section 482 crpc

Case BriefsHigh Courts

Delhi High Court: Rajnish Bhatnagar, J., expressed that the Court in the exercise of its jurisdiction under Section 482 CrPC cannot go into the truth or otherwise of the allegations made in the complaint or delve into the disputed question of facts.

Petitioner was a proprietorship and a civil and structural contractor carrying on its business in various states of the country.

As per the agreement between the petitioner and respondent, the petitioner was required to provide undated security cheque to the respondent to cover the full value of the material supply.

It was stated that 5 undated security cheques totalling an amount of Rs 63,00,000 and one current dated cheque amounting to Rs 2,63,700 were prepared. Further, the petitioner also sent an email to the respondent attaching the scanned copies of the cheques. After which the work started and during the course of work, the respondent asked for monies and on that basis, the petitioner issued a cheque which was returned by Bank.

In view of the above, a legal notice was sent out demanding the said amount, then the petitioner responded that it would make the necessary payment. Failing to which a complaint was filed by the respondent under Section 138 NI Act. Additional Chief Metropolitan Magistrate, Saket summoned the petitioner.

On being aggrieved with the above, an instant petition was filed.

Analysis, Law and Decision

Once a cheque is issued by a person, it must be honored and if it is not honored, the person is given an opportunity to pay the cheque amount by issuance of a notice and if he still does not pay, he is bound to face the criminal trial and consequences.

Can High Court step into the shoes of the Metropolitan Magistrate?

The High Court cannot usurp the powers of the Metropolitan Magistrate and entertain a plea of an accused, as to why he should not be tried under Section 138 NI Act. The said plea, as to why he should not be tried under Section 138 NI Act is to be raised by the accused before the Court of Metropolitan Magistrate under Sections 251 and 263(g) CrPC.

Bench further expressed that,

The offence under Section 138 of the N.I. Act is an offence in the personal nature of the complainant and since it is within the special knowledge of the accused as to why he is not to face trial under section 138 N.I. Act, he alone has to take the plea of defense and the burden cannot be shifted to complainant.

Recalling of Witness

Once the complainant has brought forward his case by giving his affidavit about the issuance of cheque, dishonor of cheque, issuance of demand notices etc., he can be cross-examined only if the accused makes an application to the Court as to, on what point he wants to cross-examine the witness (es) and then only the Court shall recall the witness by recording reasons thereto.

As per the procedure prescribed under CrPC, if the accused appears after service of summons, the Metropolitan Magistrate shall ask him to furnish bail bond to ensure his appearance during the trial and ask him to take notice under Section 251 CrPC and enter his plea of defence and fix the case for defence evidence, unless an application is made under Section 145(2) of NI Act for recalling a witness for cross-examination on by an accused of defence.

Bench in the present matter did not find any material which could be stated of sterling and impeccable quality warranting the invocation of the jurisdiction of this Court under Section 482 CrPC.

High Court observed that the issues in the instant matter involved the disputed question of facts and law and cannot be decided unless and until the parties go to trial and lead their respective evidence.

“…invariably the initial phase of a litigation under Section 138 of the N.I. Act depends on how well the pleadings or the allegations are laid down or articulated, by the complaint, in the ultimate analysis it is the trial that alone can bring out the truth so as to arrive at a just and fair decision for the parties concerned.” 

Therefore, the no flaw or infirmity in the proceedings pending before the Trial Court was found.[Awadh Constructions v. Amarpreeet Shuttering, 2022 SCC OnLine Del 1034, decided on 13-4-2022]

Advocates before the Court:

For the Petitioner: Amit Pawan, Advocate

Case BriefsSupreme Court

Supreme Court: The Division Bench S. Abdul Nazeer and Krishna Murari*, JJ., reversed the impugned order of the Calcutta High Court for being affected with the vice of forum shopping. The Bench expressed,

“The timeline of filing complaints clearly indicates the malafide intention of Respondent 2 which was to simply harass the petitioners so as to pressurise them into shelling out the investment made by Respondent 2.”

The entire origin of the dispute emanated from an investment made by Respondent 2, amounting to Rs. 2.5 crores in lieu of which 2,50,000 equity shares were issued in the year 25-03-2008, finally culminating into the MOU dated 20-08-2009. Based on the MOU, respondent 2 filed three complaints, two at Delhi and one at Kolkata. Thus, two simultaneous proceedings, arising from the same cause of action i.e. MOU dated 20-08-2009 were initiated, amounting to an abuse of the process of the law which is barred.

Power of High Court under S. 482 of CrPC

By the said judgment, the High Court exercised the powers under Section 482 as well as Section 401 of CrPC to dismiss the prayer for quashing of the proceedings and held that continuance of criminal proceedings against the present appellant/accused would not be an abuse of the process of the court. In G. Sagar Suri v. State of UP, (2000) 2 SCC 636, it had been observed that it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process, particularly when matters are essentially of civil nature. This Court has time and again cautioned about converting purely civil disputes into criminal cases.

In the instant case, respondent 2 alleged that the appellants were responsible for the offence punishable under Section 420, 405, 406, 120B IPC. The Bench opined that the High Court failed to examine the ingredients of the said offences and whether the allegations made in the complaint, read on their face, attract those offences under the Penal Code. The Bench remarked,

“…in order to attract the ingredients of Section of 406 and 420 IPC it is imperative on the part of the complainant to prima facie establish that there was an intention on part of the petitioner and/or others to cheat and/or to defraud the complainant right from the inception. Furthermore it has to be prima facie established that due to such alleged act of cheating the complainant had suffered a wrongful loss and the same had resulted in wrongful gain for the accused.”

Observing that the averments in the FIR and the allegations in the complaint against the appellant did not constitute an offence under Section 405 & 420 IPC, 1860, the Bench clarified that even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making promise being absent, no offence under Section 420 IPC can be said to have been made out. Therefore, the Bench rejected the findings of the High Court holding that there was no material to indicate that Appellants had any malafide intention against the Respondent.

Forum Shopping

Noticeably, the application under Section 156(3) CrPC filed before the Metropolitan Magistrate, Tis Hazari Court, Delhi was dismissed and there was no further challenge against the same. Instead, Respondent 2 chose to file a complaint with the same cause of action in Calcutta which was the exact reproduction of the complaint filed before Tis Hazari Court, New Delhi with the only difference or what may be termed as ‘Jurisdictional improvement’. The Bench noted that the jurisdiction had been created in Delhi as the Appellants used to visit Respondent 2 in order to persuade them to invest in their company and special emphasis can be laid on the fact that Respondent 2 himself accepted/agreed to the fact that all the transactions took place in Delhi. Therefore, the Bench observed,

“…registering a complaint in Kolkata is way of harassing the appellant as a complaint has already been filed in Delhi with all the necessary facts, apart from the jurisdictional issue at Kolkata.”

In Krishna Lal Chawla v. State of U.P., (2021) 5 SCC 435, it was observed that, “…permitting multiple complaints by the same party in respect of the same incident, whether it involves a cognizable or private complaint offence, will lead to the accused being entangled in numerous criminal proceedings. As such he would be forced to keep surrendering his liberty and precious time before the police and the courts, as and when required in each case.” Hence, the Bench observed,

“This Court has condemned the practice of forum shopping by litigants and termed it as an abuse of law and also deciphered different categories of forum shopping.”

The Bench observed that in spite of this Court condemning the practice of forum shopping, Respondent 2 filed two complaints i.e., a complaint u/s 156(3) CrPC before the Tis Hazari Court, New Delhi and a complaint which was eventually registered as FIR u/s 406, 420, 120B IPC in Kolkata i.e., one in Delhi and one complaint in Kolkata, which was abuse of process.

Findings

The Bench held that the order of the High Court was seriously flawed due to the fact that in its interim order it was observed that two complaints were filed on the same cause of action at different places but the impugned order overlooked the said aspect and there was no finding on that issue. Additionally, the Bench noted,

“…it is apparent that the complaint was lodged at a very belated stage (as the entire transaction took place from January 2008 to August 2009, yet the complaint has been filed in March 2013 i.e., after a delay of almost 4 years) with the objective of causing harassment to the petitioner and is bereft of any truth whatsoever.”

Accordingly, the impugned order was set aside and the FIR registered in Kolkata was also quashed.

[Vijay Kumar Ghai v. State of W.B., 2022 SCC OnLine SC 344, decided on 22-03-2022]

*Judgment by: Justice Krishna Murari

Appearance by:

For the Appellants: Menaka Guruswamy, Senior Advocate

For the Respondents: Anjana Prakash, Senior Advocate

Kamini Sharma, Editorial Assistant has put this report together

Case BriefsHigh Courts

“Posting & sharing unhealthy materials with unparliamentary language and remarks, etc. on social media without any solid basis cause a deleterious effect on society at large, ergo in order to protect reputation and character of individuals, it should be completely stopped.”

Allahabad High Court: Sanjay Kumar Singh, J., expressed that, 

“The internet and social media has become an important tool through which individuals can exercise their right to freedom of expression but the right to freedom of expression comes with its own set of special responsibilities and duties.”

On 28-11-2019, OP 2 had lodged an FIR against the applicant and two others, which had been registered under Section 67 of the Information Technology (Amendment) Act, 2008 and Section 500 of the Penal Code, 1860.

Additional Chief Judicial Magistrate took cognizance on 22-7-2020 and summoned the applicant to face trial under Section 67 Information Technology (Amendment) Act, 2008 and Section 500 IPC.

In the present application, the above-said charge sheet and summoning order were challenged.

Analysis, Law and Decision

High Court found that as per allegations levelled in the FIR, a morphed photo showing Hon’ble Prime Minister Narendra Modi shaking hands with dreaded and wanted terrorist Hafiz Saeed was posted on Facebook in the name of Anil Sharma and said objectionable post in question was shared by the applicant.

Similarly, another post (a morphed photograph), in the name of the supporter of Akhilesh Yadav, which was posted showing Hon’ble Prime Minister Narendra Modi and Cabinet Minister Amit Shah were feeding biscuits to dogs, on whom “Aaj Tak TV”, “Zee TV” and “India TV” was written was also shared by the applicant on his Facebook ID.

