Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: In an appeal filed under Section 378 of Code of Criminal Procedure (CrPC) against the judgment passed by the trial court, acquitting Mukhtar Ansari of all charges under Sections 353, 504, 506 the Penal Code, 1860 (IPC), Dinesh Kumar Singh, J. has convicted Mukhtar Ansari for offences under Sections 353, 504, 506 IPC and sentenced him to undergo rigorous imprisonment for 2 years with fine of Rs. 10,000/- for offence under Section 353 IPC. Further, for an offence under Section 504 IPC, he is sentenced to undergo rigorous imprisonment for 2 years with fine of Rs. 2,000/- and for the offence under Section 506 IPC, rigorous imprisonment for 7 years with fine of Rs 25,000/-.

In the present case, the complainant was a jailer in the prison where former Uttar Pradesh M.L.A Mukhtar Ansari is a prisoner, in 2003 some people had come to meet Mukhtar Ansari and the complainant ordered for their frisking, on which Mukhtar Ansari got highly annoyed and abused him and took revolver from one of the persons and pointed it towards the complainant and gave him death threats.

The Court observed that Mukhtar Ansari has reputation of most dreaded criminal and mafia don who had more than 60 cases of heinous offences to his credit, and no one can dispute his credibility of striking terror and fear in the minds and heart of the people including the Government officials. Further, during his incarceration in jail, he had committed several heinous offences including elimination of his political rivals, kidnapping/abduction, usurping private and public properties, amassing wealth and properties from proceeds of crime. Even inside the jail, his people would come to meet him without any hindrance created by any jail staff and the warden opened the gate and allowed the people to meet Mukhtar Ansari, out of his fear and terror.

The Court further observed that the complainant did not have any enmity with Mukhtar Ansari, and it appears that he was trying to enforce rules inside the jail and, therefore, ordered that no visitor should be allowed to meet the prisoners unless permission is granted.

It was also observed that one of the witnesses in his examination-in-chief, had said that Mukhtar Ansari got highly enraged by the fact that the Jailer was not allowing visitors who had come to meet him inside the jail without permission and he took out a revolver from one of the visitors who and extended verbal threats of killing the complainant. However, the said witness was not cross examined on 12.12.2003 when his examination- in- chief took place. Thus, the Court accepted the submission of the complainant that when the said witness was influenced by Mukhtar Ansari, an application came to be filed to recall the said witness, which was allowed by Trial Court, and then the witness to some extent did not support the prosecution case in his cross examination.

The Court placed reliance on the ruling in Dayaram v. State of M.P., (2020) 13 SCC 382, wherein it was held that “even if the witnesses were declared hostile during their cross-examination, their testimony, prior to cross-examination can be relied upon” and further took note of the ruling in Ramesh v. State of Haryana, (2017) 1 SCC 529, wherein it was held that “evidence of a hostile witness cannot be totally rejected but requires its closest scrutiny and portion of evidence which is consistent with the case of the prosecution or defence may be accepted”. Thus, viewed that evidence of a witness who has supported the prosecution case in examination-in-chief does not get effaced or washed off the record altogether and in such a situation, it is the duty of the Court to examine the evidence carefully and find that part of evidence which can be accepted and be acted upon. Thus, there is no legal bar for conviction upon the testimony of hostile witness, given in examination-in-chief, if it is corroborated by other reliable evidence.

The Court observed that Criminal case is built on edifice of evidence which is admissible in Law and referred to the decision in Swaran Singh v. State of Punjab, (2000) 5 SCC 668, wherein the Court observed that “criminal cases can be adjourned again and again till the witness gets tired or gives up. Adjournments are taken till the witness is no more or is tired. This results in miscarriage of justice. The witness is not treated with respect in the Court”.

Placing reliance on the ruling in Radha Mohan Singh v. State of U.P., (2006) 2 SCC 450, the Court observed that law is very clear that appellant court should not interfere with the judgment and order of acquittal unless the said judgment is perverse, or the view taken by the learned Trial Court is impossible view. Further, it is well settled that testimony of hostile witness does not get effaced completely and washed off record, and it is for the Court to closely scrutinize the testimony of such witness in the facts and circumstances of the cases and take into consideration while convicting or acquitting the accused on that part of the testimony which supports the prosecution case and can be relied on for convicting the accused.

It was also observed that “the witness who was given threats of life by pointing a revolver by Mukhtar Ansari, has fully supported the prosecution case in all respects in his examination-in-chief. Further, he does not have any enmity with Mukhtar Ansari, and there was no reason to falsely implicate him. Thus, there is no reason to disbelieve his testimony given in examination-in-chief and his testimony in cross examination which takes place after he could have been won over, does not appear to be credible”.

Thus, the Court observed that the Trial Court had completely ignored the evidence of that hostile witness given in examination-in-chief and had only considered his cross examination. Thus, the approach of the trial Court is palpably erroneous and against the well settled legal position, hence, the impugned judgment and order passed by the Trial Court is unsustainable. Further, the complainant was discharging public/official duty on the date, time and place of the incident and as Mukhtar Ansari used criminal force by pointing pistol towards him with intent to prevent and deter the complainant from discharging his duty as a Jailer, therefore, offence of assault or criminal force to deter public servant from discharge of his duties under Section 353 IPC, is clearly proved against Mukhtar Ansari and he is convicted for committing the said offence.

Moreover, Mukhtar Ansari abused the complainant and insulted him knowing that it would undermine the authority of the Jailer and would cause breach of peace inside the jail and outside inasmuch as if a public servant can be humiliated and abused, then authority of public functionary would get diminished, and people would not respect the lawful authority. Therefore, Mukhtar Ansari was also found guilty under Section 504 IPC i.e. intentional insult with intent to provoke breach of the peace, and as Mukhtar Ansari took pistol from a visitor and pointed towards the complainant and threatened him for his life. Thus, he is also guilty for criminal intimidation under Section 506 IPC.

[State of UP v. Mukhtar Ansari, Government Appeal No. – 780 of 2021, decided on 21.09.2022]


Advocates who appeared in this case:

Counsel for Appellant:- Government Advocate

Counsel for Respondent:- Advocate Abhishek Misra

Advocate Karunesh Singh

Advocate Satendra Kumar

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

Rouse Avenue
Case BriefsDistrict Court

   

Rouse Avenue District Courts, Delhi: In a case relating to illegal interception/monitoring of telephone calls of National Stock Exchange ‘NSE' employees by iSec Services Pvt. Ltd, a privately owned company under the guise of contract of Study of Cyber Vulnerabilities, whose approval was given by Chitra Ramakrishna (‘applicant') and paid Rs. 4.54 crore to iSec Services as a consideration thus, attracting various offences under different statutes, Sunena Sharma, J. denies bail to the applicant as the material placed on record was sufficient to prima-facie show that the applicant was the major role player in the entire conspiracy as well as in projection of proceeds of crime as untainted money.

