Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., held that Special Court which is to try offences under the Insolvency and Bankruptcy Code, 2016 is the Special Court established under Section 436(2) (b) of the Companies Act, 2013 which consisted of Metropolitan Magistrate or Judicial Magistrate First Class.

The present petition was filed assailing the order “Issue Process” under Section 73(a) and Section 235A of the Insolvency and Bankruptcy Code, 2016 passed by the Additional Sessions Judge on a complaint filed by the Insolvency and Bankruptcy Board of India.


The Additional Sessions Judge does not have jurisdiction to entertain the complaint filed by the respondents.

Analysis, Law and Decision

Section 236 of the Insolvency and Bankruptcy Code empowers the Central Government or Board to file a complaint against a person/s having contravened, one of the penal provisions of the I.B. Code constituted or established under the provisions of the Companies Act, 2013.

The Companies Act (17th amendment) sought to establish two different classes of a Special Court; (a) a Single Judge holding office as Session Judge or Additional Sessions Judge and (b) Metropolitan Magistrate or Judicial Magistrate First Class; who shall be appointed by the Central Government with concurrence of the Chief Justice of the High Court within whose jurisdiction, the Judge to be appointed is working.

Which of the above two classes is empowered to try the offences under the I.B. Code?

The plain reading of clause (a) of subsection (2) of Section 435 of the Companies Act in no uncertain terms implies or suggests that the Special Court consists of Judge holding office as a Sessions Judge is empowered to try the offences under Section under this Act”. (emphasized)

‘Under this Act’ the phrase would mean the offences committed under the Companies Act.

Hence, the Companies Act cannot be tried by the Special Court established under clause (a) of sub section 2 of Section 435.

High Court opined that the clear mandate of the legislature was that the “Special Court” comprising of a Sessions Judge or Additional Sessions Judge was only to try offences under the Companies Act, 2013 itself which carry a punishment of imprisonment of 2 years or more.

However, it is clear that “Special Court”, comprising of a Metropolitan Magistrate or Judicial Magistrate First Class is to try “other offences” and the other offences would be offences under the I.B. Code and offences under the CA 2013 but carrying punishment of imprisonment of less than 2 years.

Elaborating further, the Court expressed that Section 236(3) of the I.B. Code creates a deeming fiction that the Special Court trying offences under the I.B. Code shall be deemed to be Court of Sessions.

In view of the above discussion, the impugned proceedings instituted by the respondents in the Court of Additional Sessions Judge were not sustainable for want of jurisdiction. [Satyanarayan Bankatlal Malu v. IBBI, 2022 SCC OnLine Bom 310, decided on 14-2-2022]

Advocates before the Court:

Mr. Amir Arsiwala a/w. Mr. Piyush Deshpande a/w. Mr. Farzeen Pardiwala, Advocate for the Petitioners.

Mr. Pankaj Vijayan a/w. Mr. Mohammed Varawala, Advocate for Respondent no.1.

Mr. Y.M. Nakhawa, APP for State-Respondent no.2.

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., reiterated the law laid down by the Supreme Court in the case of Pradip Ram v. State of Jharkhand, (2019) 17 SCC 326 wherein it was held:

“where the accused is bailed out under orders of the Court and new offences are added including the offences of serious nature, it is not necessary that in all cases earlier bail should be cancelled by the Court before granting permission to arrest an accused on the basis of new offences. The Powers under Sections 437(5) and 439(2) are wide powers granted to the Courts by the legislature under which Court can permit an accused to be arrested and commit him to custody without even cancelling the bail with regard to the earlier offences.”

In the instant case, the petitioner was accused in an FIR registered under Sections 304(A), 279, 337, 338 and 427 of Penal Code, 1860 read with 184, 134(A)(B) of the Motor Vehicles Act, 1988.

The above said offences were bailable and hence the petitioner was released on bail under Section 436 of the Code of Criminal Procedure, 1973 by the Judicial Magistrate.

