Gauhati High Court
Case BriefsHigh Courts

   

Gauhati High Court: While deciding the instant appeal preferred by Ranjan Daimari and 9 others regarding their conviction and sentence of life imprisonment by the Special Court in relation to the horrific 2008 bomb blasts which rocked Assam; the Division Bench of Suman Shyam and Malasri Nandi, JJ., observed that the manner in which the bomb blasts took place, undoubtedly reveal the intention to challenge India’s sovereignty, unity, integrity and cause widespread terror. Observing that the prosecution had successfully established that the blasts were a result of a conspiracy hatched by the 10 appellants, therefore, the Bench, applying the principles laid down in Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1, held that the order of the Special Judge convicting the appellants does not require any interference from the High Court.

Facts and Legal Trajectory of the Case: On 30-10-2008, 9 powerful bombs exploded in various parts of Assam like Kamrup (Metro), Barpeta, Bongaigaon and Kokrajhar between 11:20 a.m. to 11:30 a.m. In these blasts 88 persons had lost their lives and around 540 persons were critically injured along with extensive damages to movable and immovable properties.

Subsequently FIRs under IPC, UAPA and Explosive Substances Act were lodged. Initially, the responsibility of carrying out investigation these cases was taken up by the CID and Assam Police. However, subsequently, with the consent of the Government of Assam, the investigation was transferred to the Central Bureau of Investigation (CBI). From the investigation conducted, it was revealed that the nine bomb explosions were carried out by the members of the proscribed terrorist organization – National Democratic Front of Bodoland (NDFB) which was formed on 03-12-1986 under the chairmanship of Ranjan Daimari. These bomb blasts were the result of a conspiracy hatched and carried out by the members of the banned NDFB.

Consequently, CBI prepared the charge-sheet against 19 accused persons for commission of offences punishable under Penal Code, 1860 read with provisions of the Explosive Substances Act, 1908 and the Unlawful Activities (Prevention) Act, 1967. The CBI recorded statements of approximately 871 witnesses.

The trial initially commenced in the Sessions Court, Kamrup(M), Guwahati but subsequently, was transferred to the Special Court constituted for the purpose of speedy disposal of the case. During the trial, the prosecution examined almost 650 witnesses. The remaining witnesses could not be examined as some of them were dead or went traceless. On conclusion of trial and after analyzing the evidence available on record, the Special Judge passed the impugned order dated 28-01-2019 convicting the accused/ appellants.

Contentions: The counsel for the appellants argued that there is no evidence available on record to prove that the serial bomb blasts were the outcome of a conspiracy involving the appellants and that the prosecution has failed to lead evidence so as to connect the appellants with the occurrence.

The appellants pointed out that there was an unusual delay in completing the investigation and the trial in this case, thereby leading to serious prejudice to the interest of the appellants. It was further argued that sufficient time was not given to the defense counsel at the trial stage to argue the case. The appellants also contended that the Special Court did not appreciate the evidence adduced by the prosecution correctly.

It was also argued that just because Ranjan Daimari had given unsatisfactory answers to the questions put to him during his examination under Section 313, CrPC, that does not indicate his guilt.

Per contra, the respondents argued that the conviction of the accused was based on the evidence adduced by the prosecution witnesses and not on the statements of the witnesses recorded under Section 164 CrPC as it has been alleged by the appellants’ counsel; those statements, however, had been referred only to corroborate the testimony of the witnesses.

Observations/ Findings: Perusing the facts and contentions of the case, the Division Bench made a detailed analysis of the evidence and witnesses’ statements against all the appellants and the other accused persons, the victims of the bomb blasts and experts. The Court made the following observations-

  • Concerning the argument of delay raised by the appellants, the Court observed that during trial, as many as 5 Public Prosecutors were engaged by the CBI but due to language issues, some of the Public Prosecutors had to be changed, which had also contributed to the delay in concluding the trial and the same was on account of factors that were apparently beyond the control of the prosecution.

  • Concerning NDFB, the Court observed that the organisation came into existence with the professed objective of liberation of Bodoland through the process of secession of the area from India. It was noted that the NDFB had been working in alliance with other armed secessionist organizations of the North East region so as to carry on with the struggle for national liberation of the Indo- Burma region in alliance with likeminded organizations of that region. Which is why the Central Government was of the opinion that the NDFB has continued to indulge in illegal and violent activities intended to disrupt the sovereignty and territorial integrity of India and also to align itself with other unlawful associations like United Liberation Front of Assam (ULFA). Hence, NDFB was declared as an Unlawful Association and the organisation was banned. Furthermore, relying on Section 57 of Evidence Act, 1872, stated that there are cogent materials to prove that at the time of the occurrence of the bomb blasts, NDFB was a banned terrorist organization and an unlawful association within the meaning of the UAPA, 1967.

  • Regarding prosecution/ respondents’ submission that one Anup Kumar Baro was made an approver in the case, the Court noted that there is no material on record to hold the same. The Court further noted that serious doubts arise as to the procedure followed and the circumstances under which the statement of Anup Kumar was recorded, thus, his statement under Section 164 CrPC, cannot be relied upon as his confessional statement.

  • The Court also noted the statements of other accused persons implicating Ranjan Daimari and others. Concerning the statement of Ajay Basumatary, the Court observed that his confessional statement of this accused person appeared to be truthful and voluntary and the procedure prescribed under Section 164 CrPC was also properly followed.

    “The confession of accused Ajay Basumatary not only appears to have a logical sequence but we find that the same was also spontaneous. The confession of this accused also finds due corroboration from the other evidence available on record and there is no non-corroborative factor on record. Therefore, we are of the opinion that there is no valid ground to discard the confessional statement of accused Ajay Basumatary merely because he had subsequently retracted his confession”.

  • After careful and detailed scrutiny of the evidence, the Court noted that the fact that the NDFB was a banned organization and an unlawful association, was cogently established from the testimonies of prosecution witnesses as well as the exhibits. The fact that NDFB was indulging in terrorist activities thus stands established from the evidence adduced by the prosecution.

  • Observing that 9 horrific bomb blasts which took place simultaneously within a span of 10 minutes causing large scale devastation to human lives and properties, has been cogently established from the evidence of the relatives of the victims, injured witnesses, persons who had suffered losses, evidence of the medical officers, ballistic experts etc.

