section 482 crpc

Case BriefsHigh Courts

Himachal Pradesh High Court:  Vivek Singh Thakur, J., while exercising powers under Section 482 CrPC, allows the present petition,  stating, “… power of High Court under Section 482 CrPC is not inhibited by the provisions of Section 320 CrPC and FIR as well as criminal proceedings can be quashed by exercising inherent powers under Section 482 CrPC, if warranted in given facts and circumstances of the case for ends of justice or to prevent abuse of the process of any Court, even in those cases which are not compoundable where parties have settled the matter between themselves.”

 Background

The instant petition, under Section 482 of the Code of Criminal Procedure has been filed by petitioner Girdhari Lal, on the basis of compromise arrived at between him and respondent 2, for quashing dated 07-07-2017, registered under Section 8 of the Protection of Children from Sexual Offence Act, 2012 and subsequent proceedings arising thereto. It is contended on behalf of respondent 1 that petitioner accused is not entitled to invoke the inherent jurisdiction of this Court to exercise its power on the basis of compromise arrived at between the parties with respect to an offence not compoundable under Section 320 CrPC.

 Observations

Pursuant to its decision, Court placed reliance over the following cases;

Gian Singh v. State of Punjab, (2012) 10 SCC 303, explaining that High Court has inherent power under Section 482 of the Code of Criminal Procedure with no statutory limitation including Section 320 CrPC.

Narinder Singh v. State of Punjab, (2014) 6 SCC 466, where the Supreme Court has summed up and laid down principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercise its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with criminal proceedings.

Madan Mohan Abbot v. State of Punjab, (2008) 4 SCC 582, it was emphasized by the Supreme Court that in matter of compromise in criminal proceedings, a commonsense approach, based on ground realities and bereft of the technicalities of law, should be applied.

With respect to the offence committed under the POCSO Act, the Court remarked, “No doubt Section 8 of POCSO Act is not compoundable under Section 320 CrPC. However, as explained by Supreme Court in Gian Singh’s, Narinder Singh’cases, power of High Court under Section 482 CrPC is not inhibited by the provisions of Section 320 CrPC.”

 Decision

Quashing FIR against the petitioner, the Court said, “Keeping in view nature and gravity of offence and considering facts and circumstances of the case in entirety, I am of the opinion that present petition deserves to be allowed for ends of justice and the same is allowed accordingly.” [Girdhari Lal v. State of Himachal Pradesh, Cr. MMO No. 388 of 2020, decided on 04-01-2021]

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Madras High Court: R. Pongiappan, J., addressed the Criminal Original Petition seeking to quash the First Information Report of first respondent police as the same was alleged to be illegal.

The instant petition was filed to quash the FIR. The said FIR was registered for the offences punishable under Sections 294(b), 323, 324, 506(1) and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002.

Petitioner Counsel submitted that petitioner 1 is the husband of the second respondent. Petitioner 1 had filed the original petition under Section 13(1)(1-b) of the Hindu Marriage Act, 1955 to seek dissolution of marriage. The said petition has been pending for commencement of trial.

In view of the above circumstances, to threaten the petitioners, respondent 2 lodged a false complaint and first respondent police without making my enquiry registered a case.

Analysis and Decision

Bench first and foremost referred to the Supreme Court decision on Kamal Shivaji Pokarnekar v. State of Maharashtra, (2019) 14 SCC 350, wherein it was held that:

“5. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424. disclosed, there would be no justification for the High Court to interfere.”

Bench on perusal of the facts of the case found that the averments made in the FIR clearly constituted the prima facie case for offences under Sections 294(b), 323, 324, 506(1) and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002,

Court further relied on the Supreme Court decision in CBI v. A. Ravishankar Prasad, (2009) 6 SCC 351, wherein it was held that:

“Inherent powers of High Court under Section 482 CrPC are meant to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. These inherent powers can be exercised in the following category of cases: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice. Extraordinary power under Section 482 CrPC should be exercised sparingly and with great care and caution.”

Hence, relying on the above-stated decisions, the Court expressed that:

“…only in the circumstances that registration of case itself is an abuse of process of law, inherent powers can be exercised to prevent abuse of process of law.”

Petitioners in the instant case could not prove that the registration of the FIR was an abuse of process of law, therefore, Criminal Original Petition was dismissed. [Karunamoorthi v. State, 2020 SCC OnLine Mad 6026, decided on 02-12-2020]

Advocates for the parties:

For Petitioners: W. Camyles Gandhi

For Respondent 1: S.Karthikeyan Additional Public Prosecutor

For Respondent 2: K.Vasanthanayagan

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Gauhati High Court: Soumitra Saikia, J., observed that

“..a valid decree of divorce by itself is no ground to deny the maintenance to a divorced wife.”

The criminal petition filed under Section 482 of the Criminal Procedure Code, 1973 sought the quashment of the Judgment and Order.

Wife/OP had filed an application under Section 125 CrPC claiming maintenance from the petitioner/husband @ Rs 5000 per month, later the husband filed a petition seeking to reduce the maintenance allowance stating that there was a substantial loss of income and was facing financial hardship.

In the meanwhile, the divorce case was decreed in favour of the husband. By the said judgment, the marriage was dissolved by decree of divorce under Section 13(1)(i–a) and (i)(b) of the Hindu Marriage Act.

Later, the husband’s petition seeking to reduce the maintenance allowance was allowed. The wife again preferred the revision petition stating that she decree of divorce would not automatically disentitle the wife from getting maintenance and the said revision petition was allowed by setting aside by remanding the matter back to the Judicial Magistrate Court.

