Madras High Court
Case BriefsHigh Courts

Madras High Court: In a case relating to a writ petition filed by Tamil Nadu electricity minister V. Senthil Balaji for issuance of a writ of certiorari, to call for the entire records in connection with the Enforcement Case Information Report (ECIR) issued by the Enforcement Directorate (ED), and to quash the same as illegal and unconstitutional, the division bench of T.Raja and K. Kumaresh Babu, JJ. observed that the quashing of the proceedings in Complaint case of 2021 and staying of the proceedings in Complaint Case of 2020 and of 2021, the scheduled offence for the present case is eclipsed, suspended or stop operating during the period of stay, and the ED should have awaited the finality of the said proceedings, thus, refrained ED from proceeding any further pursuant to the impugned proceedings.

The Court took note of the ruling in Vijay Madanlal Choudhary v. Union of India, 2021 SCC OnLine SC 3286, wherein the Court dealt with the powers of the authority to proceed against a person under the Prevention of Money laundering Act, 2002(‘PMLA’), and held that when a person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by a Court of competent jurisdiction, then, there can be no offence of money-laundering against that person and viewed that the proceedings in complaint case of 2021 have been quashed, the ED would not proceed against Senthil Balaji. However, the respondent submitted that the benefit of the order of quash cannot be extended to the orders of stay granted in two other cases, as they should come for inquiry responding to the summons issued under Section 50 of PMLA.

The Court observed that the effect of an order of stay means that the operation of the impugned order is stayed or stands stalled as if the impugned order does not exist. Moreover, as the ECIR itself was only on the basis of the said three First Information Reports,thus the Court viewed that “when the proceedings pursuant to the FIR have been stayed by the High Court, whether the ECIR,which is also pursuant to the FIR, can be proceeded with, is a question that stares at open, and our considered answer is in the negative”.

The Court further observed that apart from the said FIR’s there were no other materials based upon which the proceedings under PMLA have been initiated, thus,when the cases which culminated from the said FIR’s have been stayed, the authority must have refrained itself from proceeding any further, as the summon issued to Senthil Balaji was pursuant to the initiation of ECIR based upon the FIR’s, and there was no scheduled offence as per Section 2(y) of the PMLA for the  ED to proceed under the said Act.

The Court took note of the ruling in Arun Kumar v. Union of India, (2007) 1 SCC 732,wherein the Court held that an authority by erroneously assuming existence of a jurisdictional fact, cannot confer upon itself jurisdiction which it otherwise does not possess.

Thus, the Court held that the impugned proceedings/summons do not have any legal sanctity and the interim order of stay will be subject to the final orders in the main proceedings, after which the eclipse would also wane away. Hence, it left open all the questions that are raised on the merits and de-merits of the proceedings initiated by the respondent, to be dealt with in appropriate proceedings.

[V.Senthil Balaji v. Karthik Dasari, 2022 SCC OnLine Mad 4417, decided on 01.09.2022]

Advocates who appeared in this case :

For Petitioners: Senior Advocate Sidharth Luthra

Senior Advocate S.Prabhakaran

For Respondent: Additional Solicitor General R.Sankaranarayanan

Special Public Prosecutor S.Sasikumar

Rajasthan High Court
Case BriefsHigh Courts


Rajasthan High Court: Dinesh Mehta, J. considered the stamp vendor and Sub Registrar as relevant witnesses in a case where registration of relinquishment deed was challenged, and it was pleaded to summon them as witnesses for ascertaining the claim. The Court stated that ascertaining the relevancy of the proposed witnesses while deciding application under Order XVI Rules 1 and 2 Civil Procedure Code (‘CPC’) is to be prima facie established by the Trial Court.

A suit was instituted declaring the relinquishment deed as null and void wherein the defendant moved an application stating that the stamp vendor – Tulchhiram Sindhi from whom the stamps were purchased and the registering authority – Sub-Registrar, Chunavadh, who registered the contentious document are necessary witnesses may be summoned as witnesses , which was thereby rejected by Additional Civil Judge 1, Sriganganagar. Assailing this, instant writ petition under Article 227 was filed.

