Case BriefsSupreme Court

Supreme Court: The bench of Dinesh Maheshwari and JB Pardiwala*, JJ has explained the true import of Section 13(1)(e) of the Prevention of Corruption Act, 1988  and has held that, under the said Section, it is for the prosecution to establish that the accused was in possession of properties disproportionate to his known sources of income but the term “known sources of income” would mean the sources known to the prosecution and not the sources known to the accused and within the knowledge of the accused. The onus on the accused is to account satisfactorily for the money/assets in his hands.

The Court stressed that the expression “known source of income” is not synonymous with the words “for which the public servant cannot satisfactorily account” under Section 13(1)(e) of the 1988 Act and have different meaning, scope and requirements.

While the expression “known sources of income” refers to the sources known to the prosecution, the expression “for which the public servant cannot satisfactorily account” refers to the onus or burden on the accused to satisfactorily explain and account for the assets found to be possessed by the public servant. This burden is on the accused as the said facts are within his special knowledge. Section 106 of the Evidence Act, 1872 applies.

The explanation to Section 13(1)(e) of the 1988 Act is a procedural Section which seeks to define the expression “known sources of income” as sources known to the prosecution and not to the accused. The explanation applies and relates to the mode and manner of investigation to be conducted by the prosecution, it does away with the requirement and necessity of the prosecution to have an open, wide and rowing investigation and enquire into the alleged sources of income which the accused may have. It curtails the need and necessity of the prosecution to go into the alleged sources of income which a public servant may or possibly have but are not legal or have not been declared.

The first part of the explanation refers to income received from legal/lawful sources. The second part of the explanation does away with the need and requirement for the prosecution to conduct an open ended or rowing enquiry or investigation to find out all alleged/claimed known sources of income of an accused who is investigated under the 1988 Act. The prosecution can rely upon the information furnished by the accused to the authorities under law, rules and orders for the time being applicable to a public servant. No further investigation is required by the prosecution to find out the known sources of income of the accused public servant.

The undeclared alleged sources are by their very nature expected to be known to the accused only and are within his special knowledge. The accused, however, cannot make an attempt to discharge this onus upon him at the stage of Section 239 of the CrPC. At the stage of Section 239 of the CrPC, the Court has to only look into the prima facie case and decide whether the case put up by the prosecution is groundless.

[State v. R. Soundirarasu, 2022 SCC OnLine SC 1150, decided on 05.09.2022]


*Judgment by: Justice JB Pardiwala


For State: AAG V. Krishnamurthy

For accused: Senior Advocate Dr. K. Radhakrishnan

Orissa High Court
Case BriefsHigh Courts

   

Orissa High Court: In an appeal filed challenging the Trial court ruling, convicting the accused under Section 302 of Penal Code, 1860 (‘IPC') a Division Bench of S Muralidhar CJ., and R K Pattanaik J. upheld conviction under Section 302 IPC by examining circumstantial evidence in detail and directed cancellation of his bail bonds and surrender forthwith, as the appellant was enlarged on bail during the pendency of the proceedings.

The present Appellant alongwith Bidyadhar Pradhan, were charged with the offence under Section 109 read with Section 302 IPC on the grounds of abetting the murder of Bhagabati Pradhan. After analyzing the evidence, the Trial Court convicted the present Appellant while acquitting the co-accused. Assailing this order, the present appeal was filed.

The Court noted that this is a case of circumstantial evidence. Placing reliance on Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 Krishnan v. State, (2008) 15 SCC 430 and G. Parshwanath v. State of Karnataka, (2010) 8 SCC 593, the Court reiterated the conditions to be fulfilled before conviction could be based on circumstantial evidence.

The first circumstance is regarding the quarrel that took place the previous night between the Appellant, the co-accused, on one hand and the deceased and her family on the other. The Court thus noted that no doubt the witnesses are related to the deceased but such relation, by itself, would not result in their testimonies being discarded if they are otherwise truthful and consistent with each other.

It was further noted that based on the evidence of witnesses, it not only supplies the motive for the offence, but also proves the fact that immediately prior to the occurrence on that very evening, the accused had threatened to finish off the deceased. As regards the recovery of evidence, the Court was of the view that it has been more than adequately proved by the IO himself by producing the relevant record. Even, the opinion of the doctor is more than sufficient for the Court to conclude that the death was homicidal in nature.

The Court remarked “the fact that the weapon of offence did not have bloodstains will not matter if all other circumstances form a continuous chain and clearly point to the guilt of the Appellant and no one else.”

The Court held that the evidence is not only consistent with the guilt of the appellant but is also inconsistent with his innocence. Thus, no error can be found in the impugned judgment of the trial Court holding the appellant guilty of the offence punishable under Section 302 IPC.

[Tapan Kumar Pradhan v. State of Orissa, 2022 SCC OnLine Ori 2447, decided on 11-08-2022]


Advocates who appeared in this case :

Mr. Basudev Pujari, Advocate, for the Appellant;

Mr. Pravat Kumar Muduli, Additional Government Advocate, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has put this report together.

Case BriefsSupreme Court

Supreme Court: In an interesting case, where a man was convicted for murder of his younger brother, the bench of Sanjiv Khanna* and Bela M. Trivedi, JJ has converted the conviction from Section 302 to Part I of Section 304 of the IPC after holding that to discharge the burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court.

In the case at hand, the appellant was convicted for killing his younger brother. He had then himself went to the police station and confessed the crime, albeit, the confession is inadmissible as proof of confession is prohibited under Section 25 of the Evidence Act, 1872. The weapon i.e. the pick-axe and the blood stained shirt of the appellant were recovered based on the appellant’s disclosure.

According to the testimonies of various family members and the neighbours, the deceased was an alcoholic who barely interacted with the family, and used to torment, abuse and threaten the appellant. This fact was relied upon by the prosecution to establish the motive. On the night of the occurrence, the deceased had consumed alcohol and had told the appellant to leave the house and if not, he would kill the appellant. The appellant had also tried to commit suicide.

In is in the light of these facts, that the Supreme Court explained that,

“The prosecution must prove the guilt of the accused, that is, it must establish all ingredients of the offence with which the accused is charged, but this burden should not be mixed with the burden on the accused of proving that the case falls within an exception. However, to discharge this burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court.”

