Case BriefsHigh Courts

Delhi High Court: Expressing that, the revisional jurisdiction is not meant to test the waters of what might happen in the trial, Chandra Dhari Singh, J., held that at the stage of framing of charge, the judge is merely required to overview the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused.

A revision petition was filed seeking setting aside of the order on charge passed by the Special Judge, CBI Court and for quashing criminal proceedings against the petitioner. As per the impugned order, the petitioner had been charged under Sections 420 and 120-B of the Penal Code, 1860 read with Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988.

Factual Background

It was alleged that, the then DG, Organizing Committee (OC), Commonwealth Games, 2010 and other officers of the OC entered into a criminal conspiracy with the Director of M/s Premier Brands Private Limited (PBPL), with Chairman M/s Compact Disc India Limited and others.

The OC officers scrapped the process of initial Request for Proposal (RFP) on flimsy grounds after receipt of the proposal of PBPL, to extend undue favour to PBPL by appointing the said company as Officer Master Licensee for Merchandising and Online Retail Concessionaire for CWG 2010 against a minimum royalty amount of Rs 7.05 crores.

After earning a huge amount from the CWG band properties, PBPL did not pay anything to the OC and the cheque amounting Rs 3.525 Crores were dishonoured by the Bank on instructions from PBPL, which caused pecuniary advantage to Suresh Kumar Seenghal and PBPL and corresponding to the Government Exchequer.

Analysis, Law and Decision

  • Revisional Jurisdiction and Framing of Charge

In the Supreme Court decision of Asian Resurfacing of Road Agency (P) Ltd. v. CBI, (2018) 16 SCC 299, it was held that an order framing charge can be interfered under the revisional jurisdiction.

Further, Supreme Court recently in Sanjay Kumar Rai v. State of U.P., 2021 SCC OnLine SC 367, reiterated the ruling pronounced in the above Supreme Court decision as well as the original position of law as laid down in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

The issue is well settled and the controversy qua revisional jurisdiction is set to rest with the actual position of law being that the order of framing charge or that discharge is neither interlocutory nor final and hence does not attract the bar of Section 397(2) of the Code.

Hence, High Court is competent to entertain a revision petition against such orders.

  • Framing of Charges & Order on Charge

Bombay High Court’s decision of Samadhan Baburao Khakare v. State of Maharashtra, 1995 SCC OnLine Bom 72, highlighted the objective and importance of a Charge in a criminal trial.

The Court concerned with the framing of charges has to merely see whether the commission of offense can be a possibility from the evidence on record or not.

The charge is merely an indication to the accused about the offense for which he is being tried for.

For the above observation, Court referred to the Supreme Court decision in Esher Singh v. State of A.P., (2004) 11 SCC 585.

Framing of charge is a manifestation of the principle of Fair Trial, by giving sufficient notice along with all particulars to the accused being charged so as to enable him to prepare his defence.

In the Supreme Court decision of State of Rajasthan v. Ashok Kumar Kashyap, 2021 SCC OnLine SC 314, it was held that the at the stage of framing of the charge and/or considering the discharge application, a mini trial is not permissible.

The Court observed that the position of law that emerges is that at the stage of discharge/framing of charge, the Judge is merely required to shift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused.

  • Scope of Revisional Jurisdiction – qua Order of Charge

In the case of State of Rajasthan v. Fatehkaran Mehdu, (2017) 3 SCC 198, the Supreme Court has elucidated on the scope of the interference permissible under Section 397 with regard to the framing of a charge.

Recently, in the case of State of Rajasthan v. Ashok Kumar Kashyap, 2021 SCC OnLine SC 314, the Supreme Court held that the evaluation of evidence on merits is beyond the scope of revisional jurisdiction of the High Courts, at the stage of considering the application for discharge.

Hence, under the provisions of Section 397/401 of Code, the Revisional Court has to only consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court.

  • Section 482 of the Code

High Court has inherent power to act ex debito justitiae – to do that real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the Court.

The Section does not confer any new power, rather it only declares that the High Court possesses inherent powers for the purposes specified in the Section.

Hence, the jurisdiction under Section 482 should be exercised sparingly, with circumspection and in rarest of rare cases.

In the present matter, the petitioner failed to make out a case for exercise of the revisional jurisdiction since there was no patent error in the impugned order.

The beauty of procedural law lies in the stages and remedies available during the course of a criminal proceeding.

Conclusion

High Court held that every effort should be made to eradicate Corruption as at the end of the day, it is society and the downtrodden who bear the pangs of the corrupt acts of a few.

Bench added that if the lower court finds that evidence against an accused is prima facie sufficient for framing of charge, then it has the jurisdiction to proceed with the same concerned accused must face trial.

The revision petition was devoid of merit and hence dismissed. [V.K Verma v. CBI, 2022 SCC OnLine Del 1192, decided on 29-4-2022]


Advocates before the Court:

For the Petitioner:

Mr. Ajit Kumar Sinha, Senior Advocate with Mr. Srijan Sinha, Ms. Parul Dhurvey and Mr. Naveen Soni, Advocates.

For the Respondent:

Mr. Prasanta Varma, SPP

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 BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., while addressing the present revision petition expressed that:

“A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of the evidence.”

The instant revision petition was filed under Section 397/401 CrPC against the Order passed by Additional Sessions Judge. Further, the petitioner has also challenged the Order passed by Metropolitan Magistrate in an application for claiming interim maintenance under Section 23 of the Domestic Violence Act.