Later, the respondent-State sought for the addition of offence under Section 304-II of the IPC and Section 65(A) of the Prohibition Act. The said offence was non-bailable and triable by the Sessions Court. Thereafter the respondent moved an application for cancellation of bail earlier granted to the petitioner. The Judicial Magistrate declined such application but directed the petitioner to surrender before the Court within ten days and apply for bail for the newly added cognizable and non-bailable offences.

Petitioner approached the High Court contending that the prosecution could not have filed an application under Section 437(5) CrPC and further that the Judicial Magistrate had no jurisdiction to entertain the application since the petitioner was granted bail under Section 436 CrPC.

Hence, the contention was that since the petitioner had been granted bail under Section 436, the application under Section 437(5) was not maintainable. It was further contended that since the petitioner was granted bail under Section 436, the Judicial Magistrate had not acquired jurisdiction under Section 437(5) to entertain the application and, therefore, the impugned order directing the petitioner to surrender before the Court within ten days and apply for the bail in newly added cognizable offence was without jurisdiction.

Analysis, Law and Decision

High Court expressed that the petitioner was right in contending that, since the petitioner had been granted bail under Section 436 CrPC, prosecution could not have moved an application under Section 437(5) of the CrPC.

However, in facts of the case, the Judicial Magistrate did not actually exercise jurisdiction under Section 437(5), but by relying on the judgment of the Supreme Court in the case of Pradip Ram (Supra) suggested the petitioner to apply for bail in the newly added cognizable and non-bailable offence. Obviously, condition (2) of the operative order was based on the judgment of the Supreme Court in the Case of Pradip Ram (Supra) wherein the Supreme Court has summarised the law in paragraph 31 relating to the issue in question. Therefore, directions contained in Clause (2) of the operative order could not be faulted with.

Further, in so far as Clause (3) of the operative order was concerned, the permission to arrest was granted pursuant to a subsequent application/intimation and not in the application preferred by the prosecution seeking cancellation of petitioner’s bail.

In view of the above, petition was dismissed and disposed of. [Rohan Suni Abbott v. State of Maharashtra, 2021 SCC OnLine Bom 3912, decided on 15-11-2021]

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: The Division Bench of Suman Shyam and Mir Alfaz Ali, JJ., heard the instant petition against the judgment and order dated 24-03-2011 rendered by Additional Sessions Judge, whereby, the appellant was convicted under Section 302 Penal Code, 1860 and sentenced to rigorous imprisonment for life.

The case of the prosecution was that on 07-11-2014, a fight took place between the deceased and the accused, both of whom were employees of one Shambu Shil. The appellant had inflicted injuries on the head of the deceased with an iron rod, which caused his death. An FIR was lodged by the employer of the deceased as well as the accused/appellant under Section 302 Penal Code, 1860. According to the doctor, the cause of death was shock and hemorrhage as a result of the injuries sustained. All the injuries were accessed to be ante mortem and homicidal in nature.

Moreover, the appellant had recorded a confession before the Judicial Magistrate, on the basis of which and testimony of the Trial Court had convicted the appellant under Section 302 IPC.

Counsel of the accused, B Bhagawati, Amicus Curiae argued that in the confessional statement, the appellant had stated that both were drunk at the time of the occurrence. Further, the confessional statement of the appellant, which was duly recorded by the Judicial Magistrate, and was corroborated by the eye witness’s accounts made it abundantly clear, that there was quarrel and fight between the appellant and the deceased and in course of the quarrel, the appellant hit the deceased with the iron rod at the heat of passion. Thus, the entirety of the evidence clearly demonstrates that there was no premeditation on the part of the appellant and the assault was made suddenly at the heat of passion in course of quarrel.

The Bench observed that, when the assault was made without premeditation, at the heat of passion in course of sudden quarrel and the appellant also did not take any undue advantage nor acted in cruelty, all the above factors had made the present case come squarely within the sweep of exception (4) to Section 300 IPC. However, said the Bench, having regard to the three injuries on the head and the weapon used, it could not be said that the appellant did not has intention to cause death or to cause such bodily injury as is likely to cause death.