Hence, applying the prosecution version in the appellant’s defence, it was noticed that there was sudden loss of self-control on account of a ‘slow burn’ reaction followed by the final and immediate provocation. There was temporary loss of self-control as the appellant had tried to kill himself by holding live electrical wires. Therefore, it was held that the acts of provocation on the basis of which the appellant caused the death of his brother, were both sudden and grave and that there was loss of self-control.

Applying the provocation exception, the Court converted the conviction of the appellant from Section 302 to Part I of Section 304 of the IPC. Further, considering that the appellant has already suffered incarceration for over 10 years, as he has been in custody since 27th September, 2011, the Court modified the sentence of imprisonment to the period already undergone. In addition, the appellant would have to pay a fine of Rs. 1,000/- and in default, will undergo simple imprisonment for a period of six months. On payment of fine or default imprisonment, the appellant will be released forthwith, if not required to be detained for any other case

[Dauvaram Nirmalkar v. State of Chhattissgarh, 2022 SCC OnLine SC 955, decided on 02.08.2022]


*Judgment by: Justice Sanjiv Khanna

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: A Division Bench of Mukta Gupta and Mini Pushkarna, JJ. upheld the impugned conviction order considering the accused has committed heinous crime of rape on a four year girl of tender age within his close family.

The facts of the case are such that the appellant is alleged to have committed aggravated penetrative sexual assault upon baby ‘M’ and was charged for offence punishable under Section 6 of the Protection of children from of Sexual Offences Act i.e. POCSO Act. The appellant was thereby awarded sentence of imprisonment for life along with fine of Rs 10,000 in default of payment of fine, the Trial Court has further awarded sentence of Simple Imprisonment for a period of one month, for the said offence. The present is an appeal under Section 374(2) read with Section 383 Criminal Procedure Code i.e. CrPC challenging the order passed by Additional Sessions Judge-01 (POCSO), South-East District, Saket Courts, New Delhi and prayed for leniency by reducing the sentence awarded to the appellant.

Counsel for appellants submitted that the prosecution has not been successful in establishing the guilt of the appellant in respect of offence punishable under Section 6 of the POCSO Act. It was contended that the testimony of the prosecution witnesses did not inspire any confidence and no conviction or sentence can possibly be awarded on the basis of such evidence. It was also submitted that the witnesses who were the parents of the victim had turned hostile and had rather deposed in favour of the appellant. Further, even the victim was not examined, which was fatal to the prosecution case.

Counsel for appellants submitted that there were mitigating circumstances in favour of the appellant for considering his case for reduction of sentence. She argued that the appellant had clean antecedents; was 35 years of age at the time of offence; he was married and his wife and six children were dependent on him, the appellant being the sole bread earner. She further argued that the jail conduct of the appellant was satisfactory and on path of the reformation. Thus, she prayed for reduction in the sentence awarded to the appellant.

The Court observed that the law is very clear in this regard that evidence of hostile witness need not be totally rejected. It can be accepted to the extent his version is found to be dependable and is consistent with the case of prosecution or defense.

It was further observed that the contention as raised by the counsel for the appellant that the victim child was not examined cannot be fatal to the prosecution case, for the reason that the victim was too young, hardly 4 years old at the time of the incident. Being of such tender age she was not in a position to give any statement. The Trial Court has rightly held that the tender age of the victim coupled with her lack of maturity to understand as to what ghastly/ wrong act had been committed with her, was the reason why she was not examined, or arrayed as a witness. Thus, the witnesses presented and evidence produced sufficiently proves penetrative sexual assault even in the absence of any direct evidence/ testimony of the victim or her parents. This scientific evidence coupled with the other circumstantial evidence unerringly point to the committal of the offence by the accused.

The Court held that the “Trial Court rightly held that this sufficiently proves penetrative sexual assault even in the absence of any direct evidence/ testimony of the victim or her parents. This scientific evidence coupled with the other circumstantial evidence unerringly point to the committal of the offence by the accused”

The Court further held “As regards the prayer for leniency by reducing the sentence awarded to the appellant, the act of the accused, considering the fact that he was already married having six children and being related to the parents of the minor victim, does not inspire any case for leniency in his favour. The accused has committed heinous crime of rape on a four year girl of tender age within his close family. This Court finds no justification in reducing the sentence awarded to the appellant.” [Mukish v. State, 2022 SCC OnLine Del 1762, decided on 19-05-2022]

 


Apperances

For Petitioner: Ms Inderjeet Sidhu,

For State: Mr Tarang Srivastava and Yogesh Tanwar


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case where it was argued before the Court that an accused cannot be prosecuted under the Gangsters Act, 1986 for a single offence/FIR/charge sheet with respect to any of the antisocial activities mentioned in Section 2(b), the bench of MR Shah* and BV Nagarathna, JJ has held that even a single crime committed by a ‘Gang’ is sufficient to implant Gangsters Act on such members of the ‘Gang’.

Observing that there is no specific provision under the Gangsters Act, 1986 like the specific provisions under the Maharashtra Control of Organized Crime Act, 1999 and the Gujarat Control of Terrorism and Organized Crime Act, 2015 that while prosecuting an accused under the Gangsters Act, there shall be more than one offence or the FIR/charge sheet, the Court said that

“even in case of a single offence/FIR/charge sheet, if it is found that the accused is a member of a ‘Gang’ and has indulged in any of the anti-social activities mentioned in Section 2(b) of the Gangsters Act, such as, by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person and he/she can be termed as ‘Gangster’ within the definition of Section 2(c) of the Act, he/she can be prosecuted for the offences under the Gangsters Act.”

On a fair reading of the definitions of ‘Gang’ and ‘Gangster’ under the Gangsters Act, 1986, the Court explained that a ‘Gang’ is a group of one or more persons who commit/s the crimes mentioned in the definition clause for the motive of earning undue advantage, whether pecuniary, material or otherwise. Even a single crime committed by a ‘Gang’ is sufficient to implant Gangsters Act on such members of the ‘Gang’. The definition clause does not engulf plurality of offence before the Gangsters Act is invoked.

A member of a ‘Gang’ acting either singly or collectively may be termed as a member of the ‘Gang’ and comes within the definition of ‘Gang’, provided he/she is found to have indulged in any of the anti-social activities mentioned in Section 2(b) of the Gangsters Act.