Bench opined that at the stage of summoning the accused, the lower court was not required to go into the merit and demerit of the case. The genuineness or otherwise of the allegations cannot be even determined at the stage of summoning the accused. The appreciation of evidence is a function of the trial court.

Further, the Court added that, this Court in the exercise of power under Section 482 CrPC cannot assume each jurisdiction and put an end to the process of trial provided under the law.

Court did not find the present matter to eb falling in categories recognised by the Supreme Court for quashing the criminal proceeding of the trial court at the pre-trial stage.

High Court in view of the facts and circumstances and nature of allegations found that the cognizable offence was made out. Therefore, Court did not find any ground to provoke inherent power under Section 482 CrPC by this Court.

Additionally, the Bench stated that Court is of the view that it is beyond the shadow of doubt that social media is global platform for the exchange of thoughts, opinions and ideas.

The Court remarked that there is an immediate need to check the exploitation of social media platforms that has political and societal reverberations that go well beyond hacked systems and stolen identities.

“Use of Cyberspace by some people to vent out their anger and frustration by travestying the Prime Minister, Key- figures holding the highest office in the country or any other individual is abhorrent and violates the right to reputation of others.”

It was also added that, High Courts are sentinels of justice with extraordinary and inherent power to ensure that rights and reputation of people are duly protected.

Lastly, the Bench held that in view of the gravity and nature of the offence as well as misuse of social media platforms, Court cannot shut its eyes. The Government is also not expected to act as a silent perpetrator.

Therefore Court directed the Government to take appropriate remedial measures in order to control and eradicate proliferating and booming devastating menace, to stop the misuse of social media platforms and to maintain a healthy atmosphere in the society, which is the most important and essential factor for a civilized society.

In view of the above, the application was disposed of. [Niyaz Ahmad Khan v. State of U.P., 2022 SCC OnLine All 105, decided on 21-2-2022]

Advocates before the Court:

Counsel for Applicant: Jitendra Kumar Srivastava

Counsel for Opposite Party: G.A.

Case BriefsHigh Courts

Allahabad High Court: Sanjay Kumar Pachori, J., while addressing a matter with regard to recalling of the witnesses expressed that, Section 311 of the Code confers a wide discretion on the Court to act as the exigencies of justice require.

Present application was filed under Section 482 of the Code of Criminal Procedure was filed to quash the impugned order passed by the Additional Sessions Judge arising out of crime registered under Section 307 of the Penal Code, 1860, by which two applications filed by the applicant/accused under Section 311 of the Code have been rejected.

Analysis, Law and Discussion

High Court noted that trial Court by its order dismissed the applications for recalling the witnesses for further cross-examination and rejected the submission urged on behalf of the applicant on the ground that the defence had elaborately cross-examined.

If there is any contradiction or ambiguity in the prosecution evidence. It is a settled position of law that the accused would be entitled to benefit of the doubt.

Trial Court’s order had been assailed on two grounds:

  • After reading the evidence of PW-1 and PW-2 the identity of scribe Suresh Singh was not clear.
  • If the complaint had been written by Suresh Singh, son of Rama Shankar who died about one year before the incident, in that case, the genesis of the prosecution case would be proved false.

Section 311 is manifestly in two parts, the first part of the Section has given discretion to the Court and enables it any stage of an inquiry, trial, or other proceedings under the Code, (a) to summon anyone as a witness, or (b) to examine any person in the Court, or (c) to recall and re-examine any person whose evidence has already been recorded; on the other hand, the second part of the Section is mandatory and imposes an obligation on the Court, to do one of aforesaid three things if the new evidence appears to it essential to the just decision of the case.

Further, the Court observed that, Section 311 of the Code gave wide power to the Court to summon a material witness or to examine a person present on Court or to recall a witness already examined.

The said Section confers a wide discretion on the court to act as the exigencies of justice require.

The discretion given by the first part is very wide and its very width requires a corresponding caution on the part of the court. But the second part does not allow any discretion; it binds the court to examine fresh evidence and the only condition prescribed is that this evidence must be essential to the just decision of the case. Whether the new evidence is essential or not must of course depend on the facts of each case and has to be determined by the presiding Judge [Ram Jeet v. State of U.P., AIR 1958 All 439]

In the present matter, Bench observed that, PW-1 is not an eyewitness of the incident, the FIR had been lodged by PW-1 after about 46 hours of the incident on the basis of information received from PW-2.

The application for recalling PW-1 had been filed after about 4 years of recording the statement-in-chief of the PW1 and another application for recalling PW-5 filed after about one year of recording the examination-in-chief of PW-5.

In Court’s opinion, the trial judge gave well-founded reasons for rejecting the applications.

Hence, the impugned order passed by the trial court was affirmed and the present application under Section 311 of the Code was dismissed.[Bheem Singh v. State of U.P., 2022 SCC OnLine All 40, decided on 18-1-2022]

Advocates before the Court:

Counsel for the Applicant: Neeraj Pandey, Om Prakash Singh Sikarwar

Counsel for the OP: G.A.

Case BriefsHigh Courts

Allahabad High Court: Rajeev Singh, J., reiterated that under Section 482 of the Criminal Procedure Code, an FIR i.e. First Information Report can be quashed in view of the settlement terms.

Application under Section 482 CrPC was filed with a request that the matter may be referred to the Mediation and Conciliation Centre of the Court in relation to FIR under Sections 323, 354, 498A, 504 of Penal Code, 1860 and Section 3/4 of Dowry Prohibition Act, 1961 and also quashed the entire proceeding in relation to the said FIR.

In the present case, the investigation was started and mediation was also initiated before the court below, but applicant No.1 was not satisfied with the mediation proceeding initiated before the court below, hence, the present application was filed and with the consent of counsel for the applicant as well as counsel for the opposite party 4, the matter was sent to the Mediation and Conciliation Centre of this Court on 31.07.2020.

The matter was successfully concluded, and a settlement agreement was executed between the parties and OP 4 joined her matrimonial home on 7-3-2021 and started enjoying her life with her husband and children.

In the case of Ram Lal Yadav v. State of U.P., 1989 SCC OnLine All 73  the provision of anticipatory bail, under Section 438 Cr.P.C. was not existing, therefore, there was a dilemma to get the remedy of pre-arrest during the investigation, then it was clarified by this Court that High Court has no inherent powers, under Section 482 Cr.P.C. to interfere with the arrest of accused persons during the course of investigation, but it was clarified that High Court can always issue a writ of mandamus, under Article 226 of the Constitution restraining the police officer for misusing his legal power in relation to arrest and FIR can be quashed, under Section 482 Cr.P.C., which is covered under the principle laid down by Hon’ble Supreme Court in the Case of Bhajan Lal and the present case law laid down the by the Supreme Court in the cases as discussed.

Analysis and Decision

High Court stated that, as in the decision of Ram Lal Yadav v. State of U.P.,1989 SCC OnLine All 73, this Court held that Investigating Officer cannot be restrained from arresting the accused of a cognizable offence. Supreme Court in the case of State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335: 1992 SCC (Cri) 426] and  Ram Lal Yadav v. State of U.P., 1989 SCC OnLine All 73 already held that FIR and its consequential proceedings can be quashed under Section 482 CrPC.

Therefore, in the present matter, Bench opined that impugned FIR and its consequential proceedings are liable to be quashed in terms of the settlement agreement of parties before the Mediation and Conciliation Centre of this Court.

Hence, in view of the above discussion, the present application was allowed and FIR was quashed. [Ishwar Singhal v. State of U.P., 2022 SCC OnLine All 28, decided on 11-1-2022]

Advocates before the Court:

Counsel for Applicant:- Durgesh Kumar Singh
Counsel for Opposite Party:- G.A., Vinod Kumar

Case BriefsHigh Courts

Delhi High Court: Stating that, Rape is an act against society, Rajnish Bhatnagar, J., held that simply entering into a compromise allegation of rape will not lose its gravity.

The instant petition was filed by the petitioner under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 for quashing and cancelling the FIR under Sections 376, 323 and 506 of Penal Code, 1860.

Information was received from PCR wherein it was reported that Complainant was not telling anything about the complaint but was asking for urgent police assistance and on reaching the place of the incident she said that she had a scuffle with her male friend (petitioner herein) who tried to assault her.

Complainant later disclosed the act of sexual assault having been committed upon her by the accused (petitioner herein) in his ICD Patparganj Office when she had gone to talk to him regarding their marriage.

Petitioner was a customs officer and met the complainant through the website Jeevansathi.com. He concealed the fact regarding his first love marriage and that his first wife committed suicide for which case was going on this Court.

After a few meetings and conversations, the complainant asked him to proceed with marriage talks, he called her to Faridabad and took the complainant to Vivanta by Taj Hotel and that night petitioner/accused raped her against her will.

Petitioner/accused also told the complainant that he would marry her in Arya Samaj Mandir, but later on, he made excuses that the mandir was closed and also told her to return to Ayodhaya. Later, he stopped picking her phone calls.

In March 2021, petitioner/accused reached Bhopal and put vermilion on the complainant and said that now they were husband and wife, but he did not let her meet his family. Further, in April, petitioner/accused raped her in a car. Complainant again lodged a complaint against petitioner/accused in NCW which finally reached Mahila Thana, Faridabad. In June, petitioner/accused came to that police station and again he made a promise to marry the complainant and accordingly she withdrew her complaint.

Again after a few days, the petitioner/accused molested the complainant and started fingering inside her private parts forcible after which the complainant lodged a PCR call but the petitioner/accused gave threats of dire consequences and ran away from the spot.

In view of the above, FIR was registered, and an investigation went underway.

Analysis, Law and Decision

High Court noted that the petitioner was a Government Servant, working as Superintendent with Customs & CGST Department, Govt. of India, holding a Gazetted post. Being a Government Servant was expected to maintain high moral rectitude and a decent standard of conduct in his personal/private life and not bring discredit to his service by his misdemeanours.