Being aggrieved with the above, the husband filed the present criminal petition.

Analysis and Decision

On perusal of Section 125 and 127 of the Criminal Procedure Code, 1973, it revealed that legislature engrafted the said provisions for the benefit of the wife, a child and the parents of any person of any in order prevent them from becoming destitute.

In the instant matter, the concern is with regard to the maintenance in respect of a divorced wife.

“…true purport of the provisions of Section 125 is to ensure that in the event the husband fails to provide for adequate sustenance on an application made before the Magistrate, the sections empower the Magistrate to order the husband to provide for adequate maintenance for the benefit of the wife so as to prevent the wife from being reduced to a destitute or be compelled to live a life of beggary.”

Supreme Court consistently has held that a divorced wife would also be included in the definition of a wife as it defined under Section 125 CrPC.

“…responsibility of the husband towards a wife will not cease merely because a decree of divorce has been passed severing the marriage between the husband the wife.”

Decisions referred by the Court:

Rohtash Singh v. Ramendri, (2000) 3 SCC 180; Manoj Kumar v. Champa Devi,(2018) 12 SCC 748, Swapan Kumar Banerjee v. State of West Bengal, (2019) 4 SCC 146.

Court upon perusal of the Supreme Court decisions stated that it is evident that Section 125 CrPC being beneficial legislation to provide for protection to the wife, a mere divorce between the husband and wife will not preclude the “divorced wife” from claiming and/or availing of the benefits available to a wife under Section 125 CrPC.

The husband cannot absolve his responsibility to maintain and to provide for the adequate maintenance to the wife unless there are evidences to support that the wife is no longer required to be maintained in view of certain changed circumstances.

Bench also added that the claim for maintenance of a divorced wife can only be defeated either on the ground that she has remarried or that she is able to maintain herself. 

“…a ‘divorce’ does not change the status of a wife in the context of Section 125 CrPC.”

“…power under Section 127(2) CrPC, can only be invoked by a magistrate for cancellation of maintenance granted earlier only when there are changed circumstances after grant of such maintenance under Section 125.”

In the instant matter, there was no change of circumstances, which required the magistrate to invoke its powers under Section 127(2) for cancellation of the order directing payment of maintenance.

High Court directed the trial court to decide the matter afresh. [Bijoy Seal v. Sefali Seal, 2020 SCC OnLine Gau 4024, decided on 30-09-2020]

Advocates who appeared before the Court:

Advocate for the Petitioner: P J SAIKIA

Advocate for the Respondent:  K KALITA

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Punjab and Haryana High Court: Sanjay Kumar, J., quashed the proceedings under Section 499 IPC against the petitioner holding that the complainant was neither a family member nor a near relative of the deceased whose defamation was alleged to have been caused by the petitioner, and hence the complaint itself was not maintainable.

The instant petition was filed under Section 482 of the Criminal Procedure Code, 1973 seeking to quash complaint titled Sant Kanwar v. Raj Kumar Saini, Complaint No. 83 of 2018 under Sections 499, 500 and 501 of Penal Code, 1860.

It was noted by the Court that the issue of maintainability of the instant petition under Section 482 CrPC stands settled in favour of the petitioner as the inherent powers of this Court cannot be curtailed by existence of the alternative remedy of revision under Section 397 CrPC. 

On perusal of the complaint, respondent-complainant demonstrated that he claimed to be a follower of late Chaudhary Matu Ram Hooda, an Arya Samajist and freedom fighter. He stated that late Chaudhary Matu Ram Hooda was an inspiration and a guiding light for him. While so, he claimed to have read newspapers on 02-04-2018 and 03-04-2018, wherein it was reported that the petitioner had made several defamatory statements against late Chaudhary Matu Ram Hooda. It is on the strength of these newspaper reports that he filed the subject complaint alleging that the petitioner had committed the offence of defamation.

Section 199 CrPC deals with prosecution for defamation. Sub-section 1 thereof states that no Court should take cognizance of an offence punishable under Chapter XXI of the Penal Code, 1860, except upon a complaint made by some person aggrieved by the offence. The said provision mandates that the complaint made by a ‘person aggrieved’.

Section 499 IPC defines defamation and Explanations 1 and 2 appended thereto give an indication as who would be a ‘person aggrieved’. Explanation 1 states that imputing anything to a deceased person would amount to defamation, if such imputation would have harmed the reputation of that person had he been living and such imputation is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2 states that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

In view of the above, the Court stated that the ‘person aggrieved’ must have an element of personal interest, being either the person defamed himself or in the case of a deceased person, his family member or other near relatives.

Section 320 CrPC permits compounding of the offence of defamation but it is only the person who is defamed who can agree to the same. For the said, Patna High Court’s decision in Bhagwan Shree Rajneesh v. State of Bihar, 1986 SCC OnLine Patna 174 was referred to, wherein it was observed that though generally, the person aggrieved is only the person defamed, an exception has been made in the case of a deceased person but the ‘persons aggrieved’ even in such case are limited only to members of his family or his near relatives, whose feelings would be hurt by the defamatory statement, and none else.

In the instant case, the respondent-complainant did not claim to be a member of the family of late Chaudhary Matu Ram Hooda or his near relative. The summoning order manifested that he contended before the Magistrate that he fell within the definition of a ‘person aggrieved’ as his family was closely ‘related’ to late Chaudhary Matu Ram Hooda, but this claim seemed to have been based more on ideological considerations rather than any actual ‘relationship.

Explanation 1 to Section 499 IPC makes it amply clear that it is only the ‘family members’ or ‘near relatives’ of the deceased person, against whom imputations have been made, who can claim to be ‘persons aggrieved’.