Further, a ‘Gangster’ means a member or leader or organiser of a gang including any person who abets or assists in the activities of a gang enumerated in clause (b) of Section 2, who either acting singly or collectively commits and indulges in any of the anti-social activities mentioned in Section 2(b) can be said to have committed the offence under the Gangsters Act and can be prosecuted and punished for the offence under the Gangsters Act.

Reading the relevant provisions of the Gangsters Act together, the Court concluded that there can be prosecution against a person even in case of a single offence/FIR/charge sheet for any of the anti-social activities mentioned in Section 2(b) of the Act provided such an anti-social activity is by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person.

The Court was deciding the case where allegedly the main accused P.C. Sharma was a gang leader and who was the mastermind and he hatched the criminal conspiracy along with other co-accused including the appellant to commit the murder of the deceased Sadhna Sharma for a pecuniary benefit as there was a property dispute going on since long between the family members. The other co-accused were already charge sheeted/prosecuted for the offence under the Gangsters Act and therefore the appellant and the other two co-accused being members of the ‘Gang’ were also required to be prosecuted for the offences under the Gangsters Act also like other co-accused.

Applying the law enunciated above to the facts and circumstances of the case, the Court held that it cannot be said that no prosecution could have been initiated against the appellant-accused for the offences under Sections 2/3 of the Gangsters Act, 1986.

[Shraddha Gupta v. State of Uttar Pradesh, 2022 SCC OnLine SC 514, decided on 26.04.2022]


*Judgment by: Justice MR Shah


Counsel

For appellant: Advocate Divyesh Pratap Singh

For State: Advocate Sanjay Kumar Tyagi

For informant: Advocate Shuvodeep Roy

Case BriefsHigh Courts

Orissa High Court: R K Pattnaik, J. dismissed the petition and held that the ground on which the petition is raised is misconceived and therefore, cannot be sustained.

The facts of the case are such that the  petitioner is an accused in a complaint case filed by OP 1 pending before the court below for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ( ‘the NI Act’) alleging therein that the former had taken a hand loan of Rs.40,000/- to meet his personal needs and when it could be paid back, some henchmen of OP 1 forcibly entered inside his residence and managed to obtain a cheque for an amount of Rs.40,000/- drawn in the UCO Bank, Khurda Branch, Khurda and thereafter, presented it before the bank for encashment but it could not be honored for insufficient funds in the account and again after five months, it was again submitted and yet dishonored with a similar endorsement dated 18th October, 2010. The cognizance was taken and now it is raised for dispute that court below could not have taken cognizance of the offence under Section 138 of the N.I. Act after it was presented for encashment once again after about five months which is not permitted under law. Hence the petitioner assailed the legality and judicial propriety of order of cognizance and invoked jurisdiction under Section 482 Cr.P.C on the grounds inter alia that it is not sustainable in law and therefore, liable to be quashed.

The issue that came for consideration is that the question is, whether on the basis of a statutory notice issued by OP 1 subsequent to dishonor of cheque about five months before, the learned court below could have entertained the complaint and taken cognizance of offence under Section 138 of the N.I. Act as against the petitioner?

The Court relied on Sadanandan Bhadran v. Madhavan Sunil Kumar, (1998) 6 SCC 514 and observed that to the extent that second and successive presentation of a cheque is legally permissible as long as it is within six months or validity of the cheque, whichever is earlier.

The Court reiterated that a prosecution based on a second or successive default in payment of the cheque amount should not be impermissible simply because no prosecution based on the first default which was followed by statutory notice and a failure to pay had not been launched. Hence no real or qualitative difference exists between a case where default is committed and prosecution immediately launched and another, where the prosecution is deferred till the cheque presented again gets dishonored for the second or successive time.

With regard to the purport of NI Act the Court observed that if the entire purpose underlined Section 138 of the N.I. Act is to compel the drawers to honor their commitments made in course of business or other transactions, there is no reason why a person who has issued a cheque which is dishonored and who failed to make payment despite statutory notice served upon him should be immune to prosecution simply because the holder of the cheque had not rushed to the court with a complaint based on such default or for the reason that the drawer has made the holder defer prosecution promising to make arrangements for funds or on account of any other similar situation.

The Court concluded after perusing various judgments on the similar point of law that such a criminal action on a subsequent statutory notice or a notice sent for the first time after dishonor of cheque previously for which prosecution was not launched on the promise of the accused to make arrangement for funds, a complaint cannot be held as not maintainable.

The Court thus observed that in the present case OP 1 did not send any statutory notice after the cheque was dishonored in the month of May, 2010 but once again presented it within the validity period of the cheque and thereafter, issued the statutory notice as required under law and under such circumstances, it cannot be said that the complaint is invalid.

The Court thus held “the contention of the petitioner vis-à-vis maintainability of the complaint on the ground raised is misconceived and therefore, cannot be sustained.”

[Gadadhar Barik v. Pradeep Kumar Jena, 2022 SCC OnLine Ori 1052, decided on 07-04-2022]


Appearances

For Petitioner- Mr. A. Pattanaik

For Opposite Parties- Mr. D.R. Parida


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: Siddhartha Varma, J., held that it is the bounden duty of the enquiry officer to have seen whether the charges were proved on the basis of the evidence which was led by it.

A station house officer had given information to the Superintendent of Police that the petitioner under influence of alcohol had misbehaved with the private cook Shamshad Ahmad. Thereafter, the petitioner was suspended.

An enquiry report was filed as per which the petitioner was found to be guilty of the charges levied against him and a major punishment of removal was proposed under Rule 4(1) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. Thereafter, the punishment order was passed, and the petitioner was removed from service.

Since the revision filed by the petitioner were dismissed, instant writ petition was filed.

High Court noted that impugned order cannot be sustained in the eyes of the law.

Bench added that, no individual who had seen the incident was summoned as an eyewitness to prove the incident. Also, there was only a medical report that there was a suspicion on account of the fact that there was a smell coming of alcohol from the petitioner while there was no blood report or urine report of the petitioner which actually would have proved that the petitioner had actually consumed liquor/alcohol to an extent that he was in a state of drunkenness.

Hence, the petition was allowed in view of the above. [Sangram Yadav v. State of U.P., 2022 SCC OnLine All 169, decided on 10-3-2022]


Advocates before the Court:

Counsel for Petitioner :- Ishan Deo Giri

Counsel for Respondent :- C.S.C.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of K.R. Shriram and Amit B. Borkar, JJ., discussed when a person can be prosecuted under Section 276C(1) of the Income Tax Act.