The charges of rape are of grave concern and cannot be treated in a casual manner.

The Bench observed that whether the High Courts, while exercising its jurisdiction under Section 482 CrPC should quash an offence under Section 376 IPC came for consideration before the Supreme Court in a number of cases.

Supreme Court has, time and again, directed that the High Court should not exercise its jurisdiction under Section 482 Cr.P.C to quash an offence of rape on the ground that the parties have entered a compromise.

 Catena of decisions were referred, such as:

In the present matter, the parties compromised amicably and respondent 2 filed an affidavit stating that she and the petitioner married each other and that she had no objection if the present FIR was quashed as she did not wish to pursue any proceedings.

“…by simply entering into a compromise, charges cannot be said to have been mitigated or that the allegations leveled by the respondent 2 regarding the alleged offence lost its gravity by any means. Act of rape is not an act against individual, but this is an offence against the society.”

In view of the legal position enumerated in Gian Singh v. State of Punjab, (2012) 10 SCC 303 along with other cases referred above, the criminal proceedings from FIR registered with allegations of rape cannot be quashed in exercise of powers vested in this Court under Section 482 CrPC on the basis of settlement and subsequent marriage as it would not waive off the offence alleged by the complainant.

Therefore, petition was dismissed. [Swatantara Kumar Jaysawal v. State, 2022 SCC OnLine Del 30, decided on 3-1-2022]

Advocates before the Court:

For the Petitioner:

Mr. Manoj Chaudhary and Mr. Sachin Anand, Adv.

Petitioner in person.

For the Respondents:

Mr Rajesh Mahajan, ASC with Ms Jyoti Babbar, Adv.

Mr Lalit Valecha, Adv. for R-2

R-2 in person.

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., while explaining the facets of cancellation of bail and rejection of an application for bail, made an observation that,

Personal liberty is one of the cherished constitutional freedoms. Once granted to an accused pending completion of the Trial, it must only be retracted in the face of grave and exacerbating circumstances.

An application was filed under Section 439(2) of Criminal Procedure Code, 1973 read with Section 482 CrPC for cancellation of the anticipatory bail granted to respondents 2 to 5 passed by the Patiala House Court for the offence under Sections 354, 354A, 354B, 406, 498A, 506, 509, 34 of the Penal Code, 1860.

Complainant had given a complaint against her husband, mother-in-law and brother-in-law for offences under Sections 354, 354A, 354B, 406, 498A, 506, 509, 34 IPC.

Apprehending arrest, respondents filed an application under Section 438 CrPC seeking a grant of anticipatory bail.

Additional Sessions Judge found that the grievance of the complainant, that the matter had not been investigated fairly or that the investigating agencies acted in connivance with the accused could be addressed by moving the Metropolitan Magistrate and it is for the Metropolitan Magistrate to order further investigation under Section 173(8) CrPC.

The above-said order had been assailed by the complainant.

Trial Court granted anticipatory bail to the accused after considering the statements of the accused. Status Report noted that the respondents had joined the investigation and were cooperative, both before and after being granted protection from arrest by the Trial Court.

Difference between: Rejection of application for Bail v. Cancellation of Bail

Rejection of application for Bail

Cancellation of Bail
An order rejecting a plea for bail in non-bailable offences is in the discretionary domain of the Court and such a case can be decided without delving into details, it can be rejected simpliciter on the gravity of the offence and the perception that liberty, if granted, will be abused by the accused.

In the case of cancellation, the Court is called upon to extinguish the liberty that has been formerly granted.

When can a Court seize the liberty of an accused undertrial?

Stating that a Court must tread with the utmost circumspection, and only after an in-depth examination of the situation and new emergent facts and on finding supervening circumstances and overwhelming evidence that the accused has been abusing the liberty granted to him by the Court, Bench explained when a Court can exercise its jurisdiction in seizing the liberty of an accused undertrial.

Supreme Court in the decisions of Delhi Admn. V. Sanjay Gandhi, (1978) 2 SCC 411 and Dolat Ram v. State of Haryana, (1995) 1 SCC 349, expounded the position in law vis a vis cancellation of bail.

The power conferred under Section 439(2) CrPC has to be exercised in a discreet fashion, without dwelling on the merits of whether bail should have been granted or not and only upon viewing the subsequent conduct of an accused. The power is coupled with the reserve and caution, akin to the usage of the High Court’s inherent powers given under Section 482 CrPC.

Application for Cancellation of Bail and Grant of bail are different from each other, Bench added that High Court will not exercise its jurisdiction to interfere with an order of bail granted by Special Judge if there is no serious infirmity in it.

In the present matter, Court found the order of the ASJ to be well reasoned requiring no interference.

Lastly, the Court dismissed the petition noting that Court has not made any observation on the nature/manner of investigation, and if an application challenging the nature/manner of investigation is filed by the complainant, the Trial Court is requested to consider the same. [Charu Soneja v. State (NCT of Delhi), 2022 SCC OnLine Del 5, decided on 3-1-2022]

Advocates before the Court:

For the Petitioner: Mr K. K. Manan, Senior Advocate with Ms Uditi Bali and Ms Komal Vashist, Advocates

For the Respondent:  Ms Kusum Dhalla, APP for the State with SI Ravinder Kumar, PS Naraina Ms Kamlesh Mahajan, Advocate for R-2 to R-5

Case BriefsHigh Courts

Karnataka High Court: H P Sandesh J. allowed the petition and quashed the proceedings initiated against the petitioners.

This petition is filed under Section 482 of Criminal Procedure Code i.e. Cr.P.C., praying this Court to quash the order of the Civil Judge and JMFC, Muddebihal, dated 13.07.2018 passed in C.C.No.167/2018 (Crime No.107/2018 of Muddebihal Police Station) taking cognizance against the petitioners   for the offences punishable under Section 171H of Penal Code, 1860 i.e. IPC and Section 3 of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981.

Counsel for the petitioner Mr. Rajesh G Doddamani submitted that the Act invoked i.e., the Karnataka Open Places (Prevention  of Disfigurement) Act, 1981 is not applicable to  Muddebihal and the said Act is applicable only in respect  of particular places. Unless the same is notified in respect of particular place of Muddebihal, the police ought not to have initiated proceedings against the petitioners under Section 3 of the Act. It was also submitted that the respondents have also invoked Section 171H of IPC. The complaint is not filed under Section 195 of Cr.P.C., but the case has been registered against the petitioners and based on the police report, cognizance was taken. Therefore, when non-cognizable offence is invoked, it requires permission from the Magistrate under Section 155(2) of Cr.P.C., and hence, it requires interference of this Court.

Counsel for respondents Mr. Gururaj V Hasilkar submitted that the election was declared in respect of Muddebihal assembly constituency in 2018. When the election notification was issued by the State, the order was passed by the District Election Officer and District Magistrate, Vijayapura dated 31.03.2018 appointing flying squads and the same includes Muddebihal  Constituency. The learned counsel also relied upon the  order of the State Government dated 10.04.2018 and so also the revised order dated 31.03.2018 appointing officers consisting of flying squads. The learned counsel also relied upon the Notification of Election Commission of India dated 02.05.2018 wherein it is clarified that as per Section 126(1)(b) of the Representative of People Act, 1951, there shall not be displaying of any stickers and flags of any particularly party and the said act is in  violation of the same and there is no specific notification  for applying the above Act but election notification is  issued. It is not in dispute that the petitioners herein came to the Tahsildar’s office in vehicles displaying stickers and flags of a particular party. Hence, the proceedings initiated against the petitioners cannot be quashed.Issue: Whether Karnataka Open Places (Prevention of Disfigurement) Act, 1991 is applicable to Muddebihal or not?

The Court observed that on perusal of Section 1(2)(i) of the Act makes it clear that the Act is applicable for the cities viz., Bangalore,  Mysore, Hubli-Dharwar, Mangalore and Belgaum constituted or continued under the Karnataka Municipal  Corporation Act, 1976 or under any other law, on the fifth day of May, 1981 and Section (1)(2)(ii) of the Act says that the same come into force in the municipalities, notified areas, sanitary boards, constituted or continued under the Karnataka Municipalities Act, 1964 or under any other law, or in any other local area, on such date, as the State Government may by notification appoint and different dates may be appointed in respect of different areas.

But, no such Notification was issued in respect of Muddebihal. Hence, unless the Act is applicable to particular city and municipal area, the initiation of proceedings under the said Act is unsustainable under law.

The Court further observed that Section 171H of IPC deals with illegal payments in connection with an election. But, in the  case on hand, the allegation against the petitioners is  that they came in vehicles with flag of political party and no allegations with regard to illegal payments in  connection with election are found in the complaint.  Under the circumstances, very initiation of proceedings against the petitioners is nothing but an abuse of process of law. Hence, it is appropriate to exercise power under Section 482 of Cr.P.C., or otherwise it leads to miscarriage of justice.

The Court having considered the allegation made in the complaint as well as in the charge sheet observed that it does not attract offence under Section 171H of IPC and so also Section 3 of the Act as there is no notification. “….complaint averments and charge sheet averments do not attract the offences invoked and apart from that, the above Act is not applicable to Muddebihal and without any notification for application of the Act, proceedings have been initiated.”

The Court held “….very initiation of  proceedings against the petitioners is not sustainable in the eye of law, as there was no notification for applicability of the above Act to Muddebihal and also no ingredients of offence under Section 171H of IPC.”

[Hanmagouda v. State of Karnataka, Criminal petition No. 200377 of 2019, decided on 26-11-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case where the Single Judge of Karnataka High Court had termed person committing suicide a ‘weakling’ and also made observations on how the behavior of the deceased before he committed suicide was not that of a person who is depressed and suffering from mental health issues, the bench of Dr. DY Chandrachud* and BV Nagarathna, JJ has held that such observations describing the manner in which a depressed person ought to have behaved deeply diminishes the gravity of mental health issues and that,

“The mental health of a person cannot be compressed into a one size fits all approach.”

