Case BriefsHigh Courts

Gujarat High Court: B.N. Karia, J. rejected an application under Section 397 read with Section 401 of the Code of Criminal Procedure, wherein the applicant-State has requested to quash and set aside the order and stay the implementation of the said order till hearing and final disposal of the present application.

APP for the applicant-State submitted that the Trial Court ought to have considered that this is not a solitary incident where the name of the respondent accused were revealed as a purchaser of the stolen article. It was contended that subsequent insertion of Section 413 and 120(B) of the Penal Code are just and proper and the respondent did not deserve any discharge.

After hearing APP for the applicant-State, impugned judgment and order passed by the trial court the Court noted that accused 1 to 4 had committed theft by house braking between sunset to sunrise and accused 5 to 6 were alleged that they received stolen property knowing it to be stolen and they were habitual offender. Further, it appeared that no recovery or discovery was made from the accused 6. Further it transpired that accused 5 and 6 were goldsmiths by occupation. There was nothing on record to show that the accused 6 (respondent 1) herein were having any mens rea or knowledge about the gold smith. Further it appeared that accused 5 had disclosed the name of respondent 1 herein that he had received the biscuit made from stolen from accused 5. Except this, no incriminated statement of co-accused, nothing was brought on record against the respondent 1 herein.

The provisions of Section 24 to 26 of the Evidence Act clearly restricts to accept such confession made to the court to have been made or cause by any inducement, threat or promise having reference to the charge against the accused persons.

The Court stated that Statement of the co-accused or admission of the co-accused cannot be proved in evidence against the maker of it and it cannot be sole base to convict any person. The application was dismissed holding that order of the trial Court cannot be said to be illegal and perverse.[State of Gujarat v. Ajaybhai Champaklal Champaneri, R/Criminal Revision Application No. 472 of 2022, decided on 04-05-2022]

APP for the applicant: Mr Hardik Soni

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi and Abhay S. Oka, JJ has held that any default or delay in the payment of EPF contribution by the employer under the Employees Provident Fund & Miscellaneous Provisions Act, 1952 is a sine qua non for imposition of levy of damages under Section 14B and mens rea or actus reus is not an essential element for imposing penalty/damages for breach of civil obligations/liabilities.

In the case at hand, the establishment of the appellant(s) was covered under the provisions of the Act 1952, but still failed to comply with the same and for such non-compliance of the mandate of the Act 1952, initially the proceedings were initiated under section 7A and after adjudication was made in reference to contribution of the EPF which the appellant was under an obligation to pay and for the contravention of the provisions of the Act 1952, the appellant(s) indeed committed a breach of civil obligations/liabilities and after compliance of the procedure prescribed under the Act 1952 and for the delayed payment of EPF contribution for the period January 1975 to October 1988, after affording due opportunity of hearing as contemplated, order was passed by the competent authority directing the appellant(s) to pay damages as assessed in accordance with Section 14B of the Act 1952.

The Division Bench of Karnataka High Court under the impugned judgment held that once the default in payment of contribution is admitted, the damages as being envisaged under Section 14B of the Act 1952 are consequential and the employer is under an obligation to pay the damages for delay in payment of contribution of EPF under Section 14B of the Act 1952.

The Supreme Court was, hence, called upon what will be the effect and implementation of Section 14B of the Act 1952 and as to whether the breach of civil obligations or liabilities committed by the employer is a sine qua non for imposition of penalty/damages or the element of mens rea or actus reus is one of the essential elements has a role to play and the authority is under an obligation to examine the justification, if any, being tendered while passing the order imposing damages under the provisions of the Act 1952.

The Court relied on the three-Judge Bench ruling in Union of India v. Dharmendra Textile Processors, (2008) 13 SCC 369 while examining the scope and ambit of Section 271(1)(c) of the Income Tax Act, 1961 held that as far as the penalty inflicted under the provisions is a civil liability is concerned, mens rea or actus reus is not an essential element for imposing civil penalties

“18. The Explanations appended to Section 271(1)(c) of the IT Act entirely indicates the element of strict liability on the assessee for concealment or for giving inaccurate particulars while filing return. … Object behind enactment of Section 271(1)(c) read with Explanations indicate that the said section has been enacted to provide for a remedy for loss of revenue. The penalty under that provision is a civil liability. Wilful concealment is not an essential ingredient for attracting civil liability as is the case in the matter of prosecution under Section 276-C of the IT Act.”

Bound by the ruling in the aforementioned judgment, the Court upheld the verdict of the High Court.

[Horticulture Experiment Station Gonikoppal, Coorg v. Regional Provident Fund Organization, 2022 SCC OnLine SC 223, 23.02.2022]

*Judgment by: Justice Ajay Rastogi

Case BriefsHigh Courts

Calcutta High Court: In a case wherein directors of the Board of society had published defamatory statements against the Vice Chairman of the society and circulated the same in the whole society and pasted it on the elevators to defame him, Bibek Chaudhuri, J., explained the offence of defamation and what are the essentials to prove that harm has been caused to the reputation of a person.


Instant application was filed under Section 482 of the Code of Criminal Procedure for quashing of proceedings under Section 500 of the Penal Code, 1860.

Facts leading to the present matter

An aged widow/apartment owner of society had applied for permission to effecting repairs of her apartment. Secretary of the society allowed the same.

The said repairing work was stopped by passing a resolution alleging that the aged widow/apartment owner might transfer her membership of the society and her apartment.

Later, the legal advisor of the society gave an opinion that the resolution adopted was illegal and in contravention of the applicable statute.

Complainant construed to the resumption of the repair work at the said owner’s apartment and accused 1 to 3/petitioners opposed the same. When accused 2 started shouting at the complainant, he decided to recuse himself from the said meeting.

An alleged defamatory letter was circulated amongst all the members of the society wherein the following was stated:

(i) Complainant threatened Petitioners with dire consequences and also demeaned female members of the society.

(ii) Opposite party caused premature dissolution of the meeting by indecorous behavior in breach of his duties as vice-chairman of the Board of Directors.

(iii) Opposite party was dismissive of the lawful suggestions made by petitioners.

OP through his advocate issued notice to petitioner for ceasing the publication and circulation of the alleged defamatory letter and to issue written apology denying the impugned allegations against him. Even after the said notice, the letter was found to be pasted on the wall of the elevators of the apartments.

In the present application, petitioners submitted that they were innocent and in no way connected with any offence far less offence alleged.

Analysis, Law and Decision

Section 499 IPC

High Court in view of a Supreme Court decision referred by the parties recorded that to constitute an offence of defamation under Section 499 of Penal Code, 1860, there has to be imputation and it must have been made in the manner as provided in the provision with the intention of causing harm or having reason to believe that such imputation will harm the reputation of the person about whom it has made.

Causing harm to the reputation of a person is the basis on which the offence is founded and the mens rea is a condition precedent to constitute the said offence.

 Section 44 of the Indian Evidence Act

Any harm whatever illegally caused to any person, in body, mind, reputation or property amounts to “injury” within the meaning of Section 44 of the Indian Evidence Act. The harm caused to the reputation of any person is a form of injury.

