Case BriefsHigh Courts

Calcutta High Court: Sabyasachi Bhattacharya, J. directed a case concerning the arrest of a freelance journalist to be listed for hearing in January, 2020 and also directed the respondents to file their affidavit(s)-in-opposition withe thin a fortnight from date. It also directed the concerned government officials to preserve and secure the entire CCTV footage of the Khardah police station of the concerned date.

In the present case, the appellant a spokesperson for the opposition party is a journalist who runs two vernacular newspapers and YouTube channels. It is alleged by the petitioner that he was forcibly whisked away by the police on 17-10-2019. When asked, the police replied that he had been arrested for a cyber crime case in Purulia District Cyber Crime Police Station. The petitioner contended that due to his exposure to corruption in political quarters, he has earned the wrath of the ruling party and therefore his arrest is on baseless allegations.

The counsel appearing for the petitioner argued that under the sections he was booked the police cannot initiate an investigation on their own, until an order of a competent Magistrate. Placing reliance on the Arnesh Kumar v. State of Bihar(2014) 8 SCC 273 it was contended by the petitioner that in the said judgment it was remarked by the Supreme Court that a notice of appearance in terms of Section 41A of the Code of Criminal Procedure, 1973 has to be served on the accused within two weeks but he was not served the same. The counsel then contended that as an interim measure it should be stayed on.

The counsels for the respondent State argued that the investigation is still at a nascent stage and ought not to be stayed at this premature juncture. It was argued that there were several safeguards available to the petitioner under the CrPC, all of which provide sufficient relief to the petitioner even at the stage of further investigation.

The Court opined that it is not clear at all as to how the criticism of the State Government or a Member of Parliament could be deemed to be the publication of a statement likely to cause fear or alarm to the public at all. The court continued that the people always have a right to criticize the Government or the Executive and even the Judiciary and the Legislature are not exempt from fair criticism. That is what the freedom of speech and expression, as enshrined in the Constitution, is all about, the Court continued. 

In this regard, the Court also observed that “there is a common misconception of identifying the ‘State’ with the ‘Government’. This may be a fallout of the failure of the Indian polity to implement the Constitutional vision as to separation of powers between the three wings of the Government, in particular among the Legislature and the Executive.”

The Court remarked that these allegations were baseless on the face of it and were not even maintainable against the petitioner in the context of the petitioner’s actions, on the basis of which such offences were alleged. But since counsel for both sides advanced detailed arguments even on the prayer for interim protection, the court listed this case for the month of January, and directed that the said complaint and the FIR shall remain stayed till disposal of the writ petition. [Sanmay Banerjee v. State of West Bengal, 2019 SCC OnLine Cal 3941, decided on 03-12-2019]

Case BriefsHigh Courts

Madras High Court: A Division Bench of A.P. Sahi, CJ and Subramonium Prasad, J., while deciding a petition filed in regard to declaring Section 142(2) of the Negotiable Instruments Act, 1881 as ultra vires Article 14 of Constitution, held by placing reliance on certain cases that,

“Parliament is competent to bring out the amendment under the Negotiable Instruments Act. The said amendment cannot be said to be ultra vires in view of the provisions of the Act or Part III of the Constitution of India.”

In the present petition, the challenge was placed upon Section 142(2) of NI Act on the ground that the said amendment is contrary to the Supreme Court case in, Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129.

Counsel for the petitioner, K. Govindarajan, submitted that the above-said amendment amounts to setting at naught a judgment of the Supreme Court which is not permissible in law. Relying on the Supreme Court case in Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1969) 2 SCC 283, it is well settled that,

“Legislation can take away the basis of a judgment.”

In Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129, following was held with respect to the place of suing:

“…Once the cause of action accrues to the complainant, the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is dishonoured.

   (vii) The general rule stipulated under Section 177 of Cr.P.C applies to cases under Section 138 of the Negotiable Instruments Act. Prosecution in such cases can, therefore, be launched against the drawer of the cheque only before the Court within whose jurisdiction the dishonour takes place except in situations where the offence of dishonour of the cheque punishable under Section 138 is committed along with other offences in a single transaction within the meaning of Section 220(1) read with Section 184 of the Code of Criminal Procedure or is covered by the provisions of Section 182(1) read with Sections 184 and 220 thereof.”