Factual Background

Deceased, who was working as a driver for the accused-second respondent, was found dead on 6 December 2016, with a 12 pages long suicide note next to him. The suicide note was uploaded by the deceased on his Facebook account through his mobile.

The suicide note has referred to the illegal activities of the accused in amassing wealth in excess of Rs. 100 crores, converting black money into white and transferring funds from the bank account of the deceased through his mobile to the accounts of the relatives of the accused. The complaint alleged that the accused had threatened the deceased with death and harassed him as a result of which the deceased, having suffered mental stress, committed suicide by consuming poison. Both the second respondent and his “house driver” were specifically named as responsible for this death.

Details highlighted in the note:

  • The transfer of funds in several lakhs of rupees by the accused to his relatives by using the cell phone and bank account of the deceased;
  • The conversion of approximately Rs. 100 crores into currency notes of Rs. 2,000/-, Rs. 100/- and Rs. 50/-;
  • The knowledge of the deceased in regard to the transactions of the accused as a result of which he had been threatened to be killed “by rowdies”;
  • A raid conducted against the accused by the establishment of the Lokayukta of Karnataka while he was posted in the Housing Board;
  • The involvement of judges to whom presents or gifts were made;
  • The payment of salary to the deceased having been stopped at the behest of the accused;
  • The accused having used the deceased for changing currency worth over Rs. 75 crores; and
  • The deceased being in knowledge of “all the information”, and when a shortage of an amount of Rs. 8 lakh was found, the deceased had been directed to make good the deficiency, failing which he was threatened to be killed by rowdies.

Analysis

The Court noticed that the High Court has evidently travelled far beyond the limits of its inherent power under Section 482 CrPC since instead of determining whether on a perusal of the complaint, a prima facie case is made out, it has analysed the sufficiency of the evidence with reference to the suicide note.

While adjudicating on an application under Section 482 CrPC, the High Court in the present case travelled far away from the parameters for the exercise of the jurisdiction. Essentially, the task before the High Court was to determine whether the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety did or did not prima facie constitute an offence or make out a case against the accused. Instead of applying this settled principle, the High Court has proceeded to analyze from its own perspective the veracity of the allegations.

“The entire judgment of the High Court consists of a litany of surmises and conjectures and such an exercise is beyond the domain of proceeding under section 482 of the CrPC. The High Court has proceeded to scrutinize what has been disclosed during the investigation, ignoring that the investigation had been stayed by an interim order of the High Court, during the pendency of the proceedings under section 482.”

The High Court observed that a prima facie case for the commission of offence under Section 306 of the IPC is not made out since:

  1. the suicide note does not describe the specific threats;
  2. details of the alleged demand of Rs. 8 lacs from the deceased by the respondent-accused are not set out in the suicide note; and
  3. no material to corroborate the allegations detailed in the suicide note has been unearthed by the investigating agency.

The High Court observed that since the deceased took considerable time to write a twelve page suicide note, “it would have been but natural for the author to set out the details”.

Not only this but the High Court had commented upon and made strong observations on the suicide note itself, diminishing the importance of mental health.

The Single Judge had observed:

37. It is not the case of the deceased that the accused had deprived him of his wealth or have committed acts that have shattered his hopes in life or separated him from his family and friends.

[..]

    1. [..] It is not the case of the prosecution that the deceased was running away from or escaping the petitioner or his henchmen, but as is his habit, to visit his parents and to spend time with his friends. If the deceased had really felt threatened, he would have definitely approached the police. It is not that he was naive or not worldly-wise. If his employment with the petitioner was true, then the Police Commissionerate was only a stone’s throw away. It is not that the deceased was a weakling. The deceased by profession, is a driver. A profession where, accidents causing loss of life and limb are a daily occurrence and every driver is aware that he could be involved in an accident at any time.

[..]

    1. His act of attending a relatives marriage in a different town and his interacting with friends and relatives are all actions of a normal person and not of a person under severe duress. The contention that this criminal case would jeopardize his career progression also cannot be brushed aside. It is also not forthcoming as to how he sourced the poison.”

The Court held that the above mentioned observations describing the manner in which a depressed person ought to have behaved deeply diminishes the gravity of mental health issues.

“Behavioural scientists have initiated the discourse on the heterogeneity of every individual and have challenged the traditional notion of ‘all humans behave alike’. Individual personality differences manifest as a variation in the behavior of people. Therefore, how an individual copes up with a threat- both physical and emotional, expressing (or refraining to express) love, loss, sorrow and happiness, varies greatly in view of the multi-faceted nature of the human mind and emotions.”

[Mahendra KC v. State of Karnataka, 2021 SCC OnLine SC 1021, decided on 29.10.2021]

Counsels

For Complainant: Mahesh Thakur

For State of Karnataka: V.N. Raghupathy

For respondent-accused: Sharan Thakur

*Judgment by: Justice Dr. DY Chandrachud

Case BriefsHigh Courts

Calcutta High Court: Bibek Chaudhari, J., considered the question as to whether Section 482 CrPC is applicable in relation to an application under Section 12 of the Protection of Women from Domestic Violence Act.

The following is a summary of High Court’s determination on legal points that were before it for consideration.

 Issue

In a case set in the backdrop of allegations of violence and harassment advanced by the daughter-in-law against her husband and in-laws, the High Court determined the following questions:

(1) Whether Magistrate’s order in a proceeding under Section 12 read with Section 23 of the Protection of Women from Domestic Violence Act, 2005 on the point of maintainability of said proceeding can be quashed under the provisions of Section 482 of the Code of Criminal Procedure?

(2) Whether an appeal under Section 29 of the Domestic Violence Act shall lie against an order passed by the Judicial Magistrate or Metropolitan Magistrate upon an application filed by the respondent(s) challenging maintainability of the application under Section 12 of the said Act?

Determination

After a comprehensive discussion revolving around various provisions of the Domestic Violence Act, inherent powers of High Court and the judicial opinion on the same, the Court concluded that:

(i) Respondent(s) can challenge maintainability of an application under Section 12 of the Domestic Violence Act filed by the aggrieved person before the Court of the Magistrate immediately after appearance in the proceeding by filing appropriate petition.

(ii) The Magistrate shall dispose of such application challenging maintainability of the proceeding under Section 12 after giving the opportunity of being heard to the aggrieved person. An aggrieved party may file an appeal under Section 29 of the Domestic Violence Act against the order passed by the Magistrate before the Sessions Judge.

(iii) Against the order passed by the court of appeal, a revision under Section 397 read with Section 401 CrPC shall lie.

(iv) Alternatively, a respondent may file an application under Section 482 CrPC challenging maintainability of a proceeding under Section 12 of the Act for quashing of the proceedings immediately on receipt of notice before the High Court.

(v) An order upon an application challenging maintainability under Section 12 of the Domestic Violence Act shall not be assailed under Article 227 of the Constitution of India.

While so holding, the High Court differed from the decision of the Single Judge of Madras High Court in P. Pathmanathan v. V. Monica, (2021) 2 CTC 57, which inter alia held that the petition under Section 482 CrPC is not maintainable. The Madras High Court said that the relief under the Domestic Violence Act will be granted by a civil or criminal or family court.

It is also important to note that the High Court held that a proceeding under Section 12 of the Domestic Violence Act is final in nature affecting the rights and/or liabilities of the parties in relation to the question as to whether the aggrieved person is entitled to get relief under Section 18-22 and Section 23(2) of the said Act. [Chaitanya Singhania v. Khushboo Singhania, 2021 SCC OnLine Cal 2602, decided on 27-09-2021]

Advocates before the Court:

For the Petitioners:

Mr. Sabyasachi Banerjee, Adv. Mr. Anirban Dutta, Adv.

Mr. Abhishek Jain, Adv.

For the Respondent:

Sanjoy Bose, Adv.

Case BriefsHigh Courts

Delhi High Court: Emphasizing on the gravity of seriousness of Section 307 Penal Code, 1860, Subramonium Prasad, J., observed that,

“…an offence under Section 307 IPC will fall under the category of heinous offence, and therefore, has to be treated as a crime against the society and not against the individual alone and the proceedings under Section 307 IPC cannot be quashed only on the ground that the parties have resolved the entire disputes amongst themselves.”

Present matter was in the Court for quashing an FIR registered for offences under Section 307/34 of Penal Code, 1860.

Factual Matrix

It was stated that victim was assaulted by some unknown persons and the nature of injuries was opined to be serious, for further treatment he was shifted to RML Hospital.

Since the victim was unfit for treatment, his father gave a statement wherein he stated that Hannan and petitioner were quarrelling with his son. They both were holding the victim and then stabbed him. After stabbing, they escaped from the spot.

On father’s statement, the FIR was registered for offences under Sections 307/34 IPC.

Hannan was declared as a Proclaimed Offender.

Further, the charge sheet was filed and enough material against the accused was there to proceed against him under the above-stated Sections.

Later the parties entered into a compromise and as per the compromise deed accused was to pay a sum of Rs 3,00,000 as compensation/medical charges. Accused had paid Rs 1,00,000 at the time of settlement and remaining amount would be paid at the time of quashing the FIR.

Crux

Quashing of criminal proceedings for offences under Section 307 IPC on the ground that parties had entered into a settlement.

It was noted that Supreme Court had a conflict of opinion with regard to whether an offence under Section 307 IPC could be quashed by the High Court while exercising power under Section 482 CrPC.

In the decision of State of Rajasthan v. Shambhu Kewat, (2104) 4 SCC 149, it was held that an offence under Section 307 IPC is a serious offence and ordinarily should not be quashed by the High Court while exercising its powers under Section 482 CrPC on the ground that the parties have settled their disputes.

Further, Supreme Court in the decision of Narinder Singh v. State of Punjab, (2014) 6 SCC 466 had quashed the proceedings under Section 307 IPC after noting the judgment in State of Rajasthan v. Shambhu Kewat, (2104) 4 SCC 149.

