Case BriefsHigh Courts

Delhi High Court: Jyoti Singh, J., while addressing the maintainability and legality of a petition filed under Section 482 of Criminal Procedure Code, 1973 held that, legislature in its wisdom has provided for Appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 against all “orders” and has not made any exception to orders relating to custody.

Petition was filed seeking setting aside of the Order passed in complaint under the Protection of Women from Domestic Violence Act, 2005 by the Metropolitan Magistrate.

Due to a rift in the relationship of the husband and wife, respondent took away the three children to live with him under a separate roof.

Protection Order & Custody Orders

By way of the present petition, petitioner sought reliefs such as Protection Order under Section 18 of the Protection of Women from Domestic Violence Act, 2005.

Wife sought a restraining order against the respondent from dispossessing the wife from the shared household and monetary reliefs such as medical expenses and rentals including household expenses.

In line of reliefs, Custody Order with respect to the three children were also sought under Section 21 of the Act. Application for various interim reliefs was also sought under Section 23 of the Act.

Unhindered Access to Mother

Court noted that for the sake of emotional quotient and robust psychological health, the mother should be provided unhindered access, if not physically then through video conferencing and the same was granted on 24th April, 2020.

Magistrates’ Decision

Custody of children was directed to be continued with the father as an interim measure visitation rights were granted the wife.

Petition not maintainable

Respondent’s counsel, Bobby Anand submitted that petitioner has a remedy of an appeal under Section 29 of the Act, hence the present petition is not maintainable under Section 482 CrPC.

Advocate Malvika Rajkotia, for the wife submitted that, a mother is best suited to look after the needs of growing daughters, particularly, the sensitivities of their emotional needs and biological requirements.

She also submits that youngest daughter is under 5 years of age and it is a mandate under Section 6 of the Hindu Minority and Guardianship Act, 1956 that the child should be in care and custody of the mother.

Present Petition is maintainable in this Court as mere availability of alternate remedy cannot be a ground to disentitle the relief under Section 482 CrPC.

Analysis and Decision

Maintainability

Supreme Court has time and again spelt out clear restraints on the use of extraordinary powers and observed that the High courts should not go beyond those wholesome inhibitions unless the extraordinary circumstances cry for immediate and timely judicial mandate.

In the present matter, Court is not persuaded in to entertain the petition in its extraordinary power under Section 482 CrPC given the fact that there is a clear remedy of Appeal under Section 29 of the Act available.

Hence, facts and circumstances in the present matter do not call for any urgent intervention to permit the petitioner in bypassing the remedy available in the form of Statutory Appeal.

in view of the above, petition was dismissed.[Srisha Dinav Bansal v. Rajiv Bansal, 2020 SCC OnLine Del 764, decided on 20-07-2020]

Case BriefsHigh Courts

Karnataka High Court initiated suo motu proceedings to quash criminal complaint against a Civil Judge, Ballari District.

Absolute protection granted to Judicial Officers under Section 3 (1) of Judges (Protection) Act, 1985

Bench passed the present order for the initiation of suo-motu proceedings under Section 482 Criminal Procedure Code, 1973.

A complaint was filed under Section 200 CrPC to which Civil Judge and JMFC, Vijay Kumar S. Jetla is shown as the accused 1.

Allegation as placed in the complaint was that the said Judicial Officer and other 9 persons arraigned as accused is of commission of offences punishable under Sections 166, 205, 120-A, 211, 219 and 499 read with Section 34 of Penal Code, 1860.

The said complaint was filed to the Chief Justice of this Court. Grievances were as follows:

  • grievance with about grant of his custody for 14 days in remand proceedings.
  • dismissal of protest petition filed by complainant.

Secretary, Chief Justice responded to the complainant that the remedy available for his grievance is on judicial side.

Now at present the said complaint is said to be pending in the Court of Senior Civil Judge and JMFC .

Bench stated that in view of the absolute protection granted to the Judicial Officers under Section 3 (1) of Judges (Protection) Act, 1985, the complaint could not have been entertained and registered as against the Judicial Officer.

Court added that, if the complaint would have been allowed to proceed further, it would completely set at naught the protection granted to the Judicial Officers under Section 3(1) of the Judges (Protection) Act, 1985.

Hence, Registrar General has been directed to file a suo-motu Criminal Petition under Section 482 CrPC for quashment of private complaint on the file of Senior Civil Judge and JMFC only in so far as the first accused mentioned therein, who is the Judicial Officer.  [Suo-Motu Criminal Petition, decided on 21-07-2020]

Read the Order, here:

suomoto-criminal-petition-21072020

Case BriefsHigh Courts

Delhi High Court: Jyoti Singh, J., while addressing a matter with regard to “custody order” as being the primary relief, held that,

Legislature in its wisdom has provided for Appeal under Section 29 of the Act against all “orders” and has not made any exception to orders relating to custody.

Petitioner sought directions with regard to setting aside the Order passed by Metropolitan Magistrate under the Protection of Women from Domestic Violence Act, 2005.

Due to a rift in petitioner and respondent’s relationship it resulted into respondent taking away their 3 daughters under a separate roof.

Reliefs that petitioner was seeking for in the initial complaint under the said Act was “Protection Order” under Section 18 of the Act, “Custody Orders” under Section 21 of the Act. Along with the said complaint, an application under Section 23 for various other reliefs was also filed by the petitioner.

Metropolitan Magistrate had directed that the custody of the children would continue to remain with the father/respondent and as an interim measure visitation rights were granted to the petitioner.

