Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Alka Sarin, J., dismissed the revision petition filed under Article 227 of the Constitution to set aside the order passed by the Additional Civil Judge vide which the application for appointment was dismissed on the ground that the order refusing appointment does not decide any issue nor does it adjudicate rights of the parties.

Facts:

The plaintiff filed a suit for a permanent injunction to restrain the defendant from interfering in his peaceful possession and cultivation of the suit’s land. During the pendency of the suit, the plaintiff filed an application under Order XXVI Rule 9 of the Civil Code, 1908 for the appointment of a Local Commissioner for bringing on record the existing position of the suit’s property.

The defendant- respondent contested that the application was filed just to delay the proceedings. It was also argued that there was no locus standi and cause of action to file the application.

Hereafter, the application was dismissed and the plaintiff- petitioner sought revision of the said order.

Issue:

Is Revision maintainable against an order dismissing an application for the appointment of a Local Commissioner under Order XXVI Rule 9 of the Code, 1908?

Observation and Analysis:

The Court relied on the judgment of Pritam Singh v. Sunder Lal [1990(2) PLR 191] where it was held that refusing to appoint a Commissioner under Order XXVI Rule 9 of the Code, 1908, has nothing to do with the rights of the parties. It is the discretion of the Court to appoint a Commission, then no right of any party can be said to be prejudiced as such.

The Court held that there is no illegality or irregularity in the order passed by the Additional Civil Judge.

The Court further held that no revision will be maintainable against an order dismissing an application for the appointment of a Local Commissioner as it does not decide any issue nor does it adjudicate any rights of the parties for the purpose of the suit.

[Harchand v. Karambir Singh, 2022 SCC OnLine P&H 1777, decided on 18-07-2022]


Advocates who appeared in this case :

Balraj Gujjar, Advocate, for the Petitioner.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J. partly allowed a writ petition setting aside the judgment and order of Additional Sessions Judge and confirming the findings of Judicial Magistrate First Class further modifying the maintenance amount to Rs 3000/- per month.

The present petition was filed by a father intending to invoke the Constitutional powers of this Court to challenge the order passed by Additional Sessions Judge whereby the revision petition by son (present respondent) was allowed setting aside the order of grant of maintenance passed by Judicial Magistrate First Class under Section 125 of Criminal Procedure Code, 1973.

Petitioner had three daughters and only one son, wife of the petitioner is still alive, but she stays separately from the petitioner but with the respondent. Petitioner contended that he had no source of income and due to his old age he is unable to do any work therefore said application for maintenance was filed. Magistrate after taking into consideration the evidence on record had come to the conclusion that the petitioner is unable to maintain himself, respondent had refused to maintain his father even after being capable of maintaining father. He had granted maintenance of Rs. 5000/- per month. This order was challenged by the respondent and reversing all the findings of the Magistrate, the Additional Sessions Judge had set aside the order passed by the Magistrate and dismissed the original application. Hence, this writ petition.

A surrejoinder was filed by the respondent stating that petitioner had agricultural land admeasuring 57 R and he has sold the same to one Sunil Chandrabhan Admane on 09-11-2015 for a consideration of Rs.3 lakh. However, according to the him, actual consideration amount was Rs.7,50,000/-, but it has been shown less in the sale deed.

The Court from the submissions gathered that at present the age of the petitioner is around 73 to 75 years and it was on record that there is no land left with the petitioner. The Court further opined that even if for the sake of arguments its accepted that there was a piece of land for the petitioner the question still remains whether that is giving him sufficient income to sustain and whether his physical ability is allowing him to cultivate the land or get it cultivated through anybody so that he can earn.

The son cannot avoid his responsibilities to maintain the father. The Court further remarked that the respondent cannot impose a condition on him in exchange of providing maintenance. The respondent had pointed out that because of the vices of the father, there were differences between the mother and the father and they were not residing together and now he was demanding the money just to fulfill his vices to which the Court commented that it cannot go into disputed facts forever and the Court can only decide whether there is a source of income for the petitioner which could give him sufficient amount to support and then there is responsibilities of son to maintain the father, and therefore, the finding which has been arrived at by the revisional Court only on the technical basis that some amount was received by the petitioner in the past because of the sell and the so called admission of the petitioner that by doing labour work he is getting wages of Rs.20/- per day. The Court believed that the said order could not have been totally discarded and that the revisional Court by applying proper criteria could have reduced that amount to make it sustainable for both the parties.