In view of the conflict of opinion in the above two decisions, matter was referred to a larger bench of Supreme Court in State of M.P. v. Laxmi Narayan, (2019) 5 SCC 688, wherein it was observed that,

“…It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of weapons used, etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge-sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paras 29.6 and 29.7 of the decision of this Court in Narinder Singh [Narinder Singh v. State of Punjab, (2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54] should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove”

 (emphasis supplied)

In the above decision, Court also stated that the powers conferred on the High Court under Section 482 CrPC can be exercised keeping in mind the injuries sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of weapons used etc.

High Court stated that in view of the above decision of the Supreme Court, it can be seen that the fight involved in the present matter was not an ordinary fight between the neighbors, infact petitioners should be thankful that they are not facing trial in a case of murder because in ordinary circumstances the injuries inflicted by the petitioners were sufficient to cause death.

Victim was stabbed with a dangerous weapon i.e. a knife and the injuries caused were of such nature that they would have caused death in ordinary circumstances.

Hence, Court declined to quash the FIR solely on the ground that the parties entered into a compromise. [Mukhtiyaar Ali v. State (NCT of Delhi), 2021 SCC OnLine Del 4428 , decided on 20-09-2021]

Advocates before the Court

For the Petitioners: Rishipal Singh, Advocate with petitioners in person

For the respondents: Meenakshi Chauhan, APP for the State with ASI Naresh, PS Jaffrabad Complainants in person

Case BriefsSupreme Court

Supreme Court: The Division Bench of Dr Dhananjaya Y Chandrachud and MR Shah, JJ., while addressing a matter expressed that,

The administration of criminal justice is not a private matter between the complainant and the accused but implicates wider interests of the State in preserving law and order as well as a societal interest in the sanctity of the criminal justice administration.

Judges speak through their judgments and orders. The written text is capable of being assailed. The element of judicial accountability is lost where oral regimes prevail. This would set a dangerous precedent and is unacceptable. Judges, as much as public officials over whose conduct they preside, are accountable for their actions.

Background

 Instant appeal arose from Gujarat High Court’s Judgment.

Appellant and the first respondent had entered into a partnership deed under which a firm was constituted. Share of the first respondent in the profit/loss was alleged to be 55% while the share of the appellant – 45%.

Further, in the year 2017, a document styled as “sammati-lekh” was allegedly entered into by the appellant consenting to the execution of a sale deed in favour of a third party and the appellant agreed not to make any claim in the amount of Rs 3.89 crores from his capital investment. The appellant also agreed to relinquish a certain parcel of land belonging to the firm.

Anshin H Desai, Senior Counsel on behalf of the appellant submitted that:

(i) An FIR was lodged on 6 December 2020 containing serious allegations involving:

  1. Interpolation of the deed of relinquishment executed by the appellant with the consequence that whereas the interest in only one property at Akota was relinquished, several additional properties have been included and the nature of the interpolation would be obvious on a bare perusal of the documents which have been annexed to the paper book;
  2. The deed of dissolution of partnership is purported to have been executed on a day when the appellant was not present in India but was traveling to Dubai;

(ii)  The FIR has been registered on the basis of the above allegations implicating the commission of offences punishable under Sections 405, 420, 465, 467, 468 and 471 of the Penal Code;

(iii)  On the representation made by the first respondent, successive Memorandum of Understandings (“MoU” or “MoUs”) were entered into between the appellant and the first respondent; and

(iv)  Pursuant to the settlement, the cheques which were issued by the first respondent have been dishonoured and the title to the lands which were purported to be transferred to the appellant is under a cloud and is not marketable.

Bench in view of the consistent position of the Supreme Court, opined that the High Court was not justified in issuing a direction restraining the arrest of the first respondent till the next date of listing without reasons.

Court stated that the procedure followed by the High Court of issuing an oral direction restraining the arrest of the first respondent was irregular.

Oral observations in court are in the course of judicial discourse. The text of a written order is what is binding and enforceable. Issuing oral directions (presumably to the APP) restraining arrest, does not form a part of the judicial record and must be eschewed.

Absent a written record of what has transpired in the course of a judicial proceeding, it would set a dangerous precedent if the parties and the investigating officer were expected to rely on unrecorded oral observations.

Further, the Bench noted that the Single Judge by an impugned order had issued an ad interim protection against arrest till the next date of listing. The reasons recorded were as follows:

  • Proceedings are pending between the parties;
  • Both of them have set the criminal machinery in action.

Having recorded the above, the Single Judge had granted a stay of arrest “to strike” a balance between both the parties while observing that the investigation may proceed. To this, the Court expressed that how this would strike a balance between both the parties was unclear from the reasons adduced.

The formulation of reasons in a judicial order provides the backbone of public confidence in the sanctity of the judicial process. While directing that the proceedings are to be listed on a future date, the High Court is undoubtedly not expected to deliver a detailed judgment elaborating upon reasons why a stay of arrest has been granted.

In the recent judgment in Neeharika Infrastructure Pvt Ltd. v. State of Maharashtra, 2021 SCC OnLine SC 315, this Court through one of us (Justice MR Shah) formulated the principles which have to be borne in mind by the High Court, when its intervention is sought under Section 482 of the CrPC to quash an FIR.

Supreme Court observed that while there may be some cases where the initiation of the criminal proceedings may be an abuse of law, it is in cases of an exceptional nature, where it is found that absence of interference would result in a miscarriage of justice, that the Court may exercise its jurisdiction under Section 482 of the CrPC and Article 226 of the Constitution.

Adding to the above, Court emphasized that the impugned order of the High Court cannot be sustained on the touchstone of the principles which have been consistently laid down by Supreme Court and reiterated in the above decision.

High Court was moved for the grant of ad-interim relief in a petition for quashing the FIR. The considerations which ought to weigh in whether or not to exercise the jurisdiction to quash must be present in the mind of the Judge while determining whether an interim order should be made.

In view of the above discussion, appeal was allowed and the impugned order was set aside. [Salimbhai Hamidbhai Memon v. Niteshkumar Maganbhai Patel, 2021 SCC OnLine SC 647, decided on 31-08-2021]

Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court: Ali Mohammad Magrey, J., held that FIR under Section 482 of CrPC cannot be quashed at the threshold stage. The Bench stated,

“It is not proper to scuttle away the investigation at its thresh-hold stage, if FIR discloses the commission of offences; High Court should not interfere with the investigation which would amount to stalling the investigation and jurisdiction of statutory authorities to exercise powers in accordance with the provisions of criminal Code.”

 The instant petition was filed assail the impugned FIR under Section 5(1)(e) read with 5(2) of J&K Prevention of Corruption Act 2006 read with Section 168 Ranbir Penal Code and to seek directions commanding the respondents not to cause any kind of interference into the business activities as well as the properties of the petitioner in any manner.

The Petitioner claimed to have resigned from the post of Junior Assistant in the Rural Development Department in 2017, which stated to have been accepted by the respondents on 15-01-2018 and thereafter he was doing his business and trading, paying his regular income taxes, but while doing so, he was stated to be implicated in corrupt activities stating that he had indulged in business activities while in active Government Service and, had, therefore, accumulate disproportionate assets beyond his known source of income in the shape of moveable/immoveable properties on his own name.

The petitioner challenged the FIR and subsequent investigation on the grounds that the very context/reading of the FIR did not disclose the commission of offence under Section 5 (1) (e) read with 5 (2) of J&K Prevention of Corruption Act 2006 read with Section 168 RPC as the language used in the FIR did not meet the ingredients for commission of aforesa0id offences. The petitioner submitted that the property mentioned in the FIR did not belong to him and was owned by different entities. Calling the FIR a misconduct on the first count, the petitioner contended that he was not a public servant and had retired three years ago from the Government employment and was not indulged in any business activities during his service.

Whether the FIR containing allegations which set the police in motion, can be quashed at the threshold stage?

Answering the question in negative, the Bench stated that the remedy under Section 482 CrPC can be invoked into service only in the following circumstances:

  1. to pass orders in order to give effect to an order passed under CrPC
  2. to prevent abuse of process of Court
  3. to secure the ends of justice: and
  4. to prevent mis-carriage of justice

Keeping in view the allegations contained in the FIR, the Bench opined that it could by no stretch of imagination be said that the case of petitioner fell within the ambit/contours of section 482 CrPC. The Supreme Court in catena of decisions had discussed the scope of Section 561-A CrPC corresponding to Section 482 CrPC of Central Code and had laid down the following tests:

  1. “Where the allegations made in the first information report or the complaint even if are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
  2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
  3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
  4. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of Magistrate as contemplated under Section 155(2) of the Code.
  5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
  6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party:
  7. Where a criminal proceeding is manifestly attended with malafide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

 Applying the tests laid down above, the Bench stated that the entire matter was at its infancy stage and did not fall within the four corners of the tests laid down. The Bench stated,

 “This Court has only to ascertain whether the allegations made in the FIR do disclose or do not disclose the commission of offences, if it does, then it cannot be quashed at its thresh-hold stage.”

 In Som Mittal v. State of Karnataka, 2008 AIR SCW 1003, the Supreme Court had held that,

“It has been consistently held that the power under Section 482 must be exercised sparingly with circumspection and in rarest of rare cases. Exercise of inherent power under section 482 of the CrPC is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal.” 

While keeping in view the scope of section 482 CrPC the Court should refrain from making prima facie decision at interlocutory stage when entire facts of the case are incomplete, hazy and more so, when material evidence is yet to be collected and issues involved could not be seen in their true perspective.

In the backdrop of above, the Bench held that prima facie it appeared that the allegations contained in the FIR relate to the offences which were cognizable and non-cognizable and hence, warrant investigation. Accordingly, the petition was dismissed. [Mohabat Ali Khan v. UT of JK, 2021 SCC OnLine J&K 595, decided on 20-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Sr. Advocate Mohsin Qadri with Advocate Mohammad Tahseen

For UT of J&K: Sr. D.A.G. B. A. Dar and Inspector Irfan Ul Hassan (IO) Anti-Corruption Bureau (in person)

Case BriefsHigh Courts

Allahabad High Court: Yogendra Kumar Srivastava, J. dismissed the petition and declined to entertain the present application in exercise of its inherent jurisdiction under Section 482 CrPC.