“…the offence of defamation is the harm caused to the reputation of a person.”

 OP was the Vice-Chairman of the society and petitioners were the directors of the Board of the same society.

Both the parties alleged that they were insulted by each other. OP alleged that publication of the letter containing defamatory statements was caused only to defame him in the estimation of others.

Further, the Bench stated that the following questions of facts are first to be determined by the Trial Court,

“Whether the content of the said letter was defamatory or not, or whether it was it was published by the petitioners or not, or whether it came to the notice of others or not or whether the complainant’s reputation was demeaned in the estimation by others or not…”

Therefore, in view of the above discussion criminal proceeding cannot be quashed invoking the inherent power of this Court contained under Section 482 of the Code. [Alpana Ghosh v. Amitava Ghosh, CRR 278 of 2018, decided on 1-10-2021]

Advocates before the Court:

For the Appellants:

Mr Rajdeep Mazumdar, Adv., Mr Mayukh Mukherjee, Adv.

For the Respondents:

Mr Sandipan Ganguly, Sr. Adv., Mr. Dipanjan Dutta, Adv.,
Mr Rajiv Kumar, Adv.,
Ms Sambrita Chatterjee, Adv.

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court: Sanjay Dhar, J., quashed a defamation complaint filed against the Editor-in-Chief of Republic TV, Arnab Goswami, and journalist Aditya Raj Kaul. The Bench observed,

“The accused/anchors have only stated the obvious. Anyone who possesses even elementary knowledge of who is who of Jammu and Kashmir, can name the Minister who was holding portfolio of works during the period referred to in the letter of Shri Khalid Jahangir.”

Naeem Akhter, senior member of the J&K People’s Democratic Party (PDP) had filed the defamation complaint against the petitioner alleging that a defamatory and malicious news segment was broadcasted by the petitioners on 04-07-2021, pertaining to a letter written by one Khalid Jahangir, member of Bhartiya Janta Party (BJP) to the Governor, levelling allegations of corruption and favouritism on the complainant as regards award of tenders and functioning of the Corporation.

According to the complainant, even though the letter did not make a mention of name of any person, yet the petitioners, while reporting, deliberately and intentionally mentioned the name of complainant, thereby, publishing direct imputations against him with a mala fide intention to cause irreparable damage to the reputation of the complainant.

The Bench observed that it was not in dispute that the complainant was holding the portfolio of Works Minister in the coalition Government of PDP and BJP when Mr. Khalid wrote a letter to the then Governor of Jammu and Kashmir. The Bench opined though, the letter did not name the Works Minister, who was at the helm of affairs at the relevant time, the dates to which reference was made in the letter clearly suggested that the Works Minister, referred to in the letter, was none other than the complainant. Therefore, the accused had only stated the obvious. Hence, merely because accused/anchors mentioned the name of the respondent in the programme may not be enough to impute mens rea to the petitioners that they wanted to harm the reputation of the respondent.

The Bench stated that the fact the reporters kept emphasizing the fact that their source of information was the letter in question and they go on repeatedly telling the viewers about the charges/allegations with each caption carrying question mark(?), thereby conveying to the viewers that the allegations/charges contained in the letter are yet to be established, the petitioners had while telecasting the programme, taken due care that was expected of a responsible news channel.

Accordingly, the Bench held that the ingredients of main Section 499 RPC were not made out from the contents of the complaint and the material attached thereto because the imputations which had been published by the channel of the petitioners had not originated from them but the originator of these imputations was someone else i.e., Mr. Khalid Jahangir who had written a letter containing allegations against the respondent to the Governor which found its way into public domain. Thus, the complaint and the proceedings emanating there from were quashed. [Aditya Raj Kaul v. Naeem Akhter, CRMC No.58 of 2019, decided on 13-10-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: R. A. Jan, Sr. Advocate, with M/S: Rajat Pradhan &, Aswad Attar Advocates

For the Respondent: Jahangir Iqbal Ganai, Sr. Adv. with Humaira Shafi, Advocate

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities and Exchange Board of India (SEBI): Prasanta Mahapatra, Adjudicating Officer, while imposing a penalty of  ₹6,00,000/- on Capital First Ltd. (Noticee), and being in consonance with the Supreme Court, held, mens rea is not an essential element for imposing penalty under Chapter VI A of the SEBI Act as it would frustrate the entire purpose and the object.

In the pertinent matter SEBI conducted investigation in the scrip of Deccan Chronicle Holdings Ltd. (DCHL) to check for fraudulent pledging of shares and disclosures. Further, Noticee, Future Capital Holdings Ltd (FCHL)( also Capital First Ltd.) had disclosed to the stock exchange that the promoters of DCHL had pledged shares to it as part of collateral encumbrance created in consideration of borrowings of DCHL. During investigation, it was found that no such pledge was created by the promoters, Therefore, it was alleged that the disclosure made by FCHL under Regulations 29(1) and 31(1) of SEBI (SAST) Regulations on July 27, 2012 to the stock exchange was deliberate knowing it to be false. And that the Noticee had made misleading / incorrect disclosure to stock exchange with respect to the shares pledge to FCHL and thereby alleged to have violated the provisions of Regulations 3(a), (b), (c) and (d), 4(1), 4(2) (f), (k) and (r) of SEBI (PFUTP) Regulations.

The Tribunal while holding the Noticee liable for the violations, first cleared the two judgments of the Supreme Court cited by the Noticee, which it believed were in its favour. The Tribunal stated, after having perused the Order of the Supreme Court in Bharjatiya Steel Industries V. Commissioner, Sales Tax, UP (2008) and Chairman, SEBI Vs. Shriram Mutual Fund (2006 SC),

“It, thus, becomes clear from the above that the  Supreme Court in Bharjatiya Steel Industries vs. Commissioner, Sales Tax cited Chairman, SEBI vs. Shriram Mutual Fund, not to overrule it, but to show that the necessity to prove mens rea depends on the wording on the Statute, and whether it allows discretion. Hence, after perusing both the Orders of the  Supreme Court, it is clear that the later judgment in Bharjatiya Steel Industries vs. Commissioner, Sales Tax, does not overrule the former judgment in Chairman, SEBI Vs. Shriram Mutual Fund”.

And further held that,

“I am of the view that mens rea is not an essential element for imposing penalty under Chapter VI A of the SEBI Act. The Supreme Court has unambiguously stated that imputing mens rea into the provisions of Chapter VIA is against the plain language of the Statute and frustrates entire purpose and object of introducing Chapter VIA to give teeth to the SEBI to secure strict compliance of the Act and the Regulations”.

Therefore it held that the Noticee had failed to make the requisite disclosures under Regulation 29(1) read with Regulation 29(3) and 29(4) of SEBI (SAST) Regulations, 2011, the Noticee is liable for monetary penalty under Section 15A(b) of SEBI Act. However, it even exonerated the Noticee from the charge of indulging in fraudulent and unfair trade practices in securities as it did not stand established.[Decaan Chronicle Holdings Ltd., PM/NR/2021-22/13081, decided on 25-08-2021]

Agatha Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J. expressed that,

Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing.