The approach taken by the revisional Court appears to be too hyper technical and when it comes to petitions under Section 125 , CrPC, the Courts cannot be so hyper technical in their approach.

The Court therefore considering all the situations partly allowed the petition setting aside the judgment and order of Additional Sessions Judge and confirming the findings of Judicial Magistrate First Class modifying the maintenance amount to Rs 3000/- per month.

[Jagannath Bhagnath Bedke v. Haribhau Jagannath Bedke, 2022 SCC OnLine Bom 1528, decided on 08-07-2022]


Advocates who appeared in this case :

Mr N. D. Batule, Advocate, for the Petitioner;

Mr D. R. Marked h/f Mr G. P. Darandale, Advocates, for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Geetanjali Goel, J. upholds the discharge of Delhi CM and others in the Anshu Prakash assault case having found no ground for interfering with the impugned order of the Trial Court and dismissed the petition having no merits.

 

Factual Background

The present revision petition was preferred under Section 397 read with Section 399 of Criminal Procedure Code i.e. CrPC against order dated 11-08-2021 passed by the ACMM-03, Rouse Avenue District Court emanating from FIR lodged by the complainant/ petitioner herein i.e. Anshu Prakash, the then Chief Secretary, Govt. of NCT of Delhi for offences under Sections 186/332/353/342/323/506(ii) read with Sections 149 and 34 of Penal Code, 1860 i.e.  IPC, for criminal conspiracy under Section 120-B of IPC , Sections 186/332/353/342/323/506(ii) as well as for abetment under Sections 109/114 of the IPC and Sections 186/332/353/342/323/506(ii) IPC. The instant Revision Petition was preferred averring that the Trial Court had erroneously discharged 11 accused persons including CM Arvind Kejriwal and Manish Sisodia of all the charges and ordered framing of charge only under Sections 186/332/353/323/34 IPC against two accused persons namely Amanatullah Khan and Prakash Jarwal (hereinafter ‘A-1 and A-2’). It is stated that the impugned order is against the settled principles of law applied at the stage of framing of charge and a perusal of the impugned order revealed that Trial Court had conducted a fishing and roving enquiry into the allegations in the charge-sheet and had drawn erroneous inferences and conclusions without having the benefit of examination of prosecution witnesses and many such inferences and findings were contrary to the record.

The Court elaborately discussed and gave observations on various grounds but for the sake of brevity, the heads are mentioned which are as follows:

  1. Maintainability of the revision petition
  2. Considerations for framing of charge / discharge
  3. Veracity of Witness to be tested at trial
  4. Delay in lodging the FIR and the MLC
  5. Bar on taking cognizance in absence of complaint under Section 195 CrPC
  6. Consideration of the statement of VK Jain dated 21-02-2018
  7. Conspiracy/ Unlawful Assembly/Common Intention/ Abetment
  8. Section 342 IPC
  9. Role of Nitin Tyagi
  10. Role of Ajay Dutt (R 10) and Rituraj Govind (R 12)

Analysis and Decision

The Court observed that there is no merit in the submission made on behalf of the petitioner that the impugned order is against the settled principles of law applied at the stage of framing of charge or that the Trial Court had conducted a fishing and roving enquiry into the allegations in the charge-sheet and had drawn erroneous inferences and conclusions without having the benefit of examination of prosecution witnesses.

The Court opined that Trial Court had not committed any error apparent on the face of record or had failed to appreciate the genesis of the entire case including the preceding and subsequent events of the incident and in fact it is seen that all the factors which have been raised by the petitioner even in the present revision petition as pointing to a criminal conspiracy or unlawful assembly or common intention or abetment have been duly considered in the impugned order by the Trial Court.

The Trial Court, in the impugned order, having considered the charge against A-3 to A-13 to be groundless discharged them and had recorded its reasons for doing so. It is also the settled law that for framing of charge detailed reasons are not required to be given but when the accused is to be discharged; it is incumbent on the Court to record its reasons for the same.