Decision

Relying on several decisions of the High Court and Supreme Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303 it was found that,

“…Supreme Court has time and again spelt out clear restraints on use of extraordinary powers and observed that High Courts should not go beyond those wholesome inhibitions, unless the extraordinary circumstances cry for immediate and timely judicial interdiction or mandate.”

“Mentor of law is justice and a potent drug should be judicially administered.”

High Court held that it is not persuaded in the facts and circumstances of the present case, to entertain the petition in its extraordinary power under Section 482 CrPC, given the fact that there is a clear remedy of Appeal under Section 29 of the Act.

Argument — Matter related to custody of minor girls, remedy of appeal is not efficacious

Court put forth the reasons for not accepting the said argument and stated that,

  • Legislature in its wisdom has provided for Appeal under Section 29 of the Act against all “orders” and has not made any exception to orders relating to custody.
  • It is not shown why the Petitioner cannot resort to the remedy of an Appeal and why the Appellate Court is incapable of or incompetent to exercise its jurisdiction to deal with an impugned order of temporary custody, both in law and facts.

In view of the above reasons, petition was dismissed. [Sirisha Dinavahi Bansal v. Rajiv Bansal, 2020 SCC OnLine Del 764 , decided on 20-07-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma, J. allowed the petition observing that High Court has inherent power to quash criminal proceedings even in non compoundable cases, but such power is to be exercised sparingly and with great caution.

The brief facts of the case are that the respondent 2/complainant, namely Kuljeet Kumar, who alleged that on 27-9-2019 petitioner/accused, who had boarded HRTC Bus from Bus stand, Hamirpur, started abusing him and manhandled him and suffered injuries on his nose and mouth. By way of instant petition filed under Section 482 of the Code of Criminal Procedure, prayer has been made on behalf of the petitioner for quashing of FIR under Sections 353, 332 and 333 of Penal Code, 1860 on the basis of the compromise arrived inter se parties.

Counsel Vinod Kumar Thakur for the petitioners and Sudhir Bhatnagar, Kunal Thakur, Sunny Dhatwalia and Raj Kumar Negi stated before the Court that without any external pressure parties have entered into a compromise and have resolved to settle their dispute amicably inter se and have no objection in quashing the FIR. It was further submitted that due to compromise now, there are very bleak chances of conviction of the petitioner and as such, no fruitful purpose would be served in case FIR lodged sustains.

The Court relied on Supreme Court decision in Narinder Singh v. State of Punjab, (2014) 6 SCC 466 and State of T.N. v. R. Vasanthi Stanley, (2016) 1 SCC 376 and duly observed that the power conferred under Section 482 of CrPC is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. In view of the facts, arguments and settled position of law in the instant case that the matter has been compromised and the compromise being genuine, this Court accepted the compromise and quashed the FIR.

In view of the above, the petition was allowed. [Sumit Kumar v. State of H.P., 2020 SCC OnLine HP 436, decided on 16-03-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia, J. quashed the FIR to meet ends of justice and prevent the abuse of the process of the Court.

The brief facts of the case are that on 27-01-2019, respondent 2 boarded a private bus at village Dharla, District Mandi, which was coming from Karsog to Shimla. On alighting the bus at 11:30 a.m at Talland, Shimla another bus also stopped at the same stop, which was coming from Karsog. When he was standing near traffic police post all of sudden, driver of latter mentioned bus turned the bus and drove over his left foot, consequent to which he received simple as well as grievous injuries. Consequently, FIR was lodged under Sections 279, 337 and 338 of the Penal Code, 1860 dated 27-01-2019, against the petitioner. Later, respondent 2 entered into a compromise stating not intending to pursue the case further. Hence, the present petition was filed under Section 482 CrPC to quash the FIR.

The counsel for the petitioner, Inder Sharma submitted that as parties have compromised the matter, the proceedings will serve no purpose and the FIR can be quashed and set aside.

Shvi Pal Manhans with P.K. Bhatti for respondents argued that the offence is not compoundable, so the petition may be dismissed. The counsel for respondent 2, Nitish Negi agreed on the same.

The Court relied on various judgments, prominent being Parbatbhai Aahir v. State of Gujarat, (2017) 9 SCC 641 and observed Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers and only recognizes and preserves powers which inhere in the High Court. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.

In view of the above, FIR was quashed and the petition was disposed of. [Shivesh Dutt v. State of H.P., 2020 SCC OnLine HP 423, decided on 13-03-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Ravindra Maithani, J., dismissed an appeal filed under Section 482 of the Code of Criminal Procedure, 1973 against the order passed in Criminal Revision No. 66 of 2016, Hemant Chaudhary v. Poonam Rani.

Respondents had filed complaint against the petitioners for the offences punishable under Sections 120B, 406, 420, 384, 504 and 506 of Penal Code, 1860 according to which petitioner’s 2 and 3 had persuaded the respondent 2 to marry with petitioner 1 and very hurriedly both were got married and after marriage respondent 2 noticed that petitioner 1 would speak to some person at odd hours and after inquiry, it was found that the petitioner was already married and a complaint was made and the trial court had dismissed the complaint which was yet again challenged in criminal revision where the trial court had directed to take the matter afresh.

The Court while dismissing the petition relied on the evidence that had been presented like that of the photographs and recorded the conversation and also the admission of the petitioners of the fact that the petitioner was already married thus the trial court was right in observing that an offence punishable under Section 494 was committed.[Poonam Rani v. State of Uttarakhand, 2020 SCC OnLine Utt 82, decided on 03-01-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Madhav J. Jamdar and Sunil B. Shukre, JJ., while invoking its power under Section 482 of Code of Criminal Procedure, 1973 observed that,

“Essential requirement of Section 494 of Penal Code, 1860 is that the person committing the offence must have married another woman or man during subsistence of his or her first marriage.”

