majority on 20-07-2019;

The Impugned Judgment

The Special Court framed charges against the accused under Section 376 of the Penal Code, 1860 and Sections 5 and 6 of the POCSO Act. The accused filed a revision application before the High Court contending that he was in a consensual relationship with the deceased and the deceased being major at the time of the incident could be said to be a consenting party. Hence, the Special court could not have proceeded to frame the charge of rape against him.

The High Court allowed the criminal revision application and discharged the accused of all the charges.

Analysis and Opinion

The Court opined that in a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not? The truthfulness, sufficiency and acceptability of the material produced at the time of framing of a charge can be done only at the stage of trial. There must be reasons to hold that in the interest of justice and to avoid abuse of the process of the Court a charge framed against the accused needs to be quashed. occasions. The Court expressed,

“It is to be kept in mind that once the trial court has framed a charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record.”

The Court reiterated that the focus of Courts need not be on the proof of the allegation rather it has to be on the material produced to form an opinion on whether there is a strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. Opining that the framing of charge is not a stage, at which stage the final test of guilt is to be applied, the Court held that to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of Criminal Procedure Code.

Unappeased by the manner in which the case has been dealt with, the Court remarked,

“One (another) disturbing feature of this litigation is that it is the unfortunate father of the deceased who had to come before this Court seeking justice. It was expected of the State to challenge the illegal order passed by the High Court.”

“Another disturbing feature is that the trial court thought fit not to frame charge against the accused for the alleged offence punishable under Section 306 of the IPC i.e., abetment to the commission of suicide. Unfortunately, no one has questioned that part of the order of the trial court declining to frame charge for the alleged offence of abetting the commission of suicide punishable under Section 306 of the IPC. In such circumstances, we do not say anything further in this regard.”

Referring to Thakur Ram v. State of Bihar, (1966) 2 SCR 740, the Court expressed that barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book.

Conclusion

Lastly, the Court criticized the High Court for assuming it fit to discharge the accused of all the charges on the ground that there was delay in lodging the FIR and that the entire case put up by the parents of the deceased was doubtful. The Court noted,

“What is relevant to note is that although the High Court has devoted two full paragraphs for the purpose of recording the submissions as regards the age of the deceased, ultimately no specific finding has been recorded in that regard by the High Court.”

In the light of the above, the appeal was allowed and the impugned order was set aside. The Trial Court was directed to put the accused on trial.

[Manendra Prasad Tiwari v. Amit Kumar Tiwari, 2022 SCC OnLine SC 10572, decided on 12-08-2022]


*Judgment by: Justice J.B. Pardiwala


Appearance:

For Appellant: Mr. Siddharth Singh, AOR

For Respondent(s): Mr. Swarnendu Chatterjee, AOR, Mr. Pragaya Parijat Singh, Adv. Mr. Himanshu Naidwad, Adv. Mr. Ambuj Tiwari, Adv. Mr. Yashwardhan Singh, Adv. Ms. Deepadrshi Garg, Adv. Ms. Ankita Choudhary, DAG Ms. Himanshi Shakya, Adv. Mr. Sunny Choudhary, AOR and Mr. Upendra Mishra, Adv.

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

sexually provocative
Case BriefsDistrict Court

Court of Sessions, Kozhikode: In an interesting case, S. Krishna Kumar, Sessions Judge granted bail to 74 years old Malayali activist and writer Civic Chandran in a sexual assault case. While releasing the accused on bail, the Court remarked,

“The defacto complainant herself was dressed in sexually exposing and provocative clothes. Hence Section 354A will not prima facie stand against the accused.”

Factual Background

The incident in question is said to have occurred on 08-02-2020, when the defacto complainant attended a camp convened by the accused and others at Nandi beach. It was her case that when the participants were returning, the accused caught hold of her hand and forcefully took her to a secluded place; where he made her lie on his lap, pressed her breast, and tried to outrage her modesty.

An FIR was filed against the accused for offences under Sections 354-A (2) 341 and 354 of the Penal Code, 1860. The defacto complainant contended that it is the habit of the accused to molest lady poets and the instant case is the second crime registered against him; moreover, more persons are ready to file complaints against him.