It was stated that at the stage of consideration of charge, the defence of the accused persons is not to be looked at and it is not for the accused persons to rebut the case of the prosecution at that stage except on the basis of the material produced by the prosecution, as they cannot bring forth any evidence at that stage and only the material put forth by the prosecution has to be considered. It is the settled law that at the stage of framing of charge, the court is only to see if there is strong suspicion that the accused had committed an offence and not whether the material on record would lead to conviction or not. At the stage of framing of charge, the Court is required to evaluate the material and documents only to the extent and with a view to finding out if the facts taken on their face value disclosed the existence of a prima facie case.

The Court concluded that in the present case, the Trial Court had duly applied the yardsticks and the parameters laid down by the Supreme Court in Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4  and other judgments to be considered at the stage of framing of charge and thereafter passed the impugned order. Thus, there is no infirmity, illegality or perversity or impropriety in the impugned order passed by the Trial Court and the same has been passed after considering the material on record including the statements of witnesses.

The Court applying the test for framing of charge laid down in a catena of decisions, held “no ground has been made out by the petitioner for interfering with the order of the Trial Court or for directing framing of charge against A-3 to A-13 for any offence or for directing framing of charges against A-1 and A-2 for the offences under Sections 342/506(ii)/120-B/109/114 IPC.” [Anshu Prakash v. State of NCT of Delhi, Criminal Revision No. 02 of 2021, decided on 08-06-2022]

  


Appearances

For Petitioner- Senior Counsel Sidharth Luthra, along with Mr Kumar Vaibhav, Ms Adya R. Luthra, Mr Krishna Dutta Multani, Mr Bharat Monga and Mr Mohd. Ahsaab

For respondents-

Shri Manoj Garg, Ld. for R 1

Shri Saleem Ahmed, Shri Amit and Shri Ajay Pratap Singh, Ld. Counsels for R 3 (A-1);

Senior Counsel Ms Rebecca John along with Mr Mohd. Irshad for R 4 (A-2);

Senior Counsel N. Hariharan, R 5 (A- 3) along with Mr Mohd. Irshad, Mr Siddharth S. Yadav

Senior Counsel Dayan Krishnan, R 6 (A-4) along with Mr Mohd. Irshad

Mr Badar Mahmood, Ms Sheenu Priya for R 7 (A-5)

Mr Bhavook Chauhan, Mr Harish Kumar and Mr Tushar Yadav for R 8 (A-6)

Mr Mujeeb Ahmed and Mr Rishikesh Kumar for R 9 (A-7)

Mr S.P.S. Yadav and Ms Priyanka Singh for R 10 (A-8)

Mr Rahul Ranjan, Mr Murari Kumar and Ms Lisha Saha for R 11 (A-9)

Mr S.P. Kaushal and Mr Dhananjay Kaushal for R 12 (A-10)

Mr Vikas Nagwan for R 13 (A-11)

Senior Counsel Ramesh Gupta along with Mr Vijay S. Bishnoi, Ld. for R 14 (A-12)

Mr Anil Tomar for R 15 (A-13)


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Rajasthan High Court: Pushpendra Singh Bhati, J., refused to interfere with the impugned order due to lack of any legal infirmity.

The facts of the case are such that an F.I.R., was lodged against the revisionist-petitioner for the offences under Sections 13 (1) (e) / 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘Act of 1988’) after two months of the recovery of an amount of Rs 50,000/- which was alleged to be bribe money. The said F.I.R. was lodged after a delay of about 2 months from the date of recovery of the said amount from the revisionist petitioner. Thus, the charge sheet was filed against the petitioner under the aforementioned provisions of the Act of 1988. The instant criminal revision petition under Section 397 read with Section 401 CrPC was preferred seeking quashing of the impugned order.

Counsel for the petitioner submitted that without looking into the facts and circumstances of the case, passed the impugned order, whereby it proceeded with framing of charges against the revisionist-petitioner, despite the factum of delay of two months in registration of the FIR.