The instant application was filed under Section 482 Criminal Procedure Code seeking to quash the proceedings of Complaint Case No.10 of 2019 under Section 500 IPC, pending before Additional Chief Judicial Magistrate, Court. The present application also assails a summon order dated 18-01-2020.

Counsel for the applicant Mr Birendra Prasad Shukla submitted that the offence under Section 499 IPC is not made out inasmuch as the case is covered under the first exception to the section which provides that if the imputation is made for the public good, the same would not amount to defamation.

Counsel for the opposite party submitted that the question as to whether imputation is made for public good or not would be a question of fact which is to be seen in the trial and the same cannot be taken as a ground to seek quashing of the proceedings.

The Court observed that Section 499 of the Penal Code states as to when an act of imputation amounts to defamation. It contains four explanations and ten exceptions and section 500 prescribes punishment in such cases. The ten exceptions to Section 499 state the instances in which an imputation, prima facie defamatory, may be excused. The first exception corresponds to the defence which may be set up by taking the plea of the imputation being true and for public good. This exception recognizes the publication of truth as a sufficient justification, if it is made for the public good. Truth by itself would be no justification in criminal law, unless it is proved that its publication was for the public good.

The Court relied on Chaman Lal v. State of Punjab, (1970) 1 SCC 590 and observed that while considering the plea of defence of public good, under the first exception to Section 499, it was held that public good is a question of fact and the onus of proving the two ingredients under the first exception i.e. the imputation is true and the publication is for public good, is on the accused.

The Court observed that defamation is both a crime and a civil wrong. In a civil action for defamation in tort, truth is a defence, but in a criminal action, the accused would be required to prove both the truth of the matter and also that its publication was for public good and no amount of truth would justify a defamatory act unless its publication is proved to have been made for public good. It further observed that the benefit of the first exception to Section 499 IPC being a question of fact, can be decided during trial only and cannot be claimed at the stage of issuance of summons.

The Court held “The protection of the first exception to Section 499 of the Penal Code, which is being relied upon on behalf of the applicant, is not to be seen at this stage.”[Rajesh Churiwala v. State of U.P, 2021 SCC OnLine All 501, decided on 14-07-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: Vivek Varma, J., held that factum of disputed service of notice requires adjudication on the basis of evidence and the same can only be done by the trial court.

In the instant matter, OP had filed a complaint under Section 138 of the Negotiable Instruments Act against the applicant as the cheques issued by the applicant was returned by the bank with the remark “fund insufficient”.

A legal notice in view of the above-stated circumstances was sent. There is a presumption of service of the said notice and despite service of notice, the applicant did not make any payment nor sent any reply.

Analysis, Law and Decision

Bench stated that Section 138 NI Act was considered by the Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555, wherein the presumption under Section 114 of the Evidence Act and Section 27 of the General Clauses Act was enunciated.

The above-stated case was followed by the Supreme Court in Ajeet Seeds Limited v. K. Gopala Krishnaiah, (2014) 12 SCC 685 and held that absence of averments in the complaint about service of notice upon the accused’s is the matter of evidence.

Noting the settled legal position in the above cases, Bench expressed that the complaint cannot be thrown at the threshold even if it does not make a specific averment with regard to service of notice on the drawer on a given date. Complaint, however, must contain basic facts regarding the mode and manner of issuance of notice to the drawer of the cheque.

Supreme Court’s decision in Subodh S. Salaskar v. Jayprakash M. Shah, (2008) 13 SCC 689, was relevant to the present matter.

High Court elaborated that, notice being sent on 19-09-2012, if the presumption of service of notice within a reasonable time is raised, shall be deemed to have been served, at the best within a period of 30 days from the date of issuance. Applicant was required to make payment in terms of the said notice within 15 days thereafter.

The factum of disputed service of notice requires adjudication on the basis of evidence and the same can only be done and appreciated by the trial court and not by this Court under the jurisdiction conferred by Section 482 CrPC.

However, since the complaint case was pending since the year 2014, as per the mandate of the Act the proceedings under Section 138 NI Act ought to be concluded within 6 months.

Hence, the Court below was directed to expedite the hearing of the complaint case. [Anil Kumar Goel v. State of U.P., 2021 SCC OnLine All 410, decided on 7-06-2021]

Advocates before the Court:

Counsel for Applicant:- Anand Prakash Dubey, Pradeep Kumar Rai, Saurabh Trivedi

Counsel for Opposite Party:- Govt. Advocate Vikrant Rana

Case BriefsSupreme Court

Supreme Court: Dealing with a case where Bombay High Court had granted interim protection from arrest to an accused facing serious charges for the offences under Sections 406, 420, 465, 468, 471 and 120B of the Penal Code and had ordered “no coercive measures to be adopted/taken”, the 3-judge bench of Dr. DY Chandrachud, MR Shah* and Sanjiv Khanna, JJ deprecated the order of the High Court and held that such a blanket interim order passed by the High Court affects the powers of the investigating agency to investigate into the cognizable offences, which otherwise is a statutory right/duty of the police under the relevant provisions of the Cr.P.C.

“We are at pains to note that despite the law laid down by this Court in the case of Habib Abdullah Jeelani[1] (…), deprecating such orders passed by the High Courts of not to arrest during the pendency of the investigation, even when the quashing petitions under Section 482 Cr.P.C. or Article 226 of the Constitution of India are dismissed, even thereafter also, many High Courts are passing such orders. The law declared/laid down by this Court is binding on all the High Courts and not following the law laid down by this Court would have a very serious implications in the administration of justice.”

Background

The accused were charged for forgery and fabrication of Board Resolution and the fraudulent sale of a valuable property belonging to the appellant company to one M/s Irish Hospitality Pvt. Ltd.

Apprehending their arrest in connection with the aforesaid FIR, the original accused filed anticipatory bail application before the learned trial Court under Section 438 Cr.P.C.

Sessions Court, Mumbai granted interim protection from arrest to the alleged accused. This interim protection was further extended from time to time and continued nearly for a year thereafter.

The High Court passed the impugned interim order directing that “no coercive measures shall be adopted against the petitioners in respect of the said FIR.

The said order was challenged before the Supreme Court on the ground that no reasons whatsoever were assigned by the High Court while passing such an interim order of “no coercive measures to be adopted/taken” against the original accused.

“…the High Court ought to have appreciated that the original accused – respondent nos. 2 to 4 herein are facing very serious charges for the offences under Sections 406, 420, 465, 468, 471 and 120B of the Indian Penal Code and, in fact, the FIR was transferred to the Economic Offences Wing and the investigation was being conducted by the Economic Offences Wing. It is submitted that, as such, the original accused were not co-operating with the investigation after having obtained the interim protection from arrest.”

It was argued before the Court that while enjoying the interim protection from arrest, to file an application for quashing after a period of almost one year and obtain such an order is nothing but an abuse of process.

Analysis

Practice and procedure in case of cognizable offences – Summary of catena of Supreme Court decicions

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, in the ‘rarest of rare cases’. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, has the jurisdiction to quash the FIR/complaint; and

xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR.

What must be kept in mind before passing an interim order of staying further investigation pending the quashing petition?

Before passing an interim order of staying further investigation pending the quashing petition under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India, the High Court has to apply the very parameters which are required to be considered while quashing the proceedings in exercise of powers under Section 482 Cr.P.C. in exercise of its inherent jurisdiction.

“In a given case, there may be allegations of abuse of process of law by converting a civil dispute into a criminal dispute, only with a view to pressurise the accused. Similarly, in a given case the complaint itself on the face of it can be said to be barred by law. The allegations in the FIR/complaint may not at all disclose the commission of a cognizable offence. In such cases and in exceptional cases with circumspection, the High Court may stay the further investigation.”

However, at the same time, there may be genuine complaints/FIRs and the police/investigating agency has a statutory obligation/right/duty to enquire into the cognizable offences.

“Therefore, a balance has to be struck between the rights of the genuine complainants and the FIRs disclosing commission of a cognizable offence and the statutory obligation/duty of the investigating agency to investigate into the cognizable offences on the one hand and those innocent persons against whom the criminal proceedings are initiated which may be in a given case abuse of process of law and the process.”

However, if the facts are hazy and the investigation has just begun, the High Court would be circumspect in exercising such powers and the High Court must permit the investigating agency to proceed further with the investigation in exercise of its statutory duty under the provisions of the Code. Even in such a case the High Court has to give/assign brief reasons why at this stage the further investigation is required to be stayed. The High Court must appreciate that speedy investigation is the requirement in the criminal administration of justice.

What happens in a case where the initiation of criminal proceedings may be an abuse of process of law?

In such cases, and only in exceptional cases and where it is found that non-interference would result into miscarriage of justice, the High Court, in exercise of its inherent powers under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India, may quash the FIR/complaint/criminal proceedings and even may stay the further investigation.

“However, the High Court should be slow in interfering the criminal proceedings at the initial stage, i.e., quashing petition filed immediately after lodging the FIR/complaint and no sufficient time is given to the police to investigate into the allegations of the FIR/complaint, which is the statutory right/duty of the police under the provisions of the Code of Criminal Procedure.”

Hence, in exceptional cases, when the High Court deems it fit, regard being had to the parameters of quashing and the self-restraint imposed by law, may pass appropriate interim orders, as thought apposite in law, however, the High Court has to give brief reasons which will reflect the application of mind by the court to the relevant facts.

Why passing blanket order as passed in the present case is not the way forward?

“Granting of such blanket order would not only adversely affect the investigation but would have far reaching implications for maintaining the Rule of Law. Where the investigation is stayed for a long time, even if the stay is ultimately vacated, the subsequent investigation may not be very fruitful for the simple reason that the evidence may no longer be available.”

