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.


Background


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.

Case BriefsSupreme Court

Supreme Court: In a case where the Patna High Court had granted anticipatory bail to an absconder, the bench of MR Shah* and AS Bopanna, JJ has set aside the said order and has held that the if anyone is declared as an absconder/proclaimed offender in terms of section 82 of Cr.PC, he is not entitled to relief of anticipatory bail.

In the present case, FIR was lodged against respondent no 2 – an absconder, for   the   offences punishable under sections 406, 407, 468, 506 of the Penal Code, 1860.

The Trial Court dismissed the anticipatory bail application of the respondent on merits as well as on the ground that as the accused is absconding and even the proceedings under section 82/83 Cr.PC have been issued, the accused is not entitled to the anticipatory bail.

However, despite the fact that it was specifically pointed to the High Court that since the process of proclamation under section 82 & 83 Cr.PC have been issued, the accused should not be allowed the privilege of anticipatory bail, ignoring the aforesaid relevant aspect, the High Court allowed the said   anticipatory bail solely observing that the nature of accusation was arising out of a business transaction.

Finding the High Court’s order erroneous, the Supreme Court held that

“Even in the case of a business transaction also there may be offences under the IPC more particularly sections 406, 420, 467, 468, etc. What is required to be considered is the nature of allegation and the accusation and not that the nature of accusation is arising out of a business transaction.”

The Court noted that respondent No.2 – accused has been charge¬sheeted for the offences punishable under sections 406 and 420, etc. and a charge-sheet has been filed in the court of learned Magistrate Court.

Hence, the order of the High Court granting anticipatory bail to respondent No.2 – accused was held to be un­sustainable and was set aside.

Important Rulings

State of Madhya Pradesh vs. Pradeep Sharma, (2014) 2 SCC 171

If anyone is declared as an absconder/proclaimed offender in terms of section 82 of Cr.PC, he is not entitled to relief of anticipatory bail.

“…the power exercisable under Section 438 of the Code is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty.”

Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730

“Normally, when the accused is ‘absconding’ and declared as a ‘proclaimed offender’, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.”

[Prem Shankar Prasad v. State of Bihar, 2021 SCC OnLine SC 955, decided on 21.10.2021]


Counsels:

For State: Advocate Devashish Bharuka

For Respondent No 2: Advocate Abhishek


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsHigh Courts

Delhi High Court: Rajnish Bhatnagar, J., upheld the trial court decision in view of no evidence placed on record.

Petitioner is a registered valuer, running his sole proprietorship firm. Raj Kumar Karanwal, Lance Healthcare (P) Ltd., who met Y.P. Singh, Chartered Accountant wherein they discussed the matter of loan to Raj Kumar Karanwal from some banks. In the month of March, 2013 Raj Kumar Karanwal, Y.P. Singh and S.K. Verma discussed the matter of loan in the office of Raj Kumar Karanwal who informed them about his various CC Limits and deposits of his various properties title deeds with the banks.

Allegations against the petitioner were that the property of Karanwal’s were assessed by Ashugosh Nirmal, Satguru Valuers even before the actual application by Karanwal’s was moved to Corporation Bank. Petitioner claimed that he had prepared the valuation report on the asking of Corporation Bank, but according to the record, the said report was never deposited.

Further, it was stated that the petitioner, who is stated to be one of the empanelled valuer of the Corporation Bank is that he prepared inflated valuation reports in regard to the properties offered for mortgage by the borrowers. When the respondent got the same properties valued from the independent valuers, there was a huge difference between the valuation given by the petitioner and those independent valuers.

CBI investigation revealed that the petitioner was one of the bank empanelled valuer and he alongwith other co-accused persons was a part of a conspiracy to get sanctioned and disbursed CorpVyapar OD Limit Loan amounting to Rs 27 Crores to Lancer Healthcare (P) Ltd. and the petitioner alongwith other co-accused was a member of a larger conspiracy where the forged and fabricated documents were prepared of the firms/companies by inflating/exaggerating the financial records, tailor made to ensure sanction of desired loan of Rs 27 Crores. He further argued that the petitioner who was the empanelled valuer submitted false, inflated/exaggerated valuation reports to facilitate loan to the borrower co-accused.

Analysis, Law and Decision

It is a well-settled law that at the stage of framing of charge, the court has power to shift and weigh the evidence for the limited purpose of finding out whether or not a prima-facie case against accused has been made out.

Further, the Bench added that when the material placed before the court discloses great suspicion against the accused which has not been properly explained, the court will be justified in framing charge.

It is not obligatory for the judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. 

Standard Test before recording a finding regarding the guilt

Standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter under Section 227 or under Section 228 of the Code. But at the initial stage, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused.