Crux of the matter

Genesis of the case was in the transaction entered into between the petitioner and the deceased with respect to purchase of a vintage motorcycle; and in relation to which the petitioner on instructions of the deceased transferred a sum of USD 4,650 in the account of one Narender Verma, who acknowledged the receipt of the amount vide an email stating that he would be sending the bank transfer receipt.

Petitioner had submitted that even after the entire consideration been paid in the year 2012, the vintage motorcycle was never delivered.

Complainant’s case was that the delivery of the subject motorcycle had been made in the year 2012 itself, the petitioner had lodged a false complaint against the deceased for harassment solely for the purpose of getting his other motorcycles serviced by him free of cost.

Further, he stated that the delivery was made in the year 2012 to the petitioner’s authorized person but the requisite transfer documents were promised to be executed once he came to India.

Issue for Consideration

Whether issuance of a legal notice and filing of complaint case by the petitioner would amount to ‘abetment’ punishable under Section 306 of Penal Code, 1860?

Analysis, Law and Decision

 A person abets the doing of a thing if he firstly, instigates any person to do that thing; or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing.

 In the Supreme Court decision of Gurcharan Singh v. State of Punjab, (2017) 1 SCC 433, Court observed that:

“21. It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalizes the sustained incitement for suicide.”

It’s pertinent that the petitioner did an active act or direct act which led the deceased to commit suicide seeing no option.

It is significant that the petitioner had the mens rea to commit the offence.

In M. Arjunan v. State, (2019) 3 SCC 315, the Supreme Court elucidated the essential ingredients of the offence under Section 306 IPC.

Recently, the Supreme Court in Gurcharan Singh v. State of Punjab, (2020) 10 SCC 200, reiterated the exposition of law relating to the offence of abetment.

In the present matter, complainant (wife of the deceased) filed a criminal complaint under Section 156 (3) CrPC.

Petitioner with a view to harass the deceased had issued the legal notice and filed the criminal complaint so that the deceased would repair his other two motorcycles free of cost. It is stated that the deceased was harassed and mentally tortured by the police officers on the complaint lodged by the petitioner.

Deceased had told the complainant that he was called to the police station where he was made to sit on his knees for long period and was tortured/harassed. Deceased repeatedly tried to contact the petitioner on his phone but he avoided the phone calls.

Suicide note ran into 3 pages and on each page, the deceased had mentioned the date as 28-11-2014 and also appended his signatures but the whole suicide note was completed on a later date and on the said note he stated that he was mentally disturbed.

High Court stated that deceased had felt harassed, but the act of petitioner could not be held to have abetted the deceased in committing suicide.

Adding to the above, Bench stated that the filing of a criminal complaint by the petitioner was his legal recourse, as advised to him and the transaction between the petitioner and the deceased relating to purchase of a vintage motorcycle was an admitted fact. Whether the motorcycle was delivered to the petitioner or not, would have been established after inquiry, it cannot be said that by filing a criminal complaint against the deceased, petitioner had the mens rea to instigate or goad the deceased to commit suicide and further was left with no option but to commit suicide.


High Court held that neither any live link nor any proximity between the acts of petitioner and act of committing suicide by deceased was discernible.

In view of the above petition was disposed of. [Atul Kumar v. State of NCT of Delhi, 2021 SCC OnLine Del 4107, decided on 23-08-2021]

Advocates before the Court:

For the Petitioner: Sarojanand Jha, Suraj Malik and Megha Shawani, Advocates

For the Respondents: Neelam Sharma, APP for State with SI Sushil Sanwaria, DIU, Central Distt.

Amarjeet Singh Sahni, Advocate for R-2 with R-2 in person.

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court, Srinagar: Sanjeev Kumar, J., while addressing a matter in respect to Section 138 NI Act, stated that

“…issuance of process and putting a person to trial is a serious matter and the Magistrate, while exercising such power cannot afford to be mechanical or lackadaisical.”

Petitioner has sought quashment of the Order passed b Judicial Magistrate in the case file titled as Aijaz Ahmad Dar v. Zulfikar Ahmad Dar, whereby and where under trial court has while taking cognizance of complaint filed by the respondent under Section 138 of the Negotiable Instruments Act, has issued the process for appearance of the accused (petitioner).

Respondent instituted a complaint under Section 138 NI Act against the petitioner in trial court. It was alleged that respondent had lent more than two crores and seventy-five thousand to the petitioner through different modes.

Petitioner had paid part of the said amount and was reluctant t pay the balance amount. But the matter was settled in the month of October/November 2019. Petitioner discharged his liability by making payment of Rs 40 Lakhs in cash and issued 4 cheques for amount of Rs 32 Lakhs and amount of Rs 10 lakhs was to be paid in a short period of time.

Further, it was stated that before the respondent could present the cheques for encashment to the bank, he was requested by the petitioner not to present cheque dated 10-05-2020 for an amount of Rs.10 lacs for encashment with a promise that petitioner would make the payment of the entire amount once the lockdown imposed by the Government due to COVID-19 was lifted.

Petitioner did not keep his promise and respondent presented the remaining three cheques which were all dishonoured for the reason of insufficient balance. On informing the petitioner about the same, he was requested by the respondent to pay the amount of Rs 42 lakhs but he avoided the same.

In view of the above, respondent served a demand notice. Despite having received the same, petitioner failed to liquidate the amount and hence the respondent filed the complaint which is impugned in the present petition.

Analysis, Law and Decision 

Understanding of the term ‘Cognizance’

High Court explained the meaning of the word “Cognizance”. The said word means ‘knowledge’ or ‘notice’ and taking cognizance of offence means, ‘taking notice’ or ‘become aware of the alleged commission of offence’.

The term ‘cognizance of offence’ is nowhere defined in the Code of Criminal Procedure.

Further, the Bench stated that Sections 190 to 199 of the CrPC deal with method and the limitations, subject to which various criminal Courts ought to take cognizance of offences.

In the Supreme Court decision of R. R. Chari v. State of U.P, AIR 1962 SC 1573, held that:

 “Taking cognizance does not mean any formal action or accepted action of any kind but occurs as soon as a magistrate, as such involves his mind to the suspected commission of the offence.”

Court observed that generally the Magistrates, before whom the complaint of facts constituting offences are presented, mix up the ‘cognizance’ and the ‘issuance of process’.

The cognizance in matters like the present one is taken under Section 190 CrPC and it is only after the Magistrates takes cognizance under Section 190 CrPC, he proceeds to record the preliminary statement of the complainant and his witness, if any present, so as to find out whether the allegation in the complaint, which constitutes an offence, are substantiated.

Sometimes on not being satisfied after taking cognizance, the Magistrate postpones the issue of process and resorts to inquiry under Section 202 of CrPC.

Preliminary Statement and Section 138 NI Act

High Court made a very pertinent observation that, in the matter of complaint under Section 138 NI Act, in which the ingredients of offence are clearly pleaded and made out with the support of documentary evidence, the omission to discuss the preliminary statement of the complainant and his witness may be an irregularity, but that would not vitiate proceedings unless in the Court’s opinion a failure of justice has in fact been occasioned.