    “The manner in which the serial blasts took off at different places in the State of Assam leaves no room for doubt that the same was the handiwork of some person(s) or organization. Unless there was a concerted effort on the part of a number of people, blasts of this intensity, in multiple locations would not be possible. As such, the fact that the bomb blasts were the outcome of a criminal conspiracy is self-evident and the prosecution has also adduced sufficient evidence to establish the said fact (…) there can be no element of doubt about the fact that the sole purpose behind the blasts was to cause terror and thereby challenge the sovereignty, unity and integrity of the country”.

Conclusion: With the afore-stated observations, the Court stated that the prosecution was able to establish each link in the chain of circumstances to prove that the 9-bomb blast that took place on 30-10-2008 was the outcome of the conspiracy hatched by the appellants. “The appellant/accused persons were in a conspiratorial relationship and have acted in a concerted manner to execute the nine bomb blasts leading to the carnage. There is trustworthy evidence available on record to establish all the links in the chain of circumstances to prove the charge brought against each of those appellant/ accused persons beyond reasonable doubt.

However, concerning some of the appellants namely Onsai Boro, Lokhra Basumatary, Indra Bhramha and Jayanti Brahma, the Court stated that the evidence on record is insufficient to conclude that the charges brought against them have also been proved beyond reasonable doubt.

The Court directed Raju Sarkar and Baisagi Basumatary, who are out on bail, to surrender before the Trial Court.

[Ranjan Daimari v. Central Bureau of Investigation, Case No.: Crl.A./195/2019, decided on 27-09-2022]


Advocates who appeared in this case:

Advocate for the Petitioner: A.K. Bhattacharya, Senior Counsel assisted by M. Saraniya and D.K. Bhattacharya, Counsels;

Respondents- S.C. Keyal, Special Public Prosecutor.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Madras High Court
Case BriefsHigh Courts

Madras High Court: In a case related to an appeal filed for the cancellation of an order of dismissing the bail application by the Special Court under the National Investigation Agency Act (Sessions Court for Exclusive Trial of Bomb Blast Cases) (Special Court), S.Vaidyanathan and A.D. Jagadish Chandira, JJ. released the appellant on bail on executing a bond for a sum of Rs.25,000/ with two sureties and directed the Special Court to proceed further with the trial on a day-to-day basis.

The present case was registered under Ss. 16, 17, 18 and 20 of Unlawful Activities (Prevention) Act, (UAPA),1967 and Ss. 120-B, 34, 124-A and 489-C Indian Penal Code, 1860(‘IPC’) against the appellant and other accused for offences related to a threat emerging from a live conspiracy to smuggle explosives and terrorists into India from Sri Lanka and execute bomb attacks at the US Consulate in Chennai, Israel Consulate in Bangalore, other vital installations and places of public congregation in Southern India. The other accused persons were convicted. However, during the investigation, the appellant was found to be a habitual trafficker of high-quality counterfeit Indian currency notes, he was enlarged on statutory bail by the Special Court, while so, since the appellant did not turn up before the Special Court for the hearing of the case, summons were issued on various dates, and since he did not turn up even for that, the Court had issued a non bailable warrant of arrest against him.

Meanwhile, he was arrested by the Chennai Police under Section 392 IPC, and while he was in prison, he was produced before the Special Court and was remanded under Section 309 CrPC.and the trial as on date is pending for framing of charges against the appellant.

After that the appellant filed for bail and the same was dismissed by the Special Court invoking Section 43D (5) of the UAPA finding “prima facie” case as against the appellant, which lead to the present appeal.

The Court noted that the appellant had been granted statutory bail and it wasn’t cancelled. However, the Special Court had remanded the appellant under Section 309 CrPC., and by referring to the ruling in Raghubir Singh v. State of Bihar (1986) 4 SCC 481, wherein the Court held that S. 309(2) merely enables the court to “remand the accused if in custody” and it does not empower the court to remand the accused if he is on bail. It does not enable the court to “cancel bail” as it were, and that can only be done under Section 437(5) and Section 439(2).

The Court observed that “the appellant stands on a different footing than the other accused persons, who have been found guilty and convicted. Further, even though the delay in conducting the trial may be attributed to the appellant prior to his arrest, he is not responsible for the delay after his arrest and that he has been in prison for almost a year without there being any progress in trial and that in toto he had been in prison for more than 4 years.”

The Court also took note of the ruling in Union of India v. K.A. Najeeb (2021) 3 SCC 713, wherein, the Court held that the presence of statutory restrictions like Section 43-D (5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution, and both can be harmonised. Such an approach would safeguard against the possibility of provisions like Section 43-D (5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial. The courts are expected to appreciate the legislative policy against grant of bail but the rigors of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Further in Asim Kumar Haranath v. National Investigation Agency (2021) SCC OnLine SC 1156, it was held that while deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long as timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in the administration of justice.

The Court observed that:

“the law is well settled, that in case where the accused is on bail in non-bailable offence and did not appear on hearing date and non bailable warrant is issued, on appearance of the accused or on his production by police through Prisoner on transit (PT) warrant, opportunity should be given to the accused to explain his non-appearance and decide as to whether to let him off by recalling the warrant or to cancel the bail by recording reasons and he cannot be straightway remanded to judicial custody as a PT warrant can never be converted into a regular warrant in a case where the accused person is already on bail”

It further observed that as the appellant is in custody for more than a year without any progress in trial, and even the gravity of offence against him is comparatively lesser than that of the other convicted accused, the continued detention of the appellant is in violation of his right of personal liberty and the appellant is entitled to grant of bail subject to imposition of certain stringent conditions and directed the Special Court shall proceed further with the trial on a day to day basis in accordance with the guidelines given in Vinod Kumar v. State of Punjab (2015) 3 SCC 220.

[Noorudeen v. State of Tamil Nadu, 2022 SCC OnLine Mad 4223, decided on 26.08.2022]


Advocates who appeared in this case :

R. Sankarasubbu, Advocate, Counsel for the Appellant;

Public Prosecutor R.Karthikeyan, Advocate, Counsel for the Respondent.

SEBI
Case BriefsTribunals/Commissions/Regulatory Bodies

   

Securities and Exchange Board of India (SEBI), Special Court, Maharashtra: In the instant case dealing with unregistered brokerage, Vishal Sadashivrao Gaike, J. deliberated over the issue that whether a delay in filing a complaint against unregistered sub-brokers, can be condoned or not. It was held that, in view of the facts of such cases and seriousness of such allegations (as they are in the instant case), it is in the interest of justice that such a delay be condoned.