Petitioner challenged the order passed by respondent 3 sanctioning the prosecution against the petitioner under Section 276C (1) of the Income Tax Act, 1961 and a complaint was filed against the petitioner in the Court of Additional Chief Metropolitan Magistrate, Mumbai.

Background

Petitioner was engaged in the business of trading in ferrous and non-ferrous metals. He filed his return of income on 20-03-2010 for Assessment Year 2009-10.

By notice dated 28-03-2014, the assessment of Petitioner was re-opened under Section 148 of the said Act. The Assessing Officer on 4-03-2015 passed an order of assessment, making addition of Rs 34,25,377/- being 12.5% of alleged bogus purchases of Rs 2,74,03,016/-. The Assessing Officer also issued show cause notice under Section 271(1)(c) of the said Act.

On being aggrieved with the assesment order, an appeal with the Commissioner of Income Tax was filed.

The assessing officer after hearing the petitioner made the addition of Rs 12,91,069 being 12.5% of alleged bonus purchases of Rs 1,03,28,552 by order dated 30-11-2016. CIT(A) y its order dated 19-12-2016 confirmed the order of Assessing Officer passed on 4-3-2015.

Again, on being aggrieved, petitioner filed an appeal before the Income Tax Appellate Tribunal (ITAT) which was dismissed on 3-7-2017.

In November 2017, respondent 3 issued a show-cause notice to the petitioner as to why prosecution under Sections 276C(1) and 277 of the said Act should not be initiated against the petitioner.

Present petition was filed by the petitioner challenging the order of sanction of prosecution dated 25-1-2018.

Law | Section 276C (1) of the Income Tax Act

“Section 276C (1) :- 

If a person willfully attempts in any manner whatsoever to evade any tax, penalty or interest chargeable or [imposable, or under reports his income] under this Act, he shall, without prejudice to any penalty that may be imposable on him under any other provision of this Act, be punishable,

(i) in a case where the amount sought to be evaded [or tax on under reported income] exceeds [twenty-five] hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine;

(ii) in any other case, with rigorous imprisonment for a term which shall not be less than three months but which may extend to [two] years and with fine.”

Analysis and Decision

High Court firstly noted that the following ingredients must be fulfilled to attract the offence under Section 276(C):

  1. a) Willful attempt to evade any tax.
  2. b) Willful attempt to evade any penalty; or
  3. c) Willful attempt to evade any interest chargeable or imposable under this Act; or
  4. d) under reports his income.

Even if one of the above three ingredients are fulfilled, then prosecution can be initiated under Section 276(C).

In the sanction order, it was stated that the petitioner failed to substantiate the claim of purchases amounting to Rs 2,74,03,016 and the assessing office held the purchases to be bogus and made an addition of Rs 34,25,377 (12.5% of the bogus purchases).

“…before granting sanction the authority must have before it the necessary report and the material facts which prima facie establish the commission of offence alleged for and that the sanctioning authority would apply its mind to those facts. The order of sanction is only an administrative act and not a quasi-judicial one nor is a lis involved.”

Bench stated that in the present matter the sanctioning authority seemed to have applied its mind to the facts placed before it and considered them and then granted sanction.

Court noted the note of caution on the powers of quashing a criminal proceeding as was given in the Supreme court decision of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335.

Further, the Court also relied on the decision in Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330, wherein the scope of power under Section 482 of the Code of Criminal Procedure was succinctly laid down.

In Court’s opinion, the petitioner willfully and intentionally evaded his tax liability.

The Court was satisfied that prima facie the ingredients of the offences under Section 276C(1) of the Income Tax Act were satisfied and at this stage, Court cannot go into the truth or otherwise of the allegations made against the petitioner.

In view of the above petition was dismissed. [Nayan Jayantilal Balu v. Union of India, 2021 SCC OnLine Bom 5913, decided on 7-12-2021]


Advocates before the Court:

Mr Dharan V. Gandhi, for the Petitioner.

Mr Akhileshwar Sharma, for the Respondents.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Narayana Pisharadi, J., dismissed the revision petition filed by CBI due to its failure to obtain prior sanction of government before prosecuting public servants.

The Central Bureau of Investigation (CBI) had filed the instant revision petition to assail the order of the Special Judge for CBI Cases, Lakshadweep by which it allowed the applications for discharge filed under Section 239 of the CrPC by accused 4 and 8. The accused were alleged for committing the offences punishable under Sections 7, 12 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 and also under Sections 468, 471, 420 and 120B of the Penal Code.

Background

The prosecution case was that the Directorate of Education of the Union Territory of Lakshadweep had directed to supply, free of cost, ready-made uniforms to the school children for the academic year 2005-06. A Uniform Tender Evaluation, Sample Selection and Procurement Committee was formed in this regard. Pursuant to a conspiracy hatched by the members of the committee with one Nagendran, the approver, sub-standard uniforms were purchased, violating the tender conditions and by making false and forged entries on record. Thereby, the accused who were member of the committee were alleged for benefiting with wrongful gain and causing wrongful loss to the Lakshadweep Administration and a criminal case was registered against them.

Decision of Special CBI Court

However, the Special Court had held that prior sanction under Section 197 of CrPC was necessary to prosecute the accused as they were public servant, accordingly, the prosecution against accused 4 and 8 was held bad for want of sanction and the accused were discharged.

Analysis and Decision

As per Section 197(1) of CrPC, when any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the Central Government or the State Government.

In Amrik Singh v. State of Pepsu, (1955) 1 SCR 1302, the Supreme Court had held that, “If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required”. Similarly, in D.Devaraja v. Owais Sabeer Hussain, (2020) 7 SCC 695, after an elaborate discussion of the question, it was held that, “To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty”.

Affirming the reasoning of the Special Court that both the accused did not have expertise in the matter of quality control or checking the standards of stitching or clothes supplied, at the most, they could be blamed only for the omissions in not insisting meetings of the committee. In all probability they might have gone by the certificates issued by the technical member in the committee, hence, they could only be blamed for non feasance, at the most, the Bench stated that the sum and substance of the allegation against accused was that they blindly accepted the certificate issued by Accused 9 without conducting inspection of the uniform materials and consequently, sub-standard materials happened to be purchased.  Hence, the act of accused, who were not experts in the field, in accepting the certificate issued by the technical member of the committee would not take them out of the protection under Section 197(1), which was otherwise available to them.