Facts leading to the present revision petition:

After marriage, Respondent/wife was inducted as a whole-time Director in the company run by the petitioner/husband. Later, the respondent-wife started living separately claiming that she was deserted by the petitioner after which she filed an application under Section 23 of the protection of Women from Domestic Violence Act, 2005 for seeking interim maintenance.

Since the respondent was continuing as the Director in the said company of the husband she wasn’t able to take up any other job and was not even getting any salary from the husband’s company which all lead to her not being able to maintain herself.

Initially, she was granted interim maintenance of Rs 1,00,000 but it was rejected by the lower court.

Respondent also approached the Company Law Board for a direction that she should be paid salary during the period she served as the Director of the Company to which the Company Law directed the above-stated company to pay the salary to the respondent.

When the petitioner moved an application under Section 25 of the Domestic Violence Act for the modification in the maintenance order since now the respondent was getting a salary from the Company, the said request was rejected.

Analysis and Decision

Bench opined that the scope of interference in a revision petition is extremely narrow.

Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case.

 Court noted that the findings of the Metropolitan Magistrate as upheld by the Sessions Court was that the petitioner was not providing adequate maintenance to the respondent and since the said maintenance was not being paid, petitioner was directed to pay a sum of Rs 1,00,000 towards maintenance.

Further, the Company which was being run by the petitioner did not release her salary. The respondent had to move the Court and fight for getting her legitimate salary.

To the above, Bench stated that even though the company is distinct from the petitioner but the company is being run by the petitioner and it can be assumed that the salary was not being paid to the respondent only at the instance of the petitioner.

While concluding, the Court held that it is open for the petitioner to raise all the contentions in the matrimonial proceedings pending between the husband and wife while deciding the issue of grant of alimony under Section 25 of the Hindu Marriage Act. [Taron Mohan v. State, 2021 SCC OnLine Del 312, decided on 25-01-2021]


Advocates for the parties:

Petitioner: Vishesh Wadhwa, Advocate

Respondents: Hirein Sharma, APP for the State

Joel, Advocate for the respondent 2.

Case BriefsHigh Courts

Karnataka High Court: John Michael Cunha J., while rejecting the present criminal revision petition, elaborated on scope and ambit of Section 397 Criminal Procedure Code, 1973 and further rejected the argument of the petitioner that the lower courts have erred in appreciating the evidence.

Brief Facts

The present Revision Petition is filed under Section 397 CrPC, read with Section 401 CrPC, praying to set aside the judgment/order of conviction dated 27-01-2018 passed in Criminal Case No. 52506 of 2013 and the judgment dated 12-08-2020 passed in Criminal application No. 2507 of 2018. Challenging the concurrent judgments and sentence for payment of Rs 10,00,000 rendered by the Courts below convicting the petitioner under Section 138 of the Negotiable Instruments Act, 1881, the petitioner prays for acquittal on the ground that the lower Courts have erred in appreciating the evidences placed on record in addition with according to the adequate opportunity of hearing to the petitioner/accused.

Issue

Whether the present petition under Section 397 CrPC maintainable?

Observation

The Court while redefining the scope and ambit of Section 397 noted,

“This Court in exercise of its power under Section 397CrPC cannot re-appreciate the evidence and arrive at a different conclusion, even if different view is possible from the evidence. The jurisdiction under Section 397 CrPC could be exercised only when the decision under challenge is grossly erroneous; non-compliance with the provisions of law; finding of fact affecting the decision is not based on evidence; non-consideration of the material evidence and that the lower court has exercised the discretion arbitrarily or perversely and acted in excess of its jurisdiction or abused its power resulting in failure of justice.”

The Court further said that no errors or illegality can be traced in the orders made by the lower court in the instant case. The argument made on the ground of inadequate hearing stands rejected as the records prove procedural compliance and stage of evidence.

Decision

Rejecting the present criminal revision petition at the admission stage itself, the Court found no reasons to interfere with the findings of the trial court, on both sentence and conviction.[K. Kuppuraj v. J. Thrilokamurthy,  Crl. Revision petition No. 606 of 2020, decided on 05-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., addressed a matter with regard to the settlement of divorce proceedings.

Parties in the present petition have deposed before the Court below that they have entered into a compromise.

Hence, in view of the above, the petition is taken for final disposal.

It has been observed that certain offences were non-compoundable and they were within the power of Magistrate to compound namely under Sections 498-A of Penal Code, 1860 and 3/4 of the Dowry Prohibition Act.

Section 498A: Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine

Section 3: Penalty for giving or taking dowry

Section 4: Penalty for demanding dowry

Further, it was noted that both the parties, i.e. the husband and wife and other family members settled the matter and decided to leave in peace after taking divorce.

The Court was of the view that the settlement between the parties should be accepted and the offence compounded. The decision of the Supreme Court in Bitan Sengupta v. State of W.B., (2018) 18 SCC 366 was referred.

Therefore, proceedings were quashed and settlement was recorded under Section 482 CrPC. In Supreme Court’s decision in B.S. Joshi v. State of Haryana, (2003) 4 SCC 675, it was observed that in matrimonial offences, it becomes the duty of the Court to encourage genuine settlement of matrimonial disputes.

Bench exercising its powers under Section 482 read with 397 of CrPC, 1973 permitted the parties to leave in peace.

Section 482 CrPC: Saving of inherent powers of the High Court.

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Section 397 CrPC: Calling for records to exercise of powers of revision

(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation.—All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

Court quashed the proceedings under Section 397 CrPC and allowed the petition.

The petitioner’s counsel pointed the orders passed by the Court below and hence the bench defied the proceedings if not yet defied. [Deena Nath v. State of U.P., 2020 SCC OnLine All 1057, decided on 23-09-2020]

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]