Facts:

On 19-06-2001, SEBI received a complaint from a person named J. P. Mittal stating that the accused, Balaji and Co., were dealing in Securities as a sub-broker without obtaining a registration certificate from SEBI and thereby duping its clients by providing fake shares. Consequently, via a letter dated 11-09-2001, the accused was informed about the said complaint and they were directed to seek registration immediately. It was also informed that their failure to do so would result in further violation of the SEBI Act and would subsequently attract penal action. Since there was no reply from the accused,therefore, SEBI filed the present matter under Section 24(1) of the SEBI Act, 1992 against the accused for violation of Section 12 of the SEBI Act. The instant case had been in the pipeline for about 20 years, however owing to the nature of the complaint, SEBI filed the instant application on behalf of the complainant for condonation of delay under Section 473, CrPC.

The accused opposed the present application with two contentions:

(1) There had been a delay of three months and fourteen days i.e., 106 days in filing the complaint.

(2) The schedule of the Economic Offences (Inapplicability of Limitation) Act, 1974 (‘the 1974 Act') does not include the SEBI Act, 1992, hence, the legislative intent to exclude the same is clear. The accused claimed that after cognizance has been taken by the Court, a delay cannot be subsequently condoned. It is also mandatory that before taking cognizance of the offence, the Court has to satisfy itself of the grounds for the extension of time which was not done in the present case. Therefore, the present complaint itself is not maintainable along with the present application which has been filed twenty years after cognizance has been taken.

Analysis and Findings:

The Court heard both sides and placed reliance on a case presented by the complainant, i.e., Sukhdev Raj v. State of Punjab, 1994 Supp (2) SCC 398, In this case, the issue before the Supreme Court was whether the delay in filing the charge sheet can be condoned prior to the conclusion of the trial and particularly before the judgment was delivered. The Supreme Courtheld that, “Section 473, CrPC does not in any clear terms lay down that the application should be filed at the time of filing challan itself. The words ‘so to do in the interest of justice' are wide enough”.

The Court also held that the contention of SEBI, that the SEBI Act 1992 replaced the Capital Issues (Control) Act, 1947, hence the Economic Offences (Inapplicability of Limitation) Act, 1974 applies to the SEBI Act, is unacceptable because the Schedule in the 1974 Act does mention SEBI Act, 1992. When the said Schedule has not been amended by the legislature after the repeal of the Capital Issues Control Act, 1947, then the Courts have no power to read the name of the SEBI Act, 1992 in the same. Thus, a delay has occurred in the filing of the complaint for which SEBI should seek condonation.

The Court observed that the complainant had provided the explanation that SEBI is an autonomous body entrusted with the task of regulating the Securities Market. Before any prosecution is launched, approval of the competent authority is required, and only after the satisfaction of the said authority can a prosecution be launched. The Court noted that the complainant in its application had rightly pointed out that the SEBI Act is a social welfare legislation, and the legislative intent was to promote orderly and healthy growth of the Securities Market and to protect the interest of investors. It has also been observed that while interpreting provisions of a social welfare legislation, the paramount duty of the Court is to adopt such an interpretation so as to further the purpose of law and if possible, eschew the one which frustrates it. Subsequently, the Court accepted the complainant's explanation for the delay in filing the complaint.

Conclusively, the Court held that the delay has been properly explained, and since there are serious allegations against the accused, in the interest of justice it is necessary to condone the delay in filing the present complaint.

[Securities and Exchange Board of India v. Balaji & Co., CNR No. MHCCO2-000792-2015, decided on 02-07-2022]


Advocates who appeared in this case :

Anubha Rastogi, Spl.P.P, Advocate, for the Complainant/ SEBI;

Prashant Trivedi, Advocate, for the Accused.


*Sucheta Sarkar, Editorial Assistant has reported this brief.

Business NewsNews

Central Government designates the Court of Additional Judicial Commissioner, Ranchi in the State of Jharkhand as a Special Court for the purposes of providing speedy trial of offences punishable with imprisonment of two years or more as per clause (a) of sub-section (2) of Section 435 of the Companies Act, 2013.


Ministry of Corporate Affairs

[Notification dt. 5-5-2022]

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., held that Special Court which is to try offences under the Insolvency and Bankruptcy Code, 2016 is the Special Court established under Section 436(2) (b) of the Companies Act, 2013 which consisted of Metropolitan Magistrate or Judicial Magistrate First Class.

The present petition was filed assailing the order “Issue Process” under Section 73(a) and Section 235A of the Insolvency and Bankruptcy Code, 2016 passed by the Additional Sessions Judge on a complaint filed by the Insolvency and Bankruptcy Board of India.

Challenge

The Additional Sessions Judge does not have jurisdiction to entertain the complaint filed by the respondents.

Analysis, Law and Decision

Section 236 of the Insolvency and Bankruptcy Code empowers the Central Government or Board to file a complaint against a person/s having contravened, one of the penal provisions of the I.B. Code constituted or established under the provisions of the Companies Act, 2013.

The Companies Act (17th amendment) sought to establish two different classes of a Special Court; (a) a Single Judge holding office as Session Judge or Additional Sessions Judge and (b) Metropolitan Magistrate or Judicial Magistrate First Class; who shall be appointed by the Central Government with concurrence of the Chief Justice of the High Court within whose jurisdiction, the Judge to be appointed is working.

Which of the above two classes is empowered to try the offences under the I.B. Code?

The plain reading of clause (a) of subsection (2) of Section 435 of the Companies Act in no uncertain terms implies or suggests that the Special Court consists of Judge holding office as a Sessions Judge is empowered to try the offences under Section under this Act”. (emphasized)

‘Under this Act’ the phrase would mean the offences committed under the Companies Act.

Hence, the Companies Act cannot be tried by the Special Court established under clause (a) of sub section 2 of Section 435.

High Court opined that the clear mandate of the legislature was that the “Special Court” comprising of a Sessions Judge or Additional Sessions Judge was only to try offences under the Companies Act, 2013 itself which carry a punishment of imprisonment of 2 years or more.

However, it is clear that “Special Court”, comprising of a Metropolitan Magistrate or Judicial Magistrate First Class is to try “other offences” and the other offences would be offences under the I.B. Code and offences under the CA 2013 but carrying punishment of imprisonment of less than 2 years.

Elaborating further, the Court expressed that Section 236(3) of the I.B. Code creates a deeming fiction that the Special Court trying offences under the I.B. Code shall be deemed to be Court of Sessions.