In view of the above-stated discussion, Court did not accept the plea of the petitioner that for not discussing and analysing preliminary statements of complainant and his witness the impugned order is vitiated.

Another observation laid down in view of the facts of the present matter was that, in a case involving the dispute purely of a civil nature, the criminal law cannot be set in motion but, it is equally well settled that certain offences like the offences of cheating, criminal breach of trust, criminal misappropriation and offence under section 138 of the NI Act do arise out of the civil transactions and if the ingredients of offence/offences are made out, criminal law too can be set in motion alongside the civil remedy for resolution of the dispute. 

Mens Rea and Dishonour of Cheque

Section 138 creates a statutory offence in the matter of dishonour of cheques on the grounds of insufficiency of funds in the account maintained by a person with the banker and that it exceeds the amount arranged to be paid. Generally, in the criminal law, mens rea is an essential component of crime but dishonour of cheque is a criminal offence where there is no need to prove a mens rea.

In the present matter, enough material was appended to put the petitioner on notice to face the trial.

Hence, complaint filed by the respondent and impugned summoning order issued by the trial court were fully in consonance with the law and required no interference.

In view of the above, petition was dismissed. [Zulfikar Hussain Dar v. Aijaz Ahmad Dar, 2021 SCC OnLine J&K 345, decided on 17-05-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): Ashok Jindal (Judicial Member) allowed an appeal which was filed against the impugned order wherein the penalty of Rs 50,000 had been imposed under Section 112 read with Section 114AA of the Customs Act, 1962.

The appellant was a customs broker and handled import consignment of the importer, namely, Inder International. The appellant had filed 4 Bills of entry declaring the goods as cold-rolled coil (non-alloy) alongwith invoices, test certificate and other relevant documents for clearance of the same. After filing bills of entry, the importer filed a declaration that the exporter had intimated to the appellant that the goods is of prime in nature. Thereafter, the goods were examined and found to be prime in nature, therefore, a case had been booked against the importer for mis-declaration of the goods to evade payment of duty on the said goods. It was alleged that the appellant has made a false declaration in respect of the said consignments.

The Counsel for the appellant, Mr Sudhir Malhotra submitted that the appellant had filed bills of entry as per the directions of the importer who had imported the said goods on high-seas sale basis the relevant documents, namely, invoices, high-seas agreement, test certificate were also filed by the appellant alongwith the bills of entry and the appellant had never examined the goods before filing the bills of entry, in that circumstances, it cannot be alleged that the appellant had knowingly mis-declared the goods on behalf of the importer. Therefore, there was no mens-rea of the appellant to have undue benefit of mis-declaration, in that circumstances, the penalty cannot be imposed on the appellant.

The Tribunal observed that no where it had been placed on record that the appellant was having prior knowledge of defective/secondary material. In fact, in the invoices, high-seas agreements, test certificates, it was mentioned that the material was of prime nature. It further held that the Revenue had further failed to establish the fact that the appellant about the doing omission of the act which would render the goods liable for confiscation.

The Tribunal while allowing the appeal held that act of filing the test certificate showed that the appellant had no mens rea and filed the documents being a bonafide facilitator and in view of the same no penalty was imposable upon the appellant, therefore, the penalty imposed on the appellant under Section 112 along with 114AA of the Customs Act, 1962 was set-aside.[MS Exim Services v. C.C. Ludhiana, 2021 SCC OnLine CESTAT 14, decided on 04-02-2021]

Suchita Shukla, Editorial Assistant has put this story together

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): P.K. Choudhary (Judicial Member) partly allowed an appeal which was filed against the Order-in-Appeal whereby two separate appeals of the appellant against two Orders-in-Original had been dismissed. The basic issue recorded by the Commissioner (Appeals) was whether confiscation of goods and imposition of fine and penalty by the Lower Authority in absence of valid PSI certificate was maintainable.

It was contended on behalf of the appellant that the imported goods were declared as Tin Waste and Scrap (Light Melting Scrap) in accordance with the import documents provided by the foreign supplier. Only during 100% examination after import, a Chartered Engineer was appointed who opined on visual examination that the goods are Tin Plated Steel Scrap as steel predominates by weight. It was contended that prior to such inspection, it was not possible for the appellant to verify the actual nature of goods being supplied by the foreign supplier. The counsel for the appellant further submitted that there was neither any knowledge nor reason to believe on the part of the appellant herein w.r.t. the alleged mis-declaration of the goods so imported. He further submitted that the goods imported during January, 2013 were of no material value as on date and as such, the appellant was no more interested in getting release of the goods against the redemption fine as imposed by the Adjudicating Authority.

The Tribunal after perusing the records found that the goods declared as Tin Waste and Scrap (Light Melting Scrap) were on verification by the qualified Chartered Engineer certified as Tin Plated Steel Scrap since steel predominates by weight. The appellant had not asked for any re-test or alike at the relevant point of time. On the contrary the appellant/ importer had waived his right of show cause notice and/or hearing at the stage of adjudication and hence, the contention on behalf of the appellant before me that the certificate was issued by the Chartered Engineer on visual examination, cannot come to rescue of the appellant with regard to the proper description of the goods. The Tribunal reminded that importation was permitted only against Pre Shipment Inspection

Certificates and it was settled position of law that conditions for import, if not fulfilled, the importation was not permitted. The Tribunal further explained that when goods imported or exported without complying with the conditions subject to which such goods are permitted for export and import, the goods shall be rendered as ‘Prohibited Goods’.

The Tribunal while partly allowing the appeal explained that at the time of importation of the goods, admittedly, Pre Shipment Inspection Certificates were not available and the goods were wrongly described as scrap of tin instead of scrap of steel. The appellant could not even produce such certificates prior to adjudication and thus the order of confiscation of the imported goods was proper and correct under Section 111(d) of the Customs Act, 1962 and thus upheld on the other hand the law requires existence of mens rea and maintenance of balance of convenience prior to imposition of penalty upon any person and in the present case there was no existence of ingredient of section 112 of the Customs Act, 1962 nor any mens rea and hence, the imposition of penalty upon the appellant was bad in law and liable to be quashed.[Sanjay Kumar Agarwal v. Commr. Of Customs, 2020 SCC OnLine CESTAT 397 ; decided on 23-12-2020]

Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Meghalaya High Court: W. Diengdoh, J., while refusing to quash a criminal case against a journalist as the Facebook post shared by the journalist sought to create a divide to the cordial relationship between the tribal and non-tribal living in the State of Meghalaya.

Genesis of the instant matter is with regard to an incident that occurred in the month of July 2020 wherein a group of boys while playing basketball were attacked by 20-25 unidentified youths.

Police in light of the above incident registered a criminal case under Sections 326, 307, 506 and 34 of Penal Code, 1860. Investigation in view od the said event is already in progress.