Counsel for respondent submitted that after taking into due consideration all the facts and circumstances of the present case and after considering the evidence placed on record before it, has rightly passed the impugned order. 

The Court relied on judgment Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 wherein it was observed that

Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused.

The Court further relied on judgment State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 and observed that if a strong suspicion exists in the mind of the court at the stage concerned, then the same is sufficient for the court to proceed with the framing of the charge against the accused person(s). And if a prayer for discharge has been made before a revisional court, then the same may only be allowed if the court finds that the materials on record are wholly insufficient for the purpose of trial.

The Court held “this Court does not find any legal infirmity in the impugned order passed by the learned court below so as to warrant any interference, at this stage.”

[Sudhir Bordiya v. State, 2022 SCC OnLine Raj 765, decided on 20-04-2022]


Appearances:

For Petitioner(s): Mr. C.S. Kotwani

For Respondent(s): Mr. S.S. Rajpurohit


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: M. Nagaprasanna, J. allowed the criminal petition and quashed both the orders by the Magistrate and the Sessions Judge.

The facts of the case are such that the petitioner and the respondent are husband and Wife and the marital life between the couple have turned sore, pursuant to which respondent-wife filed a petition invoking Section 12 of the Protection of Women from Domestic Violence Act, 2005. The Magistrate awarded maintenance of Rs.1,000/-. After invoking the provisions of the Act, the respondent-wife filed a invoking Section 127 of the Cr.PC. for enhancement of the maintenance amount awarded under the Act. The petition was allowed and the respondent-wife was awarded maintenance of Rs.5,000/- from the date of the order. Feeling aggrieved by the order, Criminal Revision Petition invoking Section 397 Cr.PC was filed. The Sessions Judge dismissed the said Revision Petition confirming the order passed by the Magistrate enhancing maintenance to the wife from Rs 1,000/- to Rs 5,000/-. It is these two orders that are called in question in the subject petition.

Counsel for the petitioner submitted that the respondent once having invoked the provisions of the Act could not have filed an application seeking enhancement under Section 127 of the Cr.P.C. The order passed by the learned Magistrate as affirmed by the learned Sessions Judge is orders without jurisdiction.

The Court observed that Section 125 of the Cr.P.C. enables the wife to seek maintenance at the hands of the husband inter alia. Invoking this provision, the learned Magistrate can award maintenance. Section 127 of the Cr.P.C. deals with alteration in allowance. Maintenance that is awarded under Section 125 of the Cr.P.C. can be varied in an application filed under Section 127 of the Cr.P.C. What is sine qua non is that an order of maintenance should precede a petition under Section 127 of the Cr.P.C., failing which, a petition under Section 127 of the Cr.P.C. seeking enhancement of maintenance is not available.

The Court further observed that it is an undisputed fact that the respondent-wife invoked the provisions of the Act in which maintenance was awarded. It is also an admitted fact that there is no proceeding initiated by the respondent-wife invoking Section 125 of the Cr.P.C. Therefore, without there being any determination of maintenance under Section 125 of the Cr.P.C. petition under Section 127 of the Cr.P.C. is not maintainable. The language employed in Section 127 of the Cr.P.C. is unequivocal as on a proof of change in the circumstances of any person receiving allowance under Section 125 of Cr.P.C. can maintain a petition under Section 127 of the Cr.P.C. A proceeding under Section 125 of the Cr.P.C. therefore should precede a proceeding under Section 127 of the Cr.P.C. The fact that a provision of Act was invoked for grant of maintenance and provisions of Cr.P.C. are invoked seeking enhancement of maintenance cannot be countenanced in law.

The Court thus held “the order passed by the learned Magistrate enhancing maintenance under Section 127 of the Cr.P.C. was without jurisdiction and a nullity in law. The foundation being a nullity in law, a super structure to it affirming the order of the learned Magistrate, by the learned Sessions Judge will have to follow suit – is to be declared a nullity in law.”

[Shivanand v. Basavva, Criminal Petition No. 101378 of 2019, decided on 17-02-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka:  Menaka Wijesundera and Neil Iddawala, JJ. while deciding on a revision application of order by Kandy High Court, dismissed the application of revision.