In case, the accused named in the FIR/complaint apprehends his arrest, he has a remedy to apply for anticipatory bail under Section 438 Cr.P.C. and on the conditions of grant of anticipatory bail under Section 438 Cr.P.C being satisfied, he may be released on anticipatory bail by the competent court.

It cannot be disputed that the anticipatory bail under Section 438 Cr.P.C. can be granted on the conditions prescribed under Section 438 Cr.P.C. are satisfied. At the same time, it is to be noted that arrest is not a must whenever an FIR of a cognizable offence is lodged.

However,

“So far as the order of not to arrest and/or “no coercive steps” till the final report/chargesheet is filed and/or during the course of investigation or not to arrest till the investigation is completed, passed while dismissing the quashing petitions under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India and having opined that no case is made out to quash the FIR/complaint is concerned, the same is wholly impermissible.”

Conclusion

i) Such a blanket interim order passed by the High Court affects the powers of the investigating agency to investigate into the cognizable offences, which otherwise is a statutory right/duty of the police under the relevant provisions of the Cr.P.C.;

ii) The interim order is a cryptic order;

iii) No reasons whatsoever have been assigned by the High Court, while passing such a blanket order of “no coercive steps to be adopted” by the police;

iv) It is not clear what the High Court meant by passing the order of “not to adopt any coercive steps”, as it is clear from the impugned interim order that it was brought to the notice of the High Court that so far as the accused are concerned, they are already protected by the interim protection granted by the learned Sessions Court, and therefore there was no further reason and/or justification for the High Court to pass such an interim order of “no coercive steps to be adopted”.

“If the High Court meant by passing such an interim order of “no coercive steps” directing the investigating agency/police not to further investigate, in that case, such a blanket order without assigning any reasons whatsoever and without even permitting the investigating agency to further investigate into the allegations of the cognizable offence is otherwise unsustainable. It has affected the right of the investigating agency to investigate into the cognizable offences.”

[Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra, 2021 SCC OnLine SC 315, decided on 13.04.2021]

[1] State of Telangana v. Habib Abdullah Jeelani, (2017) 2 SCC 779

High Court cannot issue a blanket order restraining arrest while refusing to quash the investigation

Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Appearances before the Court

Senior Advocate K.V. Vishwanathan, Advocates Diljeet Ahluwalia, Malak Manish Bhatt, Sachin Patil and Rahul Chitnis

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Z.A. Haq and Amit B. Borkar, JJ., while addressing the matter, observed that:

In the absence of a specific penal provision creating vicarious liability, an administrator of a WhatsApp group cannot be held liable for objectionable content posted by a member of a group.

Common intention cannot be established in the case of WhatsApp service user merely acting as a group administrator.

By the present application under Section 482 of the Code of Criminal Procedure, the applicant laid challenge to charge-sheet filed in the Court of Judicial Magistrate in pursuance of FIR registered with non-applicant 1 for offences punishable under Sections 354-A(1)(iv), 509 and 107 of the Penal Code, 1860 and Section 67 of the Information Technology Act, 2000.

As per the FIR, applicant was an administrator of a WhatsApp group, that accused 1 used filthy language against non-applicant 2 on a WhatsApp group of which applicant was an administrator, that despite accused 1 using filthy language against the non-applicant 2, applicant had not taken any action against accused 1.

Further, it was alleged that the applicant being the administrator had not removed nor deleted accused 1 from the WhatsApp Group.

In view of the above, non-applicant 2 lodged the FIR against the applicant and accused 1.

Hence, the applicant has, therefore, filed a present application challenging filing of charge-sheet and continuation of proceedings against the applicant.

Crux of the Issue

Whether an administrator of a WhatsApp group can be held criminally liable for the objectionable post of its member for committing offences punishable under Sections 354-A(i)(iv), 509 and 107 of the Penal Code, 1860 and Section 67 of the Information Technology Act, 2000?

Powers of the WhatsApp Group Administrator:

A group administrator has limited power of removing a member of the group or adding other members of the group. Once the group is created, the functioning of the administrator and that of the members is at par with each other, except for the power of adding or deleting members to the group.

The administrator does not have the power to regulate, moderate or censor the content before it is posted on the group. But, if a member of the WhatsApp group posts any content, which is actionable under law, such person can be held liable under relevant provisions of law.

Further, it was expressed that, a group administrator cannot be held vicariously liable for an act of a member of the group, who posts objectionable content, unless it is shown that there was a common intention or pre-arranged plan acting in concert pursuant to such plan by such member of a Whatsapp group and the administrator.

In the FIR it was stated that sexually coloured remarks were made by accused 1 and applicant being administrator of the WhatsApp group had not taken action of deleting the accused 1 from the group, nor had sought an apology from accused 1.

Decision

In Court’s opinion, non-removal of a member by the administrator of a WhatsApp group or failure to seek apology from a member, who had posted the objectionable remark, would not amount to making sexually coloured remarks by the administrator.

Court found that essential ingredients of Section 107 of IPC that the applicant had instigated or intentionally aided by his act or illegal omission to accused 1 to make sexually coloured remarks against non-applicant 2 were conspicuously absent. Hence the said Section will not be attracted in the present case.

Section 509 of the IPC criminalizes word, gesture, or act ‘intended’ to insult the modesty of a woman. In order to establish this offence, it is necessary to show that modesty of a particular woman has been insulted by a spoken word, gesture or physical act.

In the present matter, the above-stated offence cannot be made out against applicant, when the grievance of non-applicant 2 was that accused 1 had used filthy language against the non-applicant 2.

To constitute an offence under Section 67 of the Information Technology Act, 2000, a person must publish or transmit an obscene material in electronic form.

High Court in view of the above discussion, found no allegation or material that the applicant had either published, transmitted or caused to be published or transmitted in electronic form any material, which was lascivious or appealed to prurient interest or its effect was such to tend to deprave and corrupt persons who were likely to read, see or hear the matter contained.

Bench added that the applicant had neither published nor transmitted or caused to be published or transmitted any electronic form, any material which was obscene in nature.

Lastly while concluding, the High Court held that parameters of exercise of the powers conferred on this Court under Section 482 CrPC being settled, that in order to prevent the abuse of process of any Court and to secure the ends of justice, this power can be exercised.

Bench stated that the present case is the one where power needs to be exercised.

Taking the overall view of the matter, Court was satisfied that even if allegations in the FIR were accepted as correct and considering the material in charge sheet on its face value it does not disclose essential ingredients of offences alleged against the applicant under Sections 354-A(1)(iv), 509 and 107 of the Indian Penal Code and section 67 of the Information Technology Act, 2000.

Hence the continuation of present proceedings against the applicant would amount to an abuse of process of Court. [Kishor v. State of Maharashtra, 2021 SCC OnLine Bom 654, decided on 01-03-2021]

Advocates before the Court:

Mr R.M.Daga, Advocate for the applicant. Mr T.A.Mirza, A.P. P. for the non-applicant No.1.

Mr Sanjay A. Bramhe, Advocate for the non-applicant No.2.

Case BriefsHigh Courts

Manipur High Court: In a petition filed under Section 482 of Code of Criminal Procedure for quashing criminal compliant filed before the Judicial Magistrate, 1st Class, Churachandpur, MV Muralidaran, J., observed that

“It was incumbent upon the court below to have first discovered the basic nature of the dispute which altogether involves question of actual payment.”

The petitioner 1 and 2 are the Chief and Secretary of Lamdan Village Authority. The respondent was the ex-Secretary of Lamdan Village Authority and had voluntarily resigned from the post on 21-10-2013.

The respondent challenged the proceedings of the Special General Body Meeting held on 08-06-2013 thereby appointing the present petitioner-accused 1 as Chief before the customary Court as well as before the Deputy Commissioner, Churachandpur , his objection was, however, rejected as the petitioner-accused 1 was properly appointed. A Civil Suit was also filed by the respondent to restrain petitioner-accused 1 from acting as Chief and declare him the Chief of the Village but he did not succeed in that as well. The present respondent then filed the criminal complained before the Judicial Magistrate, 1st Class, Churachandpur regarding cutting down of trees belonging to the common forest and selling them without the consent of the villagers.

The present petition was filed on the ground that the respondent had given the incorrect facts about the civil suit and had also filed a malicious complaint in order to harass the petitioner-accused 1 and failed to appear before the concerned Magistrate. There was a non-disclosure of material facts relating to payment of full transaction in a money claim.

The main issue was as to whether the petition filed by the complainant before the Judicial Magistrate, 1st Class, Churachandpur is confined to civil dispute and the course of action so adopted is abuse of process of the Court?

The Court observed that after perusal of the statement of the complainant-respondent and witnesses and careful scrutiny of records, it is established that the dispute relates to the civil nature, moreover, the respondent has concealed the material and relevant facts relating to the actual transaction that took place.

The Court relied on the judgment in the case of GHCL Employees Stock Option Trust v. India Infoline Ltd., (2013) 2 SCC (Crl) 414 wherein the Supreme Court had elaborately discussed the controversy in hand and held that

“There is no dispute with regard to the legal proposition that the case of breach of trust or cheating are both a civil wrong and a criminal offence, but under certain situations where the act alleged would predominantly be a civil wrong, such an act does not constitute a criminal offence.”

The Court was, of the opinion that the lower Court failed to determine the nature of dispute first which was predominantly of civil nature and was deliberately categorized as a criminal offence in order to wreck vengeance.

The Court also relied on the judgment in the case of Inder Mohan Goswami v.  State of Uttaranchal, (2007) 12 SCC 1, wherein it was held that,

“The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution.”

Applying the said principle to the case at hand, the Court observed that

“The inherent power under Section 482 CrPC is not to be exercised by this Court generally to stifle the legitimate prosecution but here the prosecution has been launched, in concealment of material facts in the name of wrecking vengeance on the applicants”.

Perusing the statement of the complainant and witness recorded under Sections 200 and 202 Cr.P.C. respectively, in support of the complaint the Court came to the conclusion that

“no whisper regarding manner of committing forgery has been made which may give credence to the money claim. Perusal of the record further shows that as per annexures appended to the present application, the matter has been finally settled amicably. It is surprising that after the Petitioners had made it specific allegations regarding the respondent.”