Application for Bail

The case of the defacto complainant was contested on the following grounds:

  • It was a false case cooked up by enemies to seek vengeance against the accused.

  • The alleged offence was said to have commenced on 08-02-2020, while the case was registered on 29-07-2022, without offering any explanation regarding the delay.

  • The defacto complainant, being an educated lady, was well aware of the consequences of sexual assault. Hence, her reluctance to file a complaint had to be explained by her.

  • The accused is aged 74 years and holds a good reputation in society.

Pointing at the social media post of the defacto complainant, the accused contended that she had gone to the place of occurrence with her boyfriend, the invitation letter revealed that they had gone to ‘Kedal Veedu’ which was owned by one Noorudheen. Further, there were many people at the time of the alleged incident yet no one pointed out any complaint against the accused.

Observations of the Court

The Court noted that it is the settled legal position that long delay in filing FIR must be properly explained. The offences alleged against the accused had occurred after the amendment to Sections 354A to E were incorporated.

The Court observed that there must be an assault or use of criminal force on a woman with an intention to outrage her modesty to establish an offence under Section 354. Further, in order to attract Section 354A, there must be physical contact and advances involving unwelcome and explicit sexual overtures. There must be a demand or request for sexual favours, and there must be sexually coloured remarks.

Pointing at the photographs produced by the accused along with the bail application, the Court opined that the defacto complainant herself was dressed in sexually exposing and provocative clothes. Hence Section 354A will not prima facie stand against the accused. The Court expressed,

“Even admitting that there was a physical contact, it is impossible to believe that a man who is aged 74 years and is physically disabled can forcefully put the defacto complainant in his lap and sexually press her breast.”

Conclusion

Consequently, the Court concluded that the accused could be released on bail. Accordingly, the bail application was allowed. The authorities concerned were directed to release the accused on bail on executing a bond for Rs. 50,000.

[Civic Chandran v. State of Kerala, 2022 SCC OnLine Dis Crt (Ker) 2, decided on 12-08-2022]


Advocates who appeared in this case :

P.V. Hari and Sushama M., Advocates, for the Accused;

Public Prosecutor, for the State.


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

Case BriefsSupreme Court

Supreme Court: The bench of SA Nazeer and JK Maheshwari*, JJ has called upon a larger bench to decide if on similar set of allegations of fact the accused can be tried for an offence under Negotiable Instruments Act, 1881 which is special enactment and also for offences under IPC unaffected by the prior conviction or acquittal or whether the bar of Section 300(1) Cr.P.C. would attract for such trial.

The Court was hearing a case relating to dishonour of cheque. The appellant had contended that the respondents approached and asked him to invest money for the development of a land and assured that profit shall be divided amongst the appellant and respondents. He, hence, made the investment of a sum of Rs.62,32,754/¬, but neither profit was shared nor any piece of land was given to the appellant.

When he asked to repay the amount, the respondent handed over a cheque for an amount of Rs.87,00,000 in lieu of repayment of principal sum and interest. The said cheque was, however, dishonored, giving rise to a complaint under Section 138 of NI Act.

Later, the respondent no.5 registered the case against respondent no.1 to 4 for the offences under Sections 120B, 406, 420 and 34 of IPC on 01.10.2016, and after investigation, challan was filed before the competent Magistrate on which cognizance was taken by him.

The High Court of Madras for quashment of the aforesaid proceedings taking into consideration that proceedings under Section 138 of the N.I. Act pertaining to the same cause of action and on the same facts and grounds are pending, prior to the registration of the present proceedings.

Before the Supreme Court, the parties relied on Sangeetaben Mahendrabhai Patel v. State of Gujarat, (2012) 7 SCC 621 to contend that in an offence under Section 138 of the NI Act, requirement to prove mens rea is not necessary although for an offence under Section 420 IPC, fraudulent and dishonest intention i.e. mens rea is relevant to prove and hence, it was urged that the quashment of the proceedings for an offence under Sections 420, 406, 120(B) and 34 IPC as directed by the High Court was wholly unjustified

On the other hand, the respondents relied on Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, (2011) 2 SCC 703 wherein it was held that if the offences are different and the facts are the same, the prosecution under Section 420 of the IPC is barred by virtue of Section 300(1) of the Cr.P.C.