The Petitioners, husband (1st) & wife (2nd) were indicted for raping a 14 yr old minor, who is the sister of the 2nd petitioner. After pleading guilty of the charges levelled against them, the 1st petitioner was sentenced 20 years of imprisonment with fine and compensation and 2nd petitioner for 10 yrs of imprisonment in Feb 2020.

The Court reiterated two principles to be followed for revision. The first being exceptional circumstances which shocks the conscious of Court, to invoke the powers of revision of Court as it is the discretion of the Court and not a statutory right. And the second being that the revision must be filed without delay. If the applicant fails to satisfy the court of delays caused, then it is considered to be a fatal error. The Petitioners cited Covid-19 pandemic for the delay caused.

Court held that the petitioners had ample opportunities to have obtained legal assistance. The application has been filed after a year after pronouncement of the alleged order by HC. Furthermore, it was also held that there were sporadic periods from 2020 March to 2021 March where the country functioned normally. The Court was unsatisfied with the explanation and the application was therefore dismissed.[Wijesinghe Arachchige Ashoka Senarath Banadara v. The Attorney General, CPA / 85 of 21, decided on 15-02-2022]


Appearance by: Udaya Bandara for the petitioner.


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: While expressing the object of PMLA Act Chandra Dhari Singh, J., expressed that, offence of money laundering is threefold including the stages of placement, whereby the criminals place the proceeds of crime to the general and genuine financial system, layering, whereby such proceeds of crime are spread into various transactions within the financial system and finally, integration, where the criminals avail the benefits of crime as untainted money.

A criminal revision petition was filed by the petitioner under Section 397 of the Penal Code, 1860 read with Section 401 of the Code of Criminal Procedure, 1973 and Section 47 of the Prevention of Money Laundering Act, 2002 (PMLA) seeking setting aside of the order passed by the Special Judge, Patiala House Courts whereby all the accused persons were discharged on the ground that no prima facie case was made out against them.

Background

In the present matter, criminal proceedings under PMLA were initiated against the respondents by the petitioner on the basis of independent intelligence gathered regarding money laundering activities. Therefore, an FIR under Sections 21,25,29 and 61 of the Narcotics Drugs and Psychotropic Substance Act, 1985 and Sections 420, 468, 471, 120B of the Penal Code, 1860 were registered.

Petitioner’s case was that the respondents were found to be involved in an international syndicate of laundering the money generated out of the drug trafficking in Australia and other countries.

While the private Respondents 1 to 3 are based in India, their counterparts, namely, Gulshan Kumar, Mandeep Singh, Sanjeev Kumar Saini and Ravinder Pal Singh were based in Australia and together they had been carrying out cross border criminal activities and their counterparts in Australia had already been apprehended.

Analysis, Law and Decision

High Court firstly stated that the offence of money laundering under the PMLA is layered and multi-fold and includes the stages preceding and succeeding the offence of laundering money as well.

Further, the Bench stated that the offence of money laundering, is not to be appreciated in isolation but is to be read with complementary provisions.

“…the essential ingredients for the offence of Section 3 of the PMLA become, first, the proceeds of crime, second, proceeds of crime arising out of the offences specified in the Schedule of the Act and third, the factum of knowledge while commission of the offence of money laundering.”

High Court expressed that, since no scheduled offence was made out against the respondents, this Court found that an investigation and proceedings into the PMLA could not have been established against the respondents at the first instance.

Section 397 CrPC unequivocally states that the High Court or Sessions Courts which is exercising its revisional jurisdiction shall apprise itself solely of the question of correctness, legality and propriety of the order of the Subordinate Court.

“…the provision of the Cr.P.C. suggests that the Court shall limit itself to the findings, sentence or order passed by the subordinate Court, against which the Revisionist is seeking relief before the Courts concerned and shall not go beyond the analysis and observations made by the subordinate court.”

Additional Sessions Judge is under the challenge before this Court in its revisional jurisdiction.

This Court stated that in its revisional jurisdiction it would not proceed into the enquiry of the records, documents and other evidence in consideration before the Trial Court, but shall constrain itself to the findings of the lower Court in the impugned order and to the question whether there is any patent illegality, error apparent on record or incorrectness.