Whether there is a strong suspicion which may lead to the court to think that there is ground for presuming that the accused committed an offence.

Bench stated that the observations made by the trial court against the petitioner in the impugned order were all a matter of evidence which cannot be decided unless and until the evidence is led in the present case.

Therefore, in Court’s opinion the trial court’s decision is upheld. [Ashughosh Kumar Nirmal v. CBI, 2021 SCC OnLine Del 410, decided on 05-02-2021]


Advocates for the parties:

For the Petitioner: Geeta Luthra, Senior Advocate with Amit Singh Rathore, Varun Deewan, Reena Rathore, Advocates.

For the Respondent: Anupam S Sharma, SPP for CBI with Prakarsh Airan and Harpreet Kalsi, Advocates.

Case BriefsHigh Courts

Telangana High Court: P. Naveen Rao, J., while addressing the instant matter observed that,

“When a citizen comes to the High Court alleging infringement of his right to life, liberty and privacy by opening a rowdy sheet, the Court can look into whether the decision of the police to have surveillance on the petitioner is justified and supported by the material on a record or it was initiated only to harass and humiliate the individual.

It is to be noted that mere involvement in a crime may not per se require surveillance on that person.”

Kasula Nandam is said to be the protected tenant and in possession of land to an extent, Acs.6.32 guntas in Sy. No. 170 of Kapra village, having obtained occupancy rights certificate in the year 1979.

The petitioner who used to run a cloth shop was appointed as the General Power of Attorney holder to look after the above-stated property. Further, he stated that there are several bogus claimants over the said land.

Petitioner added that several false claims on the land were made by lodging complaints against the petitioner over a period of time.

On the ground of registration of crimes, and pending trial before the Criminal Courts, rowdy sheet is opened and in the guise of the opening of the rowdy sheet, respondent-Police are keeping close surveillance on the movements of the petitioner, affecting his right, liberty and privacy.

Respondent-Police alleged that there is ample evidence alleging that the petitioner has been grabbing private and Government Lands by way of illegal means, that due to fear of the petitioner, no one is coming forward to lodge a complaint.

Hence, in view of the public interest and to safeguard the residents of the area, where the petitioner is residing, and to curb his unlawful activities, the rowdy sheet is opened.

Whether the Police are justified in opening the rowdy sheet against the petitioner?

Enforcement of law and order is the most important state function. Enforcement of law and order includes taking all preventive measures to ensure that no untoward incident happens and peace and tranquillity is not affected. To prevent a breach of peace and tranquillity, it is permissible for the police to take all measures possible.

It was noted that for the purpose of keeping surveillance, Police Standing Order 601 enables opening a Rowdy Sheet in the concerned police station. After the opening of the rowdy sheet, close surveillance is enforced on the concerned person

Court observed that,

Opening of Rowdy Sheet and thereon keeping close surveillance on the person would certainly infringe upon the right to life, liberty and privacy of the individual concerned.

A person is entitled to lead his life with dignity and self-respect and does not want an outsider to intrude in his private affairs and to probe into his movements.

Thus, there are two competing interests in preventive measures. On the one side is right guaranteed by Article 21 of the Constitution of India, which is sacrosanct and on the other side is the primacy of enforcement of law and order, maintenance of peace and tranquillity, which is the primary responsibility of the State through its police force. Compelling public interest may require intrusion into the privacy of a person.

Bench further observed that the principles governing the opening of Rowdy Sheet vis-a-vis the right to life and liberty, it is necessary to consider whether by opening rowdy sheet against the petitioner, respondent police have violated the mandate of Article 21 of the Constitution of India and whether their decision is supported by reasons warranting requirement to open rowdy sheet.

Crimes that the petitioner was involved in included Sections 447 IPC (criminal trespass); 427 IPC (Mischief); 506 IPC (criminal intimidation); 420 IPC (cheating and dishonestly inducing delivery of property); 468 IPC (forgery for purpose of cheating); 471 IPC (using as genuine a forged document); 452 IPC (House trespass after preparation for hurt, assault or wrongful restraint); 120-B IPC (criminal conspiracy) and 34 IPC (Act done by several persons in furtherance of common intention).

The above-stated would show that the petitioner was in the habit of being involved in crimes, disturbing peace and tranquillity.

Hence, the Court held that,

Having regard to the crimes registered against the petitioner and that he was facing trial in five cases, it cannot be said that the Police action in opening rowdy sheet amounts to abuse or misuse of power and authority, and cannot be said as one made in the illegal exercise of power and without application of mind.

While dismissing the petition, Bench made it clear that while keeping surveillance, Police shall ensure that it is minimal, not obtrusive and not to impinge upon his privacy.[M. Laxman v. State of Telangana,  2020 SCC OnLine TS 1600, decided on 03-12-2020]

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J., denied bail to the applicant in connection with the FIR registered for offence punishable under Section 30(a) of the Bihar Prohibition and Excise Act, 2016.