Thus, the following was held in the above-said case by the Supreme Court,

a Complaint of dishonour of cheque can be filed only to the Court within whose local jurisdiction where the cheque is dishonoured by the bank on which it is drawn.

To resolve the concerns arising from the above-judgment, through the Negotiable Instruments (Amendment) Act, 2015, certain amendments in regard to challenged Section was made as follows:

“(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,—

(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or

(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.

Explanation— For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.”

Further Section 142(a) was also inserted through the Amendment Act, which is as follows:

142A.(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or direction of any court, all cases transferred to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments

(Amendment) Ordinance, 2015, shall be deemed to have been transferred under this Act, as if that subsection had been in force at all material times.

 (2) Notwithstanding anything contained in sub-section (2) of section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of section 142 or the case has been transferred to that court under sub-section (1) and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court.

 (3) If, on the date of the commencement of the Negotiable Instruments (Amendment) Act,

2015, more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different courts, upon the said fact having been brought to the notice of the court, such court shall transfer the case to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, before which the first case was filed and is pending, as if that subsection had been in force at all material times.”

Through the above Amendment Act, entire basis of the Supreme Court case in, Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129, was removed.

By placing reliance on certain Supreme Court cases such as, State of Karnataka v. Karnataka Pawn Brokers Assn., (2018) 6 SCC 363; State of Karnataka v. Pro Lab, (2015) 8 SCC 557, Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1969) 2 SCC 283, following was laid down:

 “Legislature can take away the basis of the judgment of a judicial pronouncement by either Validating Act or passing amendments to the parent Act.”

Thus, on perusal of the above, no infirmity was found by the Court in the amendment. Therefore, said amendment cannot be said to be ultra vires in view of the provisions of the Act or Part III of the Constitution of India.

In view of the above, the writ petition stands dismissed. [Refex Energy Ltd. v. Union of India, 2019 SCC OnLine Mad 9941, decided on 18-12-2019]


Additional Reading:

Case BriefsSupreme Court

Supreme Court: Stating that the High Courts cannot encroach upon the fields that are under the exclusive domain of legislature, the Court said that there cannot be general comments on the investigation or for that matter, issuance of host of directions for constituting separate specialized cadre managed by officials or to require an affidavit to be filed whether sanctioned strength of police is adequate or not to maintain law and order or involvement of judicial officers or directions in the like manner.

In the present case, a writ of mandamous commanding the competent authorities to take necessary action against the respondent was filed before the Allahabad High Court in relation to alleged fraud in opening bank account by forging signature for obtaining retail licence for liquor shop for which eligibility conditions is that licensee and his family members must possess good moral character and have no criminal background, the High Court had adverted to the methods of investigation and expressed the view that no attempt was made by the investigating officer to find out the genuineness of signature from the hand-writing expert and had further observed that it depicts a very sorry state of affairs of maintenance of law and order in the State and paints a grim picture in which State is functioning, ignoring one of the most important aspects of administration, i.e., public safety, security and maintenance of law and order.

The bench of Dipak Misra and Amitava Roy, JJ noted that the High Court has crossed the boundaries of the controversy that was before it. The courts are required to exercise the power of judicial review regard being had to the controversy before it. There may be a laudable object in the mind but it must flow from the facts before it or there has to be a specific litigation before it.  It was further explained that a Judge should not perceive a situation in a generalised manner. He ought not to wear a pair of spectacles so that he can see what he intends to see. There has to be a set of facts to express an opinion and that too, within the parameters of law. A court cannot take steps for framing a policy.

Hence, it was held that the directions issued by the High Court and the queries made by it related to various spheres which, we are constrained to think, the High Court should not have gone into. It had a very limited lis before it. The directions may definitely show some anxiety on the part of the learned Judges, but it is to be remembered that directions are not issued solely out of concern. They have to be founded on certain legally justifiable principles that have roots in the laws of the country. [State of Uttar Pradesh v. Subhash Chandra Jaiswal, 2016 SCC OnLine SC 1434, decided on 29.11.2016]