Bench remarked that the extent of exercise of discretion by the Court was limited to the prima facie satisfaction of the Court and if the Court does not find reasonable grounds of suspicion against the accused, it may discharge him of the offence alleged against him.

Additional Sessions Judge did not find any evidence brought on record to show that the accused persons were involved in the commission of the offences alleged against them.

This Court found force in the submission that since no offences were made out against the respondents. Petitioner could not establish the allegations against the respondents and as such the material produced was not sufficient to find the guilt against them.

High Court found no illegality or impropriety in the lower court’s decision, hence the petition was dismissed. [Directorate of Enforcement v. Gagandeep Singh, 2022 SCC OnLine Del 514, decided on 17-2-2022]


Advocates before the Court:

For the Petitioner:

Anurag Ahluwalia, CGSC with Danish Faraz Khan, Advocates

For the Respondents:

Vikram Chaudhari, Senior Advocate with Rishi Sehgal and Ria Khanna, Advocates

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Dhananjaya Y. Chandrachud and M.R. Shah*, JJ., recently held in an interesting case that evaluation of evidence on merits is not permissible at the stage of considering the application for discharge and the same is beyond the scope of revisional jurisdiction of the High Courts. The Bench explained,

“At the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible.”

The High Court of Rajsthan, in exercise of its revisional jurisdiction had quashed the order passed by the Special Judge, Prevention of Corruption Act. The High Court had set aside the charges framed by the Special Judge against the respondent-accused for the offence under Section 7 of the Prevention of Corruption Act  and consequently had discharged the accused of the alleged offence.

Factual Matrix of the Case

The respondent-accused was serving as a Patwari, when it was alleged by the complainant that  that for the purpose of issuing Domicile Certificate and OBC Certificate of his son, but the Patwari in lieu of endorsing his report demanded a bribe of Rs.2,800. Prsuant to the said complaint an investigation was conducted and the accused was chargesheeted on reaching to the findings that there was a prima facie case made out under Section 7 of the PC Act.

Feeling aggrieved and dissatisfied the accused preferred revision application before the High Court whereby the High Court had discharged the accused.

It was submitted by the state that the High Court had committed a grave error in evaluating the transcript/evidence on merits which at the stage of considering the application for discharge is not permissible and is beyond the scope of the exercise of the revisional jurisdiction. It was further submitted that the accused had been charged for the offence under Section 7 of the PC Act and even an attempt is sufficient to attract the offence under Section 7 of the PC Act.

Stand taken by the Respondent

The defense raised by the respondent-accused was that, he had refused to issue residence certificate for Rajsthan and caste certificate in favor of complainant having come to know about the complaint being the permanent resident of Agra and that the complainant wanted a false residence certificate and caste certificate illegally. It was submitted that in fact the respondent-accused gave a report rejecting the request of the complainant and there was nothing pending before the accused and the decision regarding his application was already taken.

The respondent submitted that at the time of conversation two persons were present, (1) the complainant – Jai Kishore; and (2) Devi Singh. And the so far as the complainant was concerned, the accused categorically refused to accept any bribe. However, it was alleged that  the appellant had tried to confuse and mislead the Court by mixing the conversation of Devi Singh regarding his dues of Rs.4,850-/ to the bank against which he had paid Rs.2,000/- and the remaining amount of Rs.2,850/- was due to the bank. Thus, neither there was any acceptance nor there was any demand of bribe and the High Court has rightly discharged the accused. The reliance was placed on Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, it had been held that, by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him will give rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused.

Findings of the Court

At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The Bench opined that the High Court had exceeded in its jurisdiction and had acted beyond the scope of Section 227/239 Cr.P.C. While discharging the accused, the High Court had gone into the merits of the case and had considered whether on the basis of the material on record, the accused was likely to be convicted or not. For the aforesaid,

“The High Court has considered in detail the transcript of the conversation between the complainant and the accused which exercise at this stage to consider the discharge application and/or framing of the charge is not permissible at all.”

At the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible. At this stage, it is to be noted that even as per Section 7 of the PC Act, even an attempt constitutes an offence. Therefore, the High Court has erred and/or exceeded in virtually holding a mini trial at the stage of discharge application.