In view of the above discussion, the impugned proceedings instituted by the respondents in the Court of Additional Sessions Judge were not sustainable for want of jurisdiction. [Satyanarayan Bankatlal Malu v. IBBI, 2022 SCC OnLine Bom 310, decided on 14-2-2022]


Advocates before the Court:

Mr. Amir Arsiwala a/w. Mr. Piyush Deshpande a/w. Mr. Farzeen Pardiwala, Advocate for the Petitioners.

Mr. Pankaj Vijayan a/w. Mr. Mohammed Varawala, Advocate for Respondent no.1.

Mr. Y.M. Nakhawa, APP for State-Respondent no.2.

Case BriefsHigh Courts

Special Court, Bombay High Court: The Special Court (Trial of Offences Relating to Transfer of Securities Act, 1992) of A.K. Menon, J., rejected the claim of late Harshad S. Mehta over the shares forming the subject matter of the present case and allowed the widow (applicant) of one Radhey Shyam Aggarwal to approach the company concerned to satisfy that she is entitled to the transmission of such shares. The Court however stopped short of allowing the applicant’s prayer for certification of shares.

Background

Instant application sought certification of shares filed by the applicant, resident of Kolkata.

As originally filed, respondent 1 is the Custodian, Respondent 2 is Tata Global Beverages Ltd., Respondent 3 is a Share broker, Respondent 4 was intended to be legal heirs of late Harshad S. Mehta.

The application filed was not correctly affirmed but merely signed by the applicant and therefore he was permitted to file a supplementary application. In April, 2021 a duly completed application was lodged.  A minor change was done with regard to the company whose shares the applicant claimed was now respondent 1, Jyoti Mehta legal heir of Harshad S Mehta was respondent 3 and the broker respondent 4.

Applicant impleaded her late husband as respondent 5 and the Calcutta Stock Exchange as respondent 6.

Applicant’s Case

The applicant stated that her late husband had purchased 500 shares of Tata Global Beverages Ltd. – respondent 2 from respondent 4 – a broker for consideration of Rs 26, 515. She relied upon photocopies of original share certificates, contract notes, bill/receipt issued by the broker and proof of payment. Further, in 1989, she claimed to have received 200 bonus shares of the company. Accordingly, the shareholding would have increased to 700 shares.

After her husband passed away in 1996, addressed a letter to the company requesting transmission of the shares held in the name of her husband to her name.

Registrar and Transfer Agents of the company informed the respondent that the shares in question formed part of 1,22,881 shares which a Harshad Mehta entity had apparently purchased before 8th June 1992 and accordingly the company informed the applicant that she should approach the office of Custodian.

Till 2010 applicant did nothing with respect to the above. In 2010, applicant addressed a letter to Registrar requesting the issuance of duplicate shares in the name of the applicant. The matter had been referred to the custodian and it was clarified that the 700 shares form a part of the 1,22,881 shares.

Once against till 17th September 2018, the applicant took no action and then again addressed a letter to the Registrar. Then the applicant claimed personal difficulties and sought the issuance of a dividend in her favour. Once again, the Registrar advised the applicant to approach the Office of the Custodian.

Further, the Registrar provided details of the bonus shares and split shares from the year 1986 to 2018 which were all held under the folio of her late husband.

In 2019, the Advocate for the applicant addressed a letter to the Custodian claiming that she is a lawful and bonafide holder of 15,750 shares, Processing of the shares and issuance of duplicate shares in favour of the client and requesting information on compliance of further formalities.

Custodian informed that the applicant had to submit several documents and file an application before the Special Court and in March 2020, the applicant wrote to the Custodian annexing certain documents while contending that the original share certificates were lying with the company.

In view of the above background, the applicant approached the Court seeking certification and claiming to be the sole owner.

Analysis, Law and Decision

The Court on perusal of the facts and circumstances of the present matter, expressed that it was not clear as to why the seller of shares would not affix the correct signatures if indeed he had sold the shares for consideration, for value received. It was not an inadvertent change in the signature, the difference in the signature was sought to be obvious and factual in each of these cases.

Moreover, in Court’s opinion, the applicant could not be faulted in her attempt to obtain transmission of the shares. No malafides were attributed to the applicant by the notified party.

If indeed the shares were purchased by benamidars there was no reason why the signatories would be improper. Moreover, if the shares were indeed purchased by the benamidars and those referred to in the affidavit in reply, surely the said parties would have come forward to claim those shares. What must be noted however is that if the shares were stolen how they could have reached the Registrar is a mystery. Assuming the theft did occur the persons responsible may have submitted forms with forged signatures.

Bench stated that the shares were not transferred yet and there was nothing on record to show that the original shareholder had sold the said shares or was paid consideration for the shares.

In view of the above background, the question that arises is:

Whether the shares were liable to be now “certified”?

Court stated that Mr Mehta’s version that Radhe Shyam Agarwal sold the shares forming the subject matter of the present application could not be established.

In Court’s opinion the fact that the shares were still in the name of Radhe Shyam Agarwal and there being no evidence that these were the shares that had been acquired by notified parties, there was no reason to deprive the applicant of those shares by the Custodian retaining control of the same.

Whether shares are required to be certified under the scheme of certification and to that extent the present application is different from the regular cases of certification that come before the Special Court?

Court expressed that, it would be sufficient if the Custodian gives up the objections to the proposed transmission of shares and it is left to the applicant to pursue the transmission of shares in her favour, if the company is satisfied with the bonafides of her application.

Further, the Bench stated that the Custodian cannot object to the transmission of share in view of the material placed before the Court clubbed with the fact that the original shares since benefited from accretions all of which were retained by Registrar there was no reason for the Custodian to retain his claim to the shares.

Elaborating further on the matter, Court explained that notified parties could not establish the contention that Radhe Shyam Agarwal had sold the shares and had not affixed his proper signatures on the share transfer form as a result of which the transfer stood rejected.

In the decision of Standard Chartered Bank v. Andhra Bank Financial Services Ltd., (2006) 6 SCC 94, it was held that in order to establish ownership mere possession of original share certificates would not lead to interference of ownership and in the facts of that case the party had been able to prove purchase of the securities on the basis of cogent evidence and therefore retain title to the same.

The only significant question in the present matter was whether Radheshyam Agarwal had sold the shares and the notified part had purchased the shares?