Counsel for petitioner Adv. S.K. Shreemali submitted that the plaintiff herself had purchased the stamps and appeared before the Registering Authority, who in discharge of his official duties, had apprised the plaintiff about the relinquishment deed being executed by her and, therefore, their presence as witnesses was imperative in order to substantiate the petitioner’s stand.

Counsel for respondent Adv. Dixit Panwar, submitted that that petitioner’s application is nothing but an attempt to protract the proceedings.

The Court noted that the provisions contained under Order XVI Rule (1) and (2) Civil Procedure Code in unequivocal terms provide that the Court suo moto or on an application, can issue summons to a witness to appear in the Court. Sub-rule (2) of Rule 1 of the Order XVI of the Code enjoins upon the party desirous of getting a summons issued to a witness to state in its application the purpose for which the witness is proposed to be summoned.

The Court observed that on a perusal of subject application it is clear that the petitioner had stated that she herself had purchased the stamp from the stamp vendor – ‘Tulchhiram Sindhi’ and thereafter appeared before the Sub-Registrar, Chunavadh for executing and getting the relinquishment deed registered. Thus, presence of the stamp vendor and Sub-Registrar is necessary in order to ascertain the veracity of petitioner’s stand.

The Court further observed that the Trial Court has not properly considered the mandate contained in Order XVI Rule(s) 1 and 2 CPC and rejected petitioner’s application indicating that the applicant has failed to establish the relevancy of the testimony of these two witnesses. Thus, the applicant may be called upon to show relevance or need of such witness (es) but he/ she cannot be asked to establish or prove such requirement. The requirement has to be determined by the Court.

The Court thus held “the stamp vendor and the then Sub-Registrar are relevant witnesses, who would assist the Court to come to a correct conclusion”

[Gurjant Singh v. Amarjeet Kaur, S.B. Civil Writ Petition No. 13516/2017, decided on 29-06-2022]

*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

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

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

Analysis, Law and Discussion

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

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

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

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

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

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

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

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

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

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

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

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

Advocates before the Court:

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

Counsel for the OP: G.A.

Case BriefsHigh Courts

Allahabad High Court: Dr Y.K. Srivastava, J., while examining the ambit and scope of Section 319 of the Code of Criminal Procedure, 1973 explained that,

“…broad principles which have been laid down for exercise of powers under Section 319 of the Code underline the object of the enactment that the real perpetrator of the offence should not get away unpunished and in a situation where the investigating agency for any reason does not array any culprit as an accused the court would not be powerless in calling the accused to face trial.”

Instant criminal revision had been filed seeking to set aside the decision passed by Additional Sessions Judge under Sections 307, 504 of Penal Code 1860 arising out of a case on the application of OP 2 filed under Section 319 of the Code of Criminal Procedure, 1973.

Ambit and Scope of Magistrates’ powers

Scope and the ambit of the powers of the Magistrate under Section 319 of the Code were considered in the Constitution Bench judgment of the Supreme Court in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92. Referring to the object of the provision it was held that the object of the provision was that the real culprit should not get away unpunished and in a situation where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial.

Further, with regard to the degree of satisfaction required for invoking the powers under Section 319 of the Code, it was held that the test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, is goes unrebutted, would lead to conviction.

The question as to what situations power under the Section 319 of the Code of Criminal Procedure, 1973 can be exercised in respect of persons not named in the FIR or named in FIR, but not charge-sheeted or discharged was also considered, and it was held that a person whose name does not appear even in the FIR or the charge-sheet or whose name appears on the FIR and not in the charge sheet, can still be summoned by the Court provided the conditions under the said Section stand fulfilled.

Elaborating further, power to proceed against persons named in FIR with specific allegations against them, but not charge-sheeted, was reiterated in Rajesh v. State of Haryana, (2019) 6 SCC 368 and it was held that persons named in the FIR but not implicated in charge- sheet can be summoned to face trial, provided during the trial some evidence surfaces against the proposed accused.

