Case BriefsHigh Courts

Gauhati High Court: Ajai Lamba, CJ while addressing the present petition observed that,

“…the protection available under the Judges (Protection) Act, 1985 is absolute and is available not only to a sitting Judge but also to an Ex-Judge in respect of the actions taken or words spoken by him while discharging his official or judicial functions.”

Present petition has been filed to seek issuance of a writ of certiorari for quashing the Order wherein the petitioner was directed to show cause as to why the dead cow was disposed of without informing the trial court.

Petitioner has also sought to quash an order whereby the petitioner was asked to show cause as to why contempt proceedings be not initiated against him for not complying with Order dated 28-07-2020 issued in connection to giving zimma of 4 seized vehicles.

Analysis and Decision

It has been noted that the petition is directed against a Judicial Magistrate who passed orders in his judicial capacity.

Bench referred to the following paragraphs in the Supreme Court’s decision of Anowar Hussain v. Ajoy Kumar Mukherjee,1965 SCC OnLine SC 1 in the context of provisions of Judicial Officers’ Protection Act, 1850:

9. In this appeal, the only question raised is that in ordering the arrest of the respondent the appellant acted in discharge of his judicial duties, and he was on that account protected by the Judicial Officers’ Protection Act, 1850. Section 1 of the Act, in so far as it is material, provided:

“No Judge, Magistrate, ° ° ° Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction: Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of; ° ° °”.

10. The statute is clearly intended to grant protection to Judicial Officers against suits in respect of acts done or ordered to be done by them in the discharge of their duties as such officers. The statute it must be noticed protects a Judicial Officer only when he is acting in his judicial capacity and not in any other capacity. But within the limits of its operation it grants large protection to Judges and Magistrates acting in the discharge of their judicial duties. If the act done or ordered to be done in the discharge of judicial duties is within his jurisdiction, the protection is absolute and no enquiry will be entertained whether the act done or ordered was erroneously, irregularly or even illegally, or was done or ordered without believing in good faith, that he had jurisdiction to do or order the act complained of. If the act done or ordered is not within the limits of his jurisdiction, the Judicial Officer acting in the discharge of his judicial duties is still protected, if at the time of doing or ordering the act complained of, he in good faith believed himself to have jurisdiction to do or order the act. The expression “jurisdiction” does not mean the power to do or order the act impugned, but generally, the authority of the Judicial Officer to act in the matter Tayen v. Ram Lal, ILR 12 All 115.

Court also referred to Section 3(1) of the Judges (Protection) Act, 1985 which directs that no Court shall entertain any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him, or in the course of, acting or purporting to act in the discharge of his official and judicial duty or function.

On perusal of the above, it is apparent that the Sub-Divisional Judicial Magistrate was acting in the discharge of his judicial duty while passing the impugned orders.

Hence, the actions of the Judge, stand protected by virtue of the Judges (Protection) Act, 1985 (subject to the provision of sub-section 2 of Section 3 of the Act of 1985).

Court also added to its analysis that,

If in passing every wrong or illegal judicial order, the concerned Judge is sued before the higher judicial forum, it shall result in demoralising the judicial officers, particularly, at the adjudicating level, other than the public losing faith in the judiciary.

In view of the above-stated position, Court dismissed the petition with costs of Rs 10,000 to be recovered from the salary of petition and deposited with Assam State Legal Services Authority.

While parting with the decision, Court added petitioner can challenge the impugned orders by virtue of the present petition before appropriate forum, however without impleading Judicial Officer or the High Court. [Rahendra Baglari v. Sub-Divisional Judicial Magistrate, WP (C) No. 3057 of 2020, decided on 15-09-2020]

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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

The Court further observed:

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

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

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


*Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Madras High Court: A Division Bench of P.N. Prakash and B. Pugalendhi, JJ. had directed the Judicial Magistrate (I), Kovilpatti, to go to Sathankulam for conducting enquiry into the custodial deaths of a father-son duo. The Madurai Bench of the Madras High Court has taken suo motu cognizance of the act.

The incident

Jayaraj and his son Bennicks were taken into custody by the police and brought to Sathankulam Police Station, Tuticorin, for allegedly they had not closed their mobile shop even after the permitted time and thereby violated general prohibitory orders passed during the COVID-19 lockdown period. In the status report filed by the Superintendent of Police, Tuticorin, it has been further reported that when the Beat Police Officer asked the now deceased prisoners to close the shop, they abused the police constables, prevented them from discharging their official duty and threatened them with dire consequences. This status report was filed by the SP, Tuticorin, pursuant to the directions of the High Court in its earlier order dated 24th June 2020.