The above-said question casts a burden on the notified party to establish a bonafide purchase which had not occasioned in the instant matter.

There was no specific record to indicate that the shares that are now subject matter of the present application were purchased. The claim was merely on the basis of a communication dated 6-10-1999 whereby Harshad S Mehta had addressed a letter without prejudice to the Custodian seeking tracing and recovery of shares of Tata Tea Ltd. All it said was that the shares might have been purchased by the three brokerage firms M/s. Harshad S. Mehta, M/s. Ashwin Mehta and M/s. J. H. Mehta or any other related notified entities or family members directly or through outside brokerage firms.

Sufficient time had also gone by but there was no evidence to back up such a claim.

Therefore, Custodian cannot retain control over the shares or claim the said shares on behalf of the notified parties.

 Hence, Radhe Shyam Agarwal was seen to be the last holder of the subject shares.

The signatures on share transfer forms are admittedly not matching with that of Radhe Shyam Agarwal, the shareholder and hence the shares continued to be in the name of late Radhe Shyam Agarwal.

Calling the claim of the notified party to be a long shot, Court held that the applicant had prima facie established that the shares stood in the name of Radhe Shyam Agarwal and continue to be held in that name.

The direction was given to the Custodian o release the shares but short of certification.

Lastly, the Court stated that the applicant may approach the Company and satisfy them that she was entitled to the transmission of the said shares on such terms that the company may deem fit.

“Custodian shall not hold back the shares and they shall stand released from attachment.”

The following order was passed:

  • The Custodian shall convey to the company that he has no claim to the 15,750 shares presently forming the subject matter of the Sub Division Advice dated 3rd July, 2010 under Folio no. TFR0006641 under Share Certificate no. 00002527 in respect of share bearing distinctive no. 3954051 to 3969800.
  • The applicant is at liberty to approach the company for transmission of these shares subject to compliance of all requirements to be specified by the company and their Share Registrar and Transfer Agent.
  • The company Tata Global Beverages Limited and its Transfer agents are permitted to consider an application for transmission of shares if made by the applicant and subject to due compliance of all requirements of the company and the transfer agents.
  • It is made clear that the court has not “certified” these shares under the scheme of certification.

In view of the above application was disposed of. [Bimla Devi Agarwal v. Custodian, Miscellaneous Application (L) No. 49 of 2019, decided on 3-12-2021]


Advocates before the Court:

Mr Muttahar Khan i/b. Mr Sukrut Mhatre, Mr Jitendra Sarda and Mr Sanjay Jadhav for the Applicant.

Mr Gandhar Raikar a/w. Ms Shilpa Bhate i/b. M/s Shilpa Bhate Associates for the Custodian.

Mr Ashwin Mehta for the Notified party.

Telangana High Court
Case BriefsHigh Courts

Telangana High Court: P. Naveen Rao, J., discussed and reiterated the scope of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 extensively.

“As against the procedure envisaged in the Code of Criminal Procedure, where power is vested in the Magistrate, to monitor investigation of a crime under the Act, 1989 and take cognizance of the crime, the power is now vested in the Special Court.”

Illegal Intimacy

First petitioner submitted that second petitioner is her daughter and her marriage was performed in the year 2017. After 4 months of their marriage, the husband of the second petitioner developed illegal intimacy with another woman who is stated to be the daughter of the sixth respondent and were living under one roof.

The husband of petitioner 2 started harassing her. Later in the panchayat held by the elders, there was an understanding that Shivakumar would lead marital life with the second petitioner by leaving the daughter of respondent 6.

Even after the above-held panchayat, the illegal relationship of Shivakumar and daughter of respondent 6 continued.

Based on the above complaint, a crime was registered under Sections 498-A and 497 IPC. Sixth respondent’s daughter gave an assurance in front of the police that she would not interfere in marital life of second petitioner and requested the petitioners to withdraw the case.

Later, even after the settlement, the illegal relationship continued and this time, the respondent filed a complaint alleging that petitioners abused them in filthy language and on caste lines.

Complaint under Section 34 IPC and Sections 3(1)(r)(s), 3 (2) (va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Petitioners have now alleged that taking advantage of the registration of crime, sixth respondent and his daughter threatened the petitioners and were forcing the second petitioner to give divorce to her husband.

Petitioners contended that the police has not been following the procedure and requires the Court to direct the fourth respondent to follow the Supreme Court decision in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

Scope of Power of Police

On the issue of the scope of power of police to conduct an investigation, the arrest of accused, grant of bail, and the role of Constitutional Courts in such matters was extensively considered by the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335.

Further, the Bench expressed that it is a settled principle of law that once a cognizable crime is reported, police have to register the crime and investigate into the crime. Such an investigation has to be taken up immediately, collect the evidence and then take steps to finalize the investigation and file the final report.

Scope of  The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

The scope of provisions of the Act, 1989 came up for consideration before the Supreme Court in Subhash Kashinath Mahajan v. State of Maharashtra,(2018) 6 SCC 454. The Supreme Court held that merely because a crime is reported under the Act, 1989, it need not be registered automatically and to avoid false implication of an innocent person, a preliminary enquiry may be conducted by the Deputy Superintendent of Police concerned to find out whether allegations in the complaint made out a case to proceed under the Atrocities Act, and that the person need not be arrested.

In Union of India v. State of Maharashtra, (2020) 4 SCC 761, Supreme Court reviewed the directions issued in Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454.

Further, after extensively referring to the view taken by the Supreme Court in Union of India v. State of Maharashtra, (2020) 4 SCC 761, Supreme Court observed in Prithvi Raj Chauhan v. Union of India, (2020) 4 SCC 727:

“9. Concerning the provisions contained in Section 18-A, suffice it to observe that with respect to preliminary inquiry for registration of FIR, we have already recalled the general Directions 79.3 and 79.4 issued in Subhash Kashinath case [Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 : (2018) 3 SCC (Cri) 124]. A preliminary inquiry is permissible only in the circumstances as per the law laid down by a Constitution Bench of this Court in Lalita Kumari v. State of U.P. [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524], shall hold good as explained in the order passed by this Court in the review petitions on 1-10-2019 [Union of India v. State of Maharashtra, (2020) 4 SCC 761] and the amended provisions of Section 18-A have to be interpreted accordingly.