Petitioner who is a journalist responded to the said incident by posting her comments on Facebook, echoing her stance against such brutal attacks meted out to non-tribal in the State and the ordeal faced by them since the past several decades. In the said post, a query was also made to respondent 3 on their obligatory role of keeping vigil at the place of occurrence and their required assistance for apprehending the culprits.

Further, the petitioner submitted that the statements made were general in nature and were made in good faith without any criminal intent or mens rea.

Respondents 4 and 5 filed a complaint against the petitioner alleging that the said Facebook post of the petitioner incited communal tension between tribal and non-tribal and defamed not only the respondent 3 but the entire village for which offence under Section 153A, 505 and 499 of Penal Code, 1860 are made out.

Police registered a criminal case under Section 153 A, 500, 505C IPC against the petitioner and issued a notice under Section 41 A CrPC requiring the petitioner to appear before the investigation officer.

Aggrieved with the above complaint, the petitioner approached the Court with an application under Section 482 CrPC.

Analysis and Decision

In Court’s opinion, what is first required to be established is whether any case is made out under Section 153 A IPC following which the issue is dispute can be decided accordingly.

Section 153 A IPC:

“[153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. – (1) Whoever-

(a)  by words, either spoken or written, or by signs or by visible grounds of religion, race place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or

(b)  commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, (or)

(c)  organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or cast or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,]

shall be punished with imprisonment which may extend to three years, or with fine, or with both”.

Bench on a cursory observation of the Facebook post noticed that the author has referred to the incident which took place at the Basketball Court.

Court stated that in the said post,

There is a distinct portrayal of an alleged skirmish between two groups, one, group allegedly consisting of tribal youths and the other group consisting of non-tribal youths.

Court further observed,

What can be deduced is that there is an attempt to make a comparison between the tribals and non-tribals vis-a-vis their rights and security and the alleged tipping of the balance in favour of one community over the other.

In view of the above deduction, Court opined that the same would fall on the mischief of Section 153 A IPC as it apparently seeks to promote disharmony or feelings of enmity, hatred or ill-will between two communities.

Supreme Court’s decision in Babu Rao v. State, (1980) 2 SCC 402 was cited wherein it was observed that,

“…It is seen that S. 153 A (1) (a) is not confined to the promotion of feelings of enmity etc. on grounds of religion only as argued by Shri Sen, but takes in promotion of such feelings on other grounds as well such as race, place of birth, residence, language, caste or community….”

Bench stated that in the instant matter, it can be said that the said Facebook post sought to create a divide to the cordial relationship between the tribal and non-tribal living in the State of Meghalaya even alluding to the role of the State machinery as being bias in this regard.

Hence, the Court held that prima facie it appears that a case under Section 153 A IPC is made out against the petitioner.

Court refrained from going into the merits of the provision of Sections 500 ad 505 IPC, however, the said provisions read conjointly with Section 153A IPC would attract the provision of Section 155 (4) of CrPC.

No merit was found in the instant petition for exercising powers under Section 482 CrPC.[Patricia Mukhim v. State of Meghalaya, 2020 SCC OnLine Megh 167, decided on 10-11-2020]

Counsel for the petitioner: Advocate K. Paul.

For Respondents: N.D. Chullai, AAG with R. Colney, G.A for Respondent 1 and 2.

P.L. Khonsngi for Respondent 3-5.

Case BriefsHigh Courts

Gujarat High Court: Gita Gopi, J., while addressing an issue with regard to abetment to suicide held that in accordance with the ingredients of Section 306 of the Penal Code, 1860 the act of demanding the repayment of money would not bring a case within the meaning of Section 306 of the Penal Code, 1860.

The instant petition was filed under Section 482 of the Code of Criminal Procedure for quashing and setting aside the first information under Sections 306, 384, 385, 387 of the Penal Code, 1860 and Section 40 of the Gujarat Money Lenders Act and proceedings initiated in pursuance thereof.


Deceased had borrowed money from the present applicant and the applicant was often demanding repayment along with interest and the husband of the complainant could not make arrangements of the money and remained under tension.

Further, it was alleged that the applicant used to often threaten him on phone for the money and had instigated the complainant husband to commit suicide.

Appearance: Rathin P Raval for applicant 1, Nirali Gajjar for respondent 2 and Pranav Trivedi for respondent 1.


Bench referred the Supreme Court decision in M. Mohan v. State, (2011) 3 SCC 626, with regard to the ingredients of Section 306 of the Penal Code, 1860.

Court stated that the act of demanding the repayment of money would not bring a case within the meaning of Section 306 of the Penal Code, 1860. There would not be any mens rea of the applicant as he would not be benefitted from the act of suicide of the deceased and thus prima facie the allegation in the FIR taken at its face value do not prima facie constitute any offence or make out a case against the accused.

Hence, the High Court allowed the present petition in the above-view. [Jorubhai Amrubhai Varu v. State of Gujarat, 2020 SCC OnLine Guj 1189, decided on 19-08-2020]

Case BriefsHigh Courts

Bombay High Court: K.R. Shriram, J., while deciding the appeal filed impugning the order and judgment passed with regard to acquittal for offence punishable under Sections 498A (Husband or relative of husband of a woman subjecting her to cruelty) and Section 306 (Abetment of suicide) of Penal Code, 1860, observed that,

“Cruelty must be of such a degree as contemplated by the Section, i.e., it must be wilful conduct of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb and health of the woman.”

Prosecution case was that complainant’s daughter Sunita was married to the respondent (accused). Respondent used to ill-treat Sunita and under the influence of alcohol he used to beat her while insisting to bring cash amount of Rs 20,000 from her father (complainant) so that he could start a business.

After sometime respondent started to sell fruits and in the meanwhile Sunita conceived and gave birth to a daughter. On or about 18-09-2001, it was informed that Sunita had committed suicide by jumping in front of a running train.

In view of the above circumstances, PW-1 had lodged the complaint for offences punishable under Sections 498A and 306 IPC.

Supreme Court in its decision, Muralidhar v. State of Karnataka, (2014) 5 SCC 730, held that

“…unless the conclusions reached by the trial court are found to be palpably wrong or based on an erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, Appellate Court should not interfere with the conclusions of the Trial Court.”

Citing the above, Court stated that, it must be kept in mind that there is a presumption of innocence in favour of respondent and such presumption is strengthened by the order of acquittal passed by the trial court.

In Ramesh Babulal Doshi v. State of Gujarat, 1996 SCC (Cri) 972, Supreme Court held that,

“…If Appellate Court finds that there was nothing wrong or manifestly erroneous with the order of the trial court, the Appeal Court need not eve re-appraise the evidence and arrive at its own conclusions.”

Thus, High Court while analysing the present set of facts and circumstances stated that it does not find anything wrong, manifestly erroneous or demonstrably unsustainable in the impugned judgment.

Court noted that,

PW-1 (Complainant) stated that the accused was not doing any work and under the influence of liquor, used to beat Sunita and was insisting her to bring cash from parents for doing some business.

PW-1 admits that in his statement before the police, he has not mentioned that Sunita had gone to his house for delivery and after her delivery she resided with him for 15 days. He also admits that in his statement to the police, he has not mentioned that during that stay Sunita had informed him about the ill-treatment and demand for cash by accused.