The factual matrix is such that the applicant left his motorcycle and ran away while being chased by the police and later the police recovered 108 bottles of illicit liquor from a sack on the motorcycle.

Counsel for the applicant, Usha Rai contended that the applicant has been falsely implicated due to village politics and was never caught. It was submitted that both the bike and the sack do not belong to the applicant. There is not even a single witness to corroborate the event that transpired on that day, yet the applicant has been in custody for the past seven months.

The counsel for the respondent, Harendra Prasad vehemently opposed the bail submitting that there are many witnesses to corroborate the prosecution’s case and have confirmed the applicant’s involvement in liquor trade including the local Chowkidar who was a witness to the act which gives rise to the present matter. Moreover, the counsel drew the Court’s attention towards the incorrigible nature of the applicant, substantiating the same by stating that the applicant has several cases registered against him with six of them under the Excise Act itself. The counsel pleaded that it’s evident from the applicant’s history that he has been misusing the privilege of bail and committing offences of the same nature repeatedly.

Upon careful perusal of the facts, circumstances and arguments advances, the Court observed that it is clear that the applicant has been indulging himself in the same activity again and again, being accused of offences of similar nature and thus does not deserve bail in the present case.

In view of the above, the Court rejected the application for bail.[Santosh Pandey v. State of Bihar, 2020 SCC OnLine Pat 1230, decided on 21-08-2020]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Karuna Nand Bajpayee and Ifaqat Ali Khan, JJ. dismissed a petition seeking quashing of a First Information Report filed against the petitioner for offences committed under Sections 148, 307, 353 and 504 of Indian Penal Code, 1860, and Section 7 of the Unlawful Activities (Prevention) Act, 1967.

The Court observed that grounds for quashing of FIR are well-settled, and thus in such cases court must refrain itself from embarking upon a roving enquiry into details of the case. It was noted that all the contentions raised by the petitioner’s counsel related to the determination of disputed questions of fact which may be adequately discerned either through proper investigation or adjudicated by the trial court. The ambit of an investigation into the alleged offence is an independent area of operation and does not call for interference except in rarest of rare cases. Relying on Ajit Singh v. State of Uttar Pradesh, 2006 SCC OnLine All 1409 it was opined that operational liberty to collect sufficient material, if any, cannot be scuttled prematurely by any uncalled for overstepping of the Court. 

The Court held that perusal of the case records, prima facie, made out the offence alleged and there appeared to be sufficient ground for investigation in the case. In view thereof, prayer for quashing FIR was refused. However, it was directed that the petitioner shall not be arrested unless credible evidence against him is collected by the Investigating Officer.[Umar Mohd. v. State of U.P, Criminal Misc. Writ Petition No. 330 of 2019, Order dated 08-01-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Single Judge Bench comprising of Manoj K. Tiwari, J. allowed a compounding application as the offence involved was of a private nature and continuation of the criminal case would only cause oppression to the applicant.

This criminal miscellaneous application was filed by the applicant through his counsel Hemant Mehra and Vivek Pathak for setting aside the impugned order passed under Sections 9(b) and 37(2)(c) of Protection of Women from Domestic Violence Act, 2005 along with a compounding application which shows that the applicant and the respondent have entered into a compromise whereby they have settled their disputes amicably outside the court following which if the criminal case continued it would serve no purpose. Also, the respondent through her counsel Preeta Bhatt and Anjali Noliyal has agreed to compound the matter against the applicants.

Accordingly, the court said that the offence involved in this case was of a personal nature and thus was not an offence against the society and nonetheless was not a heinous offence showing extreme depravity therefore in order to prevent abuse of process of law inherent powers under Section 482 CrPC shall be exercised. Accordingly, the Court allowed the petition.[Asish Makhijani v. State of Uttarakhand,2018 SCC OnLine Utt 1021, decided on 14-12-2018]

Case BriefsHigh Courts

Uttaranchal High Court: A Single Judge Bench comprising of V.K. Bisht, J. dismissed a writ petition that sought interference with the investigation in a criminal case.

The petitioners were accused of cow slaughtering. It was alleged that on receiving information about the slaughtering of cow, the patrolling team reached village Harjoli and found that the petitioners were indulged in the said activity. The petitioners managed to escape; however, equipments meant for slaughtering, weighing machine and cow beef (approx. 350 kg) was found from the spot. A criminal case was registered against the petitioners for offences punishable under Sections 3, 5, and 11 of Uttarakhand Protection of Cow Progeny Act, 2007. The petitioners filed the instant petition praying to quash the impugned FIR.