10. Section 18-A(i) was inserted owing to the decision of this Court in Subhash Kashinath [Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 : (2018) 3 SCC (Cri) 124], which made it necessary to obtain the approval of the appointing authority concerning a public servant and the SSP in the case of arrest of accused persons. This Court has also recalled that direction on Review Petition (Crl.) No. 228 of 2018 decided on 1-10-2019 [Union of India v. State of Maharashtra, (2020) 4 SCC 761] . Thus, the provisions which have been made in Section 18-A are rendered of academic use as they were enacted to take care of mandate issued in Subhash Kashinath [Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 : (2018) 3 SCC (Cri) 124] which no more prevails. The provisions were already in Section 18 of the Act with respect to anticipatory bail.”

Therefore, in light of the above discussion, bench dismissed the petition. [Sattarsetti Nirmala v. State of Telangana, 2021 SCC OnLine TS 167 , decided on 06-01-2021]

Legislation UpdatesNotifications

S.O. 4570(E).—In exercise of the powers conferred by section 435 of the Companies Act, 2013 (18 of 2013) (hereinafter referred to as the said Act), the Central Government, with the concurrence of the Chief Justices of the High Court of Uttarakhand, Nainital and High Court of Jammu and Kashmir, hereby designates the following Courts mentioned in column (2) of the Tables below as Special Courts, namely:-

(a) for the purpose of providing speedy trial of offences punishable with imprisonment of two years or more as per clause (a) of sub-section (2) of section 435 of the said Act, namely:-

Table 1

(b) for the purpose of providing speedy trial of other offences as mentioned in clause (b) of sub-section (2) of section 435 of the said Act, namely:-

Sl. No.

page2image2832712560

Court

page2image2832716272

Jurisdiction as Special Court

(1)

page2image2832725872

(2)

page2image2832725152

page2image2832727728

(3)

page2image2832729760

1

Court of IV Additional District and Session Judge, Dehradun

page2image2832738272

State of Uttarakhand

page2image2832740000

2

Principal Sessions Judge, Leh

page2image2832747600

Union territory of Ladakh

 

Table 2

Sl. No.

page2image2832759120

Court

page2image2832762928

Jurisdiction as Special Court

(1)

page2image2792633136

(2)

page2image2791035824

page2image2792657904

(3)

page2image2792672336

1

Court of II Additional Chief Judicial Magistrate, Dehradun

State of Uttarakhand

2

Sub-Judge/Special Mobile Magistrates, Jammu and Srinagar

Union territory of Jammu and Kashmir

3

Chief Judicial Magistrate, Leh

Union territory of Ladakh

S.O. 4569(E).—In exercise of the powers conferred by sub-section (1) of section 435 of the Companies Act, 2013 (18 of 2013), the Central Government, with the concurrence of the Chief Justice of the High Court of Jammu and Kashmir, hereby makes the following amendments in the notification of the Government of India, Ministry of Corporate Affairs, number S.O. 1796(E), dated, the 18th May, 2016, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (ii), namely:-

In the said notification, in the Table, for serial number 1 and the entries relating thereto, the following shall be substituted, namely:-

Sl. No.

page1image2832404000

Existing Court

page1image2832416544

Jurisdiction as Special Court

(1)

page1image2832422208

(2)

page1image2832425264

page1image2832427728

(3)

page1image2832428432

“1

Courts of Additional Sessions Judges Anti- corruption, Jammu and Srinagar

page1image2832438128

Union territory of Jammu and Kashmir”.

page1image2832443232


Ministry of Corporate Affairs

[Notification dt. 19-12-2019]

Hot Off The PressNews

SEBI Special Court convicted four directors of the Roofers Realty Limited for not complying with the summons issued by the investigating authority of the Securities and Exchange Board of India (SEBI). SEBI had launched investigation into alleged illegal mobilization of funds from the public by Roofers Realty Limited. The investigating Authority appointed by the Board had summoned four directors of the company, viz., Mr. Sauravmoy Ghosh, Jayanti Sounth, Hirak Nath Sounth and Khudiram Sounth to appear before the Authority in relation to the aforesaid investigation. Despite receiving the summons, the directors did not appear before the investigating authority.

Therefore, SEBI launched prosecution proceedings against the aforesaid persons under Section 11C (6) of the Securities and Exchange Board of India Act, 1992. The Special Court convicted the accused on the ground that the directors failed to appear before the investigating authority despite due receipt of the summons. The Court sentenced three directors, viz. Mr. Sauravmoy Ghosh, Jayanti Sounth and Hirak Nath Sounth to one year simple imprisonment and imposed a fine of Rupees Five Lakhs. The Court has also imposed a fine of Rs 2,50,000 on Mr Khudiram Sounth considering his old age.


PR No.: 18/2019

[Press Release dt. 26-07-2019]

Securities and Exchange Board of India

Case BriefsHigh Courts

Madhya Pradesh High Court: S.K. Awasthi, J.  dismissed the petition on the ground that trial court and not Special Court are competent to take cognizance when offences were made under the Penal Code, 1860.

A petition was made under Section 397 read with Section 401 of Code of Criminal Procedure, 1973 against the order passed by Additional Sessions Judge.

Facts of the case were that Mukesh and Radheyshyam Mandwani and applicant Sunil were the directors of the company, having an immovable property at Indore. The applicant tried to grab the property without calling any meeting of the company and had also forged the resignation of the complainant and indicted his real brother as director of the company. An FIR was lodged against the applicant for offences under Sections 420, 467, 468, 471 and 120-B of the Penal Code, 1860 and charge sheet was filed. A discharge application on the ground that the trial court was not competent to take the cognizance and Special Court should take the cognizance was rejected by the trial court. Hence, the revision petition was made.

Vijay Asudani, counsel for the applicant argued that a special court can try offence other than offence under the provisions of Companies Act with which the accused may under the CrPC be charged. It was further submitted that the trial court failed to appreciate that the Complainant was the ex-director and shareholder of the company and the fact that the non calling of the meeting, preparation of forged resignation are offences under the Companies Act, 2013 and thus only special court were competent to take cognizance of the offence and thus impugned order should be set aside and applicant should be discharged from the charges made under the Penal Code.

Counsel for the complainant submitted that in order to gain the control over assets of the company and to deceive, betray and cheat the complainant made the complaint under the Penal Code. It was further submitted that the jurisdiction of the Special Court is limited to the offences punishable under the Companies Act, 2013 and not under the Penal Code or any offences committed under any other law. Thus, prayed for the dismissal of the revision petition.