Therefore, the respondent-complainant, who is not a ‘family member’ or ‘near relative’ of late Chaudhary Matu Ram Hooda, cannot unilaterally assume unto himself the status of an ‘aggrieved person’ under Section 199 CrPC, whereby he could assert that his feelings were hurt and maintain the subject complaint against the petitioner before the Magistrate for the alleged offence of defamation.

In view of the above discussion, the Court stated that the complaint was deficient and tainted in its very inception, therefore not maintainable. [Raj Kumar Saini v. Sant Kanwar, 2020 SCC OnLine P&H 2165, decided on 02-12-2020]

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Delhi High Court: Suresh Kumar Kait, J., addressed a matter involving the determination of jurisdiction with regard to the occurrence of a crime.

The instant petition was filed under Section 482 of the Criminal Procedure Code, 1973 in regard to quashing an FIR for the offences under Sections 420/406 of Penal Code, 1860.

Facts of the instant case:

Since 2009, the petitioner through his sole partnership had been undertaking the business of fresh/dehydrated onions and garlic and other perishable items export to various countries like Europe, Gulf and rest of Asia.

In January 2018, the Complainant’s office, Tiger Logistics, approached the Petitioner and one Makbul Sheikh- salesman of Tiger Logistics. Makbul Sheikh represented to the petitioner that respondent 2 is a commission agent and can provide cost-efficient and reliable services.

Petitioner, based on the transit time of 21 days promised by Tiger Logistics, entered into a sales contract with his customer Sadro SRL, an importer based in Italy. Upon such commitment, the Petitioner provided 13 bookings to Respondent 1 for 26 containers.

The Petitioner only as a goodwill gesture as a sincere exporter and upon the insistence of the representatives of Tiger Logistics paid an amount of Rs.10,76,100 through cheque.

Over the month of January 2018, petitioner had sent 26 shipments of fresh onions through but the shipment did not reach the Port f Naples within 21 days.

Petitioner issued an email to the representatives of Tiger Logistics based out of Gujarat expressing his concerns with regards to the delay of 14 days in the delivery of the shipment of fresh onions.

Due to the Petitioner’s growing concern over the delay in delivery of shipments and risk of loss with every passing day, the Petitioner on 16-04-2018 issued another email to the representatives of Tiger Logistics based out of Gujarat expressing his concern over the delay.

The above-stated delay was acknowledged and accepted and in light of the same representatives of the Tiger Logistics apologized for the delay in the delivery.

However, to the dismay of the petitioner, there was complete failure on the art of the logistics service as promised.

Petitioners were subjected to a huge loss due to the delay in shipments. Respondent 2 started demanding approximately Rs 37 lakhs from the petitioner. Since there was an utter failure of shipping services provided by Tiger Logistics which cannot claim any part of the payment from the petitioner.

Since the petitioner did not pay the above-stated amount, present FIR was registered against the petitioner.

Analysis, Law and Decision

Bench referred to the Supreme Court decision in V.V. Jose v. State of Gujarat, (2009) 3 SCC 78  wherein it was held that even in a case where allegation were made in regard to the failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 IPC could have been said to be made out.

Further, it was held in the above that, a matter which essentially involves dispute of a civil nature should not be allowed to be the subject matter of a criminal offence, the latter being not a shortcut of executing a decree which is non-existent.

Court in regard to the instant matter made an observation that:

“It is trite that an inquiry and trial with respect of an offence shall be conducted by the Court within whose local jurisdiction occurrence in question is said to have taken place and thereby cause of action has arisen. Section 178 and Section 179 of CrPC. are merely exceptions to this principle enumerated in Section 177, and their scope should not be enlarged on analogous consideration.”

Bench added that for determination of offences alleged to have been committed under Section 406 of the Penal Code 1860, Section 181 of CrPC lays down the jurisdiction of such court where “the offence was committed or any part of the property which is the subject of the offence was received or retained.”

 Jurisdiction and Breach of Trust

In view of the above-stated, Court held that,

Since the transaction between the parties in relation to the transaction of goods took place in Gujarat, the representations and meeting took place in Gujarat, the goods were shipped from Pipavav Port Gujarat, bill of ladings were released from Ahmedabad Gujarat, the invoices were raised by the entity based out of Gujarat and the jurisdiction of such invoices were subject to the court of Gujarat, therefore, applying the direct principles of Section 181, only the court situated in Gujarat can exercise jurisdiction over the alleged criminal breach of trust, if any.

 In case of Jai Prakash v. Dinesh Dayal: (1989) 39 DLT 376, this Court held that where the accused is carrying on business in a city, agreement to supply to complainant’s branch office at that city is entered within the local jurisdiction of that city, institution of complaint at New Delhi on the ground that the complainant’s head office situated there, is without jurisdiction.

In view of the above-discussed law and the facts and circumstances of the case, the registration of FIR in question in Delhi is an abuse of the process of law.

“Investigating Agency and Court should not be made an instrument of compelling a party to come to a place far away from his own place, to submit to the jurisdiction of a Court which actually has none.”

Hence, in the instant case, FIR was without jurisdiction and therefore the complainant attempted to seek unlawful recovery of money which was purely commercial matter.[Ramesh Boghabhai Bhut v. State, 2020 SCC OnLine Del 1475, decided on 23-11-2020]

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Allahabad High Court: Ram Krishna Gautam, J., held that as per Section 482 Criminal Procedure Code, 1973, while exercising the inherent jurisdiction, High Court cannot make any comment on the factual matrix as the same remains under the trial court’s domain.