Thus, taking note of the evidence in its entirety, the Bench opined that the conviction of the appellant under Section 302 IPC was not sustainable. Therefore, the impugned order was set aside and the appellant was convicted under Section 304 Part-I instead of 302 IPC. Further observing that the appellant had been in custody for more than 14 years, his sentence was reduced to the period already undergone. Accordingly, the appellant was directed to be released.[Debaru Majhi v. State of Assam,  2021 SCC OnLine Gau 422, decided on 05-03-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Arun Kumar Tyagi, J., addressed a petition challenging the impugned order of Judicial Magistrate Ist Class of dismissing the complaint due to non-appearance of the appellant under Section 256 of the Code of Criminal Procedure, 1973.

The appellant had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 on the grounds that the accused issued a Cheque No.031411 dated 17-04-2013 for Rs 6,50,000 drawn on HDFC Bank, in discharge of subsisting liability under the friendly loan taken by him but the said cheque was dishonoured with remarks ‘Funds Insufficient’ and ‘Account Closed’. While the case was fixed for arguments on the above said application, the appellant absented himself on which the complaint was dismissed for non-prosecution.

The appellant argued that he had been regularly appearing in his complaint case and absented just on one date due to noting down of wrong date of hearing. Hence, dismissal of his complaint and acquittal of the accused was not proper and justified.

The Court observed that prosecution of a private complaint about an offence under section 138 of the N.I. Act differs from the prosecution of private complaint in respect of other offences under other enactments as in case of complaint for an offence under Section 138 of the N.I. Act there is no remedy available to the complainant to file a second complaint when the first complaint is dismissed in default in view of the limitations prescribed and the only remedy available to the complainant is to file a revision or appeal. The Court relied on Steel Strips Ltd. Chandigarh v. Jyoti Mechanical Movements, 2001 SCC OnLine P&H 202, whereby it had been held that “It is imperative upon Magistrate to form his opinion by taking care of the matter as to whether it is appropriate to dismiss the complaint. The real test in such like matters is always good faith.” It was held that for absence of complainant on one occasion, the complaint should not be dismissed unless, the Court is of the opinion that the complainant had been trying to protract the matter to harass the accused deliberately or with ulterior motive and the like.

Noticing that the case was fixed for arguments on application filed by the accused for examination of hand-writing on the cheque, the Court stated that presence of the complainant was not absolute essential for hearing of the arguments and passing of appropriate order on the above-said application. The Court, while setting aside the impugned order held that the order suffered from material illegality since the Magistrate had mechanically passed the order without recording any opinion as to whether personal attendance of the complainant was necessary or could be dispensed with and whether in his absence the case could be further proceeded with. [Vikram Singh v. Naveen Siwatch, 2019 SCC OnLine P&H 5702, decided on 03-12-2019]

Case BriefsHigh Courts

Bombay High Court: C.V. Bhadang, J., addressed whether the Family Court can application for reliefs under Section 18 to 22 of the Protection of Women from Domestic Violence Act, 2005.

The instant application was filed in regard to the transfer of Criminal Miscellaneous Application pending before the Judicial Magistrate for dissolution of marriage on the ground of cruelty.

Bench noted that the applicant was seeking reliefs against the respondent with regard to the dissolution of marriage and permanent custody of the children.

Respondent had filed Criminal Miscellaneous Application under Sections 12, 17, 18, 19, 20, 22 and 23(2) of the D.V. Act, seeking a residence order a protection order and monetary reliefs.

Principle Issue 

Whether the Family Court can entertain the application, as framed and filed by the respondent before the Magistrate?