The Court opined that provision of Section 436 (2) of the Companies Act, 2013 also provide that while trying an offence under the Companies Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973 be charged at the same trial. In this case, the police registered the offence punishable under the Penal Code and not under Companies Act, 2013. It was held that no criminal trial has been initiated against the applicants for any of the offence which is punishable under the provision of Companies Act, therefore, in absence of any offence punishable under the Companies Act, Special Court is not having jurisdiction to try the case which is punishable under the Penal Code and court of Indore has territorial jurisdiction to try the case for the commission of offence punishable under Sections 420, 467, 468, 471 and 120-B of IPC. Thus, the revision petition was dismissed. [Sunil Mandwani v. State of M.P., 2019 SCC OnLine MP 1248, decided on 27-06-2019]

Case BriefsForeign Courts

Pakistan Supreme Court: A Full Bench comprising of Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ. dismissed a criminal appeal against the order of the Peshawar High Court where a Nigerian national was convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997.

In the instant case, the respondent (a Nigerian national) was caught by the contingent of Anti Narcotics Force along with 25 kilograms of heroin. He faced trial before the Special Court (CNS) who returned with a verdict of guilty. He was convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997 and was sentenced to imprisonment for life and a fine of rupees one million or five-year simple imprisonment in case of default. He appealed to the Peshawar High Court which acquitted him from the charge primarily on the ground that, contraband allegedly recovered was destroyed in violation of procedure provided under Section 516 A of the Code of Criminal Procedure, 1898. Aggrieved thereby, the State filed the instant criminal appeal.

Mr Muhammad Tariq Khan, learned ASC for the State contended that the destruction of the contraband under magisterial supervision ruled out the possibility of any foul play and thus strict non-compliance with the suggested procedure would not vitiate respondent’s culpability which was otherwise firmly established through massive evidence.

The Court held, “We would abstain to examine the vires of arguments raised before us in absence of the respondent, a Nigerian national, reported to have left Pakistan as in his absence the exercise would be merely an academic discussion without consequential impact.” Further, it was held, “we find it inexpedient to interfere with the impugned judgment as in the event of a reversal of the impugned view, a cumbersome procedure of respondent’s extradition would be a process far from convenient.”  Thus, the appeal was dismissed.[State v. Olufemi, 2019 SCC OnLine Pak SC 7, decided on 28-03-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal, Prevention of Money Laundering Act (New Delhi): A Coram of Manmohan Singh (Chairman), J. and G.C. Mishra (Member) allowed an appeal under Section 26 of the Prevention of Money Laundering Act, 2002 against an order passed by the Adjudicating Authority for attaching property.

In the instant case the CBI registered a criminal case under Section 120-B of Penal Code, 1860 read with Sections 7, 12, 13(2) and 13(1)(d) of Prevention of Corruption Act, 1988 against one Joint Director of Enforcement Directorate (ED) wherein it was alleged that he assisted the appellant (herein), indulging in corrupt practices in an investigation. It was also alleged that they had taken a huge amount of bribes as quid-pro-quo for acts of omission and commission during the said investigation. As a result, the appellant was arrested by CBI and a charge sheet was filed against him. On the basis of the registration of the case by CBI, a Prevention of Money Laundering Act, 2002 (PMLA) case was also recorded at New Delhi. The ED provisionally attached the immovable property of the appellant which was confirmed by the Adjudicating Authority.

The respondent’s counsel, Shilpi Satyapriya Satyam, contended that the aforesaid property was attached as a “value thereof” in accordance with provision made under Section 2(1)(u) read with Section 2(1)(v) of the PMLA. The counsel for the appellant, R.K. Handoo, drew the attention of the Tribunal to the provision in Section 8(3)(a) of PMLA, 2002 as amended by Act 13 of 2018 which reads as, “a) continue during [investigation for a period not exceeding ninety days or] the pendency of the proceedings relating to any [offence under this Act before a court or under the corresponding law of any other country, before the competent court of criminal jurisdiction outside India, as the case may be. On the basis of this the counsel contended that the confirmation order of attachment passed by the Adjudicating Authority did not survive. Also, no prosecution complaint was filed against the appeal, and hence the appeal be allowed.

The Tribunal found, “It is strange to note here that an immovable property of a person has been made part of a prosecution complaint for confiscation without making that person as a party and affording that person an opportunity to defend his case.” It was further noted, “Section 8(3)(a) of PMLA has been amended by the Act 13 of 2018, wherein a limitation period has been provided for continuation of attachment or retention of property or record post confirmation of attachment/retention and it is the intention of the legislature not to allow the Investigating Authority to get the property attached or retained the record/documents/items indefinitely in the name of investigation.”

Thus, the appeal was allowed. The Tribunal directed the appellant to move to the concerned Special Court for an appropriate remedy, wherein the Prosecution Complaint was pending and his property was made part and parcel of that complaint.[Sanjay Kumar v. Deputy Director Directorate of Enforcement, New Delhi, 2019 SCC OnLine ATPMLA 9, decided on 12-04-2019]

Legislation UpdatesNotifications

S.O. 1661(E)—Whereas, in exercise of the powers conferred by sub-section (1) of Section 11 of the National Investigation Act, 2008 (34 of 2008) (hereinafter referred to as the said Act), the Central Government had, vide notification number S.O. 2159(E) dated the 1st September, 2010, published in the Gazette of India, Extraordinary, Part-II, Section 3, Sub-section (ii), notified the Court of District and Sessions Judge, Shimla, as the Special Court for the purposes of sub-section (1) of Section 11 of the said Act having jurisdiction throughout the State of Himachal Pradesh for the trial of Scheduled Offences;

And whereas, Shri Virender Singh, District and Sessions Judge, Shimla, who was appointed as the Judge to preside over the said Special Court vide notification number S.O. 1575(E) dated the 16th May, 2017, published in the Gazette of India, Extraordinary, Part-II, Section 3, Sub-section (ii), has been transferred;

Now, therefore, in the exercise of the powers conferred by sub-section (3) of Section 11 of the National Investigation Act, 2008 (34 of 2008) and in supersession of the notification number S.O. 1575(E) dated the 16th May, 2017, except in respect of things done or omitted to be done before such supersession, the Central Government, on the recommendation of the Hon’ble Chief Justice, High Court of Himachal Pradesh, hereby appoints Shri Rajeev Bhardwaj, District and Sessions Judge, Shimla, as the Judge to preside over the said Special Court.