The said incident happened on 19th June. The deceased father-son were brought to the police station the same night. They were produced before the Judicial Magistrate, Santhankulam, the next day, i.e. 20th June, and remanded to custody at the Sub-Jail, Kovilpatti. On 22nd June, Bennicks was admitted to the Government Hospital, Kovilpatti, at 7:45 p.m., and Jeyaraj at 10:30 p.m. While undergoing treatment, Bennicks expired on the night of 22nd June at 9 p.m. and Jeyaraj expired in the morning of 23rd June at 5:40 a.m. Two FIRs into the said incident have been registered at the Kovilpatti East Police Station. On this account, the Judicial Magistrate (I), Kovilpatti, assumed charge to conduct enquiry under Section 176(1)(1-A) CrPC. As directed by the High Court in its previous order, the post-mortem was done at the Government Hospital, Tirunelveli, by a panel of three experts in the presence of the Judicial Magistrate (I), Kovilpatti. The post-mortem was also videographed. 

Directions

Having regard to the said facts, the Court noted that in this charged and tensed atmosphere, the Judicial Magistrate (I), Kovilpatti, would not have been in a position to examine the family members of the deceased as they would have been under untold stress. Sathankulam is about 100 kms from Kovilpatti. Therefore, to serve the interests of justice, the following directions were issued:

(a) The Judicial Magistrate (I), Kovilpatti, may go to Sathankulam for conducting the enquiry, so that the witnesses will be in a position to appear before him and their statements can be recorded.

(b) The Judicial Magistrate is also at liberty to visit the family members of the deceased for the purpose of recording the statements of the womenfolk, who may not be in a position to come out, as they will be in the period of mourning.

(c) The Judicial Magistrate may also conduct local inspection under Section 310 CrPC, visit the Sathankulam Police Station and take photocopies of all the records relating to Sathankulam PS Cr. No. 312 of 2020, including the Case Diary in Sathankulam PS Cr. No. 312 of 2020 and the Station General Diary. He may also record the statements of the policemen in the Sathankulam Police Station itself, so that he may get an idea as to where all the deceased were kept during their detention.

(d) The Judicial Magistrate shall also take a photocopy of the case diary in Sathankulam PS Cr. No. 312 of 2020 and the original case diary shall be handed over to the Chief Judicial Magistrate, Tuticorin, for safe custody.

(e) The Judicial Magistrate may also visit the place of occurrence in Cr. No. 312 of 2020 for better appreciation of the facts and may also take videographs of the place of occurrence wherever he finds it necessary.

(f) The Judicial Magistrate may use the Sathankulam Court premises as camp office for conducting the enquiry and the staff members of the Sathankulam Court premises shall be at his disposal, till the enquiry is completed.

(g) The Judicial Magistrate may visit the Sub-Jail, Kovilpatti, and take photocopies of all the records, including the admission register and other medical records, duly attested by the Superintendent of the Sub-Jail.

(h) The Judicial Magistrate shall also collect the CCTV footages wherever they are available and have them preserved.

(i) The Tuticorin district administration shall provide all necessary facilities and protection to the Judicial Magistrate thereby enabling him to discharge his functions.        

The aforesaid directions issued by the Court are primarily in the nature of guidance to the Magistrate for him to follow. The Court made it clear that by issuing the aforesaid slew of directions, it is not interfering with the manner in which the Judicial Magistrate should conduct the enquiry and the Court left it open to his discretion to understand the ground reality and act accordingly.

The Court said that it earnestly hope and trust that the family members of the deceased, local Bar, fourth estate, public, political parties and NGOs would provide a congenial atmosphere for the Magistrate to conduct the enquiry, so that ultimately, justice is done to the parties.

Until further orders, two cases filed pursuant to the FIRs in the death of Jeyaraj and Bennicks will be dealt with by the Deputy Superintendent of Police, Kovilpatti Range.

The Principal District Judge, Tuticorin, is also personally monitoring the case and is briefing the High Court from time to time in this regard.

Pursuant to the observation made by the Court in the earlier order dated 24th June 2020, the Director General of Police, Chennai-4, has issued a circular memorandum dated 25th June 2020, setting out the Standard Operating Procedure for dealing with persons who violate the lockdown regulations. The High Court took on record the said Circular Memorandum and placed on record our appreciation to the Director General of Police for the efforts taken in this regard. However, it was made clear that the Standard Operating Procedure should not remain on paper alone, but, should be implemented in spirit as well. In this regard, it was suggested that the Police Department engage the services of counsellors and NGOs for providing counselling to the police personnel and their family members during this testing period.

The matter is posted for 30th June 2020. [High Court of Madras v. State of T.N., 2020 SCC OnLine Mad 1249 , dated 26-6-2020]

Case BriefsHigh Courts

Karnataka High Court: P.G.M. Patil, J. issued guidelines to be followed by Judicial Magistrates, for the passing of orders when the requisition is submitted by the SHO of police station seeking permission to investigate, non-cognizable offence.

In this case the H.N. Shirahatti, PSI Kagwad Police station received information that within the limits of Mole Village some people were playing gambling for there personal benefit which is contrary to law and illegal. He filed a complaint and therefore proceeded to the spot after informing the Dy. SP and CPI, under there instruction and guidance. On reaching the spot he found that certain person were saying Yakka means Rs 100. and they conducted a raid and caught hold 13 persons and recovered cash of Rs 10,250 On the basis of the complaint, the SHO registered a crime for offence under Section 87 of Karnataka Police Act Act. Subsequently, after investigation, a charge sheet was filed against the petitioner and other accused of the offence punishable under Section 87 of the Act. 