Lastly, the Bench stated, defence on merits is not to be considered at the stage of framing of the charge and/or at the stage of discharge application. In view of the above, the impugned judgment and order was held unsustainable in law and the same was quashed and set aside. The order passed by the Special Judge of framing charge against the accused under Section 7 of the PC Act was restored.

[State of Rajsthan v. Ashok Kumar Kashyap, 2021 SCC OnLine SC 314, decided on 13-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice M. R. Shah

Appearance before the Court by:

For the State: Adv. Vishal Meghwal

Case BriefsSupreme Court

Supreme Court: Reminding the Courts of the scope of their powers, the bench of Abhay Manohar Sapre and Dinesh Maheshwari, JJ has said:

“While considering the case of discharge sought immediately after the charge­sheet is filed, the Court cannot become an Appellate Court and start appreciating the evidence by finding out inconsistency in the statements of the witnesses.”

Background of the case:

  • An Inspector of Police and Sub-­inspector of Police were prosecuted for commission of the offences punishable under Section 7 read with Section 13(1)(d) of the Prevention of Corruption Act.
  • On charge­sheet being filed by the State Prosecuting Agency against the respondents after obtaining necessary sanction as required in law, both of them filed applications under Section 227 of the Cr.P.C. in the Court of Special Judge and Chief Judicial Magistrate.
  • The Chief Judicial Magistrate allowed the applications and discharged them from the case.
  • State approached the High Court and the High Court dismissed the revisions and affirmed the order of the Chief Judicial Magistrate, giving rise to filing of these appeals by the State by way of special leave in this Court.

When the matter reached Supreme Court, it had to decide whether the Courts below were   justified in allowing the discharge applications filed by the respondents under Section 227 of the Cr. P.C. Stating that the Court the High Court acted like an Appellate Court than as a Revisionary Court as if it was hearing the appeal against the final verdict of the Special Court, the Court said:

“consideration of the record for discharge purpose is one thing and the consideration of the record while deciding the appeal by the Appellate Court is another thing.”

The Court, hence, set aside the impugned order, dismissed the applications filed by the respondents under Section 227 of the Cr.P.C. and remanded the case to the Special Judge/CJM for its trial on merits in accordance with law.

[State v. J. Doraiswamy, 2019 SCC OnLine SC 338, decided on 07.03.2019]

Case BriefsSupreme Court

Supreme Court: In a matter where the Gujarat High Court had set aside the order passed by a Chief Judicial Magistrate who had taken cognizance of the offences punishable under Sections 420, 465, 467, 468, 471, 477A and 120-B IPC on the basis of the second supplementary charge sheet filed by the police and ordered issuance of process to the accused, the bench of R. Banumathi and Indira Banerjee, JJ held that the High Court ought not to have gone into the merits of the matter when the matter is in nascent stage.

Holding that the High Court overstepped in the said matter, the bench said:

“When the prosecution relies upon the materials, strict standard of proof is not to be applied at the stage of issuance of summons nor to examine the probable defence which the accused may take. All that the court is required to do is to satisfy itself as to whether there are sufficient grounds for proceeding.”

Stating that while hearing revision under Section 397 Cr.P.C., the High Court does not sit as an appellate court and will not reappreciate the evidence unless the judgment of the lower court suffers from perversity, the bench said:

“materials produced by the prosecution ought not to have been brushed aside by the learned Single Judge to quash the order of issuance of summons to the respondent-accused. As to whether these evidences are sufficient to sustain the conviction of the respondent-accused or whether he has a plausible defence or explanation is the matter to be considered at the stage of trial. The learned Single Judge ought not to have weighed the merits of the case at the initial stage of issuance of summons to the accused.”

The Court explained that while taking cognizance of an offence based upon a police report, it is the satisfaction of the Magistrate that there is sufficient ground to proceed against the accused and when the satisfaction of the Magistrate was based on the charge sheet and the materials placed before him, the satisfaction cannot be said to be erroneous or perverse and the satisfaction ought not to have been interfered with.