The court below had taken note of the fact that the revisionist was not only named in the F.I.R. but was also assigned a role in the incident.

Upon considering the settled legal position with regard to exercise of powers under Section 319, the court below passed the order summoning the revisionist.

Moving further, the Bench expressed that Section 319 (1) of the Code envisages that where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

High Court held that power under Section 319 of the Code to summon even those persons who are not named in the charge-sheet to appear and face trial, being unquestionable and the object of the provision being not to allow a person who deserves to be tried to go scot-free by being not arraigned in the trial inspite of possibility of his complicity which can be gathered from the evidence during the course of trial, the order passed under Section 319 of the Code summoning the revisionist does not contain any material error so as to warrant inference.

Applicant’s counsel stated that it would not dispute the aforementioned legal position with regard to the exercise of powers under Section 319 of the Code and stated that the applicant would submit to the jurisdiction of the court below and seek bail.

In view of the above discussion, the revision stood dismissed. [Mishri Lal v. State of U.P., 2021 SCC OnLine All 839, decided on 4-12-2021]

Advocates before the Court:

Counsel for Revisionist: Kamal Dev Rai

Counsel for Opposite Party: G.A.

Case BriefsHigh Courts

Allahabad High Court: Sameer Jain, J., decided that whether for summoning an accused under Section 138 of Negotiable Instruments Act, 1881, recording of statements under Section 200 and 202 of CrPC is required or not.

Instant application was filed under Section 482 CrPC to quash the proceedings of complaint case under Section 138 of the Negotiable Instruments Act pending before the IInd Chief Judicial Magistrate, Varanasi.

Applicant was summoned under Section 138 of the Negotiable Instruments Act.

A perusal of the summoning order showed that cheque issued by the applicant in favour of the Firm of OP 2 was dishonoured and thereafter, notices on behalf of OP. were given to the applicant for payment of the cheque amount but inspite of that, no payment was made. Ultimately OP 2 filed a complaint under Section 138 NI Act against the applicant.

As per Section 145(1) of the Negotiable Instruments Act, the evidence of the complainant may be given by him on affidavit, and for the summoning of accused under Section 138 NI Act, recording of statements under Sections 200 and 202 CrPC was not required.

It was noted in the present matter that, from the perusal of the summoning order, it was apparent that while passing the order, Magistrate perused the complaint as well as an affidavit in support of the complaint filed by OP 2 and other documents including cheque, etc. and therefore, in view of provisions of Section 145 (i) NI Act, it could not be said that trial court committed an error while summoning the applicant as there was no need to record the statements either under Sections 200 CrPC or 202 CrPC.

High Court relied on the Supreme Court decision of Expeditious Trial of Cases under Section 138 NI Act, 1881, In Re., AIR 2021 SC 1957, and stated that even on the basis of affidavit filed on behalf of the complainant, an accused can be summoned under Section 138 NI Act and there was no need to record statements under Sections 200 and 202 CrPC.

Therefore, no illegality was committed by the trial court while passing the summoning order against the applicant. [Virender Kumar Sharma v. State of U.P., 2021 SCC OnLine All 874, decided on 8-12-2021]

Advocates before the Court:

Applicant’s Counsel: Manoj Kumar Rai, K.C. Tripathi

OP’s Counsel: Govt. Advocate

Patiala House Courts, Delhi
Case BriefsDistrict Court

Patiala House Courts, New Delhi: While addressing a case of medical negligence Prayank Nayak, MM-01, expressed that doctors can be summoned for negligence only if the negligence is gross or the doctors did not possess the requisite skill required for the treatment

Complainant sought summoning of accused namely Dr Ram Manohar Lohiya, Hospital, New Delhi, CMO, Dr Ram Manohar Lohiya, Hospital and Dr Dinesh, Dr Ram Manohar Lohiya Hospital for offence punishable under Sections 270, 272, 326, 336, 338 of Penal Code, 1860.