On consideration of the record, the High Court held that relief, as prayed for by the appellant, could not be granted. The Court relied on the Supreme Court decision in State of W.B. v. Swapna Kumar, (1982) 1 SCC 561, to hold that if the FIR discloses a prima facie commission of an offence, the Court will not normally interfere with the investigation, as doing so would be to trench upon the lawful power of the police to investigate into a congnizable offence. From, the perusal of the FIR, the High Court held that it discloses prima facie commission of offence. Therefore, the Court held that it was not a case where relief could have been provided to the petitioner. Accordingly, the petition was dismissed. [Kala v. State of Uttarakhand,2018 SCC OnLine Utt 547, dated 18-6-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of K.N. Phanendra, J. allowed a criminal petition and quashed the proceedings pending against the petitioner for the offence under Section 78(6) of  Karnataka Police Act.

The petitioners were accused of betting for an IPL match between Gujarat Lions and Mumbai Indians. They were accused of collecting money from the public and not repaying as promised. Learned counsel for the petitioners submitted that no offence as mentioned in the charge-sheet was attracted to facts of the case. He prayed that the proceedings against the petitioners may be quashed.

The High Court perused the charge sheet and found that no independent witness had been examined with reference to betting. Nothing was mentioned in the charge sheet about who all participated in the betting, paid money, how much money was paid, etc. The Court opined that the accused could not unilaterally play gambling without the help of public at large. In such circumstances, the Court held that when the offence itself was not constituted, nothing remained to be considered. Thus, the petition was allowed and proceedings against the petitioners were quashed. [Rahul v. State of Karnataka,2018 SCC OnLine Kar 633, dated 04-06-2018]

Case BriefsHigh Courts

Patna High Court: An appeal challenging the conviction and sentence of the appellant under Section 20(c) of the Narcotic Drugs and Psychotropic Substances Act (NDPS) 1985, was allowed by a Single Judge Bench comprising of Aditya Kumar Trivedi, J.

The appellant was alleged to have been caught with 30 kg of ganja. It was alleged that on receiving information as to the same, the police officials raided appellant’s shop. Though the appellant managed to escape, but 30 kg of ganja was recovered and sealed from his shop in presence of two witnesses. The appellant was charged under Section 20(c), NDPS Act. The Special Judge convicted and sentenced the appellant under the said section. Appellant challenged the decision of Special Judge.

The High Court perused the record and found that while the alleged recovery and seizure of the said contraband material, proper procedure as prescribed by the Act was not followed. Prosecution witnesses did not support the prosecution story. The delay of over six months in getting the FSL report was unexplained. The Court relied on Vijay Jain v. State of M.P., (2013) 14 SCC 527, and held that in the instant case, the prosecution was not able to connect the evidence available to the guilt of the accused. It was observed, “it is the quality and not the quantity which matters while appreciating the evidence in order to search out whether the facts in issue have been proved or not”. Further, mandatory procedures as required by the Act are to be strictly followed because the offence under Section 20(c) is technical offence prescribing stringent punishment. Having find that the investigation in the instant matter was not conducted in strict accordance with provisions of the Act, the High Court set aside the order of the Special Judge convicting and sentencing the appellant under the said section. The appeal was thus allowed. [Naresh Keshari v. State of Bihar,  2018 SCC OnLine Pat 939, dated 28-05-2018]

Case BriefsHigh Courts

Bombay High Court: In a recent order, a Single Judge Bench comprising of G.S. Patel, J has clarified that a mere act of watching a pirated movie is not criminal offence, however, selling or showing a pirated movie is a crime, as per the Copyright Act. This case was regarding a message which had started appearing on certain blocked URLs, which stated that watching or downloading a pirated film could result in a three year prison term and a fine of Rs 3 lakh under Sections 63, 63-A, 65 and 65-A read with Section 51 of the Copyright Act, 1957.
The Judge stated that he had noticed some media reports, that commented on the fact that the error pages being displayed by various ISPs gave an impression, that ‘viewing’ an illicit copy of a film is a penal offence under the Copyright Act, 1957. The Court clarified that this was inaccurate. The offence was not in viewing, but in making a prejudicial distribution, a public exhibition or letting for sale or hire without appropriate permission copyright-protected material.The Court also noted that these irresponsibly worded messages had created confusion among internet users and that it was no longer possible to leave it to these ISPs to construct appropriate error pages. The Court requested the plaintiffs’ counsel  to come up with an appropriate message with basic objective of helping those who are adversely affected by a blocking order, so that they are made aware of their remedies and can approach the Court for corrective or remedial action. [Eros International Media Limited v.  Bharat Sanchar Nigam Limited, 2016 SCC OnLine Bom 6948, order dated 24th August, 2016]