In the backdrop of above, the Bench held that it was necessary to obtain sanction under Section 197 for prosecution and cognizance of the offences taken against them, without such sanction, was bad in law. Accordingly, the petition was dismissed. [CBI v. Syed Shaikoya, Crl. Rev.Pet No. 509 of 2012, decided on 01-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the State: ASG P.Vijayakumar

For the Respondents: Advocate Glen Antony, Advocate P.Sanjay and Advocate M.Vanaja

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Prasanna B. Varale and S.M. Modak, JJ., held that in a matter of circumstantial evidence, the law doesn’t require a particular number of circumstances to establish the chain, it only depends on nature.

The issue involved in the present appeal was:

Whether the link between the incident of murder and the accused is established on the basis of proved circumstances?

Present matter was based on circumstantial evidence.

It was expressed that, Law does not require a particular number of circumstance so as to establish the chain. It altogether depends upon the nature of the transaction. 

In the present matter, there were a few circumstances relied upon by the prosecution and the Additional Sessions Judge believed those circumstances and drew an inference about the guilt of the accused of committing murder of his own wife Nirmala. Accused was convicted under Section 302 of Penal Code, 1860 and the said judgment has been challenged in the present appeal.

Accused and his wife were labourers. On the day of the incident both the accused and deceased went from duty a little early due to stomach pain of accused and then slept. On next day when the first informant went to wake them up, he saw Nirmala’ dead body. Accordingly, he lodged the complaint.

Circumstances on which the prosecution relied upon were as follows:

  1. Last seen theory.
  2.  Motive
  3. Noticing soaked blood stains on the clothes of the accused.
  4. Absconding himself from the spot of the incident even though his wife is murdered.

Supreme Court has already laid down golden principles while appreciating circumstantial evidence. They still hold good. So the following are the principles:-

  1. a) The circumstance relied upon must be fully established.
  2. b) They must be consistent with the hypothesis of guilt of the accused.
  3. c) They should be conclusive in nature. Only inference about guilt of the accused is to be inferred.
  4. d) There should be complete chain of evidence so as not to lead any doubt about involvement of the accused.

Trial Court blamed the accused for not giving explanation. In Court’s opinion, Trial Court committed fault on two aspects first trial court forgot the difference between suspicion and proof.

Secondly, trial court forgot to put to the accused circumstance of ‘last seen together’ as evidenced by PW-2 first informant.

In view of the above reasons, Bench decided to set aside the conviction and laid down the following reasons:

ON THE POINT OF LAST SEEN TOGETHER

Last seen circumstance has to be proved just like any other circumstance. The only difference is once the prosecution will prove that both the deceased and accused were found last together then certainly it is for the accused to explain about whereabouts or what has happened about his companion. In this exercise the time of last seen and time of death also plays important.

For the above-stated, Supreme Court’s decision in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 was referred.

SPOT OF INCIDENT

Bench stated that it was very much clear that the spot was not situated within four walls of the house but an open space. There was reason to believe that the open space was not surrounded by walls but a place accessible. In view of the said, Court stated that it had to see whether there was a burden on accused to explain how deceased was found there in a dead condition.

Section 313 of the Code of Criminal Procedure empowers the Court to put questions in two eventualities.

One is optional and it may be at any stage of proceeding. Whereas 2nd is mandatory, and it is after prosecution witnesses were examined. Under the said Section, protection was also given to accused from possible punishment which may occur if he has refused to answer or given a false answer.

Whether this Court can remand the matter back to the trial Court for the purpose of putting that circumstance to the accused?

A similar situation arose before the Supreme Court in Nar Singh v. State of Haryana, (2015) 1 SCC 496.

There is no straight-jacket formula for deciding which course of action could be adopted, therefore it remains a question of fact.

In the present case, Bench was not inclined either to remit the matter or to put the questions to the accused.

While deciding the matter on merits, Bench stated that it has almost been 5 years since the accused was behind the bar. Further, even if the circumstance of the last seen together was considered, Court did not think that other circumstances were sufficient to prove the guilt of the accused. Court opined that prejudice was caused to the accused.

It was noted that the accused was denied the opportunity to give an explanation resulting in causing prejudice to him.

MOTIVE

“Suspecting the character of the deceased” was the motive suggested by the prosecution.

Motive is the purpose/reason for which offence is committed. Motive crops up in the mind of the culprit. We can understand the motive, only when it is manifested by some conduct. If the accused scolds, become angry and even beats the deceased it is manifestation.

A trifling act may make another person angry and a blunder may not make a person angry. So, it is difficult to opine which objectionable acts may compel another to take law into his own hand

No doubt man always wants his wife to be loyal to him and if wife has shifted loyalty towards another person, her husband never likes. It is true for wife also.

PW-4-Muktabai mother of the deceased was not eyewitness to this beating by the accused. Except her, there was no other witness. The said statement was not sufficient to believe about the reason for scolding and the group head’s opinion about cordial relations was also important as he resided in the immediate vicinity, hence Trial Court wrongly inferred about motive.

ARREST OF ACCUSED 

When the accused was arrested, bloodstains were noticed on his clothes.

Police Officers are not a layman. They are the officers having the responsibility to carry out the investigation as per the police manual and as per the provisions of the Criminal Procedure Code. They need to substantiate their stand on the basis of documents which are created simultaneously.

In the present case, the witness police did not make any correspondence on the arrest of the accused, neither made any Panchama. Except the bare words of the two witnesses, there is nothing in writing.

High Court found no explanation coming forward from the prosecution for not creating and not producing the single document to show the entire exercise.

Trial Court’s decision about the arrest of the accused was also found to be flawed.

CAUSE OF DEATH 

Bench expressed that merely because there was a huge time gap in between the timing of last seen together and probable timing of death, the evidence of last seen together could not be rejected in all cases.

WEAPON OF OFFENCE

As no one saw the assault Bench stated that it did not know how the accused had used the weapon koyta. Weapon Koyta was found at the spot when spot panchanama was carried out.

Prosecution had sufficiently proved the circumstances of last seen together.

The circumstance of motive was not proved, evidence on the point of arrest and seizure of clothes was not trustworthy. So, Court felt that the chain of circumstances was not established.