In G. Sagar Suri v. State of UP, (2000) 2 SCC 636, the offences under Section 138 of NI Act as well as the offence under Sections 406 and 420 of IPC were allegedly committed by the accused of that case. After lodging the complaint under Section 138 of NI Act, a petition under Section 482 before the High Court was filed for quashment of the complaint which was dismissed. On filing the special leave petition before the Supreme Court, it was allowed and the Court directed that the prosecution under Sections 420 and 406 is not tenable and quashed.

The Court, in the case at hand, was of the opinion that the aforesaid judgments cited by the respective parties are conflicting, hence, to avoid any further confusion and to maintain consistency, it referred the issue for decision by the larger bench to answer the following questions:

(1) Whether the ratio of the judgment, in the case of G. Sagar Suri and Kolla Veera Raghav Rao lay down the correct law? or The view taken in the case of  Sangeetaben Mahendrabhai Patel as followed in M/s V.S. Reddy and Sons (supra) which is subsequent and conflicting, lay down the correct proposition of law?

(2) Whether on similar set of allegations of fact the accused can be tried for an offence under NI Act which is special enactment and also for offences under IPC unaffected by the prior conviction or acquittal and, the bar of Section 300(1) Cr.P.C. would attract for such trial?

[J. Vedhasingh v. R.M. Govindan, 2022 SCC OnLine SC 1010, decided on 11.08.2022]


*Judgment by: Justice JK Maheshwari

Andhra Pradesh High Court
Case BriefsHigh Courts

   

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

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

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

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

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

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

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


Advocates who appeared in this case :

O Kailashnath Reddy, Advocate, for the Petitioner.


*Arunima Bose, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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


Advocates who appeared in this case :

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

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


*Suchita Shukla, Editorial Assistant has reported this brief.

Sedition Stay Order
Op EdsOP. ED.

   

Introduction

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

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

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

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

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

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

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

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

Analysis of the order

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

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

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

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

(a)***

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

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

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

(e)***

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

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

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

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

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

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

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

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

Concluding remarks

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

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

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


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

2. 2022 SCC OnLine SC 609.

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

4. Penal Code, 1860.

5. AIR 1962 SC 955.

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

7. AIR 1962 SC 955.

8. 2022 SCC OnLine All 419.

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

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

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

12. Criminal Procedure Code, 1973.

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

14. Constitution of India, Art. 21.

15. Constitution of India.

16. (1988) 2 SCC 602.

17. 2022 SCC OnLine Raj 1056.

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

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: Dinesh Kumar Singh, J. rejected the bail application of former UP MLA Mukhtar Ansari who was arrested under Sections 419, 420, 467, 468, 471, 120-B, 177 and 506 Penal Code, 1860 and Section 7 of Criminal Law Amendment Act, 1932. Bail application of the accused-applicant was rejected by the Special Judge (MP/MLA)/Additional District Judge earlier on 13-12-2021.

FIR against accused-applicant revealed that an ambulance was registered in the Road Transport Office, Barabanki on 21-12-2013 in the name of Dr. Alka Rai in lieu of forged documents. During the course of investigation name of the accused-applicant figured, and it was found that the real beneficiary and user of the said vehicle was the present accused-applicant and he got the said vehicle purchased in the name of Dr. Alka Rai by pressurizing her and the payment was allegedly made by him.

State submitted that the accused-applicant is a known Mafia, Don and Gangster. He has been elected five times for the Legislative Assembly of the Uttar Pradesh from Mau Constituency and three times while he was in jail. Criminal history of the accused-applicant was also submitted in detail. It was alleged that the aforesaid vehicle was recovered from Mohali, Punjab, which was being used by the accused-applicant and his henchmen for going to the court from jail. His henchmen would travel in the said ambulance armed with sophisticated weapons to escort him.