The applicant was associated with NSE as Deputy Managing Director/Joint Managing Director/Managing Director of NSE during the period of offence between 2009-2017 and said illegal activities ceased to exist after the applicant demitted office as Managing Director.

In the instant case, the applicant in connivance with Ravi Varanasi, Vice President NSE and Mahesh Haldipur (Head Premises) conspired together with iSec Services for illegal tapping of phone calls and snooping of NSE's employees under the guise of a legal contract which was given the name of Study of Cyber Vulnerability.

The telephone numbers to be monitored were purportedly identified by the applicant and conveyed to Ravi Varanasi who in turn provided the same to Mahesh Haldipur who further gave it to iSec. The suspicious numbers identified by the applicant were given to iSec to be put on recording and iSec used to prepare the transcripts of the recorded conversation of said numbers and share it with the applicant and other top officials of NSE.

Central Bureau of Investigation registered FIR under Section 120-B read with Section 409 & 420 of Penal Code, 1860 (‘IPC'), Section 20, 21, 24 & 26 of Telegraph Act, 1885, Section 3 & 6 of Wireless Telegraphy Act, 1933, Section 13(2) read with Section 13(1) (d) of Prevention of Corruption Act, 1988 and Section 69-B, 72 & 72-A of Information Technology Act, 2000 against iSec Services Pvt. Ltd. & other accused persons including the applicant.

The Enforcement Directorate (‘ED') also registered a case under Prevention of Money Laundering, 2002 (‘PMLA') for the offence of money laundering as defined under Section 3 and punishable under Section 4 of PMLA. The warrants were issued and the applicant was arrested by ED. Thus, present bail application was filed under Section 439 Criminal Procedure Code (‘CrPC') read with Section 45 of PMLA, 2002.

Placing reliance on Rohit Tandon v. Enforcement Directorate, (2018) 11 SCC 46, Anirudh Kamal Shukla v. Union of India 2022 SCC Online All 176 and Ranjitsing Brahmajetsing Sharma v. State of Maharashtra (2005) 5 SCC 294, the Court noted that monetary loss was caused to NSE by allowing the iSec to gain money out of illegal tapping of phone calls by using the direct lines of MTNL and for said purpose software and hardware of recording/monitoring server which was purchased by iSec for NSE from Nexco Techno Solution, were allowed to be installed in the upper basement of NSE building, under the guise of a legitimate contract of Study of Cyber Vulnerabilities. It is only with the active assistance and help of applicant and other top officials of NSE, that the iSec was able to generate money to the tune of Rs. 4.54 crores and give it a colour of untainted money by showing it to have been through a legitimate source.

On the contention that provisions of Section 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988do not apply, as the applicant is not a public servant within the meaning of the provisions of PC Act, the Court rejected the contention by relying on Delhi Stock Exchange v. K.C. Sharma LPA No. 331/199 2000 Vol. XCIII DLT 2333, wherein it was held that the Central Government has deep and all-pervasive control over the functioning of stock exchanges. It was further held that to ascertain if an ‘authority or an institution of self-government' established by notification or an order of the Central Government is a Public Authority or not, the main thrust should be not upon the composition of the company but upon the duties and functions performed by it.

On the contention that the applicant being a woman is entitled to the benefit of the first proviso to Section 45 (1) PML Act, the Court rejected the contention noting that extension of said benefit cannot be claimed as a matter of right as the discretion lies with the court to exercise such powers only in suitable cases.

Thus, the Court remarked that when the alleged offences were committed, the applicant was holding key positions of DMD/MD/JD in NSE and was actively involved in all important affairs of the company. She was the one who accorded approval to the façade contract of Study of Cyber Vulnerabilities and had dominion over the properties and funds of the NSE.

Thus, the Court held that there is absolutely no reasonable ground to record that the accused/applicant is not guilty of the offence alleged against her especially at this stage when the investigation is not yet complete.

[Chitra Ramakrishna v. Directorate of Enforcement, Bail Application No 201 of 2022, decided on 29-08-2022]


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

Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: M Nagaprasanna, J. quashed the proceedings initiated against a public servant working as an Executive Engineer in the Karnataka Power Transmission Corporation Limited, (‘the petitioner') as the entire process initiated by the Anti-Corruption Bureau (‘ACB') is contrary to the law. This is due to no preliminary inquiry being conducted as was necessary, moreover, source information report was prepared in haste without following necessary steps and disproportionate assets being alleged are displayed on the source report as zero. The dates in the present case are of significance.

A crime was registered against one J. Jnanendra Kumar on 15-03-2022 in connection with which the house of one Munavar Pasha was searched as preliminary enquiry conducted by the ACB. While searching the house of Munavar Pasha two travel bags and one carton box, neither belonging to Munavar Pasha nor J. Jnanendra Kumar were found. They allegedly belonged to the petitioner. The ACB immediately prepared a source report, registered an FIR and conducted searches in the house and office of the petitioner on 17-03-2022. The house of the petitioner was searched on the basis of FIR registered on 16-03-2022 for offences punishable under Section 13(1)(b) and 13(2) of the Prevention of Corruption Act, 1988 Act (‘PCA, 1988') after drawing up a source information report which also was prepared on 16-03-2022. The proceedings emanating from this FIR form the subject matter of the instant petition.

What is a Source Information Report (‘S.I.R')?

A source information report is a report which forms the basis to charge a public servant with Section 13(1) PCA, 1988 which deals with criminal misconduct, and being in possession of assets disproportionate to his known source of income. Thus, the report in corruption parlance is a source information report. The preparation of S.I.R is the responsible work of a responsible officer i.e., Inspector of Police, under the guidance and supervision of a superior police officer, a Deputy Superintendent of Police and it has to be drawn up after calculating entire period of service of a public servant and arrive at a conclusion albeit, prima facie, that he has amassed wealth disproportionate to his known source of income.

The Court noted that on perusal of the SIR, the column total years of service of the petitioner reads ‘not yet ascertained’. Therefore, the ACB did not even know how many years of service a public servant has put in. The check period which is the most important ingredient of a source information report is left vague by stating ‘from the date of joining service to till date'. Wife's designation, salary particulars, Annual Property Returns (‘APR') etc. are not even looked into. The official income that is petitioner's salary and petitioner's wife's salary read as ‘yet to be ascertained’. The value of total property is mentioned, and the percentage of disproportionate income is zero as it is left completely blank. It is this source information report that becomes a FIR under Section 13(1)(b) and 13(2) PCA, 1988. Section 13(1)(b) PCA, 1988 deals with criminal misconduct against a public servant. The basis being the source information report, it is trite that the report assumes a great significance while imputing allegations of criminal misconduct.