The instant application was filed under Section 482 Criminal Procedure Code, 1973 against the State of U.P. and Wsima Begum for quashing the charge sheet as well as the criminal case under Sections 420, 467 and 468 of Penal Code, 1860.

Applicants Counsel, Nazrul Islam Jafri, S.A. Ansari mentioned that allegations made against the applicant made out a case of civil liability as the applicant was alleged to have gotten her name mutated after the death of her husband under Section 34 of Land Revenue Act.

Applicant was married to Sagar Ali under Muslim Rites and customs and was blessed by one female child.

Applicant was subjected to cruelty with regard to dowry hence a criminal case was filed against her husband and in-laws.

Unfortunately, the husband of the applicant and his mother were murdered by unknown assailants. Due to the enmity and litigation, Parvej lodged a criminal case against the applicant and her family members on the basis of frivolous allegations under Section 147, 148, 149, 302, 307, 115 and 120-B of IPC read with Section 7 of Criminal Law Amendment Act.

Applicant, after the death of Sagar Ali, filed an application for getting her name along with her minor daughter’s name mutated at the place of Sagar Ali over his agricultural property.

In light of the above-stated, the application was allowed and the names were mutated in the revenue records.

Further, it has been stated that OP-2 claiming to be the second wife of Sagar Ali moved an application before the Court of Nayab Tehsildar challenging the above mutation order on the ground that she was the legally wedded wife of Sagar Ali. Hence the present applicant was fully aware of those facts even then, she got her name mutated with the wrong contention.

Tehsildar on hearing both sides, in 2014 had set aside the mutation order.

Analysis 

Civil Suits regarding agricultural land of Sagar Ali and his mother Ikhlasi Begum, with regard to disputed “will”, said to be executed by Sagar Ali, is pending before the competent Civil Court.

Ummeda Begum claimed herself to be successor along with her daughter Zoya for the property of late Sagar Ali and late Ikhlasi Begum. She claimed herself to be the only successor wit no other inheritor.

Court noted that in many other previous litigations it was fully in the knowledge of Ummeda Fatima that Sagar Ali was married to Wasima Begum, who was blessed with one female child. Even after knowing this fact mutation application was moved with an incorrect affidavit and incorrect application of documents.

U.P. Revenue Code Section 114 (c) provides that “A person who commits the murder of a [Bhumidhar, asami or government lessee], or abates the commission of such murder, shall be disqualified from inheriting the interest of the deceased in any holding.”

The prima facie case was disclosed for cognizable offence and it was not a ground for quashing of the FIR.

Offence of moving application, with false and fictitious contention, claiming herself to be sole survivor along with her minor daughter over the property of late Sagar Ali and his mother Ikhlasi Begum, and thereafter, fabricating oral and documentary evidence for it and getting name mutated, knowing the legal situation of debarring of inheritance and conviction in that criminal case of murder, prima facie, makes out offences for which charge-sheet was filed.

Section 482 CrPC, provides that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

In the decision of the Supreme Court in Hamida v. Rashid, (2008) 1 SCC 474, Supreme Court propounded that “Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 at an interlocutory stage which after filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable to win over the witness or may disinterested in giving evidence, ultimately resulting in miscarriage of Justice.”

Abuse of Process of Court

In the Supreme Court decision of Dhanlakshmi v. R. Prasan Kumar, 1990 Supp SCC 686, it was propounded that “To prevent abuse of the process of the Court, High Court in exercise of its inherent powers under section 482 could quash the proceedings but there would be justification for interference only when the complaint did not disclose any offence or was frivolous vexatious or oppressive.”

Hence in view of the above, the exercise of inherent jurisdiction under Section 482 CrPC is within the limits, propounded as above. Therefore, this Court will not make any comment on the factual matrix because the same remains within the domain of the trial court.

Prayer for quashing the impugned order as well as the proceeding of the aforesaid complaint case was refused.[Ummeda Fatima v. State of U.P., 2020 SCC OnLine All 1358, decided on 19-11-2020]

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Karnataka High Court: Michael Cunha J., dismissed the writ petition being found that the criminal action was rightly initiated against the petitioner.

This instant petition was filed under Article 226 and 227 of Constitution of India read with Section 482 of Criminal Procedure Code, 1973 seeking to quash the charge sheet and the entire proceedings pending before XXIII Additional City Civil and Sessions Judge and Special Judge for Prevention of Corruption Act, Bangaluru City on the grounds that the impugned order suffers from serious illegality as the impugned order of cognizance indicate total non-application of mind and hence is prayed for quashing of it.

Issue 1: Whether the prosecution of petitioner was done in his personal capacity?

Counsel for the petitioners submitted that the allegations leveled in the charge sheet are directed against the firm whereas the charge sheet does not disclose the active role of the petitioner except that he was representing the Company as the Managing Partner and hence prosecution of the petitioner without making the firm as accused is legally untenable and liable to be quashed.

Counsel for the respondents submitted that the allegations made in the complaint indicate that all the affairs of the firm were conducted by the petitioner and he was the face and mind of the Firm and therefore by application of Section 23 of the Mines and Minerals (Development and Regulation) Act, 1957 i.e MMDR Act, he alone could be proceeded and it is for the petitioner to demonstrate at trial that alleged offences were not within his knowledge and that he was not responsible for the day to day affairs of the Firm when the alleged offences were committed.

The Court after perusing all the records stated that the allegations are directed only against the firm and not against the petitioner in his personal capacity. On the other hand, the Firm itself being the offender, vicarious liability could be imputed to the petitioner by virtue of the statutory provision contained in Section 23 of MMDR Act which provides that when an offence is committed by a Company, every person, who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of the business of the Company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Issue 2: Whether the order of taking cognizance and issuing summons is valid or not?