The Court remarked that ‘It is irony and tragedy of the Indian republic and biggest scar on Indian democracy that criminals like the present accused-applicant are the law-makers.

It was noted that Dr. Alka Rai, later in her statement admitted that under pressure and fear of the present accused-applicant, she had signed on some papers brought by his men and her signatures were taken on the blank letter pad of the hospital along with seal etc. Statements of other co-accused corroborated the abovementioned allegations.

The Court reiterated the Supreme Court ruling in Harjit Singh v. Inderpreet Singh, 2021 SCC Online SC 633 wherein the Court had cancelled the bail granted to the accused by the High Court considering the criminal antecedents of the accused. Further the Court relied on Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 where the Supreme Court held that while considering a bail application by the Court, the due consideration, inter alia, to be given to the criminal antecedents of the accused.

The Court rejected the bail application keeping in mind the long criminal history of the accused-applicant of most heinous offences and facts of the case. The Court did not find any ground to enlarge the accused-applicant on bail.

“The accused-applicant commands un-parallel fear in the minds and hearts of the people that no one dares to challenge him and his men and his politics. If the accused-applicant is enlarged on bail, the apprehension of the prosecution that he would tamper with the evidence and influence the witnesses, cannot be ruled out.”

[Mukhtar Ansari v. State of U.P., 2022 SCC OnLine All 491, decided on 19-07-2022]


Advocates who appeared in this case :

Sri Arun Sinha, counsel for the applicant and Sri V.K. Shahi, Additional Advocate General assisted by Sri Anurag Varma, A.G.A.


*Suchita Shukla, Editorial Assistant has reported this brief.

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Navneet Kumar, J., upheld the conviction of the appellant- accused guilty of killing his wife within a few years of marriage on her failure to fulfill the demands of the dowry. The deceased, Rita Devi, had gone missing from her husband’s home and her body was found in the Sakhua jungle.

This appeal is against the judgment of conviction passed by the Additional Sessions Judge charging the appellant -, for the offences punishable under Sections 304-B, 498-A, and 201 of Penal Code, 1860. For committing an offence under Section 304-B– of IPC, he was sentenced to Rigorous Imprisonment (‘RI’) for 7 years and further sentenced to undergo RI for 3 years and to pay a fine of Rs. 2000 and in case of default in payment of fine, he was further directed to undergo RI for 3 months for the offence punishable under Section 498-A and further sentenced to undergo RI for 3 years and to pay a fine of Rs. 2000 and in the case of default in payment of fine, he was further directed to undergo RI for 3 months for an offense punishable under Section 201 of IPC.

Facts:

The daughter of the informant, Rita Devi, was married to the appellant. Just after the solemnization of marriage, the appellant started demanding a Motorcycle and for that, the victim was assaulted and was subjected to cruelty. The informant also said that just 15 days back from the incident the accused assaulted the victim with respect to the demand of dowry and this assault continued since last 4-5 months continuously. Hearing this when the informant reached the victim’s house to meet the daughter, he found out that there was no one present in the house, and it was locked.

On 26-05-2002, the dead body of the victim was found in midst of the Sakuna jungle. The fardbeyan of the informant was recorded at the site of the incident. It was evident that the death has been caused due to strangulation as there were marks and swelling on the neck. This incident took place within 1 year of her marriage.

The police registered the case and submitted the charge-sheet and the Chief Judicial Magistrate took cognizance, the case was then committed to the court of sessions and after conducting a full-fledged trial passed impugned judgment of conviction and order of sentence which is under challenge in this appeal.

Observations and Analysis:

The Court was convinced with the finding of the Trial Court and upheld the trial court ruling and noted that there were no irregularities in the judgment of conviction and the order of sentence passed by the court.

[Pradeep Kumar Mandal v. State of Jharkhand, 2022 SCC OnLine Jhar 686, decided on 13-06-2022]


Advocates who appeared in this case :

Mr. S.P. Roy, Advocate, for the Appellant;

Mr. Purnendu Sharan, Advocate

Mrs. Nehala Sharmin, A.P.P., Advocate, for the Respondent.