Thus, placing reliance on P. Sirajuddin v. State of Madras, (1970) 1 SCC 595, Lalita Kumari v. Government of UP, (2014) 2 SCC 1 and Charansingh v. State of Maharashtra, (2021) 5 SCC 469, the Court observed that the Anti-Corruption Bureau which performs a very significant role in checking corruption amongst public servants cannot indulge itself in such casual act of drawing up the source information report on the instant, registering the FIR and conducting the search. The entire narration of the allegation which would become criminal misconduct against the petitioner is on the basis of the records found in somebody else's house in connection with someone else's crime. Such a source information report against the petitioner is no report in the eye of law.

The Court concluded that there was no preliminary inquiry worth the name that was even conducted by the ACB in the case of the petitioner as every act of the ACB i.e., preparation of the source information report, registration of FIR and conduct of search on the house of the petitioner have all happened on one single day — 24 hours.

The Court thus held it was a fit case, where “the Court cannot turn a blind eye to the plea of petitioner for exercise of jurisdiction of this Court under Section 482 Criminal Procedure Code and obliterate registration of crime against the petitioner.”

[K R Kumar Naik v. State, WP No. 7911 of 2022, decided on 26-06-2022]


Advocates who appeared in this case :

Satish K, Advocate, for the Petitioner;

Manmohan PN SPl. PP, Advocate, for State.


*Arunima Bose, Editorial Assistant has reported this brief.

Rouse Avenue
Case BriefsDistrict Court

Rouse Avenue Court, New Delhi: While granting bail to the applicant Pramond Kumar Bhasin, Ajay Gulati, J. observed that the charge sheet has not even mentioned the role of the applicant in demanding the alleged bribe from NGO GOREF even though the employee of an NGO Ganga Orthopedic Research and Educational Foundation ‘GOREF’ who is said to have paid the bribe to the applicant through a Hawala operator, was arrested and subjected to custodial interrogation.

Ajay Gulati J granted bail to Pramod Kumar Bhasin who is a public servant accused and arrested for allegedly extracting bribe from NGO’s / institutions/ missionaries whose applications for renewal of eligibility to receive foreign grants and funds were pending in the FCRA Division, Ministry of Home Affairs. The bail was granted observing various irregularities in the investigation and in light of other accused(s) been granted bail subject to certain conditions.

Facts and legal trajectory:

The applicant is a public servant who was arrested for demanding and accepting bribes from NGOs. Allegedly, as per the FIR, the applicant demanded a bribe of Rs. 2 lakhs for processing the file of an NGO named GOREF, and received Rs. 1.5 lakhs from GOREF via its employee Mr. E. Vageesh, through a Hawala Operator. Additionally, it was also alleged in the FIR that the applicant used to handle all of his ill-gotten money through Hawala operators. In fact, during the alleged handing over of an instalment of a bribe of Rs. 4 lakhs from an alleged Hawala operator named Gajanand Sharma., one of his henchmen, Robin Devdass, was arrested red-handed by the CBI. Further, as alleged in the FIR, the applicant is said to have demanded bribes from several other NGOs as well.

It was detailed in the charge-sheet that an investigation has been conducted regarding the role of the applicant in contacting alleged Hawala operators for the handling of his ill-gotten money and also in accepting an alleged bribe of Rs. 1 lakh from a representative of Srijan Foundation- Swapan Manna, which was delivered to another Hawala operator named Vimal Tawaniya. The alleged Hawala operator Pawan Kumar Sharma was in turn handed over the said bribe by Vimal Tawaniya who is also a listed accused in the FIR

Analysis and findings:

In the Court, the Public Prosecutor for CBI strongly opposed the bail application on the ground that the role of the applicant is very serious in nature, and he is suspected to be the king-pin of the entire conspiracy involving illegal renewals of various NGOs/missionaries to receive foreign funding, for illegal monetary gains under Foreign Contribution (Regulation) Act, 2010 ‘FCRA’

The Court noted that neither the alleged hawala operators, Gajanand Sharma and Vimal Tawaniya nor the representative of Srijan Foundation, Swapan Manna have been arrested although they have been mentioned in the charge sheet along with the present applicant. Further investigation has been kept pending, as per the charge sheet.

The Court observed that although in the FIR, the role of the applicant has been highlighted for demanding bribes from various NGOs and routing the alleged bribe received through Hawala operators, the charge sheet mentions only one such foundation which is Srijan Foundation. Additionally, the charge sheet has not even mentioned the role of the applicant in demanding the alleged bribe from NGO GOREF even though Mr. E. Vageesh, an employee of GOREF who is said to have paid the bribe to the applicant through a Hawala operator, was arrested and subjected to custodial interrogation. The court noted that the role of the applicant regarding the case of NGO GOREF seems to have been completely forgotten by the investigating officer. The court also noted that the applicant has been in custody for a period of over two months as of the day of this hearing.

On a specific query by the Court, the Public Prosecutor for the CBI submitted that he has seized the FCRA files of NGO GOREF and Srijan Foundation. However, the Court observed that there was no explanation provided as to why was the representative of Srijan Foundation and the alleged Hawala operator who was asked to handle the alleged bribe paid by Srijan Foundation, have not even been arrested despite being mentioned in the charge sheet. The Court reiterated the observation that was made while granting bail to E. Vageesh who allegedly paid the bribe to the applicant on behalf of NGO GOREF that the CBI has been adopting double standards in regard to the accused persons having same set of allegations appearing against them.

Thus, the Court concluded that the alleged Hawala operators Pawan Kumar Sharma and Ramanand Pareek who have handled the ill-gotten money of the applicant, and Mr. Anish Selvaraj (private person) who was allegedly working in close conspiracy with the applicant to contact the NGOs who were ready to pay bribes for getting their pending FCRA files expedited, have already been granted bail. Consequently, the bail application was allowed subject to some conditions.

[Pramod Kumar Bhasin v. CBI, 2022 SCC OnLine Dis Crt (Del) 28, decided on 21-07-2022]


Appearance by:  

For Accused: Sumer Singh Boparai, Abhishek Pati, Nikhil Pahwa & Sidhant Saraswat

Case BriefsHigh Courts

Delhi High Court: In a case wherein a police officer got injured due to an attack by an illegal weapon out of the police station, Talwant Singh, J., expressed that, Police Post is a place where people go to lodge complaints of the disputes amongst them, and it is not a place where the public servants are supposed to be attacked.

In the present case, the petitioner sought bail in a case filed under Sections 186, 353, 307, 147, 148, 149, 379 and 34 of the Penal Code, 1860.

Further, it was submitted that the petitioner was arrested in a false and fabricated case.