The petitioner’s counsel submitted that the complaint is misconceived, and the alleged offence is non-cognizable as per the Code of Criminal Procedure, 1973 (CrPC). Therefore, the police have no authority to investigate the crime. It was further submitted that the police have not complied with the mandatory requirement of Sections 155(1) and 155(2) of CrPC. On the contrary, the respondent’s (Government) counsel said that the jurisdictional Magistrate has permitted the concerned police to take up the investigation and therefore, there is compliance of Section 155(2) of CrPC.

It was opined by the Court that the police officer has no authority of law unless the jurisdictional magistrate permits the police officer for investigation of the non-cognizable offence. The Court relied upon Mukkatira Anitha Machaiah v. State of Karnataka, 2013 SCC OnLine Kar 6703 where it was held that under Section 155 of CrPC when the officer in charge gets the information for the commission of non-cognizable offence then he shall enter or cause to enter the information in prescribed book and refer the informant to magistrate; and under Section 155(2) no police officer shall investigate a non-cognizable case without an order of a Magistrate having the power to try such case or commit the case for trial.

The Court thus issued guidelines to be followed by Judicial Magistrates, as to how they have to approach and pass orders when requisition is submitted by the SHO of police station seeking permission to investigate, non-cognizable offence. Some of them were that the word ‘permitted’ is not an order in the eyes of law and when the requisition is submitted by the informant to the Jurisdictional Magistrate, he should make an endorsement on it as to how it was received, either by post or by Muddam. When the Magistrate passes the orders permitting the investigation, he/she shall specify the rank and designation of the Police Officer who has to investigate the case.[Vaggeppa Gurulinga Jangaligi v. State of Karnataka, 2019 SCC OnLine Kar 2708, decided on 10-12-2019]

Case BriefsHigh Courts

Sikkim High Court: Arup Kumar Goswami, CJ. quashed a criminal case under Section 482 of the Code of Criminal Procedure, 1973.

In the present case, the respondent filed an FIR as the petitioner insulted the respondent, where there was a possibility of her getting hit. A case was registered under Sections 186, 353, 509 of the Penal Code, 1860. At the time of trial, the Sessions Judge held that there was no material to frame charge under Section 506 of IPC and the said petition was modified. The petitioner also filed a Private Complaint in a police station against the respondent which was pending in the Court of Judicial Magistrate. The respondent filed a revision application to stop the court from summoning her which was dismissed.

Advocate, Simeon Subba appearing on behalf of the petitioner submitted that the parties had resolved their differences and a deed of compromise was entered into by and between them which stated that the petitioner will withdraw the Private Complaint Case and the respondent will not object to the application filed by the petitioner. Therefore, the General Registered Case pending in the Magistrate’s Court should be quashed.

Jorgay Namka, Advocate appearing on behalf of the respondent also submitted the same.

The High Court with respect to the above observed that the petitioner was facing charges under Sections 186, 290 and 353 of the IPC which were non-compoundable offences. The Court further relied on the case of Gian Singh v. State of Punjab, (2012) 10 SCC 303 where it was held that a Court can quash proceedings in a non-compoundable proceeding where it is of the opinion that continuation of the criminal proceedings will be pointless and against the process of securing justice. The Supreme Court also cautioned that such power is to be exercised keeping in mind the nature and gravity of the crime.

Further, adding to its observation, the High Court, said that the offence was not heinous and serious and since the parties had amicably resolved their differences, it would be against the interest of justice to not quash the criminal proceeding against the petitioner and therefore, the case was quashed. [Krishna Lall Timsina v. Kanu Priya Rai, 2019 SCC OnLine Sikk 196, decided on 02-12-2019]

Case BriefsHigh Courts

Tripura High Court: A Bench of Arindam Lodh, J. allowed a petition for quashing of criminal proceedings pending against the petitioner.

The petitioner was arrested with other co-accused in connection with a crime under Sections 364-A, 302 and 201 IPC along with Section 27 of Arms Act. The petitioner through his counsel D. Bhattacharya, Advocate submitted that after investigation, the chargesheet submitted by the Investigating officer did not show his name. Further, that the IO specifically observed that there was no evidence against the petitioner. However, after taking cognizance of the case, the Judicial Magistrate (First class), Sonamura issued an arrest warrant against all the accused including the petitioner. Aggrieved thereby, the present petition was filed.

After carefully perusing the record, the High Court expressed serious dissatisfaction to the conduct of JMFC who did not think it necessary to go through the chargesheet itself. This, according to the court, is unexpected from a Judicial Officer. The JMFC was cautioned that any such mistake in future would draw appropriate action. It was observed, “It is the solemn duty of the court to protect the life and liberty of a citizen and none should be harassed unnecessarily”. The Court was satisfied that the petitioner was discharged by the IO and therefore it allowed the petition by quashing the proceedings pending against the petitioner. [Priyalal Debbarma v. State of Tripura, 2018 SCC OnLine Tri 261, Order dated 05-12-2018]