Court referred to the three decisions of Single Judges of this Court which have already covered the above issue:

  • Minoti Subhash Anand v. Subhash Manoharlal Anand (R.D. Dhanuka, J.),2015 SCC OnLine Bom 6113
  • Sandip Mrinmoy Chakraborty v. Reshita Sandip Chakraboarty ( Bharati H. Dangre, J.), 2018 SCC Online Bom 2709
  • Santosh Machindra Mulik v. Mohini Mithu Choudhari (S.C. Gupte, J.), Misc. C.A. No. 64 of 2019 decided on 15-11-2019

This Court has consistently held that in view of Section 7(2)(b) of the Family Courts Act, read with Section 26 of the Protection of Women from Domestic Violence Act, 2005, Family Court would get jurisdiction to entertain the application for reliefs under Section 18 to 22 of the D.V. Act.

“…if the Family Court can entertain an application under Sections 18 to 22, if filed under Section 26 merely because the application is styled as one under Section 12, would hardly make any difference.”

Hence, the present application was allowed and the Criminal Miscellaneous Application was transferred to the Family Court.[Hitesh Prakashmalji Mehta v. Aashika Hitesh Mehta, 2020 SCC OnLine Bom 983, decided on 28-09-2020]

Advocates who appeared before the Court:

Abhijit D. Sarwate for the Applicant.

Arvind Chavan for the Respondent.

Case BriefsHigh Courts

Madras High Court:  G.R. Swaminathan, J., observed that,

What the government does must inspire the confidence of the people. Every time a custodial death occurs, the legitimacy of the State suffers a big dent.

Factual Matrix

Petitioner a permanent resident belonged to a scheduled caste community. His elder brother fell in love with a relative namely, Punitha and in view of the objection raised by her parents, he started residing elsewhere. Punitha’s family complained as if had been abducted.

Since the elder brother and Punitha could not be traced, petitioner and other members of the family were periodically directed to appear for enquiry before the investigating officer. Further, petitioner alleged that all the family members were subjected to physical abuse.

It was further stated that, local police arrived at the petitioner’s house and several times and had beaten up the petitioner, his youngest brother i.e. Ramesh on the next visit. The younger brother of the petitioner was taken in custody and later he did not return home.


Ramesh was found hanging, according to the petitioner he was tortured by the local police and he died as a result.

In order to cover up the crime, police made the above-stated incident appear as if he had committed suicide.

A complaint was registered under Section 174(3) of CrPC.

The petition had been filed seeking a direction to the respondents to exhume the body and conduct a second postmortem.

Court had directed for conducting the second postmortem at the burial itself. The entire second postmortem was also directed to be videographed. Hence, the second post-mortem was done accordingly.

The entire autopsy had been duly videographed and even a statement was made in writing to that effect in the status report, it turned out that what was recorded were only brief clippings.

Custodial Death

It has been stated that a proper videograph was not taken at all and in view of the same petitioner’s counsel insisted that appropriate directions will have to be issued for the future observance and strict compliance in cases of custodial death or where it is alleged that the death is due to police torture.

Bench referred to the Division Bench of this Court in a PIL in WP (MD) No. 78 of 2019, decided on 28-09-2020.

Further, the Court stated that,

“…foundations of any democratic government rest on popular acceptance. Though State primarily functions through its coercive apparatus, its actions must be perceived as proper by the people.”

“A dead person is equally entitled to justice. I would call it posthumous justice.”

Court also observed that, Whenever someone suffers an unnatural death, the circumstances that led to it will have to be unearthed. Otherwise, there would be no closure.

To ensure the above stated, Court issued the following directions:

(i) The Judicial Magistrate conducting the enquiry under Section 176(1)(A) CrPC shall ensure that the family of the deceased or its representatives are given access to see the body both front and back and are also allowed to take video and photos.

(ii) No autopsy shall take place or commence without the next of kin having seen the body. Of course, if the family of the deceased refuses to see the body, even after so being permitted by the concerned Judicial Magistrate conducting the enquiry, the Judicial Magistrate can, in writing, permit the conducting of postmortem.

(iii) The autopsy shall be carried out by a team of two doctors who have a master’s degree in forensic medicine and are attached to a Medical College and Hospital in the State. In other words, what is called forensic autopsy must be conducted.