Victim was aged about 3 months when she developed fever, cough and bronco pneumonia for which she sought treatment at OPD of RML. She was administered antibiotics and infusion intravenously. It was alleged that due to faulty administration of injection in a rash and negligent manner, victim developed gangrene.

After her examination by several doctors, her right hand had to be amputated from the wrist down. Hence it was stated that due to the negligence, commissions, and illegal omission of RML Hospital and its doctors they were liable to be punished under Sections 269, 270, 326 and 338 of the Penal Code, 1860 (IPC).

Analysis, Law and Decision

Law on Medical Negligence and Criminal Liability

Court expressed that the law of the land on the above stated was summed up in the decision of Supreme Court in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1,

“…To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.”

 Delhi High Court in Hukam Chand v. State, 2016 SCC OnLine Del 4129, held that:

“6. Thus to proceed against a doctor the complainant is required to, even at the stage of summoning, prima facie show that the negligence is of such a kind that either the doctor was not processed of the requisite skills which he professed to possess or the negligence and recklessness was of a high degree which could be termed as gross.”

 Hence, Court expressed those doctors can be summoned for negligence only if the negligence is gross or the doctors did not possess the requisite skill required for the treatment.

However, in the present matter, there was nothing on record to show that the treating doctors were grossly negligent while treating the victim. Even the Committee of the doctors did not mention that there was any negligence on the part of the treating doctors.

In Delhi High Court’s decision of Dr A.K. Banerji v. State, 2014 SCC OnLine Del 2322, while dealing with a criminal revision in a matter relating to medical negligence where the victim’s hand had to be amputated, held that since the Medical Council of India had opined that there was no negligence on the part of the treating doctor, summoning order of the magistrate for offence punishable under Section 338 IPC was liable to be set aside.

Bench held that since no sanction under Section 197 CrPC had been obtained, the doctors could not be summoned for the charges of medical negligence.

On finding no grounds for proceeding against the hospital and treating doctors arrayed as accused, the complaint was dismissed under Section 203 CrPC. [Gudia v. Dr Ram Manohar Lohia Hospital, CC No. 18745 of 2016, decided on 12-10-2021]

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and AS Bopanna, JJ has held that merely because someone is the Chairman/Managing Director/Executive Director/Deputy General Manager/Planner & Executor, automatically they cannot be held vicariously liable, unless there are specific allegations and averments against them with respect to their individual role in a criminal case.

Factual Background

The Court was dealing with a case wherein it was alleged that all the accused had conspired with common intention to lay the pipeline beneath the schedule properties belonging to the complainant without any lawful authority and right whatsoever.

It is pertinent to note that original accused no.1 was a company incorporated under the Companies Act, original accused nos. 2 & 3 being Chairman and Managing Director of Accused no.1- company and accused no.4 was arrayed as an accused being Deputy General Manager (Civil & Env.) of accused no.1. Accused No.5 was the Planner and Executor of the project work of accused no.1. Likewise, accused no. 6 was also a company incorporated under the Companies Act, accused nos. 7 & 8 were arrayed as an accused being Chairman and Executive Director respectively of accused no.6. Accused no.9 was the Site Supervisor of accused no.6 and accused no.10 was the Sub-Contractor under accused no.6 and accused nos. 11 to 13 were the employees of accused no.10.

Accused No.1 intended to lay water pipeline by the side of Mangalore-Bajpe Old Airport Road abutting the schedule properties. Accused No.2 on behalf of accused No.1 appointed accused No.6 as a contractor for execution of the said project of laying the water pipe line. Accused No.6 in turn authorized accused Nos. 7 and 8 to execute and oversee the said work. They in turn had appointed accused No.9 as site supervisor and the accused No.10 being the sub-contractor engaged accused Nos. 11 to 13 as labourers. Accused Nos. 4 and 5 were entrusted the work of supervision and overseeing the pipeline works carried out by accused Nos. 6, 7 and 8 through accused Nos. 9 and 10 to 13. Accused Nos. 6 to 8 had put into service heavy machineries and excavators and their vehicles for carrying out the work. It was contended that accused Nos. 2 to 5 and 7 to 13 had conspired with common intention to lay the pipeline beneath the schedule properties belonging to the complainant without any lawful authority and right whatsoever. In furtherance thereof, they had trespassed over the schedule properties 3 and demolished the compound wall which was having the height of 7 feet and foundation of 2 feet to a distance of 500 metres. They had cut and destroyed 100 valuable trees and laid pipeline beneath the schedule properties.