Hence, High Court held that there was Grave suspicion on accused that he had committed the murder of his own wife. As everyone knew that suspicion could not take place of proof, therefore, Court was unable to subscribe to the view taken by the trial court.[Sandip Baburao Waidande v. State of Maharashtra, 2021 SCC OnLine Bom 560, decided on 09-04-2021]


Advocates before the Court:

Mr Amit Mane (Legal aid) for the appellant.

Mrs M. M. Deshmukh, learned APP for the Respondent.

Case BriefsHigh Courts

Allahabad High Court: Dinesh Kumar Singh, J. dismissed the revision petition on the ground that the impugned order did not suffer from any infirmity.

In the instant case, the Basic Education Officer had opened an account by the name of Akhilesh Singh, the Principal of Maharana Pratap Junior High School in which scholarship amount was withdrawn. It was found in the FIR. that the name of the Principal was forged; rather the photo of Gopal Singh was affixed on the said account. Further, it was found that the school wasn’t in existence. The revisionist was found prima facie liable for the misappropriation of scholarship funds and also for causing loss of records.

The issue was whether the impugned order was rightly dismissed by the Special Judge or does it require any interference by the court in revision jurisdiction.

Saroj Kumar Dubey, arguing on behalf of the revisionist contended that no offence was made out on the basis of documentary evidence. It was required to get a valid prosecution sanction under Section 19 of the Prevention of Corruption Act for prosecuting a public servant. It was argued that the revisionist having retired from service, there was no requirement of prosecution sanction under Section 19 of the said act.

Relying on the Judgment of Chittaranjan Das v. State of Orissa, (2011) 7 SCC 167, the Court held that in case a public servant had retired, there was no necessity to seek prior sanction for prosecuting him. The impugned order didn’t suffer from any infirmity.[Shyam Bihari Tiwari v. State of Uttar Pradesh, Criminal Revision No. 3155 of 2019, decided on 11-11-2019]

Case BriefsHigh Courts

Delhi High Court: Sunil Gaur, J. allowed a batch of petitions filed against the trial court’s order whereby the petitioners including Group President of Reliance Industries Public Ltd. and the Vice-President of Reliance Industries Ltd. were put on trial for the offences punishable under the Official Secrets Act, 1923.

On 28-10-1998, the Delhi Police raided the office of Group President of RIL and recovered copies of 4 ‘secret’ documents of the Government of India. The recovered copies related to policy documents related to economy and disinvestment.

It was submitted by the petitioners that the documents in the question were not prejudicial to the security of the State and by merely marking them to be secret, does not bring the documents in question within the ambit of the Official Secrets Act. They contended that the ‘secret’ information was already in public domain, which had been supplied through Government channels and that it was so apparent from the copies of newspaper reports on record.

Referring to Sama Alana Abdulla v. State of Gujarat, (1996) 1 SCC 427 and State (NCT of Delhi) v. Jaspal Singh, (2003) 10 SCC 586 the High Court noted: “A person cannot be put on trial merely because a document has been marked as secret, as it is necessary to see the nature of information contained in it, to find out if any offence under the Official Secrets Act is made out or not.” The Court was of the view that the trial court erred in ignoring the newspaper reports produced on a technical plea of want of proof. It was reiterated that substantial justice cannot be sacrificed on technicalities.

As per the Court, a bare perusal of the statement of the Secretary, Department of Telecommunication, revealed that he was not categoric about the documents in question being prejudicial to the security of the nation. It was further noted that since the documents in question had been already made public, therefore, they lost their confidentiality. The Court was of the opinion that the impugned order suffered from utter non-application of mind, and therefore, the same was set aside. The proceedings against the petitioners were quashed.[Shankar Adawal v. CBI, 2019 SCC OnLine Del 9434, decided on 01-08-2019]

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J. dismissed a petition filed by Prisoners Right Forum against the order of the Chief Judicial Magistrate whereby he had dismissed a complaint filed in the matter of the death of a prisoner in judicial custody. It was held that the forum, being a third party who was neither a victim not an aggrieved person, had no locus standi to file the present petition.

The deceased, a prisoner, died in judicial custody in April, 2014. An FIR was registered, enquiry conducted, and criminal proceedings initiated against the respondent officials. However, ultimately, the Chief Metropolitan Magistrate came to the conclusion that no offence was established against the accused persons, and therefore he dismissed the complaint. The said order was challenged by the Forum in the present petition under Section 482 CrPC.

The High Court was of the opinion that the preliminary issue to be decided was as to the locus standi of the petitioner Forum to file the petition. M. Radhakrishnan, Advocate led arguments on behalf of the Forum. Per contra, the respondents were represented by C. Emilias, Additional General, assisted by M. Mohamed Tiyaz, APP; and Senior Advocate N.R. Elango; and A. Gokulakrishnan, Advocate; all of whom opposed the petition.

The Court noted that the term locus standi is commonly understood as the right or the capacity to bring an action or to appear in a Court. The march of law, more particularly by way of public interest litigations, has now allowed anyone from the society, not related to the cause of action to approach the Court seeking justice for those who cannot or who could not approach themselves or in cases which involves the public interest at large. However, it was held that such right cannot be extended in a criminal case to a third party who is not in any way related to the case. It was observed: “If this practice is permitted in a casual manner, a meddlesome bystander can easily decide to attack a person who has been held to be not guilty by a Subordinate Court, by initiating a frivolous proceeding and thereby cause irretrievable injury to the life and liberty of the accused person.” The only exception that has been created in this regard is by the Supreme Court which has held that third parties will have right, in very exceptional cases, to approach the Supreme Court under Article 136 of the Constitution of India. Reference was made to Amanullah v. State of Bihar, (2016) 6 SCC 699; National Commission for Women v. State (NCT of Delhi), (2010) 12 SCC 599; Harsh Mandar v. Amit Anilchandra Shah, (2017) 13 SCC 420.

Holding that the petitioner had no locus standi to maintain the present petition, the Court dismissed the same.[Prisoners Right Forum v. State of T.N., 2019 SCC OnLine Mad 2476, decided on 22-07-2019]

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Prashant Kumar Mishra, J. quashed criminal proceedings pending against the petitioner-assessee before the Chief Judicial Magistrate for the commission of offences under Section 276-C (willful attempt to evade tax) and Section 277 (false statement in verification) of the Income Tax Act, 1961.