Factual Background


The complainant was present in Police Post Inderlok when one person, Kale met him in the said Police Post and made complaint against Mohsin, Salman, Naved, etc., about the loot in his shop and Kale being beaten up by these persons. Further, one Sadeqin was brought to the police Post, where SI Pankaj Thakran made some formal enquiry and, in the meantime, Mohsin, Naved, etc., reached the police post and started shouting in abusive language; SI Pankaj Thakran tried to calm the, but all in vain.

It was stated that the petitioner had pistol in his hand and others were armed with Lathi/Dande. The said persons were pushed by SI Thakran alongwith the help of other police officials, but they came back again pelting stones and then SI Pankaj Thakran fired with his government pistol and during that period applicant also fired from his pistol.

Thereafter, SI Pankaj Thakran took out an AK-47 rifle lying in his office and seeing this, all accused persons fled away from there and at that time another shot was fired, after which SI Pankaj Thakran was admitted to hospital.

On the statement of SI, the present accused was arrested and since then he is behind the bars.

Analysis and Decision


The present case was the one where a public servant was the complainant, whose place of posting i.e. the Police Post was attacked by a group of people, who were armed with Dandas, Lathis and the present petitioner was holding a fire arm in his hand.

High Court expressed that,

The Police Post is a place where people go to lodge complaints of the disputes amongst them, and it is not a place where the public servants are supposed to be attacked with firearms, Dandas and Lathis or by pelting stones on them.

The Bench noted that there was a previous history of the petitioner being involved in criminal cases and the police officials were doing their duty.

Additionally, the Court stated that, the possibility of the petitioner indulging in threatening the witnesses or indulging in the same crime again and fleeing from justice cannot be ruled out.

In High Court’s opinion, the present case was not fit for bail even on the ground of parity as the role assigned to the present petitioner was quite different from his other associates. [Naved v. State, 2022 SCC OnLine Del 1759, decided on 11-5-2022]


Advocates before the Court:

For the petitioner: Juned Alam, Advocate.

For the respondent: Tarang Srivastava, APP with SI Suman Prasad, PS Sarai Rohilla.

Case BriefsSupreme Court

Supreme Court: While dealing with a case of abetment and conspiracy for commission of criminal misconduct by public servant, the Division Bench of K.M. Joseph and S. Ravindra Bhat*, JJ., held that  Section 13 of Prevention of Corruption Act cannot be invoked against a non-public servant. Clarifying the standard of suspicion to make out a prima facie case for conspiracy, the Bench stated,

“The material to implicate someone as a conspirator acting in concert with a public servant, alleged to have committed misconduct, under the PCA, or amassed assets disproportionate to a public servant’s known sources of income, has to be on firm ground.”

The instant appeal was filed by CBI against the judgment of Madras High Court by which exercising jurisdiction under Section 397 and Section 401 of CrPC, the High Court had quashed the charge sheet against the respondent-Uttamchand Bohra framed under Sections 120B and Section 109 of Penal Code, 1860 and Section 13(2) r/w Section 13(1)(e) of the Prevention of Corruption Act, 1988.

Conspiracy and Abetment

The respondent was accused of abetting and/or conspiring with the principal accused (A-1), a senior official of the Central Government in the income tax department,, so as to permit him to accumulate assets disproportionate to his known sources of income. A-1 was alleged to have acquired the flat, through the company named M/s Raviteja Trading Co. Pvt. Ltd. Two other accused, who facilitated the acquisition, turned approver. The role attributed to the respondent was that he helped in the execution of the sale deed of the property, which was seized from his house. The respondent was also involved in another case wherein the CBI had seized Rs. 50 lakhs from his vehicle when he was transporting the bribe amount received by A-1 to a safe place.

Analysis and Findings

Noticing that Section 13 of PC Act deals with Criminal misconduct by a public servant, the Bench opined that since the respondent was not a public officer or public servant, he could not be charged with committing an offence under Section 13(1)(e) read with Section 13(2) of the PCA. Further, there was no allegation against the respondent that he received any monetary or other benefit, or that he held the property in his name for the benefit of A-1. The Bench observed,

“There is no evidence against the respondent linking him to the transaction relating to the execution of the sale deed, or alleging that he had an agreement with A-1 and others to commit an illegal act.”

Further, there was no allegation of a legal act being done in an illegal manner, therefore the alleged offence under Section 120-B IPC was also not made out from the charge-sheet. With regard to the allegation of offence u/s 109 of IPC, the Bench noticed that the prosecution had not suggested that the respondent abetted A-1 to acquire disproportionate assets in any manner.

Holding that CBI could not deny that the respondent’s name was included in the instant case, although the sale deed was seized during a search conducted in earlier case, and that the FIR in the instant case named only A-1 and A-2 as the accused, the Bench stated that when the sale deed had already been seized from respondent’s house before initiating of instant case the allegations against the respondent in earlier case could not be against him in the instant case, since the two cases were separate and the earlier case was irrelevant to the instant case. Noticeably,

“He did not directly or indirectly finance the transaction by which property was sold to M/s Raviteja Trading Co. Pvt. Ltd, which, according to the prosecution, was in fact by A-1. The respondent also is not alleged to have facilitated the flow of money to fund acquisition of the flat.”

In the light of the above, the Bench opined that the fact that sale deed was in the respondent’s possession could not satisfy the ingredient of any of the offences alleged against him. Furthermore, crucially, the money trail for the property bought under the sale deed did not show his involvement. Accordingly, the Bench held that there was no material to prima facie support an inference that the respondent was either a conspirator or had abetted the commission of the offences alleged against the accused A-1. Hence, the appeal was dismissed.

[CBI v. Uttamchand Bohra, 2021 SCC OnLine SC 1208, decided on 09-12-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For CBI: Vikramjit Banerjee, Additional Solicitor General

For the Respondent: R. Basant, Senior Counsel


*Judgment by: Justice S. Ravindra Bhat

Case BriefsSupreme Court

Supreme Court: In a case where a Government employee had sought change of date of birth in service records from 04.01.1960 to 24.01.1961, 24 years after he had joined the service, the bench of MR Shah* and AS Bopanna, JJ has held that the said employee was not entitled to any relief or change of date of birth on the ground of delay and laches as the request for change of date of birth was made after lapse of 24 years since he joined the service.

Law on change of date of birth summarized:

(i) application for change of date of birth can only be as per the relevant provisions/regulations applicable;

(ii) even if there is cogent evidence, the same cannot be claimed as a matter of right;

(iii) application can be rejected on the ground of delay and latches also more particularly when it is made at the fag end of service and/or when the employee is about to retire on attaining the age of superannuation.

Important Rulings

Home Deptt. v. R.Kirubakaran, 1994 Supp (1) SCC 155

“An application for correction of the date of birth should not be dealt with by the Tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion for ever…”

Read more…

State of M.P. v. Premlal Shrivas, (2011) 9 SCC 664

“8. It needs to be emphasised that in matters involving correction of date of birth of a government   servant, particularly on the eve of his superannuation or at the fag end of his career, the court or the tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has 13 good evidence to establish that the recorded date of birth is clearly erroneous. No court or the tribunal can come to the aid of those who sleep over their rights.”