 Applicant sought quashing of proceedings for offences punishable under Sections 498A and 494 read with Section 34 of Penal Code, 1860 at a Police Station, Nagpur on the basis of the complaint filed by Respondent 2.

Counsel for the applicant, S.V. Sirpurkar submitted that none of the above-stated offences can be constituted by accepting the entire contents of the complaint filed by respondent 2.

Additional public Prosecutor, T.Z. Mirza submitted that ingredients necessary for constituting the offences of cruelty and marrying again during lifetime of the husband or wife respectively punishable under Sections 498A and 494 of IPC are a matter of record.

Point of observation in the present case is that the dispute is not that applicant is a woman who had married for the first time with the husband of respondent 2. From the viewpoint of the applicant, this is not a case wherein she could be alleged to have married again during the lifetime of her husband.  Therefore, offence under Section 494 IPC could not be said to be constituted in the present case as against the applicant.

High Court stated that on perusal of the complaint and material available, it is to be noted that

“…there is not even a whisper of allegation of cruelty made against the applicant.

The allegation that can be found is that she performed marriage with the husband of respondent 2 during the subsistence of her marriage with Jitendra and for the said allegation no offence punishable under Section 494 of IPC can be constituted.

Hence, the bench considered the present case to be appropriate to invoke its powers under Section 482 of CrPC to prevent abuse of process of law. [Rekha v. State of Maharashtra, 2020 SCC OnLine Bom 291, decided on 13-02-2020]

Case BriefsHigh Courts

Karnataka High Court: P.G.M. Patil, J. heard a Criminal Petition under Section 482 of Code of Criminal Procedure, 1973 appealing to quash Judicial Magistrate First Court’s (JMFC), Hubballi order which resulted in registering of cases under Sections 307, 120 (B), 114 of Penal Code (IPC), 1860 and under Section 25 of Arms Act, 1959.

The petitions were filed by Vijay and Dr Mallikarjun, two of the accused in the above-mentioned Crime Number. On the night of 10-12-2007, the complainant’s husband Dr Shivanand Doddamani was shot by two people. The victim was called out citing a medical emergency. Later on 11-12-2007, the police station of Vidyanagar registered under Sections 307, 120 (B), 114 of IPC and Section 25 of Arms Act, 1959. The police submitted the ‘C’ report and it was accepted by JMFC against accused 1 and 3 and rejected for accused 3, 5 and 6. Accused 4 and 7 were discharged. The High Court heard two petitions filed by accused 3 and 6 under Criminal Petition Number 101613/2017 and 101612 respectively.

The counsel for petitioners K.S. Patil, R.V. Naik and G.R. Gurumath submitted that trying accused 3 and 6 after accepting C report against accused 1 and 2 was a futile exercise. They also submitted that the guidelines mentioned under Selvi v. State of Karnataka, (2010) 7 SCC 263 had not been followed while subjecting the petitioners to Narco analysis tests and other tests as the consent was not taken, the lawyer was not present during the tests. They also relied on the judgments in Veerappa v. Bheemareddappa, 2001 SCC OnLine Kar 447 in the support of the contentions made by them. They further submitted that the petitioners were not alleged but were merely suspects. They prayed to quash the orders of JMFC.

The Counsel appearing for respondents, S.S. Naik and M.H. Patil submitted that the petition should have been filed under Section 227 of CrPC. instead of filing under Section 482 CrPC. Also, the Counsel supported the C report.

The Court observed that the impugned order was passed based on Polygraphy Test, Brain Mapping Test and Narco Analysis Test. Therefore, it has to be considered that whether all the guidelines in paragraph 263 of the judgment of Selvi v. State of Karnataka case were followed by the investigating officer and independent agency or not. The report did not state that the guidelines have been followed; therefore the Court found it clear that none of the guidelines mentioned by Court in the aforesaid case has been followed. The Court also observed that Magistrate should not have relied on such a report which has no evidentiary value. The Court opined that in the absence of the main culprits who had shot the victim, initiating criminal proceedings against the petitioners would amount to an abuse of law.

Therefore, the Court quashed the impugned order and allowed the petition. [Vijay v. State of Karnataka, 2020 SCC OnLine Kar 98, decided on 10-01-2020]

Case BriefsHigh Courts

Delhi High Court: Rajnish Bhatnagar, J., dismissed a petition filed against the order of the Sessions Court whereby it had dismissed the review petition filed by the petitioners against the order of the Metropolitan Magistrate taking cognizance of offences under Section 138 and Section 141 of the Negotiable Instruments Act, 1881, against the petitioner.

The respondent company instituted a complaint under Section 138 read with Section 142 against the petitioners in respect of non-payment against the four dishonoured cheques for the total amount of Rs 16 crores issued on behalf of and/or by petitioner company in favour of the respondent’s company. The Metropolitan Magistrate had passed an order taking cognizance. Aggrieved, the petitioners filed a revision petition before the Sessions Court, which was dismissed. The petitioners now invoked the jurisdiction of the High Court under Sections 482 CrPC (inherent powers).

It was contended by the petitioners that the demand notice was defective as the demand had been made over and above the cheque amount and the legal demand notice was vague and ambiguous. Rejecting this point, the High Court held that the notice should be read as a whole. The perusal of the notice clearly set out the details of the cheque which had been dishonoured, so it could not be said that the demand made was ambiguous or in any way confusing the petitioners as there was no denial that the cheque in question were not issued or that they were not dishonoured for insufficient funds.