 Counsel for the petitioners submitted that the impugned order does not specify the offences in respect of which cognizance has been taken by the Special Court. It was further submitted that there is no clarity as to whether the cognizance was taken under the Penal Code, 1860 or MMDR Act.

The court observed that the very fact that the petitioner moved for bail based on the offences mentioned in the summons, it is clear that right from the inception, the petitioner was aware of the offences for which summons was issued to him and hence the objection raised by the petitioners has no ground.

The Court relied on the judgment R.R. Chari v. State of U.P., (1963) 1 SCR 121 wherein was stated that “The word ‘cognizance was used in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings.” and observed that Special Judge has taken cognizance under Section 190(1) (a) of CrPC and has thus proceeded to issue summons to the petitioner. Hence it is amply clear that Special Judge has taken cognizance of IPC offences as well as the offences under the provisions of Forest Rules and MMDR Act. It is also settled law that while taking cognizance and issuing summons in respect of IPC offences, based on the report under Section 173 CrPC, recording elaborate reasons is not required provided if sufficient grounds for proceeding against the accused has been satisfied.

It was also observed that in respect of the offences under the provisions of MMDR Act are concerned; Section 22 of the Act creates a restriction on the courts in taking cognizance of the offences under the Act.  The Section reads as under

“22. Cognizance of offences- No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorized in this behalf by the Central Government or the State Government.”

The Court observed that to get over this restriction, the respondent have filed a complaint in the proceedings before the Special Court in terms of Section 22 of the MMDR Act. This complaint thus amounts to due compliance of the statutory requirement prescribed in Section 22 of the MMDR Act.

Issue 3: Will filing of the complaint as stipulated under Section 22 of MMDR Act for Special Court to take cognizance of offence be considered valid?

 Counsel for the petitioner submitted that the impugned order of cognizance does not reflect that the Special Judge has looked into the averments made in the complaint yet.

The Court observed that the allegations made in the complaint as well as the facts constituting the offences alleged against the petitioner in the final report filed by the SIT are one and the same. Hence, if the Special Judge has looked into the final report by SIT and on satisfying himself that the allegations prima facie discloses the commission of offences by the petitioner under IPC as well MMDR Act, it is clear that the Special Judge has taken cognizance of the offences in terms of Section 22 of MMDR Act.

The court also relied on judgments Kanwar Pal Singh v. State of U.P. and observed that non-recording the reasons while issuing summons cannot be a reason to set aside the orders of cognizance and the summons issued to the petitioner.

The Court thus found no illegality in the impugned order and all the arguments stood no ground. The allegations made are duly supported by SIT and make out the ingredients of the offence under Sections 409, 420 of IPC and Sections 21 read with 4(1)(a) of MMDR Act, 1957.

In view of the above, the contentions by the petitioners are rejected and writ petition was dismissed.[Syed Ahmed v. State, WP No. 51101 of 2015, decided by 19-11-2020]

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Himachal Pradesh High Court: Anoop Chitkara, J., setting aside the conviction against the petitioner, discussed the effect of compromise between the parties in cases attracting Section 138 of Negotiable Instruments Act, 1881 and the cases of compounding of offence under the same.

Background

The petitioner stands convicted under Section 138 of the Negotiable Instruments Act, 1881, vide order dated 26-07-2018 by the Additional Chief Judicial Magistrate, Shimla. Application under Section 389 Code of Criminal Procedure, 1973, was made by the petitioner before the Sessions Judge, which stands dismissed in default by order dated 07-01-2019. The petition hereby was moved invoking Inherent powers of the High Court under Section 482 Code of Criminal Procedure, 1973, against the said conviction. 

Observations

The Court reiterating the objective of the Negotiable Instruments Act, 1881, said, “The jurisprudence behind the N.I. Act is that the business transactions are honoured. The legislative intention is not to send the people to suffer incarceration because their cheque was bounced. These proceedings are simply to execute the recovery of cheque amount by showing teeth of penalty loss.”  Considering the peculiar facts of the present case and the power of Court to interfere in matters like such, the Court observed, “This Court has inherent powers under Section 482 of the Code of Criminal Procedure which are further supported by Section 147 of the N.I. Act to interfere in this kind of matter where parties have paid the entire money and where the complainant does not object to clear all the proceedings.” Reliance was placed on Shakuntala Sawhney v. Kaushalya Sawhney, (1980) 1 SCC 63, wherein the Supreme Court held, “The finest hour of Justice arise propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion.”  With respect to the compromise made and its effect over the FIR, the Court said, “(…) It is a fit case where the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure read with 147 of Negotiable Instruments Act, is invoked to compound the offence and consequently to quash the above-mentioned FIR and consequent proceedings” The Court further reproduced the guidelines as laid down by Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663, with respect to the compounding of offences under the Negotiable Instruments Act, 1881.

Decision

While setting aside the impugned order of conviction by the Additional Chief Judicial Magistrate, the Court directed the petitioner to be released from the prison with immediate effect.[Gaurav Sharma v. Ishwari Nand, 2020 SCC OnLine HP 2464, decided on 13-11-2020]

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Meghalaya High Court: W. Diengdoh, J., while refusing to quash a criminal case against a journalist as the Facebook post shared by the journalist sought to create a divide to the cordial relationship between the tribal and non-tribal living in the State of Meghalaya.

Genesis of the instant matter is with regard to an incident that occurred in the month of July 2020 wherein a group of boys while playing basketball were attacked by 20-25 unidentified youths.