It was contended that

“… the accused have committed the act of mischief and waste and caused pecuniary loss of more than Rs.27 lakhs to the complainant. All the accused are jointly and severally liable to make good the loss to the complainant.”


The bench noticed that except the bald statement that accused nos. 2 to 5 and 7 & 8 have conspired with common intention to lay the pipeline within the schedule properties belonging to the complainant, without any lawful authority and right whatsoever and in furtherance they have committed to trespass into the schedule properties of the complainant and demolished the compound wall, there were no other allegations that at that time they were present.

There were no further allegations that at the command of A2 to A5 and A7 & A8, the demolition of the compound wall has taken place. All of them are merely arrayed as an accused as Chairman, Managing Director, Deputy General Manager (Civil & Env.), Planner & Executor, Chairman and Executive Director respectively.

“Therefore, as such, in absence of any specific allegations and the specific role attributed to them, the learned Magistrate was not justified in issuing process against accused nos. 1 to 8 for the offences punishable 12 under Sections 427, 447, 506 and 120B read with Section 34 IPC.”

The Court held that issuing summons/process by the Court is a very serious matter and therefore unless there are specific allegations and the role attributed to each accused more than the bald statement, the Magistrate ought not to have issued the process.

Here are some authorities on the power of the magistrate of summoning of an accused in a criminal case:

Sunil Bharti Mittal v. Central Bureau of Investigation, (2015) 4 SCC 609

“No doubt, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.


When the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect.”

Read more: Order issuing summons to Sunil Mittal and others in 2G Scam case by Special Judge, CBI, set aside

GHCL Employees Stock Option Trust v. India Infoline Limited, (2013) 4 SCC 505

In the order issuing summons, the learned Magistrate has to record his satisfaction about a prima facie case against the accused who are Managing Director, the Company Secretary and the Directors of the Company and the role played by them in their respective capacities which is sine qua non for initiating criminal proceedings against them.

Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668

“13. Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.”

Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749

“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the 14 Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

[Ravindranatha Bajpe v. Mangalore Special Economic Zone Ltd, 2021 SCC OnLine SC 806, decided on 27.09.2021]



For original complainant: Advocate Shailesh Madiyal

For accused persons: Advocates Nishanth Patil and P.P. Hegde

*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsSupreme Court

Supreme Court: The bench of KM Joseph* and PS Narsimha, JJ has reiterated the test laid down for invoking the power under Section 319 CrPC and has held that only when strong and cogent evidence occurs against a person from the evidence the power under Section 319[1] CrPC should be exercised. The power cannot be exercised in a casual and cavalier manner.

The Court took note of the test laid down in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, wherein it was held that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C.

It was further explained that in Section 319 Cr.P.C. the purpose of providing if ‘it appears from the evidence that any person not being the accused has committed any offence’ is clear from the words “for which such person could be tried together with the accused.” The words used are not ‘for which such person could be convicted’. There is, therefore, no scope for the court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.

“105. Power under Section 319 Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.”

Read more…

[Ramesh Chandra Srivastava v. State of UP, 2021 SCC OnLine SC 741, decided on 13.09.2021]


For appellant: Advocate Gaurav Srivastava,

For State: Advocate Adarsh Upadhyay,

For respondent 2: Advocate Sansriti Pathak

[1] 319. Power to proceed against other persons appearing to be guilty of offence.—(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1) then—

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

*Judgment by: Justice KM Joseph

Know Thy Judge| Justice K.M. Joseph

Hot Off The PressNews

Chief Justice of Sikkim High Court noted that there had been an undue delay in recording of statement of the victims under Section 164 of the Code of Criminal Procedure, 1973 by Magistrates.