Besides the above point, a procedural issue arose as to whether the petitioners having availed of the remedy of revision should be allowed to take recourse to Section 482 CrPC as a substitute for virtually initiating a second revisional challenge or scrutiny which is clearly barred under Section 397(3) CrPC.

Perusing various provisions of the Negotiable Instruments Act, the High Court observed: “The provisions of Sections 142 to 147 lay down a Special Code for the trial of offences under Chapter 17 of the NI Act.” Reliance was placed on the Supreme Court decision in Mandvi Coop. Bank Ltd. v. Nimesh B. Thakore, (2010) 3 SCC 83, which held that the provisions of Sections 143, 144, 145 and 147 expressly depart from and override the provisions of CrPC, the main body of adjective law for criminal trials.

In the instant case, Court did not find any material which could be stated to be of sterling and impeccable quality warranting invocation of the jurisdiction of the High Court under Section 482 CrPC at this stage. More so, the defence as raised by the petitioners requires evidence, which could not be appreciated, evaluated or adjudged in the proceedings under Section 482. The petitioners, therefore, could not be allowed to take recourse to Section 482 as a substitute for initiating a second revision petition when there was nothing to show that there is a serious miscarriage of justice or abuse of the process of law.

Accordingly, the court found no infirmity in the order passed by the Session Judge and, therefore, dismissed the petition. [Tathagat Exports (P) Ltd. v. PEC Ltd., 2020 SCC OnLine Del 405, decided on 20-01-2020]

Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J. dismissed a petition praying for quashing the criminal proceedings against the petitioner initiated under Section 482 of the Code of Criminal Procedure, 1973 when a simultaneous arbitration proceeding was going on against the petitioner in a civil court.

The petitioner was a surety for one, M.L. George, who had subscribed for four of the respondent company’s chitties and defaulted in paying a certain balance amount. As surety for George, the petitioner was supposed to pay the balance amount to the respondent company on his default. The petitioner failed to pay the amount owed by Mr George to the respondent company and hence a complaint was filed against the petitioner under Section 138 of the Negotiable Instruments Act, 1881.

The counsels for petitioner P.V. Kunhikrishnan and P.V. Anoop contended that the averments in the complaint do not constitute the ingredients of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. Further, it was contended that the initiation of the arbitration proceedings at the instance of the respondent affected the maintainability of the complaint filed against the petitioner for an offence punishable under the Negotiable Instruments Act, 1881.

The Court did not find any merit in the contentions of the petitioner and hence rejected the petitioner’s contentions. Reliance was placed on the case of Sri Krishna Agencies v. State of A.P., (2009) 1 SCC 69 where the Supreme Court, setting aside the order of the High Court for quashing proceedings under Section 138 of the Negotiable Instruments Act, 1881, on the grounds of simultaneous arbitration proceeding, held that disputes to arbitration could not be an effective substitute for a criminal prosecution when the disputed act is an offence. It must, however, be elementary that the two are based on the independent cause of action.

Hence, the Court consequently dismissed the petition and allowed both criminal and civil proceedings simultaneously against the petitioner. [Bindhu A.V. v. Sree Gokulam Chit And Finance Co. (P) Ltd., 2020 SCC OnLine Ker 198, decided on 17-01-2020]

Case BriefsHigh Courts

Allahabad High Court: Dinesh Kumar Singh, J. was hearing a petition filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter mentioned as CrPC) in the High Court of Judicature at Allahabad pertaining to the complaint filed by the petitioner. 

The petition has been filed by The Group Editor, The Local Editor, and The Press Reporter, Sahara India Mass Communication, Lucknow impugning the orders of summoning by Additional Chief Judicial Magistrate in Case No. 221 of 2010, Ramveer Upadhaiya v. Jaibrat Roy. The case was regarding a news article published by Rashtriya Sahara on 11-09-2009, based on a letter written by Mr Krishan Gopal on behalf of the Chief Minister to Mr J.N. Chamber and a subsequent letter to Mr Navneet Sehgal asking for inquiry over-demanding of Rupees 10 lakhs by respondent 2 (Minister) from Mr R.K. Kashyap, Chief Engineer, Western Electricity, failure in fulfillment of what led to his transfer and his suspension subsequently. Mr. Kashyap later in 2 letters denied allegations over the minister and withdrew his role in the letter writing. 

The petitioner submitted that the article published in ‘Rashtriya Sahara’ on 11-09-2009 was preceded by a similar kind of article published in daily Hindi newspaper ‘Deshbandhu’ and it contained statements made by several political leaders. Later, Mr O.P. Rai, on behalf of the complainant sent a letter to Rashtriya Sahara stating that Mr Kashyap has not given any complaint against the minister. The same was published on 22-10-2009.

The respondent submitted that the petitioners have published the aforesaid news item with an intention to malign the image and reputation of respondent 2 and of the State Government.

The Court held that it is the duty of the press to expose the government and its functionaries. If the press is put under the threat of prosecution, it can not perform its duty and thus the rights granted under Article 19(1)(a) of the Constitution of India is violated. And also the Court took note of the article published in another Hindi daily ‘Deshbandhu’ and if the newspaper had not published the article it would violate its duty. The Court also held that the complaint on behalf of the minister has should be filed through a Public Prosecutor in the Court of Session.

The Court opined that to constitute the offence of defamation under Section 499 of Penal Code, 1860 there has to be imputation, and it must have been made in the manner with intention of causing harm or having reason to believe that this imputation will harm the reputation of a person. It was held that the article is not defamatory and that the complaint is not maintainable before the Additional Chief Judicial Magistrate and hence the petition is allowed. [Ranvijay Singh v. State of Uttar Pradesh, Case No. 284 of 2013, decided on 20-12-2019]

Case BriefsHigh Courts

Sikkim High Court: Arup Kumar Goswami, CJ. quashed a criminal case under Section 482 of the Code of Criminal Procedure, 1973.