Tis-hazari
Case BriefsDistrict Court

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

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

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

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

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

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


Advocates who appeared in this case :

Mr Pankaj Bhatia, Advocate, for the State;

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

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

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

   

Jammu and Kashmir and Ladakh High Court: While deciding the instant petitions, the question that came up before that Court was whether a person can be prosecuted for offence under Section 420 of IPC as also for offence under Section 138 of NI Act, on the same set of facts and whether or not it would amount to double jeopardy. The single Judge Bench of Sanjay Dhar, J., observed that the offences under Section 138, NI act and Section 420, IPC, are two distinct offences, therefore the principle of double jeopardy or rule of estoppel does not come into play.

Relevant Facts of the case: The two clubbed petitions dealt with complaints filed by the respondents under S. 138 of Negotiable Instruments Act, 1881 concerning the sale of a patch of land. In both cases, the petitioners approached the respondents to sell the land and promised to pay damages if the sale did not proceed. In both cases the land could not be cold thereby the respondents became entitled to damages. The petitioners issued cheques drawn on HDFC Bank Branch unit Baghat, Barzulla, bearing the amount that was to be paid as damages; however, the cheques were dishonoured with the endorsement “drawers account closed”.

Contentions: The petitioners submitted before the Court that the respondent, prior to the filing of the complaints under S. 138, NI Act, had filed an FIR for offences under Section 420, 506 IPC, the contents of which are identical to the impugned complaints. The petitioners argued that they cannot be prosecuted twice on the basis of some set of facts as it would amount to double jeopardy. It was also contended that continuance of proceedings in the impugned criminal complaints would be an abuse of process of law and it would amount of forum shopping.

Analysis/ Observations: Perusing the facts and contentions of the matter, the Court referred to Maqbool Hussain v. State of Bombay, 1953 SCR 730, wherein the Constitution Bench of the Supreme Court had dealt with the issue of double jeopardy and held that the fundamental right which is guaranteed under Art. 20(2) of the Constitution enunciates the principle of “double jeopardy” i.e., a person must not be put in peril twice for the same offence. The High Court further referred the case of Sangeetaben Mahendrabhai Patel v. State of Gujarat, (2012) 7 SCC 621.

  • The High Court observed that offences under Section 138 of the NI Act and Section 420 of IPC are distinct from each other because ingredients of the two offences are different. Examining the distinctions in both the offences, the Court pointed out that- in a prosecution under Section 138, fraudulent or dishonest intention at the time of issuance of cheque need not be proved; but in a prosecution under Section 420, fraudulent or dishonest intention is an important ingredient to be established.

  • It was further noted that for an offence under Section 138, NI Act, it has to be established that the cheque has been issued by the accused to discharge a legally enforceable debt or liability and the same has been dishonoured for insufficiency of funds etc. and despite receipt of statutory notice of demand, the accused has failed to pay the amount of cheque within the stipulated time. Whereas in Section 420, IPC, it has to be proved by prosecution that at the very inception i.e., at the time of issuance of the cheque by the accused, he had a dishonest intention.

Decision: With the afore-stated analysis, the Court dismissed the petitions and held that merely because the respondent had lodged an FIR under Section 420, IPC containing allegations relating to the same transaction, which is subject matter of the impugned complaints, it does not make out a case of forum shopping or double jeopardy. The Court further held that the respondents are well within their rights to continue prosecution for both these offences under Section 138 of NI Act and Section 420 of IPC simultaneously.

Upon the question of belated filing of the impugned complaints, the Court held that the impugned complaints have been filed by respondents during the period which is covered by the order of the Supreme Court in Cognizance for Extension of Limitation, In re, (2022) 3 SCC 117.

[Fayaz Ahmad Sheikh v. Mushtaq Ahmad Khan, CRM(M) No.280/2021, decided on 15-07-2022]


Advocates who appeared in this case :

Sheikh Hilal, Advocatefor the Petitioner;

Waseem Shamas, Advocate, for the Respondents.


*Sucheta Sarkar, Editorial Assistant has prepared this brief