Against the Mandate of Law

CJ noted that the Magistrates had been fixing dates after a week or two with respect to the recording of statements after receiving the application from the investigating officer concerned, which is against the mandate of law.

Summoned – Improper Practice as it entails unnecessary wastage of time & resources

It also came to the notice of Chief Justice that the Magistrates recording the statements were being routinely summoned by the Session Court and Special Courts to prove the contents of the statement.

Citing the decision of Sikkim High Court in State of Sikkim v. Rakesh Rai, 2012 Crl. L.J. 2737 observed that there was no justification in calling the Magistrate as a witness.

Andhra Pradesh High Court in Guruvindapalli Anna Rao v. State of Andhra Pradesh, 2003 Crl. L.J. 3253 observed that if any Magistrate records the statement of a witness under Section 164 CrPC, it is not necessary for the Sessions Judge to summon the Magistrate to prove the contents of the statement recorded by him. When a Magistrate, discharging his official functions as such, records the statement of any witness under Section 164 CrPC such statement is a ‘public document’ and it does not require any proof.

Hence, in view of the above, Chief Justice of Sikkim High Court directed that the magistrates shall record the statement of victims/witnesses on the same day when such applications are received and in case the same is not possible, then the statement has to be recorded on the immediate next day.

Further, the Sessions Judges/Special Judges may not summon the Magistrates in a routine manner to prove the contents of such statement.

Sikkim High Court


[Dt. 09-04-2021]

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench comprising of Ashok Bhushan*, R. Subhash Reddy and M.R. Shah allowed the instant appeal against the order of High Court of Uttrakhand regarding summon issued under S. 319 of CrPC. The Bench said,

“Order dated 18-09-2019 by which the Trial Court has directed appearance of the accused-appellant is to be taken to its logical end but that order cannot provide a shield of protection to earlier order dated 17-08-2019 by which appellant has been summoned.”

The appellant was made an accused under Ss. 147, 148, 149, 323, 324, 307, 452, 504 and 506 of IPC along with six other accused. Police, after carrying out investigation submitted a charge-sheet exonerating the appellant. During trial, the informant was examined as PW-1. In his Statement, the informant implicated all accused including the appellant but no specific role was assigned to the appellant.

An application under S. 319 CrPC was filed by the informant before the Sessions Judge praying that appellant be also summoned in the case. The Trial Court rejected the said application, pursuant to which the applicant approached the High Court by revision appeal to take actions against the appellant. The High Court, while relying on Rajesh v.State of Haryana, (2019) 6 SCC 368, remitted the matter back to the Trial Court and directed that the application under Section 319 CrPC to should be considered afresh.

Pursuant to the order of the High Court, the Trial Court allowed the application and summoned the appellants by Order dated 17-08-2019. On non-appearance of the appellant, the Trial Court had issued non-bailable warrant to the appellant and a notice under S. 446 CrPC was also issued.

The appellant filed Criminal Revision before the High Court against the order dated 17-08-2019 which was dismissed by the High Court on the ground that since the proceeding in pursuance to allowing the application under Section 319 CrPC had already been initiated, revision appeal could not be entertained.

In Hardeep Singh versus State of Punjab, (2014) 3 SCC 92, the Constitution Bench had elaborately considered all contours of Section 319 CrPC. The Court had held,

power under S. 319 CrPC is a discretionary and extra-ordinary power which has to be exercised sparingly. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised and not in a casual and cavalier manner.”

Hence, the Bench opined that the High Court had completely erred in holding that since the proceedings in pursuance of Section 319 CrPC had already been initiated, no simultaneous challenge to the impugned order dated 17-08-2019 summoning the revisionists under Section 319 CrPC would be tenable before the High Court till the order dated 18-09-2019 subsist. The Bench held that,

“Subsequent proceedings, in no manner could be a ground to not consider the correctness and validity of order dated 17-08-2019 and when it is found that order dated 17-08-2019 could not have been passed in exercise of jurisdiction under S. 319 CrPC, all subsequent proceedings thereto shall automatically come to an end.”