DW-1 in whose quarters Sunita and accused were residing stated that in her presence no dispute took place between Sunita and accused, nobody used to visit their house and Sunita never complained about accused.

On perusal of the above, Court stated that apart from the general statements by PW-1, there was nothing on record to show that accused used to beat Sunita under the influence of alcohol.

Stating the above, bench gave another point of significance in such cases that,

“.. It is to be kept in mind that it is easy to accuse somebody of ill-treatment after someone dies, but it will not be wise to convict somebody based on such general statements.”

“It is settled law that under Section 498A of IPC, every cruelty is not an offence.”

With regard to abetment, Court stated that, in order to amount abetment, there must be mens rea or community of intention. Without knowledge or intention, there can be no abetment and the knowledge and intention must relate to the act said to be abetted, i.e. suicide, in this case. To constitute ‘abetment by instigation’, there must be a direct incitement to do the culpable act.

Thus, in Court view, no evidence is found to suggest that Sunita committed suicide because of ill-treatment or cruelty by the accused. There is also no evidence whatsoever that the accused by their acts intended Sunita to commit suicide.

In view of the above, order of acquittal need not be interfered with. [State of Maharashtra v. Shri Balu Ravji Abhang, 2020 SCC OnLine Bom 307, decided on 20-02-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Service Tax Tribunal (CESTAT): Justice P. Dinesha (Judicial Member) allowed the appeal filed by a shipping company against the Commissioner of Customs. He further decided that the impugned penalties stand set aside.

The authorities filed allegations against the appellant under Sections 112(d) and 114AA of the Customs Act, 1962. A show-cause notice was issued against the appellant herein under Sections 28 and 124 of the Customs Act stating that he did not inform the Revenue that the importer did not possess licence for import of Chlorodifluoromethane (R-22 Gas); he did not present the imported goods for examination; and thus he was liable for penalty under Section 112(a) of the Act for abetting smuggling of R-22 gas, for non-compliance of Regulations 11(d) and 11(n) of the Customs Broker Licensing Regulations, 2013 (CBLR).

Issue: Whether the Revenue was justified in imposing a penalty under Sections 112 (d) and 114AA of the Customs Act, 1962 on the appellant who was only a Customs Broker and not the importer.

J.V. Niranjan, Advocate for the appellant, contended that the Revenue had not established mens rea for levying penalty and that the authorities did not conduct any investigation, filed an appeal against the above allegations. L. Nandakumar, Advocate for the Respondent, prayed for sustaining the penalty contending that the Bill-of-Entry did not contain sufficient details of the goods sought to be imported and the appellant did not bother to ascertain whether the importer had the required licence, constituting a serious lapse covered under Regulations 11(d) and 11(n) of the CBLR.

The Tribunal opined that the Revenue was not able to clearly establish either active or passive role or any deliberate or mala fide act; and the appellant had advised the importer as to the requirement of import licence, being sufficient compliance insofar as Regulation 11(d) is concerned. It was further held that the allegations were not sufficient to fasten with the penalty of the nature impugned as it was not established that appellant handled the work of clearance with mala fide motive and Sections 112(a) and 114AA of the Customs Act include an intentional or deliberate act or omission and even the motive is attributable to the act of abetment to do any act or omit to do any act.

The appeal was allowed stating that Section 114AA could be invoked only on the establishment of the fact that the declaration, statement or document submitted in the transaction of any business for the purpose of the act is false or incorrect. The penalties and impugned order confirming the penalties questioned herein was set aside. [Sea Queen Shipping Services (P) Ltd. v. Commr. of Customs, 2019 SCC OnLine CESTAT 1483, decided on 05-12-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of A. Hariprasad and A.Anil Kumar, JJ., released the appellant as no intention to commit murder was established and he had already undergone more detention than imposed by the law.

The prosecution alleges that the deceased and the accused-appellant used to sleep in the veranda or close shop rooms and in bus waiting sheds. It is pertinent to note that both were in the habit of drinking. The appellant had enmity towards the deceased and physically assaulted him by kicking and hitting on vital body parts with an intention to commit murder. The deceased was taken to the hospital where he was declared dead on arrival.

Renjith B. Marar, counsel representing the appellant, argued that the name of the deceased was noted at the hospital. Due to a botched up investigation, the chance of someone else assaulting the deceased with a mistaken identity cannot be ruled out. There is no case that the accused had any weapon which could have been used for causing injuries mentioned in the post-mortem report. He further argued that even if the prosecution case is accepted, the offence under Section 300 of the Penal Code, 1860 is not made out. The counsel submitted that the opposite counsel failed to prove mens rea on the part of the appellant that caused the death of the deceased. 

Alex H. Thombra, counsel for the respondent, argued that on the evening previous to the incident due to a scuffle between the accused and the deceased; the accused was made to apologise to the victim and thus he developed hostility towards him. PW1 confirmed witnessing the accused assaulting the deceased.

The High Court upon perusal of the facts and circumstances of the case held that the appellant and the deceased were known to each other prior to the incident, the appellant was aware of the deceased’s weak physical conditions. Thus the Court held that the appellant had knowledge that by incessantly assaulting the deceased it will likely cause his death and there is the absence of intention to commit murder, thus the appellant has committed an offence under Section 299, Penal Code, 1860 and is liable under Section 304 of the Penal Code, 1860. The Court sentenced him to 7 years of rigorous imprisonment and on finding that he has been undergoing detention for about 10 years directed that authorities release him. [Jomon Kava v. State of Kerala, CRL.A.No. 1276 of 2016 decided on 31-10-2019]

Case BriefsHigh Courts

Bombay High Court: A.M. Badar, J. addressed the present appeal challenging the Judgment and order of the trial court by setting aside and quashing the same, by observing that,

“Mere negligence or carelessness on the part of the accused cannot be termed as ‘abetment’.”

The accused 2 who has challenged the judgment and order of the trial court was convicted under Section 17 of Protection of Children from Sexual Offences Act, 2012. 

The facts of the case are that the victim of the crime was about 5 years of age at the time of the crime and accused 2 is the biological mother of the victim child. Accused 1 is the step-father. PW 2 had lodged the report for the crime who used to reside in the neighbourhood of accused persons and victim child used to visit her house for playing with her daughter. 

At the Dashera festival, accused 2 accompanied by victim child visited PW 2 who noticed injuries on the person of the victim female child. Victim female child disclosed to PW 2 that she was beaten by her step father, on hearing this, PW 2 asked accused 2 to accompany her in order to lodge the report of the offence being committed by accused 1 but the same was declined by accused 2. Further, while the female child victim was being bathed by PW 2, she noticed some injuries on the person of the victim, which were caused by her step-father. Victim informed PW 2 that accused 1 used to insert something in her vagina and also put chilly powder in her vagina. She even disclosed that she is beaten by him after tying her hands with wire of the mobile charger.

So far as accused 2 is concerned, the trial court had framed the charge for the offence punishable under Section 17 of the POCSO Act. Charge for the offence punishable under Sections 4 and 10 of the POCSO Act was framed against accused 1. Both accused persons were accordingly tried.