In the present case, the respondent filed an FIR as the petitioner insulted the respondent, where there was a possibility of her getting hit. A case was registered under Sections 186, 353, 509 of the Penal Code, 1860. At the time of trial, the Sessions Judge held that there was no material to frame charge under Section 506 of IPC and the said petition was modified. The petitioner also filed a Private Complaint in a police station against the respondent which was pending in the Court of Judicial Magistrate. The respondent filed a revision application to stop the court from summoning her which was dismissed.

Advocate, Simeon Subba appearing on behalf of the petitioner submitted that the parties had resolved their differences and a deed of compromise was entered into by and between them which stated that the petitioner will withdraw the Private Complaint Case and the respondent will not object to the application filed by the petitioner. Therefore, the General Registered Case pending in the Magistrate’s Court should be quashed.

Jorgay Namka, Advocate appearing on behalf of the respondent also submitted the same.

The High Court with respect to the above observed that the petitioner was facing charges under Sections 186, 290 and 353 of the IPC which were non-compoundable offences. The Court further relied on the case of Gian Singh v. State of Punjab, (2012) 10 SCC 303 where it was held that a Court can quash proceedings in a non-compoundable proceeding where it is of the opinion that continuation of the criminal proceedings will be pointless and against the process of securing justice. The Supreme Court also cautioned that such power is to be exercised keeping in mind the nature and gravity of the crime.

Further, adding to its observation, the High Court, said that the offence was not heinous and serious and since the parties had amicably resolved their differences, it would be against the interest of justice to not quash the criminal proceeding against the petitioner and therefore, the case was quashed. [Krishna Lall Timsina v. Kanu Priya Rai, 2019 SCC OnLine Sikk 196, decided on 02-12-2019]

Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J., addressed an application that sought to quash criminal proceedings under Sections 420, 468, 471 of Penal Code, 1860 and Section 66(D) of Information Technology Act pending in Judicial Magistrate Court.

In the present matter, a complaint was lodged against the applicant that he committed forgery for purpose of cheating by using as genuine the forged and fraudulent document with the intention to cause damage to the Trust and hacked the information stored in the computer.

A charge-sheet was submitted by against the applicant in respect of selfsame offences. Further, Magistrate took cognizance and summoned the applicant to face the trial in respect to the mentioned offences.

Siddhartha Singh, applicant for the counsel submitted that the applicant was an old trustee and was appointed as the President of Kailashanand Mission Trust. He submitted that proceedings against the applicant are nothing but the outcome of the revengeful activity of the complainant and his associates. Complainant concealed the fact of the applicant being the President of the Trust and went on to lodging an FIR against him in the name of him being an “Unknown Hacker”.

According to the applicant’s counsel, the entire proceedings are nothing but an abuse of process of law and Court.

Senior Advocate, Rakesh Thapliyal on behalf of the complainant due to nefarious activities of the applicant, Swami Kailashanand was annoyed with him and by way of a resolution of trust, he cancelled all rights of the applicant and even removed him from the post of Manager of Trust.

He further submitted that various complaints were filed against the applicant for forging Trust’s letter pad, seals and receipt book and resolutions.

Applicant’s Counsel while relying on the Supreme Court case in, International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) v Nimra Cerglass Technics (P) Ltd., (2016) 1 SCC 348, argued that in order to bring a case for offence of cheating, it is not merely sufficient to prove that a false representation was made, but it is further necessary to prove that the representation was false to the knowledge of accused and was made in order to deceive complainant.

According to the ruling in Supreme Court case of Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, in which certain principles in respect of exercise of jurisdiction under Section 482 CrPC are laid down, one of the principles which hold significance in the present matter is following:

“…Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not.”

Thus, in the present matter, High Court stated that in view of the above, a bare perusal of FIR as well as the charge sheet, it is apparent that foundation of criminal offence is laid against the applicant. Jurisdiction under Section 482 CrPC should not be exercised to stifle or scuttle the legitimate prosecution. Court stated that in the present case, this is not the stage to quash the charge sheet.

Hence, Since, prima facie case is made out against the applicant, the Magistrate has rightly taken cognizance and summoned the applicant to face the trial in respect of the offences complained of against him. [Vijay Kumar Gupta v. State of Uttarakhand, Criminal Misc. Application No. (C-482) No. 1087 of 2016, decided on 18-12-2019]

Case BriefsHigh Courts

Delhi High Court: Brijesh Sethi, J., while stating that,

“Rape not only causes serious injury to a woman’s body, her honour and dignity and even if such an offence is settled by the offender and victim, this offence being not private in nature but has a serious impact on the society and, therefore, cannot be quashed.”;

dismissed the petition filed with respect to the quashing of FIR and the proceedings emanating therefrom.

The present petition was filed for quashing of FIR under Sections 376 and 380 of the Penal Code, 1860 and the consequential proceedings emanating therefrom.

Background of facts

Petition pleaded that respondent 2 had met the petitioner on account of a professional assignment and thereafter they kept meeting each other regularly and got romantically involved. Respondent 2 entered into a live-in relationship with the petitioner. 

An altercation took place between the petitioner and respondent 2 and the petitioner left respondent 2. Respondent 2 filed a complaint thereafter against the petitioner which culminated into the aforesaid FIR. 