Therefore, the order of the High Court was held to unsustainable and deserving to be set aside. The High Court was directed to consider the Criminal Revision afresh.

[Ajay Kumar v. State of Uttarakhand,  2021 SCC OnLine SC 48, decided on 29-01-2021]

Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice Ashok Bhushan

Case BriefsHigh Courts

Allahabad High Court: In the instant case where the summoning order issued as per the requisites of Section 138 of Negotiable Instrument Act, 1881, was challenged as being ‘bad in law’ and the question arose that once the intention of the party is clear that he does not wish to make payment, should a complainant wait for 15 days to file the complaint; the Bench of Dr Kaushal Jayendra Thaker, J., answering the question in negative, dismissed the petition while observing that proviso (c) to Section 138 of the NI Act cannot be interpreted to mean that even if the accused refuses to make a payment, the complainant cannot file a complaint.

As per the facts of the case, two cheques of Rs 5,00,000 and Rs 5,98,000 were dishonoured on 28-05-2019. The complainant sent a notice on 11-06-2019. Upon not receiving any money, on 29.06.2019 the complainant filed the complaint under Section 138 of Negotiable Instrument Act, 1881. Consequently, a summoning order dated 03-09-2019 was issued whereby which the petitioner was supposed to present himself on 30-11-2019. The counsel for the petitioner Ajay Dubey upon being asked to explain that why the summoning order is bad, stated that as per the provisions of Section 138 the petitioner cannot be asked to answer the summons as he had already filed a reply and the complaint could have been filed only after 15 days of his reply and it was filed before the said date. The petitioner’s counsel further contended that summoning order was not in compliance with the provisions of Section 138 and that the application was falsely implicated due to enmity and financial dispute with the complainant.

Perusing the arguments and the Sections 138 and 142 of NI Act, the Court observed that the 15 days statutory period as per Section 138 proviso (c), is for making payment and does not constitute ingredients of offence punishable under Section 138. The proviso simply postpones the actual prosecution of the offender till such time he fails to pay the amount, then the statutory period prescribed begins for the lodging of complaint. The Court noted that, “In the case in hand, the petitioner herein replied to the notice which goes to show that the intention of the drawer is clear that he did not wish to make the payment. Once this is clarified, should the complainant wait for the minimum period of 15 days, the answer would be ‘no’”.[Ravi Dixit v. State of U.P., 2020 SCC OnLine All 1056, decided on 23-09-2020]

Sucheta Sarkar, Editorial Assistant has put this story together

Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J., while exercising inherent powers under Section 482 CrPC quashed the criminal complaint filed against the petitioners for the offences punishable under Sections 405, 420 and 441 read with Section 120-B IPC. Warrants issued against the petitioners by the Magistrate in the same case were also quashed.

The parties were involved in a landlord-tenant dispute, pursuant to which the said complaint was filed by the landlord. Magistrate took cognizance and issued process against the petitioners. Aggrieved, they filed the instant petition. It was an admitted fact that the petitioners resided beyond the territorial jurisdiction of the Magistrate concerned.

Dismissing Chapter 15 of CrPC which deals with complaints to Magistrates, the High Court relied on Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., 2019 SCC OnLine SC 682, wherein the Supreme Court held that under the amended sub-section (1) to Section 202 CrPC, it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction. he shall inquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fir for finding out whether or not there is sufficient ground for proceeding against the accused. The Supreme Court also held that the order of the Magistrate must reflect that he has applied his mind to the facts of the case and the law applicable thereto. It was also held that the application of mind has to be indicated by disclosure of mind on the satisfaction and considering the duties of the magistrates for issuance of summons to accused in a complaint case, there must be sufficient indication of it. The Supreme Court after referring to a catena of its previous judgments held that summons may be issued if the allegations in the complaint, the complainant statement and other materials would show that there are sufficient grounds for proceeding against the accused.