[Notification dt. 29-04-2019]

Ministry of Home Affairs

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for PMLA Act: The Coram of Ananya Ray (Member) directed to keep an appeal filed against an order directing attachment of properties bought from proceeds of money laundering, till final disposal of the matter by Special Court.

The present appeal was filed against order vide which attachment of 14 immovable properties and 2 movable properties, which were alleged as having been acquired from the proceeds of scheduled offences under Prevention of Money Laundering Act, 2002, was confirmed.

Appellant’s main plea was that he had already been tried by the Sessions Court and been acquitted by it. Hence, once there was no scheduled offence, there could not be proceeds of crime, and therefore attachment of the properties was liable to be set aside.

The Tribunal noted that Section 43(1) of the PMLA empowers the Central Government to designate one or more Courts of Session as Special Court for the trial of offence punishable under Section 4 PMLA. Further, Section 43(2) of the Act prescribes that the Special Court shall also try an offence (other than the offence of money laundering) with which the accused may have been charged under the Code of Criminal Procedure, 1973. A joint reading of these provisions indicated that the Special Court has must try the offence of money laundering as well as the scheduled offence.

It was opined that the Session Courts had not examined Section 4 of PMLA along with the schedule offence as mandated under Section 44 of PMLA. Hence, it could not be said that appellant’s acquittal had attained finality. Since the appellant’s case had already been taken cognizance of by the Special Court, therefore the instant appeal was directed to be kept in abeyance until final disposal of the case by the Special Court.[Bharat Yadav v. Deputy Director, Directorate of Enforcement, Patna, 2019 SCC OnLine ATPMLA 2, decided on 03-04-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for SAFEMA, FEMA, PMLA, NDPS & PBPT Act: The coram of Manmohan Singh, J. (Chairman) and G.C. Mishra (Member) ordered to keep an appeal filed before this Tribunal in abeyance until the Special Court, which had already taken cognizance of the matter at hand, finally disposed of the case.

Facts of the case were that one Mr Anup Prakash Garg who was a Director in Andhra Bank from had hatched a criminal conspiracy with Sterling Biotech Ltd. (SBL) and cheated Andhra Bank to the tune of Rs 5382 crores, which was received by him as gratification for favouring SBL group in his capacity as Director of Andhra Bank. The case of the Enforcement Directorate was that the said amount was received by Mr. Garg in cash, and was layered into the appellant company set up by him with his son, wife and his daughter-in-law who were Directors in the appellant company. Aggrieved by the ED’s case in Special Court, the instant appeal was filed.

The preliminary objection taken by counsel for the respondent Mr Nitesh Rana was that ED had filed a case in the Special Court under Prevention of Money Laundering Act, 2002 and the Special Court had already taken cognizance of the same. Therefore, it was pleaded that this case be kept pending till disposal by the Special Court.

The Court noted that the entire scheme of PMLA provides that only a Special Court can adjudge on the offence of money laundering. Section 44(1)(a) of PMLA specifically states that an offence punishable under Section 4 and any scheduled offence connected to the offence under that Section shall be triable by a Special Court. Reliance in this regard was placed on Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1.

In view of the above, it was held that only the Special Court had the power to decide on the offence of money laundering.[RAG Buildtech (P) Ltd. v. Deputy Director, Directorate of Enforcement, Delhi, FPA-PMLA-2548/DLI/2018, decided on 26-03-2019]

Case BriefsHigh Courts

High Court of Jharkhand at Ranchi: The Court recently addressed a petition which had been filed for quashing a previous order given by the Chief Judicial Magistrate wherein the CJM took cognizance of offences under certain sections of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Penal Code.

The facts of the case are that the original complaint petition was filed before the Court of the Chief Judicial Magistrate under Section 156(3) of the Criminal Procedure Code following which it was registered under as a separate complaint under Sections 376, 417 and 506 of the Penal Code and Sections 3(1)(x), 3(1)(xii) and 2(v) of the Scheduled Castes and Tribes (Prevention of Atrocities) Act. The CJM then took cognizance of the alleged offences under the aforementioned sections of the Penal Code and the Scheduled Castes and Tribes (Prevention of Atrocities) Act and kept the file for commitment which gave rise to a separate case.

The counsel for the petitioner argued that the Magistrate did not have the authority to take cognizance under the Scheduled Castes and Tribes (Prevention of Atrocities) Act, as cognizance could only be taken by the Special Court which has been constituted for the purposes of this Act. The counsel pointed out that not only was cognizance taken of the sections under the Penal Code but also all those sections under the Scheduled Castes and Tribes (Prevention of Atrocities) Act. The counsel referred to Moly v. State of Kerala, 2004 CRI. L. J. 1812 (SC) in which the Supreme Court held, “for trial of the offences under the Act that a particular Court of Session in each district is sought to be specified as a Special Court… The Act contemplates only the trial to be conducted by the Special Court”. Hence, keeping this judgment in mind, the counsel argued that the Judge was acting outside of his jurisdiction.

The counsel for the opposite party submitted that the impugned order also saw the Magistrate taking cognizance to provisions of the Penal Code. He also argued that following this, the Magistrate committed the trial to the Court of Sessions for trial and thus the trial had not been vitiated. He pointed out that legislature had provided for the constitution of a Special Court for the purpose of trial of offences under the Act in question.

The bench of B.B Mangalmurti J., held that the Court of the Chief Judicial Magistrate cannot take cognizance of offences under the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 since there stood no ambiguity in the decision of the Supreme Court wherein it necessitated the constitution of a Special Court for trial of offences committed under the Act. Hence, the Court set aside the impugned order. [Dhiraj Kumar v. State of Jharkhand, 2017 SCC OnLine Jhar 2266, order dated 23.11.2017]

Hot Off The PressNews

Supreme Court: Rejecting the plea of Naveen Jindal seeking permission to challenge the Trail Court’s order in Coal Scam, the 3-judge bench headed by Madan B. Lokur, J reiterated that High Courts cannot entertain the appeals challenging the orders of Special Courts. Such pleas can be entertained only by the Supreme Court.

Congress Leader Naveen Jindal had sought for challenging the Trail Court’s order before the Delhi High Court in the Coal Block allocation case where he was charged with corruption, criminal misconduct, cheating and criminal conspiracy in relation to the coal blocks that were allocated to the Jindal Group of companies.

Refusing to entertain his plea, the Court said that it will not revisit it’s July 25, 2014 order which had said that challenge to any interim order of the special court during pendency of trial in coal scam cases will be heard only by it.

Source: PTI