The fact to be noted is that, during the course of the trial, the marriage of the petitioner and respondent 2 was solemnized. However, on account of some differences and misunderstandings, the trial proceedings continued. Upon the intervention of friends the dispute between both resolved by way of the settlement deed. 

Further, respondent 2 gave her ‘No Objection’ affidavit for quashing of the aforesaid FIR and all proceedings emanating therefrom. 

Conclusion

High Court on perusal of the facts and circumstances noted that the FIR under Sections 376 and 380 IPC was registered on the basis of the statement made by complainant/respondent 2 wherein she mentioned about her emotional, physical, mental and sexual abuses at the hands of the petitioner.

Further, the question that arose for consideration was whether the fact that the parties got married and had settled the dispute should be a reason good enough to quash the FIR registered under Section 376 and 380 IPC and consequential proceedings emanating therefrom.

In the Supreme Court decision of Parbathhai Aahir v. State of Gujarat, 2017 SCC Online SC 1189, it was held that scope of power of the High Court under Section 482 CrPC to quash the criminal proceedings on the basis of settlement in a heinous or serious offence is limited.

In Narinder Singh v. State of Punjab, Criminal Appeal No. 686/2014, the Supreme Court held that in respect of offences against society, it is the duty of the state to punish the offender. In consequence, deterrence provides a rationale for punishing the offender. Hence, even when there is a settlement, the view of the offender and victim will not prevail since it is in the interest of the society that the offender should be punished to deter others from committing a similar crime.

Even in the Supreme Court decision of Gian Singh v. State of Punjab, (2012) 10 SCC 303 Court held that the settlement in cases where nature of offence is heinous /serious like murder, rape and dacoity, the criminal proceedings cannot be quashed even if they are settled by the accused and the victim, by invoking the jurisdiction of High Court under Section 482 CrPC.

In the present case, it is the case of the respondent 2 that she was deceived by petitioner and sexual relations were established on the pretext of false promise of marriage and she was, thus, subjected to emotional, physical, mental and sexual abuse and therefore applying the ratio laid down in the above-cited cases, offence committed by petitioner clearly falls under the category of heinous and serious one.

Thus, in Court’s opinion, the FIR and proceedings emanating therefrom cannot be quashed. [Ananda D.V. v. State, 2019 SCC OnLine Del 11163, decided on 14-11-2019]

Case BriefsHigh Courts

Allahabad High Court: Ram Krishna Gautam, J., dismissed this Application moved under Section 482 CrPC for being devoid of merits.

Counsel for the applicant, Nabi Ullah argued that a certain amount of money was advanced to the complainants and when demanded back false accusations were leveled against him and subsequently got lodged under Sections 354, 323 and 504 of the Penal Code. Moreover, there was no injury nor any such occurrence ever occurred. Thus, this Application, under Section 482 CrPC, a prayer for the exercise of inherent power by this Court for setting aside summoning order as well as an entire criminal proceeding of complaint case, was made by the applicants.

AGA, representing the State of U.P., had opposed this Application. It was submitted that the complaint was made right as the offences occurred. There is no precedent of having a medico-legal report because the ingredient of physical assault with the complainant was there, and a complaint can be made without there being any medico-legal report.

After analyzing the submission of the parties, the Court observed that previous proceedings filed by the accused persons reveals that there were intimate relation between the parties, but because of demanding back of money, advanced, this case came to be filed. Meaning thereby, both sides were acquainted with each other, but merely taking the ground of demanding back of money advanced, the applicants cannot seek the indulgence of this Court, for the exercise of inherent power, under Section 482 of CrPC. Moreover, it is not expected from this Court to meticulously analyze evidences at this juncture, rather it is a question to be decided at the time of trial by the Trial court.

Meaning thereby this inherent power is with High Court (i) to make such order as may be necessary to give effect to any other order under this Code (ii) to prevent abuse of the process of any Court (iii) or otherwise to secure the ends of justice. 

The Court observed the views in certain judgments of the Supreme Court. In State of A.P. v. Gaurishetty Mahesh, JT 2010 (6) SC 588 – While exercising jurisdiction under section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable apprehension of it accusation would not be sustained. That is the function of the trial Judge/Court.

In Popular Muthiah v. State, (2006) 7 SCC 296 Supreme Court had observed that “High Court can exercise jurisdiction suo motu in the interest of justice. It can do so while exercising other jurisdictions such as appellate or revisional jurisdiction. No formal application for invoking inherent jurisdiction is necessary. Inherent jurisdiction can be exercised in respect of substantive as well as procedural matters. It can as well be exercised in respect of incidental or supplemental power irrespective of nature of proceedings”. [Santosh v. State of U.P., Application U/S 482 No.  31442 of 2019, decided on 21-10-2019]

Case BriefsHigh Courts

Allahabad High Court: Applicant filed an application under Section 482 of Criminal Procedure Code which was contemplated by Dinesh Kumar Singh, J. where the prayer was to quash the Charges under certain Sections of Penal Code, 1860.

The applicant was charged under Sections 366, 376, 328, 506, 406 of IPC, in which the Chief Judicial Magistrate had taken cognizance. Santosh Yadav, counsel for the applicant argued that the accused was falsely implicated by the respondent-complainant who was the mother of the victim, the main reason cited by the counsel behind such baseless complaint was alleged desire to the victim to marry applicant. The counsel submitted the statements of the complainant and highlighted that she had stated that ‘she suspected the involvement of accused in the instant case.’ Another issue highlighted was alleged kidnapping by the accused-applicant, it was submitted that the victim was never abducted as she herself went to the police station to register the complaint. The attention of the Court was also drawn towards the other statement of the victim, recorded under Section 161 of CrPC. where the allegation of rape had been made upon the accused applicant who after committing rape had given assurance to marry her and subsequently when she asked to marry he committed assault and refused to marry.  In addition to these aforementioned evidences the applicant submitted an injury report, where it was stated that no marks to injury were found on the victim. Lastly, it was submitted by the learned counsel for the applicant that many facts were ignored by the Investigating Officer and the charge-sheet had been submitted in a routine manner, which was nothing but an abuse of the process of Court and in the interest of justice, the charge sheet deserved to be quashed.