Read more… 

Life Insurance Corporation of India v. R.Basavaraju, (2016) 15 SCC 781

“5. The law with regard to correction of date of birth has been time and again discussed by this Court and held that once the date of birth is entered in the service record, as per the educational certificates and accepted by the employee, the same cannot be changed. Not only that, this Court has also held that a claim for change in date of birth cannot be entertained at the fag end of retirement”

Read more… 

Bharat Coking Coal Limited v. Shyam Kishore Singh, (2020) 3 SCC 411

“9. … the request for change of the date of birth in the service records at the fag end of service is not sustainable.

10. … even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right.”

Read more… 

[Karnataka Rural Infrastructure Development Ltd. v. T.P. Nataraja, 2021 SCC OnLine SC 767, decided on 21.09.2021]


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal, J. dismissed the petition being devoid of merits.

Facts

The facts of the case are such that the Chhattisgarh State Economic Crime Bureau and Anti Corruption Bureau registered an offence against the petitioner and other persons for offence under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act i.e. PC Act and Sections 120B & 420 of the Penal Code, 1860 i.e. IPC and sought sanction from respondent 1 for prosecution against the petitioner herein and other persons under Section 19(1)(b) of the PC Act and Section 197 of Criminal Procedure Code i.e. CrPC. The petitioner herein calls in question legality, validity and correctness of the impugned order dated 15-5-2019 passed by respondent No.1 in exercise of power conferred under Section 19(1)(b) of the Prevention of Corruption Act, 1988 (for short, ‘the PC Act’) read with Section 197 of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) granting sanction for prosecution against him for offence under Section 13(1)(d) read with Section 13(2) of the PC Act and Sections 120B & 420 of the IPC.

Issue

The sanction for prosecution ought to have been placed before the Sub- Committee of the Cabinet, as the Administrative Department has not accorded sanction for prosecution of the petitioner modified by subsequent circular. Since that procedure was not followed by respondent 1, the order granting sanction is illegal and liable to be set-aside

Counsel for the petitioners submitted that the order granting sanction is illegal, contrary to law and deserves to be set-aside because if there is difference of opinion between two Departments of the State i.e. parent Department, here Water Resources Department and the Law Department, then the procedure laid down in the circular and its clarification issued by the State Government is required to be followed. It was further submitted that sanction can only be obtained in coordination with the Minister of Council of Political Affairs or with its concurrence and no such procedure has been followed in the present case.

The Court perused section 19 of PC Act and stated that previous sanction for prosecution is required in respect of a public servant who is employed and is not removable from his office save by or with the sanction of the State Government. The Court observed that the communication of alleged disagreement with respect to grant of sanction qua the petitioner has been made by the Chief Engineer, Water Resources Department, Raipur to the Secretary, Government of Chhattisgarh, Water Resources Department dated after the order granting sanction for prosecution under Section 19 of the PC Act and Section 197 of the CrPC was passed, whereas the disagreement was required to be expressed and to be sent by the Administrative Department before the question of sanction is considered by Respondent 1 herein.

The Court relied on judgment Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64 and observed despite memo and reminder received by the Administrative Department – respondent 2, no response was served to respondent 1 who is the competent authority to consider the issue of grant of sanction and therefore in absence of any disagreement, the competent authority to grant sanction being the Department of Law & Legislative Affairs has proceeded to consider the matter and issued order granting sanction for prosecution against the petitioner and others. It was further established that despite memo dated 22-3-2019 reiterated by reminder dated 25-4- 2019, the Administrative Department kept pin-drop silence over the matter.

The Court further relied on judgment State of Madhya Pradesh v. Virender Kumar Tripathi, (2009) 15 SCC 533 and observed that interdicting a criminal proceeding midcourse on ground of invalidity of the sanction order will not be appropriate unless failure of justice has occasioned by any such error, omission or irregularity in the sanction and such failure of justice can be established not at the stage of framing of charge but only after the trial has commenced and the evidence is led.

The Court held “ultimately, finding no opinion of the Administrative Department (respondent 2) either way, the Department of Law & Legislative Affairs being the authority competent to grant sanction has rightly considered the issue and granted sanction for prosecution against the petitioner”.

[KK Vashishta v. State of Chhattisgarh, 2021 SCC OnLine Chh 621, decided on 15-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.


 Appearances:

For Petitioner: Mr. B.P. Sharma and Mr. M.L. Sakat

For Respondents / State: – Mr. Jitendra Pali and Mr. Ravi Kumar Bhagat

Case BriefsHigh Courts

Madras High Court: V. Bhavani Subbaroyan, J., while addressing the allegations of defamation, held that,

While printing and publishing matters with regard to the leaders of the Country or State, the petitioners (Newspaper) are supposed to give respect and address them accordingly.

Instant petition was filed to quash the proceedings initiated against the petitioners for an offence punishable under Sections 500, 501 of Penal Code, 1860.

Petitioner’s counsel submitted that even if the allegations made in the complaint were taken as it is, the same does not constitute defamatory allegations with respect to the act or conduct of the then Chief Minister in the discharge of her public functions and at the best, it can only be treated as personal defamation.

Hence the counsel submitted that such a complaint cannot be maintained through the City Public Prosecutor, and it does not satisfy the requirements under Section 199 (2) CrPC.

Further, the Counsel for the Government submitted that the petitioner indulged in making wild allegations against the then Chief Minister and thereby defamed her name in the eyes of the general public.

Adding to the above submission, it was stated that in the name of freedom of press, petitioners cannot make defamatory and derogatory allegations against the former Chief Minister.

Analysis, Law and Decision

Bench stated Section 199(2) of CrPC provides a special procedure with regard to the initiation of proceedings for prosecution for defamation of a public servant.

 If the defamatory statement is personal in nature, this special procedure will not apply, and it is only the concerned person who has to file the complaint in his or her individual capacity.

In Court’s opinion, the allegations based on which the criminal complaint was filed did not in any way touch upon the conduct of the aggrieved person in discharge of her public function. The said allegation can only be construed as personal defamation.

Hence the said complaint cannot be maintained since it did not satisfy the requirements of Section 199(2) of CrPC.

High Court quashed the proceedings in view of the above discussion.

While concluding the matter, the petitioner’s newspaper was directed to refrain from printing matters in a disrespectful manner.[Dr R. Krishnamurthy v. City Public Prosecutor,  2021 SCC OnLine Mad 2676, decided on 12-07-2021]


Advocates before the Court:

For Petitioners: Mr S.Elambharathi

For Respondent: Mr E.Raj Thilak, Counsel for Government (Crl Side)

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Muralidhar CJ. and B. P Routray J. dismissed the petition on grounds discussed below.