It was, hence, held that the High Court committed a serious error in going into the merits and  demerits of the case and hence, the impugned order was set aside. [State of Gujarat v. Afroz Mohammed Hasanfatta, 2019 SCC OnLine SC 132, decided on 05.02.2019]

Case BriefsHigh Courts

High Court of Himachal Pradesh : Deciding upon an issue  as to whether Regular First Appeal or Civil Revision or petition under Article 227 of the Constitution  would lie against the order passed by the Wakf Tribunal, the Bench comprising of Mansoor Ahmad Mir, CJ., and Sandeep Sharma, J., held that the Regular First Appeal or Civil Revision or petition under Article 227 is not maintainable against any decision or order whether interim or otherwise, given or made by the Wakf Tribunal, since sub-section (9) of Section 83 of the Wakf Act provides an efficacious alternative remedy to the aggrieved party to invoke the revisional jurisdiction of the High Court against such order/decision of the Wakf Tribunal.

The Court while considering a bunch of petition involving the question as to  maintainability of suit in the civil court against the decision or orders of the Wakf tribunal observed that since the Act provides that the decision of the Wakf Tribunal shall be final and binding hence no appeal shall lie against any decision or order whether interim or otherwise, given or made by the Wakf Tribunal. The Court stated that it is astonishing that the present writ petitions and Regular First Appeals are being preferred by the aggrieved parties before this Court challenging the decisions rendered by the Tribunals constituted under the Act without understanding how such appeals or writ petitions will be entertained because of the existence of the specific bar in terms of Section 83(9) of the Act that no appeal will lie against the decision/order of the Tribunal.

The Court stated that if any person is aggrieved by the decisions/orders of the Wakf Tribunals can invoke the revisional jurisdiction of the High Court hence remedy is provided to the aggrieved person by way of filing revision petition and not by the medium of appeal. The Court also observed it is settled law that suit for eviction from wakf property is triable by a civil court and not by the Wakf Tribunal since the Act does not provide determination of dispute of eviction by the Tribunal. [Mumtaz Ahmad v. State of H.P., 2016 SCC OnLine HP 2603, decided on November 16th 2016]

Supreme Court

Supreme Court: While deciding that whether Rule 159 of High Court of Jharkhand Rules, 2001 which requires surrender to the custody of the Court before filing a revision petition, violates Articles 14 and 21 of the Constitution and Sections 397 and 401 of CrPC, the Division Bench of T.S. Thakur and A.K. Goel, JJ., upheld the constitutional validity of Rule 159 stating that it is a general practice to file a revision against conviction and sentence is filed after an appeal is dismissed and the convicted person is taken into custody in Court itself. The object of the Rule is to ensure that a person who has been convicted by two courts obeys the law and does not abscond and furthermore the provision does not conflict with the provisions of CrPC.

The instant case came into being when the petitioner’s appeal against conviction under Section 498A of IPC and Sections 3 and 4 of Dowry Prohibition Act failed and he proceeded to file a revision petition before the High Court which was not registered due to the impugned Rule. Pragati Neekhra arguing for the petitioner put forth the contention that the impugned Rule is in conflict with CrPC provisions dealing with related to statutory revisional jurisdiction of the High Court along with contending that the impugned Rule violates fundamental rights under Article 14 and 21 of the Constitution. The respondent counsel A.K. Sinha presented an affidavit before that Court stating that Order XXI, Rule 6 of Supreme Court Rules, 1966 contains an identical provision to Rule 159, therefore the impugned Rule cannot be termed as arbitrary or inconsistent with the provisions of CrPC.

The Court upon considering the submissions observed that the impugned Rule is a provision to regulate the procedure of the Court and does not conflict with the substantive provisions of CrPC. The Court further observed that the Supreme Court Rules’ prohibition against listing without surrender is not applicable if the Court otherwise directs but such exception is not found in the impugned Rule, thus the exception as found in corresponding Supreme Court Rules that if the Court grants exemption from surrender and directs listing of a case the Rule cannot stand in the way of the Court’s exercise of such jurisdiction, has to be assumed in the impugned Rule. Vivek Rai v. High Court of Jharkhand, 2015 SCC OnLine SC 95, decided on 04.02.1015