Police in light of the above incident registered a criminal case under Sections 326, 307, 506 and 34 of Penal Code, 1860. Investigation in view od the said event is already in progress.

Petitioner who is a journalist responded to the said incident by posting her comments on Facebook, echoing her stance against such brutal attacks meted out to non-tribal in the State and the ordeal faced by them since the past several decades. In the said post, a query was also made to respondent 3 on their obligatory role of keeping vigil at the place of occurrence and their required assistance for apprehending the culprits.

Further, the petitioner submitted that the statements made were general in nature and were made in good faith without any criminal intent or mens rea.

Respondents 4 and 5 filed a complaint against the petitioner alleging that the said Facebook post of the petitioner incited communal tension between tribal and non-tribal and defamed not only the respondent 3 but the entire village for which offence under Section 153A, 505 and 499 of Penal Code, 1860 are made out.

Police registered a criminal case under Section 153 A, 500, 505C IPC against the petitioner and issued a notice under Section 41 A CrPC requiring the petitioner to appear before the investigation officer.

Aggrieved with the above complaint, the petitioner approached the Court with an application under Section 482 CrPC.

Analysis and Decision

In Court’s opinion, what is first required to be established is whether any case is made out under Section 153 A IPC following which the issue is dispute can be decided accordingly.

Section 153 A IPC:

“[153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. – (1) Whoever-

(a)  by words, either spoken or written, or by signs or by visible grounds of religion, race place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or

(b)  commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, (or)

(c)  organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or cast or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,]

shall be punished with imprisonment which may extend to three years, or with fine, or with both”.

Bench on a cursory observation of the Facebook post noticed that the author has referred to the incident which took place at the Basketball Court.

Court stated that in the said post,

There is a distinct portrayal of an alleged skirmish between two groups, one, group allegedly consisting of tribal youths and the other group consisting of non-tribal youths.

Court further observed,

What can be deduced is that there is an attempt to make a comparison between the tribals and non-tribals vis-a-vis their rights and security and the alleged tipping of the balance in favour of one community over the other.

In view of the above deduction, Court opined that the same would fall on the mischief of Section 153 A IPC as it apparently seeks to promote disharmony or feelings of enmity, hatred or ill-will between two communities.

Supreme Court’s decision in Babu Rao v. State, (1980) 2 SCC 402 was cited wherein it was observed that,

“…It is seen that S. 153 A (1) (a) is not confined to the promotion of feelings of enmity etc. on grounds of religion only as argued by Shri Sen, but takes in promotion of such feelings on other grounds as well such as race, place of birth, residence, language, caste or community….”

Bench stated that in the instant matter, it can be said that the said Facebook post sought to create a divide to the cordial relationship between the tribal and non-tribal living in the State of Meghalaya even alluding to the role of the State machinery as being bias in this regard.

Hence, the Court held that prima facie it appears that a case under Section 153 A IPC is made out against the petitioner.

Court refrained from going into the merits of the provision of Sections 500 ad 505 IPC, however, the said provisions read conjointly with Section 153A IPC would attract the provision of Section 155 (4) of CrPC.

No merit was found in the instant petition for exercising powers under Section 482 CrPC.[Patricia Mukhim v. State of Meghalaya, 2020 SCC OnLine Megh 167, decided on 10-11-2020]

Counsel for the petitioner: Advocate K. Paul.

For Respondents: N.D. Chullai, AAG with R. Colney, G.A for Respondent 1 and 2.

P.L. Khonsngi for Respondent 3-5.

Case BriefsHigh Courts

Kerala High Court: P. Somarajan J., allowing the present criminal miscellaneous case, clarified the law related to anticipatory bail under Section 438 of Criminal Procedure Code, 1973.

Brief Facts

The State Government came up challenging the anticipatory bail granted under Section 438 CrPC. by the Sessions Judge on the simple reason that no crime was registered against the accused/first respondent till that time. Interestingly, within one month the first respondent was impleaded in the array of accused. The crime was earlier registered on the allegation of offence under Section 307, 324 read with Section 34 Penal Code, 1860 but later, Section 326 IPC was incorporated as well.

The present application is submitted both under Section 482 and 439(2) CrPC on the allegation that the earlier order granting anticipatory bail was used by the first respondent to avoid his arrest in connection with his impleadment subsequently as an accused in the existing crime.

 Issue

Whether an anticipatory bail, allowed in the absence of an FIR, permissible as per laws of Criminal Procedure?

 Observations

The Court made the following observation in addition to its decision;

“No blanket order should be passed under Section 438 Cr.P.C. to prevent the accused from being arrested when there is no crime registered against him. The procedure to be adopted is to direct the investigation to comply with the requirement under Section 41 A Cr.P.C., before effecting the arrest of accused so as to enable him to exhaust the remedy under Section 438 Cr.P.C. The defect crept in the order cannot be cured under Section 439(2) Cr.P.C. because of the reason that the accused will get a right to exhaust the remedy under Section 438 Cr.P.C. based on the subsequent accusation and it cannot be curtailed by invoking the jurisdiction under Section 439(2) Cr.P.C. By reserving the right of the first respondent to exhaust the remedy under Section 438 Cr.P.C. based on the present accusation, it is fit and proper to set aside the order granting anticipatory bail on the ground of non-registration of crime.”

 Decision

While allowing the instant petition, the Court said, “When no crime was registered against the first respondent, it is not permissible to grant anticipatory bail, on the reason that it would act as a blanket as against all sort of accusations which may arise in future against the said person.”[State of Kerala v. Ansar M.C.,  2020 SCC OnLine Ker 4569, decided on 21-10-2020]

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Case BriefsHigh Courts

Karnataka High Court: Ashok G. Nijagannavar, J., allowing the present petition, quashed the chargesheet filed and made significant observations with respect to Court’s power under Section 482 Criminal Procedure Code.