The gravamen of the offence alleged against the petitioner was that it concealed its income for the assessment year 1990-1991. Consequent to that, a penalty was imposed upon him by the Commissioner of Income Tax. He also granted sanction for petitioner’s prosecution, pursuant to which the criminal case which the subject matter of the present petition, was registered. The petitioner filed an appeal before the appellate authority — CIT (Appeals) — which appeal was allowed and the penalty was set aside on the finding that the petitioner did not conceal its income.

S. Rajeshwara Rao and M.K. Sinha, Advocates for the petitioner, contended that in view of the position that the penalty levied on the petitioner was set aside, the criminal proceedings pending on the file of CJM may also be quashed. Per contra, Naushina Ali appearing on behalf of A. Choudhary, Standing Counsel for the Revenue, opposed the present petition.

The High Court relied on K.C. Builders v. CIT, (2004) 2 SCC 731, wherein the Supreme Court held that “once the finding of concealment and subsequent levy of penalties under Section 271 (1)(c) of the Act has been struck down by the Tribunal, the assessing officer has no other alternative except to correct his order under Section 154 of the Act as per the directions of the Tribunal.” It was further held in the said case that “the finding of the Appellate Tribunal was conclusive and the prosecution cannot be sustained since the penalty after having been decided by the complainant following the Appellate Tribunal’s order, no offence survives under the Income Tax Act and thus quashing of prosecution is automatic.”

In the matter at hand, the High Court, following the law laid down in K.C. Builders, held that it will an empty formality to direct the petitioner to approach the trial Magistrate, who had otherwise kept the application preferred by the petitioners pending since 15-01-2014. Resultantly, the Court exercised its inherent powers and quashed the criminal proceedings pending against the petitioner. The petition was allowed. [System (India) Castings v. CIT, 2019 SCC OnLine Chh 63, decided on 26-06-2019]

Case BriefsHigh Courts

Meghalaya High Court: A Bench of Mohammad Yaqoob Mir, CJ, and H.S. Thangkhiew, J. dismissed an appeal filed against the trial court decision whereby the appellant was convicted for the offence punishable under Section 376 (punishment for rape) IPC.

The appellant was accused of committing rape upon the child-victim. Pertinent to note that he was acquitted by the trial court of the charge of rape levelled against him, in the first instance. Thereafter, the State appealed against his acquittal which was allowed by the High Court and the matter was remanded back for re-trial. After the conclusion of the re-trial, the appellant was convicted under Section 376 and sentenced accordingly. He challenged the decision of the trial court by filing the present appeal.

Senior Advocate S.P. Mahanta assisted by A. Thungwa, Advocate appeared for the appellant. Per contra, S. Sen Gupta, Additional Public Prosecutor represented the State. One of the many contentions raised by the appellant was that his case was prejudiced at the re-trial.

The High Court in reference to the aforesaid contention noted that it has no force as the High Court Judgment which ordered the re-trial was not challenged. It was also found that the appellant and his counsel actively participated in the proceedings at the re-trial and at no stage it was agitated that any rights of the appellant were infringed. The Court said: “It was nowhere mentioned that any of the witnesses during examination or cross-examination has made any improvement or has made any substantial deviation giving rise to any prejudice. Now, after the accused is convicted and sentenced, to contend that by re-trial gaps and lacunas have been filled up is an otiose theory only to be rejected.” On such and other incidental reasoning, the Court dismissed the appeal while upholding the trial court’s decision. [Small Phawa v. State of Meghalaya, Crl. A. No. 5 of 2016, dated 02-04-2019]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: This petition was filed before the Bench of Jaishree Thakur, J., under Section 482 of Criminal Procedure Code invoking the inherent power of High Court seeking quashing of FIR registered under Sections 498-A, 406, 323, 506 and 34 of Penal Code and all subsequent proceedings arising therefrom on the basis of compromise entered between the parties.

Facts of the case were that the respondent was married with petitioner and out of this wedlock, a child was born. However, temperamental differences arose between the husband and wife and FIR was registered by respondent. But the same was compromised between the two with the intervention of respectable persons. It was submitted before the Court that their statements were recorded in support of the compromise. In pursuance of which a report was received from the Judicial Magistrate (First Class) stating that the compromise was done without any pressure or coercion from anyone. DAG, Haryana had admitted before the Court that the parties had settled their dispute and had no objection to the quashing of the FIR.

High Court was of the view that a decision which is based on compromise causes no loss to any party rather it would bring peace and harmony between the parties to a dispute and restore tranquility in the society. In the light of nature of offence alleged and compromise entered between the parties continuing the prosecution was considered futile. Therefore, this petition was allowed and FIR was quashed. [Vikas Khatri v. State of Haryana, CRM-M-38284-2017 (O&M), decided on 01-08-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of S.B. Shukre and S.M. Modak, JJ. allowed a set of criminal appeals filed against the judgment of Sessions Judge whereby the appellants were convicted under Section 376 (2)(n) IPC and under various sections of Protection of Children from Sexual Offences Act, 2012 and Prohibition of Child Marriage Act, 2006.

The appellants were the husband, parents, neighbours, etc. of the victim. The prosecution alleged that the victim was married to her husband when she was 15 years of age. She was pressurised by her parents. Soon after the wedding, the husband consummated the marriage with the victim. She was not able to resist the advances and acts of the husband who was 29 years of age. One day, on the pretext of celebrating he birthday with her parents, the victim ran away and lodged an FIR against the husband, her parents and other accused. The matter went to trial and the court convicted the accused as aforesaid. Aggrieved thereby, the convicts preferred the present appeals.

Mahesh Rai and A.A. Dhawas, Advocates for the appellants vehemently argued against the conviction and seriously disputed age of the victim at the time of the incident. They relied on evidence of one Vasanti, an employee of Municipal Council, Chandrapur. Notably, Vasanti was a prosecution witness but her evidence wherein she brought birth register proved that the victim was born in 1994 and not in 1999 as claimed by the prosecution. Thus, at the relevant time, the victim was more than 18 years of age. Therefore she could not be treated as a ‘child’ for the purpose of either POCSO or the Child Marriage Act.