The facts of the case are such that the Food Corporation of India i.e. `FCI (Opposite 1 and 2) being the nodal organization of the Government of India, delivers food grains to different parts of the State of Odisha and for such purpose it uses the space available in different warehouses under OSWC for storing and facilitating movement of the food grains on contract basis. The Petitioner executed a contract with Odisha State Warehousing Corporation i.e. OSWC (Opposite Party 1 and 2) effective for a period of two years for Handling and Transportation (H & T) of foodgrains and other allied materials at OSWC as per the quoted rate of contract. The said contract was extendable for a further period of three months. The contract was extended twice before the expiration of their respective previous contracts as the tender issued for the purpose could not be materialized. Those two extensions were granted with the same rate of contract but on further extension, FCI expressed dissatisfaction and put a condition that, the rate applicable for the extended period would be the existing rate or the new rate, whichever is lower. The new agreement was executed and the rate of contract was much lesser than the earlier rate of contract fixed as per the original contract. Thus, for the bills raised by OSWC after 31st March 2017, FCI deducted the amount calculated on the differential rate between the rate of contract existed as per the 2013 agreement and 2017 agreement. As a result, OSWC realized the differential amount from the bill of the Petitioner and this is the subject matter of the dispute in the present petition.

Counsel for the petitioners Mr. P.K.Roy submitted that realization of differential amount from its bill with retrospective effect is grossly illegal and the same is violation of statutory rules as no opportunity of showing any cause or hearing has been granted. It is further contended that in the absence of any agreement after 31st October, 2015 till 31st March 2017, the rate applicable would be the existing rate as per the 2013 agreement.

Counsel for the respondents Mr. P.K. Rath, Mr. Bijay Kumar Dash and Mr. Debasish Nayak submitted that the Petitioner has not come with clean hands as the entire dispute has emanated from contractual obligations and, therefore, the writ petition under Article 226 would not be maintainable. It is further contended that the petitioner continued H & T work with OSWC having been aware of the stipulation of change in rate of contract, is estopped from raising the dispute at realization stage.

The Court observed that realization of the differential amount at a lower rate in absence of any existing contract is not contentious as it is clear that being fully aware of the lower rate, which may be stipulated in the new contract, the Petitioner continued with the work for the extended period.

The Court observed “Once the Petitioner has accepted the condition with a lower rate than the existing rate which may be effected for the period it continued with the work on extension, it hardly makes any difference whether a written contract on specific term is executed or not. Thus, the Petitioner now cannot claim that such a stipulation at the lower rate to realize the differential amount was without his knowledge.”

The Court relied on judgment Kerala State Electricity Board v. Kurien E. Kalathil (2000) 6 SCC 293 wherein it was held that

“11. A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Dispute arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not by itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act.

The Court observed that the petitioner is unable to point out the violation of any statutory rule in its favour. The rate on which work is to be performed, flows from the contract executed between the Petitioner and OSWC.

The Court thus held “….Therefore, adjudication of the dispute in the writ jurisdiction in the present form is neither appropriate nor feasible.”[Jayasingh Bhoi v. OSWC, 2021 SCC OnLine Ori 630, decided on 31-05-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court of India: The Division Bench comprising of Dhananjaya Y. Chandrachud and M.R. Shah*, JJ., addressed the instant appeal challenging the validity of notice send to the appellant by Anti-corruption Bureau regarding pre-FIR open enquiry against him. The Bench stated,

“…(If) an enquiry is held and/or conducted after following the procedure as per Maharashtra State Anti-corruption & Prohibition Intelligence Bureau Manual, it cannot be said that the same is illegal and/or the police officer, Anti-corruption Bureau has no jurisdiction and/or authority and/or power at all to conduct such an enquiry at pre-registration of FIR stage.”

Background

The background of the instant case relates to various allegations made against the appellant and his brothers with regard to accumulating the assets disproportionate to his known sources of income. Noticeably, the appellant was a Member and President of Municipal Council, Katol, Nagpur. In connection with the said complaint, the Police Inspector, Anti-corruption Bureau, had issued a notice, calling upon the appellant to personally remain present before the investigating officer of the Anti-corruption Bureau to give his statement in an ‘open enquiry’ in respect of the property owned by him along with the information on the points stated in the said notice and further, asking him to provide documents relating to his property, assets, bank statements, income tax returns.

The grievance of the petitioner was that the Police Inspector, Anti-Corruption Bureau, had no power to issue the said notice. It was also submitted that there is no statutory provision which would compel any body to give statement to the police. It was also submitted that there was no FIR against the appellant. Per contra, the respondent authority submitted that the said ‘open enquiry’ was ordered to find out if an offence under Section 13(e) of the Prevention of Corruption Act was disclosed.

Whether such an enquiry at pre-FIR stage would be legal and to what extent such an enquiry is permissible?

In Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1, this Court had observed that it is mandatory to register an FIR on receipt of information disclosing a cognizable offence. However, this Court had also considered the situations/cases in which preliminary enquiry is permissible/desirable and certain illustrations were also  carved out in which the preliminary enquiry was held to be permissible/desirable before registering/lodging of an FIR. It was further observed that if the information received did not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary enquiry may be conducted to ascertain whether cognizable offence is disclosed or not. It had been clarified that the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. Similarly, in P. Sirajuddin v. State of Madras, (1970) 1 SCC 595, this Court expressed the need for a preliminary enquiry before proceeding against public servants.

When a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of indulging into corrupt practice, it does incalculable harm not only to the officer in particular but to the department he belonged to in general. Thus, before lodging FIR against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer to ascertain whether cognizable offence is disclosed or not.

Observing that a fool proof safeguard and procedure is provided under the Maharashtra State Anti-corruption & Prohibition Intelligence Bureau Manual of Instructions 1968, before lodging an FIR/complaint before the Court against the public servant, the Bench disregarded any doubt of irregularity regarding the issuance of impugned notice. Further, the Bench observed that the information sought on the aforesaid points was having a direct connection with the allegations made against the appellant, namely, accumulating assets disproportionate to his known sources of income. Clarifying that such an ‘open enquiry’, should be restricted to facilitate the appellant to clarify regarding his assets and known sources of income, the Bench said the same could not be said to be a fishing or roving enquiry.

Conclusion

Clarifying that the statement of the appellant and the information so received during the course of discrete enquiry should be only for the purpose to satisfy and find out whether an offence under Section 13(1)(e) of the PC Act, 1988 was disclosed. Such a statement cannot be said to be confessional in character, and would be restricted only to ascertain whether a cognizable offence is disclosed or not. The Bench held that such an enquiry would be to safeguard the interest of appellant which may avoid further harassment to him. Hence, the Bench refused to interfere with the impugned judgment and order passed by the High Court of Bombay and dismissed the appeal with the above observations.