(iv) The autopsy shall be done by adhering to the norms laid down by the Hon’ble Division Bench in V. Eswaran v. Government of Tamil Nadu, dated 16-04-2019 in W.P. No. 10694 of 2019 and in W.P.(MD)No. 78 of 2019, dated 28-09-2020.

(v) The whole body shall be x-rayed in order to find out if there are any fractures. The entire autopsy should be videographed from the start of the examination till its completion by adhering to the following six phases set out in Modi ‘a Textbook of Medical Jurisprudence and Toxicology’ 26th Edition edited by Justice K.Kannan.

vi) The autopsy report should be prepared expeditiously and handed over to the investigating officer in the case so that the filing of the final report is not delayed. A copy of the autopsy report as well as video should be simultaneously given to the legal heir or representatives of the family of the deceased. This alone will enable them to take recourse to legal remedies immediately. 

If after receipt of the autopsy report, the legal heir/representatives of the deceased family give in writing that they intend to move the High Court, the body shall be preserved in the mortuary for at least 48 hours. If the body is disposed of either by cremation or otherwise in the meanwhile, the very purpose of holding a second post-mortem will be rendered infructuous.

While parting with the decision, Court stated that:

All of us know that hasty cremation in the tragic Hathras gang rape case led to controversy. It is in the interest of the police to take the family of the deceased into confidence and avoid rushing things through. They are stakeholders in the process and the police have to treat them accordingly.

Court allowed the petition with the aforesaid directions. [Santhosh v. District Collector, Madurai District; 2020 SCC OnLine Mad 5541, decided on 02-12-2020]

Case BriefsHigh Courts

Madras High Court: G.K. Ilanthiraiyan, J., allowed a criminal original petition and quashed the proceedings in a criminal case filed against the petitioner.

Instant petition was filed to quash the proceedings pending on the file of Judicial Magistrate having been taken cognizance for the offences under Section 420 of Penal Code, 1860.

Respondent lodged a private complaint alleging that the complainant was running a proprietorship concern in the name and style of M/s RSR Egg Centre along with poultry farms at Namakkal District.

Respondent approached the petitioners for the supply of animal feeds and the same was agreed and animal feeds were supplied to the respondent. In the normal course of business transaction between the petitioners and the respondent, for the purpose of holding out security as against the feeds supplied by the petitioners, the respondent issued two cheques for security purpose.

Further, in the year 2017, feeds supplied by the petitioners were not standard one and therefore the respondent issued stop payment in respect of the cheques issued to the petitioners.

In order to take further action as against the petitioners, the respondent lodged complaint before the District Crime Branch, Namakkal and after the direction issued by the Judicial Magistrate under Section 156(3) CrPC, the case was registered for the offences under Sections 23, 409, 415 and 420 IPC as against the petitioners.

Towards liability of purchase, the respondent issued cheques for the said sum. Thereafter, the respondent stopped payment and as such both the cheques were returned dishonoured. After issuance of statutory notice, the petitioners initiated proceedings for the offences punishable under Section 138 NI Act.

Bench stated that the private complaint lodged by the respondent was nothing but counter blast to the proceedings initiated by the petitioners.

“…impugned complaint is manifestly attended with malafides and / or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

Hence while allowing the present petition, Court held that  “the continuance of the impugned proceedings will be nothing but abuse of process of law and as such the petitioners need not go for the ordeal of the trial since the complaint itself cannot be sustained as against the petitioners.” [M. Chandrasekar v. R. Rajamani, 2020 SCC OnLine Mad 4777, decided on 24-08-2020]

Gauhati High Court
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 an appropriate forum, however without impleading Judicial Officer or the High Court. [Rahendra Baglari v. Sub-Divisional Judicial Magistrate,  2020 SCC OnLine Gau 3972, decided on 15-09-2020]

Chhattisgarh High Court
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. 


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]

Tripura High Court
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]