Trial Court’s conclusion was that the victim female child informed her mother i.e. accused 2 regarding the assault by accused 1 but accused 2 ignored this fact. Further, it added that though PW 2 disclosed accused 2 maintained silence and not interfered with the act of accused 1. This amounted to abetment by “illegal omission as well as intentional aid”. Thus, with the stated finding, Court had convicted accused 2 of the offence punishable under Section 17 of the POCSO Act accordingly.

High Court’s Finding

On hearing the submissions of the parties and in view of the facts and circumstances of the case, Court reproduced Section 16 of the POCSO Act, which defines the term ‘abetment’ of offence under POCSO Act.

“Trial Court held that the case of the prosecution is covered by Clause Thirdly of Section 16 of POCSO Act which deals with intentional aid by an act or illegal omission. At the cost of repetition it needs to mention here that trial court was alive to the legal position that in case of abetment by illegal omission, it is required to be proved b the prosecution that the accused was present at the time of commission of an act and at place of occurrence, but had failed to interfere in it which amounts to illegal omission.

Second explanation to Section 16 of the POCSO Act deals with the situation as to what amounts to intentionally aiding the offender. For making an accused liable for abetment by intentional aiding by an act or illegal omission, it is required to be established by the prosecution that either prior to or at the time of commission of act of offence, such Abettor does anything in order to facilitate the commission of the act of offence and facilitate the commission of offence. Thus the presence of the Abettor either before the commission of the offence for facilitating the commission of the offence or at the time of the commission of an act constituting the offence is necessary; for making out the offence of abetment.”

High Court stated that the evidence of child female victim makes it clear that accused 2 was not present either before or at the time of the commission of the act.

Court held that “mere giving aid will not make the act of abetment of an offence if the person who gave the aid did not know that the offence was being committed or contemplated. 

In order to convict a person of abetment by illegal omission, it is necessary to show that the accused intentionally aided the commission of offence by his non-interference and that the omission involved a breach of legal obligation.”

Subsequent failure on the part of accused 2 in non-reporting the matter to police, as such, does not amount to intentionally aiding the commission of offence by co-accused 1.

Mens rea is an essential element of the offence of abetment.

Thus, in view of the above, Court set aside the impugned Judgment and Order of the trial court and quashed the same by setting accused 2 at liberty if not required in any other case. [Asha Patil v. State of Maharashtra, 2019 SCC OnLine Bom 2056, decided on 18-09-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J. allowed a petition filed by bank official praying for quashing proceedings initiated against him for abetting suicide of a student who had applied for an education loan to the bank where he was working, holding that there was no mens rea involved on his part.

In the present case, a student named Sruthi, from a financially backward family approached a bank several times for education loan. The bank rejected her applications for education loan and in despair, she committed suicide. Later, two bank officers (manager and the deputy manager of the bank) had to face prosecution for abetting her suicide by rejecting her application for loan and it was also stated by the father of the deceased that when the deceased was brought to the hospital she told him that she met the petitioner before the accident and the petitioner told her that if her loan was not sanctioned then she had no option other than dying. The brother (respondent) of the deceased gave the first information statement to the police and the case was registered under Section 306 of the Penal Code, 1860 (IPC). After investigation, a final report was filed by the police under Section 306 IPC read with Section 34 of IPC. The concerned Magistrate committed the case to the Court of Session. The petitioner approached this Court to quash all the proceedings in the instant case under Section 482 of the Code of Criminal Procedure, 1973 (CrPC).

Learned counsels on behalf of the petitioners, S. Sreekumar, P. Paulochan Antony, M.A. Mohammed Siraj, P. Martin Jose, P. Prijith and Thomas P. Kuruvill, submitted that even if allegations raised against the petitioner in the final report were true, no offence was committed under Section 306 IPC as there was no direct nexus between the rejection of the application of loan by the petitioner and the suicide committed by the deceased. There was no proximity of time between the alleged act committed and the act of the victim. Non-sanctioning of education loan by the petitioner to the deceased could not be considered as facilitation of commission of suicide on their part as there was no malicious intention or instigation. Further, according to the copy of norms, loan application had to be disposed of within fifteen days but the deceased committed suicide without even waiting for the fate of her loan application. Lastly, no material was produced by the prosecution to prove that the petitioner told the deceased to commit suicide

Learned counsel on behalf of the respondent S. Manu, and Public Prosecutor M.N. Maya, contented that allegations in the final report along with the materials produced by the prosecution showed that the petitioner had abetted the commission of suicide by the deceased.  

The Court opined that the prosecution had not made any prima facie case against the petitioner for committing an offence punishable under Section 306 IPC and continuance of the proceedings against the petitioners would be an abuse of process of the Court. The Court also observed that even according to the prosecution case, only when the deceased told the first petitioner that in case the loan was not sanctioned she would have no option other than to die, that the first petitioner told her to go and do so. Thus, the remark regarding death was initially made not by the first petitioner, but by the deceased. The fact that the first petitioner had retorted to the deceased in such a manner in such a situation, in a fit of anger or emotion or at the spur of the moment, did not lead to an inference that he had instigated the deceased to commit suicide. Reliance in this regard was placed on Pawan Kumar v. State of Himachal Pradesh, (2017) 7 SCC 780. Thus, all proceedings against the petitioners were quashed.[Harikrishnan v. State of Kerala, 2019 SCC OnLine Ker 1767, decided on 10-06-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. dismissed a petition filed against the order of the trial court whereby it had rejected petitioner’s application filed under Section 227 CrPC seeking discharge in a criminal case.

The case against the petitioner was that he along with the co-accused tried to intervene in a road rage fight between the complainant and a third party. The complainant was admittedly drunk at the time and slapped the co-accused. The co-accused called for the petitioner to bring the iron rod to teach a lesson to the drunk complainant. Thereafter, the co-accused attacked the complainant and he sustained multiple injuries. The petitioner was charge-sheeted under Section 308 (attempt to commit culpable homicide) read with Section 34 (acts done by several person in furtherance of common intention) of the Penal Code.

D.N. Goburdhun, Advocate representing the petitioner contended that there was an absence of mens rea or common intention or conspiracy on part of the petitioner. Per contra, Meenakshi Dahiya, APP appearing for the State submitted that the petitioner had been rightly charged as aforesaid.

Relying on State of M.P. v. Saleem, (2005) 5 SCC 554, the High Court noted: “though common intention should be anterior in time to the commission of crime and involves a pre-arranged plan or a prior concert, however, intention is to be gathered from the act, conduct, relative circumstances, and the attendant situations that cropped up”.It was reiterated that common intention may develop at spur of the moment.

On facts of the case, it was held that the petitioner actively participated in the act by procuring the iron rod and handing it over to the co-accused. Therefore, it could not be said that there was no common intention among the accused. As such, it was held that there was no infirmity with the order of the trial court, and the petition was dismissed.[Manish Sharma v. State (NCT of Delhi), 2019 SCC OnLine Del 9031, decided on 03-07-2019]

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: S. Talapatra, J. allowed an appeal against the decision of the Sessions Judge whereby the appellant was convicted under Section 489-C (possession of forged or counterfeit currency-notes or banknotes) IPC.