[Charansingh v. State of Maharashtra, 2021 SCC OnLine SC 251, decided on 24-03-2021]


Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice M.R. Shah

Appearance before the Court by:

For the Appellant: Sr. Adv. Subodh Dharmadhikari,

For the Respondent/s: Sr. Adv. Raja Thakare

Legislation UpdatesNotifications

Government of India has taken steps to strengthen legislative provisions to deal with incidents of sexual offences against women and girls.

Government of India has also issued various advisories to the States/ Union Territories from time-to-time emphasizing the strict actions to be taken by the police in cases of crime against women, including in cases of sexual assault which includes registration of FIR, collection of evidence for forensic examination and use of Sexual Assault Evidence Collection (SAEC) Kit, completion of investigation in sexual assault cases in two months, use of National Database on Sexual Offenders for identifying and tracking repeat sexual offenders, etc.

Criminal laws relating to sexual offences against women provide, inter-alia, for the following actions to be taken by the Police in such cases:

Zero FIR

(i) Compulsory registration of FIR in case of cognizable offence under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973 (CrPC). The law also enables the police to register FIR or a “Zero FIR” (in case the crime is committed outside the jurisdiction of police station) in the event of receipt of information on commission of a cognizable offence, which includes cases of sexual assault on women.

Punishment to a Public Servant

(ii) Section 166 A(c) of the Indian Penal Code 1860 (IPC) provides for punishment to a public servant for failure to record FIR in relation to cognizable offences punishable under section 326A, Section 326B, Section 354, Section 354B, Section 370, Section 370A, Section 376, Section 376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section 376DA, Section 376DB, Section 376E or Section 509 in IPC.

Police Investigation in 2 months | Rape

(iii) Section 173 of CrPC provides for completion of police investigation in relation to rape in two months. In order to facilitate the State police to monitor compliance, in this regard MHA has provided an online portal called Investigation Tracking System for Sexual Offences (ITSSO) for monitoring the same. This is available exclusively to law enforcement officers.

Registered Medical Practitioner

(iv) Section 164-A of CrPC provides that in rape/sexual assault investigation the victim shall be examined by a registered medical practitioner under consent within twenty-four hours from the time of receiving the information relating to the commission of such offence.

Dying Declaration

(v) Section 32 (1) of the Indian Evidence Act, 1872, provides that the statement, written or verbal, by a person who is dead shall be treated as relevant fact in the investigation when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death. Hon’ble Supreme Court in its order dated 7th January 2020, in the matter of Criminal Appeal Nos. 194-195 of 2012 in the case of Purshottam Chopra & Anr. v. State (Govt. of NCT Delhi), directed that a particular statement, when being offered as dying declaration and satisfies all the requirements of judicial scrutiny, cannot be discarded merely because it has not been recorded by a Magistrate or that the police officer did not obtain attestation by any person present at the time of making of the statement.

Forensic Evidence

(vi)The Directorate of Forensic Science Services (DFSS) under the MHA has issued Guidelines for collection, preservation & transportation of forensic evidence in sexual assault cases for Investigation Officers and Medical Officers. In order to facilitate the State Police, Bureau of Police Research and Development (BPR&D) has issued Sexual Assault Evidence Collection (SAEC) Kits to every State/UT. It is necessary to use these SAEC kits in every case of sexual assault reported. MHA advisory dated 5th October 2020 in this matter may be referred. BPR&D and LNJN National Institute of Criminology and Forensic Sciences (NICFS) have been regularly conducting Training and Training of Trainers (ToT) programmes on the procedure for collection, preservation and handling of forensic evidence for Police/Prosecutors and Medical Officers respectively.

Further, MHA stated, any failure of police to adhere to the mandatory requirements may not augur well for the delivery of criminal justice in the country, especially in the context of women safety. Such lapses, if noticed, need to be investigated into and stringent action taken immediately against the officers concerned responsible for the same.

Read the Advisory here: ADVISORY


Ministry of Home and Affairs

[Advisory dt. 09-10-2020]

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

Madhya Pradesh High Court: A Division Bench of Sheel Nagu and Vivek Agarwal, JJ. contemplated instant intra Court appeal filed under Section 2(1) of Madhya Pradesh High Court Act, 2005. The order passed by the Single Judge was challenged where the petition was dismissed on merits, the petitioner sought relief against his transfer order from one district to another.

D.P. Singh, counsel for the petitioner submitted that the child of the petitioner was in Class 11th and the transfer will affect the studies of the child and in between the mid-session there was very less possibility to getting admission in a new school. Hence the academic of the child was in jeopardy. Hence, the transfer must be stayed.

The Court observed that, transfer on the ground of the son/daughter of transferred employee was in Class-11th and 12th was not a justifiable cause however, it was stated that as our Constitution via Article 38, reflected that ‘State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.’

Hence, the Court decided that “for a public servant to strive towards excellence, it was of utmost importance that fair and equitable opportunities were made available by the State. One of the means to achieve the goal to provide equitable opportunities by the State was to make available healthy and stress-free working environment for a public servant. It further remarked that such stress-free environment was only possible when the employer, made transfers took into account not only the administrative exigencies/public interest but also the genuine personal problems of the public servant liable to be transferred. A balance has to be struck by the employer which was though difficult but not impossible to achieve. Every government in its capacity as an employer owes it to its employees. If this balance between the administrative exigency and personal inconvenience is kept in mind before every event of transfer, the cause of heart-burning amongst public servants under transfer would reduce to the minimum thereby creating a healthy and congenial atmosphere between the employer and employees which in turn contributes greatly to the overall development of the particular institution and as well as the nation.

The Court further observed that the public servants, whose children were pursuing their career in the higher secondary stage of education, were not to be disturbed barring an emergent situation where a transfer cannot be avoided or deferred. It was observed that such observation cannot be turned into a direction because of the inherent limitations of the power of judicial review.

Hence the order of transfer of the petitioner was quashed. Further Additional Advocate General and Chief Secretary of Government of M.P were served a copy of the particular order.[Ripudaman Singh Yadav v. State of M.P, 2019 SCC OnLine MP 1658, decided on 16-07-2019]

Hot Off The PressNews

Supreme Court: A 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Aniruddha Bose, JJ has refused to entertain a PIL seeking a direction to the Punjab government to set up a special investigation team (SIT) to probe the death of a government official whose body was found on railway track near Jalandhar Cantt station in November 2017.

The bench said that it was not inclined to entertain the plea and granted liberty to the petitioners to approach the Punjab and Haryana High Court with their grievances. It said,

“We are not inclined to entertain this petition under Article 32 of the Constitution of India, on the ground stated before the Court by the petitioner-in-person that as a law student the petitioner has no time to move the High Court.”