Brief Facts

The complainant Police Inspector received credible information about illegal activities regarding prostitution by supplying foreign and Indian girls by contacting customers through an international website. The said information was confirmed by sending a decoy. Thereafter, upon receiving the reply regarding the supply of the girls for prostitution at a place called the Kaisar Service Apartment, the complainant and his staff conducted a raid and arrested three accused namely two girls and a man who allegedly supplied the said girls for the illegal act of prostitution. Upon the information gathered from accused 1, it is learned that he solicited the customers through a website designed by accused 4, the present petitioner; Gavin Mendes. After completion of the investigation, the police have submitted the chargesheet arraying the petitioner as accused 4. 

Contentions

It was submitted by the counsel for the petitioner that the accused is a professional software developer and the website made by him was only a fulfillment of a contract that he entered into without knowing the purpose of the other accused. It was further insisted that the name of the petitioner is nowhere found in the FIR and has been later arrayed as an accused in the chargesheet only on the basis of unfound reasons. Another ground urged by the learned counsel for the petitioner is that when there are allegations for an offence under Section 67 of the Information Technology Act, the investigation must be conducted by the concerned Cyber Crime Branch and not by the respondent police, as they have no jurisdiction to do so. Lastly, it was insisted that no prima facie case exists against the petitioner and the charges be quashed accordingly.

The testimony of accused 1 mainly relied on the submissions made by the Prosecution. Moreover, the existence of mala fides and collusion behind designing the website was vehemently insisted.

Observations

The Court making significant observations with respect to the Inherent power of the Court under Section 482 CrPC, cited, Vineet Kumar v. State of U.P, (2017) 13 SCC 369, where the Supreme Court held, “Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of court is sought to be abused by a person with some oblique motive, the court has to thwart the attempt at the very threshold. The court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal”

State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, para 102 which illustrates 7 categories of cases where power under Section 482 CrPC can be rightfully exercised, namely: (i) No prima facie case (ii) no cognizable offence disclosed (iii) allegations in FIR and evidence fails to disclose any offence (iv) non-cognizable offence committed which can be investigated only by an order of Magistrate (v) allegations made are absurd or improbable (vi) express legal bar to the continuance of proceedings (vii) proceeding is manifestly attended with mala fides

 Decision

Allowing the present petition, the Court quashed the case against the accused of the offences punishable under Sections 4, 5 and 7 of the Immoral Traffic Prevention Act, Section 370, 370 A (2), 292 of the Penal Code, Section 67 of Information Technology Act and Section 14 of Foreigners Act. It further held that no prima facie case appeared against the petitioner and that the reasons for arraying him later are not well-founded.[Gavin Mendes v. State of Karnataka, 2020 SCC OnLine Kar 1497, decided on 23-09-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., dismissed an application which was filed under Section 482 of the Code of Criminal Procedure, 1973 to quash the Charge Sheet.

Elections of the Legislative Assembly of Uttarakhand were held in the year, 2012. The applicant had contested the said election as a candidate of the Indian National Congress Party. While contesting the said election, the present applicant had printed a picture (photo) of Lord Badrinath in his handbills as well as pamphlets. On account of this illegal act on the part of the applicant to influence the voters and used the religious feelings of local people, an FIR was lodged against the applicant under Section 125 of the Act, 1951 and Section 153A of the Penal Code, 1860. After the submission of charge sheet when the Chief Judicial Magistrate took cognizance under Section 171-F of the Penal Code read with Section 123 (3) of the Act, 1951 against the present applicant and passed the summoning order, being aggrieved by which the applicant had filed a revision which was allowed by the Sessions Judge and in pursuance to the revisional order the Chief Judicial Magistrate took the cognizance in the offence punishable under Section 125 of the Act, 1951 and issued summons to the present applicant. The counsel for the applicant, Pankaj Purohit contended that the applicant was already a popular candidate and was well known in the constituency, he was given the charge of “Youth Welfare and Sports” portfolio in the Government; he completed his tenure of five years as a Cabinet Minister in the Government. He further contended that from the bare perusal of the FIR, it was evidently clear that no offence is made out as defined under Section 125 of the Act, 1951; by mere printing of pamphlets with the picture of Shri Badrinath Temple, no offence under Section 125 of the Act, 1951 was constituted; during the investigation, no evidence was collected by the Investigating Officer which would infer the promotion of religious enmity or hatred between two communities on account of the fact of printing of the pamphlets, containing the photo of Lord Badrinath Temple. The counsel for the State, S.S. Adhikari assisted by P.S. Uniyal on the contrary contended that Investigating Officer had found credible evidence against the applicant for his involvement in commission of the crime; there was a specific case against the applicant for his involvement in commission of the crime.

The Court while dismissing the application set aside the prayers of quashing the charge-sheet and explained that “it was fundamental duty of every citizen to promote harmony and the spirit of common brotherhood and fraternity amongst all the people of India transcending religious, linguistic and regional or sectional diversities. For fair and peaceful election, during the election campaign, party or candidate should not indulge in any activity which may create mutual hatred or cause tension between different classes of the citizens of India on ground of religion, race, caste, community or language.”

The Court further held that the applicant was not able to show at this stage that allegations 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 applicant.[Rajendra Singh Bhandari v. State of Uttarakhand, 2020 SCC OnLine Utt 551, decided on 21-09-2020]

Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Uttaranchal High Court: Ravindra Maithani, J., while discussing the scope of Section 482 of the Code of Criminal Procedure, 1973 and the object of Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, held that,

“Violation under Rule 13 of the PCPNDT Rules will attract Section 23 of the PCPNDT Act.”