Bhaiya Ghanshyam Singh, Advocate General for the state, had vehemently opposed the prayer for quashing of the charge- sheet and had stated that the evidence which was collected by the Investigating Officer cannot be looked into in this Application under Section 482 CrPC as the same will be required during the trial. It was submitted that High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of CrPC. “because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties.”

The Court held that the Investigating Officer had recorded the statements of as many as five witnesses have submitted the charge-sheet. It further opined that “the truthfulness of the statements of the witnesses cannot be scrutinized in Application under Section 482 CrPC” The Court relied upon the Judgment in Anurag Singh v. Chhatisgarh, 2019 SCC OnLine SC 509, where the Supreme Court had held that ‘position of law, was apparent that whether accused wanted to marry the victim right from very beginning or not and whether consent given by victim for sexual intercourse was a free-consent or not, was a subject matter of evidence, which is only possible to be decided after trial.’

Hence, the prayer for quashing the FIR was refused and the application was dismissed.[Kamal Pal v. State of U.P., 2019 SCC OnLine All 3539, decided on 25-09-2019]

Case BriefsHigh Courts

Allahabad High Court: Rekha Dikshit, J. while disposing of this petition granted petitioners time to surrender and apply for bail so that the same shall be considered and disposed of expeditiously in accordance with law and in terms of law laid down in the case of Lal Kamlendra Pratap Singh v. State of U.P., (2009) 4 SCC 437.

This petition was filed with a prayer to quash the impugned charge sheet of 28-12-2018, under Sections 147, 323, 504, 506, 427,452, 354-B and 120-B Penal Code, 1860 including the entire proceeding.

Prashant Shukla and Aditya Kumar Maurya, Counsels for the petitioners submitted that FIR was lodged on false and fabricated facts and that the petitioners have falsely been implicated in this case. It was further submitted that petitioners are ready to surrender before the court below with some protection granted to them.

The Additional Government Advocate opposed this petition.

In regard to the particulars of the petition and submission of the parties, the Court observed that the power under Section 482 CrPC is not to be exercised in routine manners so as to cut short the entire process of trial before the Courts below, but it is for limited purposes. It could be either exercised to give effect to any order under the Code, or to prevent abuse of process of any Court or otherwise to secure ends of justice. The power cannot be placed in straight jacket formula.

If an FIR or complaint discloses any offence at all or it is frivolous, collusive or oppressive from the face of it, the Court may exercise its inherent power under Section 482 CrPC but it should be exercised sparingly. Some cases were referred to in support of the above: State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, Popular Muthiah v. State, (2006) 7 SCC 296, Hamida v. Rashid, (2008) 1 SCC 474, and a few others.

However, the Court observed that Police has found a prima facie case against accused and submitted the charge-sheet in the Court below and after an investigation found a prima facie case of commission of a cognizable offence by the accused which should be tried in a Court of Law. At this particular stage, there is no occasion to look into the question, whether the charge ultimately can be substantiated or not since that would be a subject matter of trial. No substantial ground was made out which may justify interference by this Court under Section 482 CrPC.[Mahboob Khan v. State of U.P., 2019 SCC OnLine All 3196, decided on 30-08-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia, J. entertained a writ petition filed under Section 482 of CrPC for quashing FIR registered under Sections 376,366 and 506 of IPC.

The facts of the case were that the petitioner had a relationship with a woman who was already married to one Roshan Lal. It was the story of the petitioner that the woman had a strained relationship with her husband and she was about to get divorced and then get married to the petitioner. Subsequently to execute their plan they left their native place and the woman admitted that she did not want to return as there was a threat to her life as her husband and relatives warned her of dire consequences. The woman had in favour of petitioner filed an affidavit where she swore that she willfully left the company of her husband and went along with the petitioner. Meanwhile, the husband- complainant filed a missing report. When the woman returned, FIR was filed against the petitioner where the woman accused him of rape and kidnapping along with other charges.

The petitioner contended that the parties have compromised the matter and an affidavit was filed for the same. The petitioner further submitted that the woman had mentioned in the affidavit that the FIR was filed under coercion from her husband and she was forced to do it. Hence, the petitioner requested that the husband himself had compromised the matter and did not want to pursue the case further, thus, he sought to quash FIR. Learned counsel for the petitioner had argued that as the parties had compromised the matter, no purpose was served by keeping the proceedings against the petitioner.

On the other hand, the counsel for the State argued that since the offence was not compoundable in nature, the petition should not be dismissed.

The Court noted that the Supreme Court in B.S. Joshi v. State of Haryana, (2003) 4 SCC 675, had held that, “if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. It is well settled that the powers under section 482 have no limits. Of course, where there is more power, it becomes necessary to exercise utmost care and caution while invoking such powers.” A similar case where the Supreme Court had observed thatultimate object of justice is to find out the truth and punish the guilty and protect the innocent. The tendency of implicating the husband and all his immediate relations is also not uncommon. At times, even after the conclusion of the criminal trial, it is difficult to ascertain the real truth. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. The criminal trials lead to immense sufferings for all concerned.”