The appellant was found in possession of 27 fake counterfeit Indian currency-notes. He was charged and convicted as stated above. H.K. Bhowmik, Advocate representing the appellant submitted that the seizure was not proved and the procedure of seizing the purported counterfeit currencies was visited by serious defects and incongruities. Per contra, A. Acharjee, Special Public Prosecutor appearing for the State submitted that on the discovery of minor discrepancy, considering the nature of human conduct, no weight should not be given.

After considering the evidence on record, the High Court went on to consider the question — whether there was any proof of integrity of the seized materials and chain of custody? The Court found that in the State Forensic Science Laboratory Report it was not at all noted as to how the purported counterfeit currency was received. Further, it could not be ascertained as to who had marked the bank notes as A-1 to A-27. Still, further, the seized counterfeit currency was not sealed within a packet in presence of witnesses. It was observed: “There is no evidence in relation to the chain of custody or the sampling in order to preserve the integrity of the seized materials. There is no evidence except the possession of the so-called ‘counterfeit currencies’. Even there is no evidence of mens rea. In absence of the evidence, mere possession, cannot prove that offence punishable under Section 489 of the IPC has been committed.”

In such view of the matter, the Court was of the opinion that the appellant was to be given benefit of doubt. Resultantly, the appeal was allowed and the impugned judgment was set aside.[Bishu Ranjan Das v. State of Tripura, 2019 SCC OnLine Tri 200, decided on 24-04-2019]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: The Bench of Arvind Singh Sangwan J., imposed the fine on Vishal Dadlani and Tehseen Poonawala of Rs 10 lakhs each for hurting the sentiments of the Jain Community by insulting the Jain Saint Tarun Sagar on twitter, even though the FIR was quashed against the criminal charges registered against them. 

A case under Sections 295-A, 153-A and 509 of the Penal Code, 1860 was filed by the respondent/complainant against the petitioners (Vishal Dadlani and Tehseen Poonawala) for hurting the belief, religious feelings of the Jain Community and Jain Monk Tarun Sagar. The petitioner posted the photograph of Jain Monk (Muni) Tarun Sagar, when he was addressing the Haryana State Legislative Assembly and another photo by way of Photoshop, the photograph of a lady whose face was not shown, in a sitting posture wearing only undergarments was clubbed and posted along with the photograph of Jain Muni by Petitioner 2. 

Learned counsel for the petitioners, Karuna Nandy, submitted that there was no mens rea on the part of the petitioner to commit any offence and even the petitioner has tendered his apology to the Jain Muni Tarun Sagar, which was accepted by him by way of print media. She further submitted that a rational criticism of religious tenants, pounded in restraint language does not amount to an offence either under Sections 153-A or 295-A IPC.

Learned counsel for the respondent, Khushbir K. Bhullar, submitted that there are serious allegations against the petitioners for hurting the religious feelings of the complainant and the followers of the Jain Saints. The entire Jain fraternity is defamed before the public in large by using electronic media, to spread the religious discontent and hurt their sentiments and therefore, the FIR was rightly registered. 

The Court opined that the country has witnessed large scale violent protest on incitement made by using social media platform, thereby, causing extensive damage to public property and therefore it was appropriate to impose the costs of Rs 10 lakhs each on the petitioners – Vishal Dadlani and Tehseen Poonawala, so that in future they may not mock at any head of a religious sect, just to gain publicity on social media like Twitter.  The Court ordered that the FIR registered against the parties to be quashed and gave the following instruction for the cost by parties i.e. “The petitioner – Tehseen Poonawala will deposit the costs of `5 lacs with the Tarun Kranti Manch Trust (Regd.), Defence Colony, Delhi (a Trust created by late Jain Muni Tarun Sagar) and will also deposit a costs of 5 lacs with the Poor Patient’s Fund (Prabh Aasra) in Post Graduate Institute of Medical Education and Research at Chandigarh. The petitioner – Vishal Dadlani will deposit the costs of 5 lacs with the Shri Digamber Jain Mandir Trust, Sector 27, Chandigarh and 5 lacs with the Punjab and Haryana High Court Advocates Welfare Fund.” [Vishal Dadlani v. State of Haryana, 2019 SCC OnLine P&H 446, decided on 29-04-2019]

Case BriefsHigh Courts

Madras High Court: The Bench of P.N. Prakash, J., in a criminal revision case preferred in respect of setting aside the order of Additional Chief Metropolitan Magistrate, Chennai, stated that,

“The very edifice on which the prosecution was launched against the accused, crumbled like a pack of cards.”

The factual matrix of the case which led to the filing of the present criminal revision case was that, the petitioner herein was accused of the offence under Section 276-C (2) of the Income Tax Act, 1961. It was stated by the IT Department that for the assessment year 1998-1999, accused filed “Income Tax Returns”, wherein his total income was shown to be Rs 48,150. Income Tax Department on conducting an investigation found out that petitioner’s income was Rs 29,05,126, following which the tax payable along with interest was determined to be Rs 16,02,601.

On filing an appeal by the accused before CIT (Appeals) it was determined by the said authority that the income of the accused is Rs 26,69,470 and Rs 14,84,199 is to be paid as tax. Accused in respect of the stated filed an appeal before Income Tax Appellate Tribunal; however the stay petition was dismissed by ITAT and hence accused was liable to be punished under Section 276-C (2) of the IT Act, for non-payment of determined tax.

Reference to the judgment of the Apex Court in CIT v. Bhupen Champak Lal Dalal, (2001) 3 SCC 459 along with Gujarat Travancore Agency v. CIT(1989) 3 SCC 52, in which the Supreme Court considered Section 276 C of the IT Act and held,

“….There can be no dispute that having regard to the provision of Section 276-C, which speaks of wilful failure on the part of the defaulter and taking into consideration the nature of the penalty, which is punitive, no sentence can be imposed under that provision unless the element of mens rea is established.”

Further, it was stated that the accused had pursued the matter to ITAT who had set aside the CIT (Appeals) order and remanded the matter back to CIT who ultimately determined the tax to be payable at income Rs 2,82,650. In reference to the stated, it should be noted that the accused had been knocking doors of these bodies challenging the determination of the income by ITO and at the end of the day the fact-finding body itself came to the conclusion that income of accused for that period was only Rs 2,82,650 and tax payable only Rs 1,10,402.

Therefore, there was no necessity for the Income Tax Department to have launched the prosecution hurriedly since the law of limitation under Section 468 CrPC for criminal prosecution has been excluded by the Economic Offences (Inapplicability of Limitation) Act, 1974.

Thus, the accused was not found wilfully evading payment of tax. But unfortunately, trial court failed to appreciate the accused’s contention. Court allowed the present criminal revision case and discharged the accused from prosecution. [Sayarmull Surana v. CIT, 2018 SCC OnLine Mad 3505, decided on 14-12-2018]