The plea, filed by three law students Deepali Vashishth, Prateek Raj and Anurag Mani, said that Rahul Bhatia was posted in the Regional Passport office at Jalandhar and on November 15, 2017, his body was found near the railway station. They said that Bhatia’s parents, who are residing in Delhi, were informed by the police about it but no proper investigation was carried out in the case. They have said in the plea that several complaints and representations were made to the top authorities but no action was taken in the matter by the police.

The plea also sought a direction to the authorities to ensure that in every case of death, where proceedings under section 174 of the CrPC is initiated, a charge sheet is submitted to the judicial magistrate after conducting probe. Section 174 of CrPC deals with inquiry by police in cases of suicide or unnatural deaths.

 

(With inputs from PTI)

Patna High Court
Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. quashed criminal proceedings filed under the Prevention of Corruption Act, 1988 against a Panchayat Secretary, on the ground that the same lacked proper sanction of the competent authority.

Petitioner moved the Court under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of complaint case registered for offences under Sections 420 and 406 of the Penal Code, 1860 and Sections 13(2) and 13(1) (d) of PC Act. Petitioner, who at the relevant time was posted as Panchayat Secretary, was alleged to have committed irregularity in the purchase of solar panels.

Counsel for the petitioner Mr S. R. C. Pandey submitted that a complaint filed by a private person under PC Act against a public servant cannot proceed unless there is proper sanction by the competent authority. Petitioners, being Panchayat Secretary, were public servants under Section 2(c) of the Act, and were thus protected from prosecution without the previous sanction of the State Government in terms of Section 19(1)(b) of the Act.

Counsel for the respondent Mr Anjani Kumar agreed with the petitioner’s submission and submitted that both for preliminary enquiry as well as for lodging of FIR under the PC Act, prior sanction of the Competent Authority is required.

In view of the above, the instant application was allowed. [Rama Prasad Singh v. State of Bihar, 2019 SCC OnLine Pat 423, Order dated 29-03-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of Sanjeev Sachdeva, J. allowed a petition filed against order of the trial court whereby it has taken cognizance of offence under Section 188 IPC (disobedience to order duly promulgated by public servant) against the petitioner.

The District Disaster Management Authority carried out an inspection of “M Cinemas” of the petitioner and identified certain shortcomings. The premised was directed to be closed for visitors. On petitioner’s failure to comply with the directions, CEO of the Authority filed a complaint with SHO of the police station concerned. An FIR was registered and chargesheet was assailed by the police, based on which cognizance was taken by the Magistrate vide the impugned order. Aggrieved thereby, the petitioner was before the High Court.

The petitioner was represented by Nina R. Nariman with Vrinda Bhandari and Geetika Kapur, Advocates. It was submitted that in terms of Section 195 CrPC, no Court can take cognizance of an offence under Section 188 IPC except on complaint of public servant concerned. It was contended that no complaint satisfying requirements of Section 2(d) CrPC was filed in the present case. As per Section 2(d), a “complaint” has to be in writing to the Magistrate.

The High Court held that the complaint made by CEO of the Authority was a complaint made to SHO which could not be treated as a complaint to the Magistrate so as to satisfy the requirements of Section 195 (1)(a)(i) CrPC. It was observed, “Non-compliance of Section 195 is a defect which cannot be cured subsequently as was sought to be done by the prosecution by filing a supplementary chargesheet or by way of a complaint given by the public servant after cognizance has been taken.” Holding that the present proceedings suffered from infraction of Section 195, the Court allowed the petition and quashed the impugned order. [Mohan Kukreja v. State (NCT of Delhi), 2019 SCC OnLine Del 6398, decided on 08-1-2019]

Case BriefsHigh Courts

Manipur High Court: A Single Judge Bench comprising of Kh. Nobin Singh, J. allowed a writ petition filed by a retired public servant challenging the notice of enquiry issued against him under Rule 9(7) of the Manipur Public Servants’ Personal Liability Rules, 2006.

The petitioner had retired from the post of Head Clerk in the Department of Minorities and Other Backward Classes. After a gap of six years from the date of his retirement, the Deputy Secretary (Finance/PIC), Government of Manipur issued a notice against him under the rule mentioned above. It was issued in contemplation of an enquiry to be held against him for his irregularity of action as a public servant. Being aggrieved by the said notice, the petitioner filed the instant petition. The ground being, inter alia, that since he had already retired from service, the provisions of Manipur Public Servants’ Personal Liability Act, 2006 would not apply to him.

The question for consideration before the High Court was ‘whether the provisions of the Act will apply to a retired employee or not?’. It was noted by the Court that the main object and reason behind enactment of the Act is the recovery of Government money misappropriated by a public servant. The Court perused Section 2(g) [which defines public servant]  and Section 4 [which provides for liability for irregular action of public servant]; and observed that the retired employee is nowhere referred to in those sections. If the Act was intended to apply to retired employees also, nothing prevented the State Government from including it in the Act. After retirement, the employee is no longer a public servant for all practical purposes. The Court was of the view that the notice impugned was issued without jurisdiction and was liable to be quashed and set aside. The writ petition was accordingly allowed. [B. Malsawma v. State of Manipur,2018 SCC OnLine Mani 86, dated 10-08-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Prakash D. Naik, J. answered a reference made by the Additional Chief Metropolitan Magistrate in a case where the co-accused, who were not public servants, were tried under the provisions of Prevention of Corruption Act 1988 (PC Act) even after the death of main accused, a public servant.

The main accused (now deceased) was a postman in the Post office, and thus a public servant. He was alleged to have misappropriated to his own use, along with other co-accused, several shares of a private company which he was to deliver in furtherance of his official duty. The main accused died before framing of charges and hence criminal proceedings against him stood abated. The remaining co-accused (not public servants) were however tried by the Sessions Judge for the charges framed under PC Act along with charges under Penal Code. The main issue inter alia contended by the respondents was that since the main accused was dead, the Sessions Court was divested of the powers of the trial of the co-accused under PC Act.

The High Court referred to various decisions of the Supreme Court and other High Courts and finally reached a conclusion that there was no infirmity in the trial of the co-accused under the Act even after the death of the main accused who was the public servant. The Court perused Section 4(3) of the PC Act which provides that a Sessions Judge was vested with powers of trying non-public servants for charges under the Act along with charges framed under other statutes. The Court noted the fact that none of the co-accused being tried under PC Act was a public servant and the main accused who was the only public servant was dead. However, having noted thus, the Court observed that death of the main accused does not result in abatement of trial as regards the other co-accused. While answering the reference in affirmative, the Court directed the learned Sessions Judge to proceed with the case in accordance with the law. [State of Maharashtra, In re, 2018 SCC OnLine Bom 1125, dated 04-06-2018]