Petition in the instant matter was filed under Section 482 of the Code of Criminal Procedure, 1973 against the decision of Chief Judicial Magistrate, Haridwar.

Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994

Complaint under Section 23 of the PCPNDT Act was filed against the petitioner for violating Rule 13 of PCPNDT Rules, 1996. Hence in view of the said position, cognizance under Section 23 of the said Act was taken.

Issues that arose for consideration on 30-06-2020:

Whether violation of Rule 13 of the Rules under the Act would attract the provisions of Section 25 of the PCPNDT Act or Section 23 of the PCPNDT Act? This question is not directly involved. But, then it also requires deliberation as to whether in this petition this aspect can be examined.

If cognizance is taken under Section 23 of the PCPNDT Act and subsequently charged under Section 25 of the PCPNDT Act is farmed, what should be the limitation for cognizance?

Petitioner’s counsel, V.B.S Negi, Senior Advocate assisted by Ayush Negi, Advocate contended that the charge was framed under Section 25 of the PCPNDT Act for which limitation period is 1 year, but cognizance was taken long thereafter.

For the offence under Section 25 of the PCPNDT Act, the limitation period is 1 year, but in the instant petition, cognizance was taken under Section 23 of the PCPNDT Act for which the limitation period is of 3 years.

Object of Limitation

The opening sentence of Section 468 of the Code in itself makes it abundantly clear that the limitation is applicable at the time of taking cognizance, not consequent thereupon.

There may be a situation where cognizance is taken of an offence and charge is framed of different offence and again conviction is held under a different section.

So can it be said that the subsequent offence(s) would be determining factors for counting the period of limitation? The answer is in NEGATIVE.

Supreme Court decision in Sara Mathew, v. Institute of Cardiovascular Diseases,(2014) 2 SCC 62, observed that,

“…the object of Chapter XXXVI inserted in the CrPC was to quicken the prosecutions of complaints and to rid the criminal justice system of inconsequential cases displaying extreme lethargy, inertia or indolence. The effort was to make the criminal justice system more orderly, efficient and just by providing period of limitation for certain offences.”

Position as laid down by the Supreme Court in the decision of State of Himachal Pradesh v. Tara Dutt, (2000) 1 SCC 230, it was held that,

“…it is the offence of which the cognizance has been taken, which determines the period of limitation and not the offence under which the person is convicted and its natural corollary is that for the purpose of determining the period of limitation, the offence charged is also not relevant. What is relevant is the offence(s) under which cognizance has been taken.”

Bench in view of the above-stated position held that the lower Court had rightly dismissed the applications filed by the petitioner since cognizance was not time-barred.

Another question that was posed by the Court was:

“Whether a violation of Rule 13 of the Rules under the Act would attract the provisions of Section 25 of the PCPNDT Act or Section 23 of the PCPNDT Act?”

Jurisdiction under Section 482 CrPC

Jurisdiction under Section 482 of the Code is of much larger magnitude. The basic purpose of Section 482 of the Code is to do real and substantive justice for the administration of which, it exists.

In the present matter, the lower court’s order which has been challenged did not mention as to why the violation of Rule 13 does not attract the provision of Section 23 of the PCPNDT Act.

The Court had observed that the question as to under which Section of the PCPNDT Act, the case falls, would be examined at the stage of framing of charge. But, it was not examined when the charge was framed.

High Court noted that the above decision of the lower court was not passed in accordance with the principles of Judicial Decision Making.

Objective of PCPNDT Act 

In view of the decreasing sex ratio, the PCPNDT Act was framed. To get an offender is not an easy task because the offences are done in secrecy and in collusion.

Allegations against the petitioner

Allegations against the petitioner are that he did not inform the appropriate authorities about the change of sinologist and also he did not seek re-issuance of the certificate of registration as required under Rule 13 of the PCPNDT Rules.

Rule 13: Intimation of changes in employees, place or equipment

Rule 9 deals with the maintenance and preservation of records.

Sinologist

Position of sinologist is very important because it is he who conducts pre-natal diagnostic techniques. It is he who has to fill the form of the women on which this technique is conducted and this is form ‘F’, which is most important.

It was also observed that in the absence of form ‘F’, appropriate authorities will have no tool to supervise the uses of the ultrasound machine.

Re-issuance of the certificate of registration

Rule 13 does not only require that the information about the change of employees is to be given thirty days prior to the said change but, it also requires that a request shall also be made seeking re-issuance of the certificate of registration. It was also not done by the petitioner.

Section 25 of the PCPNDT Act: Residual Section

If punishment is provided elsewhere in the Act, the provision of Section 25 will not come into play.

Section 23 of the PCPNDT Act provides punishment for contravention of any of the provision of the Act or rules made thereunder.

Therefore, in the present matter, a violation under Rule 13 of PCNPDT Rules will attract Section 23 and not Section 25 of the PCNPDT Act.  [Nitin Batra v. State of Uttarakhand, 2020 SCC OnLine Utt 352, decided on 20-07-2020]

Case BriefsHigh Courts

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

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

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

Protection Order & Custody Orders

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

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

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

Unhindered Access to Mother

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

Magistrates’ Decision

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

Petition not maintainable

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

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

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

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

Analysis and Decision

Maintainability

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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

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

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

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

Read the Order, here:

suomoto-criminal-petition-21072020

Case BriefsHigh Courts

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

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

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

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

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

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

Decision

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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

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