Hence, the Court took into consideration the case laws already decided by the Supreme Court on similar law points and found the case fit for exercising power under Section 482 CrPC. Thus, FIR was quashed and the petition was disposed of.[Sunny v. State of Himachal Pradesh, 2019 SCC OnLine HP 1350, decided on 27-08-2019]

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Himachal Pradesh High Court: Vivek Singh Thakur, J. contemplated a petition filed under Section 482 of CrPC, where the petitioner arrived at a compromise with the respondent for quashing of the FIR filed under Sections 279 and 337 of IPC along with allegations under Motor Vehicle Act, 1988.

Factual matrix of the case was that the complainant-respondent was crossing the road and he was hit by a motorcycle which was driven by the petitioner. The complainant fell unconscious and he did not know the main cause of the accident. He subsequently lodged an FIR on the basis of the information which was supplied by the people present at the site of the accident. The contention of the complainant was that it is not known to him that how the accident had occurred and as to whether petitioner was at fault or not and that after the accident petitioner along with his family had approached him in his village and had taken care of his injuries and further that petitioner was a young graduate engineer and even if had it been fault on his part, he would have forgiven him, as he was feeling guilty for hitting him with his Motor Cycle, therefore, he did not intend to continue criminal proceedings against him and had prayed for compounding the case.

The submissions of the petitioner had also been made he had stated that he was feeling guilty for hitting the complainant and therefore had repentance for the same and had apologized to the complainant, who had agreed to forgive him. He undertook to be more careful in the future. He further deposed that at the time of the accident he was not in possession of documents of the vehicle as well as driving license, but now he possesses the same. He had also stated that he has deposed in the Court out of his free will, consent and without any coercion, pressure or threat.

But the main issue in the instant petition was that the State contended that accused was not entitled to invoke inherent jurisdiction of this Court to exercise its power on the basis of compromise arrived at between the parties with respect to an offence not compoundable under Section 320 CrPC, reliance was placed on Gian Singh v. State of Punjab, (2012) 10 SCC 303, where the Supreme Court explained the power of the High Courts under Section 482 CrPC. and had held that, “these powers are to be exercised to secure the ends of justice or to prevent abuse of process of any Court and these powers can be exercised to quash criminal proceedings or complaint or FIR in appropriate cases where offender and victim have settled their dispute and for that purpose no definite category of offence can be prescribed.” However, it was also observed that Courts must have due regard to nature and gravity of the crime and criminal proceedings in heinous and serious offences or offence like murder, rape and dacoity, etc. should not be quashed despite victim or victim family have settled the dispute with the offender. Jurisdiction vested in High Court under Section 482 CrPC is held to be exercisable for quashing criminal proceedings in cases having overwhelming and predominately civil flavor particularly offences arising from commercial, financial, mercantile, civil partnership, or such like transactions, or even offences arising out of matrimony relating to dowry, etc., It was also held that no category or cases for this purpose could be prescribed and each case has to be dealt with on its own merit but it is also clarified that this power does not extend to crimes against society.

The Court observed that though Section 279 is not compoundable under Section 320 of CrPC, however the contentions in Gian Singh’s case where the power of the High Court under Section 482 CrPC was not inhibited by the provisions of Section 320. the Court further observed that the type of offence dealt in the instant petition was not expressly barred or prohibited by the general view for compounding hence, the petition was allowed. [Rohit v. State of Himachal Pradesh, 2019 SCC OnLine HP 1333, decided on 22-08-2019]

Case BriefsHigh Courts

Allahabad High Court: Sanjay Kumar Singh, J. while allowing the application under Section 482 CrPC observed that even the law provides that it may not be necessary for every criminal offence to mete out punishment, particularly, if the victim wants to bury the hatchet.

In the instant case, applicant 1 is the husband and applicant 2 is the brother-in-law of opposite party 2 (OP). Due to non-fulfilment of dowry demands, OP was tortured, beaten and harassed and thereby made OP lodge an FIR against the applicants, her father-in-law and sister-in-law.

On the request of applicants, time was granted to them to make arrangement of payment to settle the dispute amicably. Afterwards, a joint affidavit was filed by the applicants and OP submitting that they have settled their matrimonial dispute outside the Court and they have no grievance against each other. The settlement was based on certain terms and conditions like OP will receive an amount of Rs 22 lakh from applicant 1 and would not prosecute each other or family members with regard to present matrimonial dispute between them.

After observing the submissions of the parties, the Court looked into some relevant judgments of the Supreme Court where guidelines for quashing of criminal proceedings on the basis of compromise and amicable settlement of the matrimonial dispute between the parties concerned was laid down.

In Madhavrao Jiwajirao Scindia v. Sambhaji-Rao Chandrojirao Angre, (1988) 1 SCC 692, it was laid down that the inherent power under Section 482 CrPC should be used where special features appear or it is expedient and in the interest of justice to permit a prosecution to continue.

In G.V. Rao v. L.H.V. Prasad, (2000) 3 SCC 693, the Supreme Court made some apt observations in relation to matrimonial disputes. Little matrimonial skirmishes suddenly escalate which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved. Instead of fighting out in the Court, the parties should amicably terminate their disputes.

In Swati Verma v. Rajan Verma, (2004) 1 SCC 123 similar to the present case, the Supreme Court had quashed the criminal proceedings under Sections 498A and 406 IPC before the CJM as the divorce litigation between the sparring spouses was decided on the basis of a compromise.

With these cases referred and a few others, the Court observed that If the offender and victim want to move on in matrimonial cases, they may be allowed to compound the offences in terms of the settlement.[Alok Jaiswal v. State of U.P., Application u/s 482 No.  27720 of 2019, decided on 08-08-2019]