The Court noticed that the complainant “very cleverly chose to brand a civil dispute as criminal offence”. It is obvious that the entire proceedings initiated at the instance of the complainant is in abuse of the process of the Court and the ends of justice requires that such proceedings which have been initiated with an ulterior motive should not be allowed to go unchecked as that would adversely affect the ends of Justice. When the dispute in question is discovered to be predominantly of civil nature then an attempt to make it criminal offence should be thwarted and discouraged. The payment made in full satisfaction of the transaction is to be ascertained on the face of evidence and documents which may be scrutinized by the civil court of the competent jurisdiction.

“The complainant instead of choosing proper forum for realization of the claimed outstanding amount, has chosen a different path which will not serve the ultimate purpose of full payment. The dispute in question is purely of civil nature and the proceedings in question are discovered to be misuse of the process of the Court and the same cannot be allowed to go on any further.”

Allowing the petition, the Court held that the entire proceeding was initiated with an ulterior motive and is an abuse of the process of the Court and the ends of Justice and therefore is liable to be quashed.

[M. Khuripou v. Pamei Dimpu, Crl. Petn. No. 24 of 2014, decided on 28-02-2020]

Appearance made before the Court by:

For the Petitioner/Accused (s) : Advocate N. Umakanta

For the Respondent : Advocate S. Abung

Case BriefsHigh Courts

Delhi High Court: Rajnish Bhatnagar, J., held that:

“Once a cheque is issued by a person, it must be honored and if it is not honoured, the person is given an opportunity to pay the cheque amount by issuance of a notice and if he still does not pay, he is bound to face the criminal trial and consequences.”

Accused 2, 3 and 4 had approached Respondent 2 in January 2009 and allured him into investing Rs 50 lacs in their company with the assurance that the same would be doubled in 5 years and relying on such assurances, he invested his lifetime savings with them.

Accused persons failed to return the principal amount with interest being total of Rs 1 Crore but then he was further inducted to invest Rs 20 lacs more with the promise to return Rs 2 crores on or before March 2019 and that MoU dated 26-07-2018 was executed, whereby accused persons undertook to pay the complainant a sum of Rs 47,53,519 and a cheque was also issued; and that later MoU dated 05-05-2019 was executed and it was promised that the complainant would be made a partner in the business and receipt of Rs 50 lacs as principal amount was retained with the promise that it would be safe and secure with them and it would become Rs 2 crores in 2019.

On 18-02-2019 another Promissory Note was issued by accused 2 in favour of the complainant and his wife acknowledging liability to pay an amount of Rs 2,47,53,000/- payable to the complainant and his wife on or before 30-06-2019.

Later, in July 2019 nine cheques were issued and the said cheques were dishonored and while cheque at Sr No. 1 was dishonored for the reasons “account closed”, the bank returning memos in respect of other cheques from Sr Nos. 2 to 9 came with the remarks “kindly contact drawer”.

Respondent 2 served a legal notice upon the accused persons, which were duly served upon but since no payment was made under the cheque, the complaint was filed by respondent 2.

Accused 4/ Petitioner was summoned by the MM for offences under Section 138 of the Negotiable Instruments Act.

Petitioner sought quashing of the present proceedings on the grounds that neither she was a Director nor she had signed the cheques in question nor she ever participated in any of the meeting or negotiations with the complainant with regard to the transactions in question nor she ever executed any document, hence she had no role in the offence.

Analysis, Law and Decision

“…Negotiable Instruments Act, provides sufficient opportunity to a person who issues the cheque.”

Bench stated that the High Court cannot usurp the powers of the Metropolitan Magistrate and entertain a plea of an accused, as to why he should not be tried under Section 138 of the N.I. Act.

The plea regarding why he should not be tried under Section 138 NI Act is to be raised by the accused before the Court of Metropolitan Magistrate.

Further, the High Court expressed that an offence under Section 138 of the N.I. Act is technical in nature and defences, which an accused can take, are inbuilt; for instance, the cheque was given without consideration, the accused was not a Director at that time, accused was a sleeping partner or a sleeping Director, cheque was given as a security etc., etc., the onus of proving these defences is on the accused alone, in view of Section 106 of the Indian Evidence Act, 1872

Burden of Proving

Offence under Section 138 NI Act is an offence in the personal nature of the complainant and since it is within the special knowledge of the accused as to why he is not to face trial under Section 138 NI Act, he alone had to take the plea of defense and the burden cannot be shifted to complainant.

“…no presumption that even if an accused fails to bring out his defense, he is still to be considered innocent.”

If an accused has a defense against dishonour of the cheque in question, it is he alone who knows the defense and responsibility of spelling out this defense to the Court and then proving this on the accused.

In the instant case, respondent 2/complainant stated that under Section 138 of N.I. Act has made specific averments that while Accused’s 2 and 3 were directors of the company, accused 4 had been handling finance and accounts of the accused 1 company and responsible for its day to day operations alongwith other accused persons.

Court stated that the plea raised for the petitioner that Summy Bhasin never participated in any negotiations with the complainant cannot be considered at this preliminary stage since such defense can only be considered during the trial stage.

Prosecution under Section 138 of the Act can be launched for vicarious liability against any person, who at the time of commission of offence was in charge and responsible for the conduct of the business of the accused company.

Petitioners plea that the offences were committed without his knowledge cannot be considered at this stage considering the fact that the Complainant specifically averred that negotiations had taken place with him along with other co-accused persons and they were prima facie aware about the whole series of transaction.

Lastly, Bench expressed that the deal with the complainant was not a trivial or a routine case of marketing, sale or purchase of goods or services.

When such a huge investment was being sought from the complainant and applied for the running of the affairs of the company, it is not fathomable that the accused persons were unaware of the financial implications for themselves and for the accused company.

In exercise of jurisdiction under Section 482 CrPC, Court cannot go into the truth or otherwise of the allegations made in the complaint or delve into the disputed questions of facts.

Therefore, it can be concluded from the above discussion that, Section 138 of the NI Act spells out the ingredients of the offence and the said ingredients are to be satisfied mainly on the basis of documentary evidence, keeping in mind the presumptions under Sections 118 and 139 of NI Act and Section 27 of the General Clauses Act as well as the provisions of Section 146 of the Act.

“…trial that alone can bring out the truth so as to arrive at a just and fair decision for the parties concerned.”[Summy Bhasin v. State of NCT of Delhi, 2021 SCC OnLine Del 1189, decided 10-03-2021]

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., with regard to the settlement of disputes stated that:

“In crimes which seriously endangers the well being of the society, it is not safe to leave the crime doer only because he and the victim have settled the dispute amicably. “

The instant petition was filed under Section 482 CrPC for offence under Sections 419, 467, 471, 474, 376, 354, 506 read with Section 34 of the Penal Code, 1860.

Petitioner/Accused had met respondent 2 and revealed that his name to be Shiva and promised the complainant to marry her. Complainant and the Petitioner became intimate and had a physical relationship she had been promised marriage by the petitioner.

Later the respondent 2/complainant came to know that the petitioner had concealed his identity and his real name as ‘Akhtar’.

Respondent 2/Complainant stated in the FIR that the petitioner took her to Arya Samaj Mandir wherein they got married and in the marriage certificate he gave his name as Akhtar. After the marriage, the petitioner started demanding money and when respondent 2 visited his parents, she was driven away with them.

The instant petition was filed as the parties amicably settled their dispute.

A Status Report was also filed wherein it was stated that Akhtar/Shiva hid his identity and was sexually exploiting the respondent 2 for five years. It was also stated that the petitioner forged Aadhaar Cards and has got two Aadhaar Cards, one in the name of Akhtar and the second in the name of Shiva. On further investigation, it was also found that the marriage certificate was also fake.

Analysis and Decision

Bench stated that the power of the High Court under Section 482 CrPC to quash proceedings is those offences which are non-compoundable is recognized.

Court noted that the Supreme Court time and again held that the High Court has to keep in mind the subtle distinction between the power of compounding offences given to the Court under Section 320 CrPC and the quashing of criminal proceedings and the jurisdiction conferred upon it under Section 482 CrPC.

For the above purpose, Court cited the Supreme Court’s decision in Shiji v. Radhika, (2011) 10 SCC 705.

Further, the Bench added that:

“While exercising its power under Section 482 CrPC, High Court is guided by the material on record as to whether the ends of justice would justify such exercise of power.”

 Court referred to the Supreme Court decision in Gian Singh v. State of Punjab, (2012) 10 SCC 303, wherein it has been elaborated under what circumstances, criminal proceedings in a non-compoundable case could be quashed when there is a settlement between the parties.

In the case of Narinder Singh v. State of Punjab, (2014) 6 SCC 466, the Supreme Court laid down principles by which the High Courts should be guided in giving adequate treatment to the settlement between the parties.

Court expressed that:

An offence of rape is an offence against the society at large and apart from offence under Section 376, the petitioner is also accused of committing offences under Sections 419,467,468,471,474,506 and 34 IPC.

In view of the facts and circumstances of the case, Bench opined that it is not in a position to quash the FIR on the basis of compromise entered into between the parties and wherein it was stated that the petitioner/accused and the respondent 2 decide to stay as husband and wife and lead their peaceful marital life.

Supreme Court has repeatedly stated that when parties reach a settlement and on that basis a petition is filed for quashing criminal proceedings, the guiding factor for the High Court before quashing the complaint in such cases would be to secure; a) ends of justice, b) to prevent abuse of process of any court.

In view of the FIR and Status Report, Bench held that it’s evident that the petitioner has been accused of serious offences like rape and forgery having a bearing on vital societal interest and these offences cannot be construed to be merely private or civil disputes but rather will have an effect on the society at large.[Akhtar v. GNCTD,  2021 SCC OnLine Del 260 , decided on 01-02-2021]

Advocates for the parties:

Petitioner: Haraprasad Sahu, Advocate

Respondents: Kusum Dhalla, APP for State