The High Court, noting the above evidence stated that the same was reliable. It observed, “After having examined its own witness and after having not declared the witness with the permission of the Court as hostile to the prosecution, it is not permissible under the law for the prosecution to disown its own witness”. On the aspect of other evidence especially the ossification test, the Court relied on Mahadeo v. State of Maharashtra, (2013) 14 SCC 637 and State of M.P. v. Anoop Singh, (2015) 7 SCC 773. The Court stated, “The ossification test would come into picture only when the documentary and other evidence brought on record by the prosecution does not convincingly or beyond reasonable doubt establish the age of the victim, wherever it is relevant”. Thus, the victim not being a ‘child’ at the relevant time, the appellants were acquitted of offences under POCSO and Child Marriage Act. Further, regarding Section 376(2)(n) IPC, it was noted that the victim admitted that after the marriage she did not object to the acts of the husband and therefore even that offence was not established. Hence, the appellants were acquitted of all the charges. [Vimalbai Manohar Doballiwar v. State of Maharashtra, 2018 SCC OnLine Bom 6956, dated 19-12-2018]

NGT
Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Principal Bench of NGT at New Delhi comprising of Adarsh Kumar Goel, S.P. Wangdi JJ. and expert member Dr. Nagin Nanda, while considering an application moved by the petitioner, passed directions for implementation of steps to control and stop the release of toxic volatile organic compounds (VOCs) that are released in the atmosphere during transfer of petroleum products at fuel delivery outlets.

The application moved before the Hon’ble Tribunal sought directions for installation of Stage I and Stage II vapor recovery devices at all fuel stations, distribution centers, terminals, railway loading/unloading facilities and airports in Delhi. The applicant averred that petroleum products contain traces of benzene, toluene, and xylene (BTX) that are VOCs and highly toxic in nature. During the transfer of petroleum products at fuel delivery outlets, VOCs turn into vapours from liquid and enter the atmosphere. Exposure to high level of BTX causes neuro-toxic symptoms and persistent exposure to the same may cause injury to the human bone marrow, DNA and immune system damage.

The factum of hazardous impact of VOC was not disputed by the Ministry of Petroleum and Natural Gas and it was stated that the Government of India had already directed public sector oil marketing companies to install Vapour Recovery System (VRS) during fueling of vehicles at all the retail outlets in Delhi and in all high selling retail outlets (selling more than 300 kilo litre per month) in the country.

Having regard to the averments of MoEF&CC, CPCB and Ministry of Petroleum and Natural Gas, the Bench observed that there was no dispute in relation to the need for installing Stage-I and Stage-II vapor recovery devices and the only roadblock was that of implementation. It was noted that the timelines prescribed by CPCB had expired and there was no justification for the long delay in taking requisite steps for protection of the environment and public health.

On the aforesaid observations, the Hon’ble Tribunal directed all oil companies to install Stage-I and Stage-II vapour recovery devices on or before 31-10-2018, failing which Chairman of erring oil companies would be subject to prosecution. Further, it was also directed that a compliance report be filed by the CPCB after taking compliance reports from all the oil companies on or before 15-01-2019. [Aditya N. Prasad v. Union of India, 2018 SCC OnLine NGT 333, decided on 28-09-2018]

 

Case BriefsSupreme Court

Supreme Court: The Bench comprising of S.A. Bobde and L. Nageswara Rao, JJ. disposed of a criminal appeal filed by the State of Maharashtra against the judgment of the Bombay High Court whereby an FIR  filed against the respondents was quashed.

The FIR was filed against the respondents, for the transportation and sale of gutkha/pan masala, under Sections 26 and 30 of the Food and Safety Standards Act, 2006 along with Sections 188, 227, 273 and 328 IPC. The respondents filed criminal petitions before the High Court for quashing the FIRs. The High Court allowed the petitions. Aggrieved thereby, the State filed the instant appeal.

The Supreme Court was of the view that the judgment of the High Court could not be sustained. It was unable to agree with the conclusion of the High Court that non-compliance of the provisions of FSS Act cannot be the subject matter of a prosecution under IPC. The High Court was, observed the Supreme Court, clearly wrong in interpreting the scope of Section 188 IPC. The section does not only cover breach of law and order but is attracted even in cases where the Act complained of causes or tends to cause danger to human life, health or safety. Furthermore, the Court did not accept the position that Section 55 of FSS Act was the only provision which can be resorted to for non-compliance of orders passed under the Act as it is a special enactment. Reference was made to State of Bihar v. Murad Ali Khan, (1988) 4 SCC 655; State of Rajasthan v. Hat Singh, (2003) 2 SCC 152; State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772. It was observed that there is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the same offence. Section 26 of the General Clauses Act, 1897 was also discussed to observe that prosecution under two different acts is permissible if the ingredients of the provisions are satisfied on the same facts. It was held that there is a bar for prosecution under IPC merely because provisions in FSS Act prescribe penalties. Therefore, the finding of the High Court on this point was set aside. Regarding the point as to whether offences under Sections 188, 272, 273 and 328 IPC were made out against the respondents, the matter was remanded back to High Court for reconsideration. The appeal was disposed of in the terms above. [State of Maharashtra v. Sayyed Hassan Sayyed Subhan,2018 SCC OnLine SC 1580, decided on 20-09-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of K.N. Phaneendra, J. allowed a petition wherein the bench stated that a customer encouraging the services of a prostitute cannot be held liable for any prosecution.

The petition was filed under Section 482 of CrPC in order to quash the entire proceeding in crime registered by the respondent under Section 370 of IPC and Sections 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act.

Taking into account the FIR and the respective evidences placed before the Court by the respondent, the only inference that could be drawn was that the petitioner was a ‘customer’ in the brothel house indulged committing prostitution with a lady which was corroborated by the raid conducted by the respondent.

The High Court referred to the case of Goenka Sajan Kumar v. State of A.P., 2014 SCC OnLine Hyd 1192 and a few others, wherein it was stated that, in order to be covered under the ambit of Sections 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956, it has to be established that:

  • The petitioner should have lived on the earnings of prostitution.
  • Maintained a brothel house or allowed his premises to be used for the same.
  • Procured, or induced a person for the sake of prostitution.

Further, the High Court concluded by stating its opinions that the customer does virtually encourage prostitution along with exploiting the victim for money, but due to the absence of any specific penal provision, the Court cannot make the petitioner liable for prosecution under the said offences. [Sarvan v. State of Karnataka,2018 SCC OnLine Kar 634, order dated 31-05-2018]