The records of the instant matter, however, did not reveal that the Magistrate had complied with the provisions of Section 202 CrPC and applied her mind to the facts of the case and the law applicable thereto. The order of taking cognizance stated that “cognizance of the matter is taken against accused no. 1, 2, 3 and 4”. Section 190 CrPC deals with cognizance of offence by Magistrate, which provides that the Magistrate “may take cognizance of any offence.” It is settled law that cognizance is taken of the offence and not the offender. The Magistrate did not even mention which of the offences she had taken cognizance of.

It was, thus, held that the Magistrate failed to exercise her discretion to issue summons against the petitioners residing beyond her territorial jurisdiction in the manner required. Even otherwise, considering the allegations, it was found that there was no material before the Court to proceed under criminal jurisdiction. [Mohd. Yusufuddin Ahmed v. Ruth Karthak Lepchani, 2019 SCC OnLine Sikk 198, decided on 07-12-2019]

Case BriefsHigh Courts

Delhi High Court: V. Kameswara Rao, J., dismissed the present petition in respect to the appearance of Nitish Kumar, Chief Minister of Bihar, as a witness in the copyright infringement matter regarding the violation to authorship rights of the literary work titled as “Special Category Status: A Case for Bihar”.

Facts leading to contentions stated below

Plaintiff was a Senior Research Scholar pursuing his Ph.D. programme in Economics at Jawaharlal Nehru University. Plaintiff registered for his Ph.D. in July 2006 after successfully completing his Masters in Arts and M.Phil. Topic of his thesis was “Role of State in Economic Transformation: A case study of Contemporary Bihar”.

Defendant 2 came to know about plaintiff’s research work through plaintiff’s guide and when the plaintiff was in Bihar for his research work, defendant 2 approached the plaintiff and made a request that while doing his own survey, if the plaintiff could fill up certain additional forms relating to “Bihar State Land Reform Commission’s research work” then in return the defendant 2 would take care of the expenses of plaintiff’s field work on actual basis.

Defendant 2 being aware of the plaintiff’s research area, suggested to the plaintiff that his personal research could be used for supporting the cause of Bihar and requested the plaintiff to give his study/research material which would be used to support the PIL pending in the Patna High Court.

Trusting defendant 2 and in the larger public interest, the plaintiff gave his research work in soft copy to defendant 2.

Later, when the plaintiff was in Delhi, he was shocked by reading newspaper reports wherein it was stated that “the original work of the plaintiff” viz. “Special Category Status: A Case for Bihar” was being published by ADRI and the Centre for Economic Policy and Public Finance as a book authored by Bihar Chief Minister, Nitish Kumar.


Plaintiff submits that witness 1 in Part C of his list of witnesses which was also served to the defendants was Nitish Kumar, present Chief Minister of Bihar. He is also defendant 1 in the present suit.

According to the plaintiff, the said witness is significant and will have a material impact in establishing the case of the plaintiff with regard to the violation to authorship rights of the literary work titled as “Special Category Status: A Case for Bihar” in which the defendant 1 is the principal actor.

Plaintiff further submits that though the witness is also defendant 1, there is no bar under the CPC to examine the opposite party as his own witness, more particularly when defendant 1 is included in the list of witnesses.

Senior Counsel, P.D. Gupta representing defendant 1, opposed the prayer on the ground that application preferred by the plaintiff is barred by limitation under Order 16 Rule 1 itself. He also submitted that the present application is an abuse of process inasmuch as Nitish Kumar/defendant 1 can be cross-examined by the plaintiff at his evidence stage.

Cases relied on by the plaintiff in support of his contentions

Plaintiff by contending that there is no bar on the right of a party to summon or examine another party including the opposite party to give evidence as his witness under CPC, had relied upon a judgment of the Karnataka High Court in the case of Syed Yasin v. Syed Shaha Mohd. Hussain, AIR 1967 KANT 37.

Plaintiff, along with a list of cases, relied on a Supreme Court Judgment in Kokkanda B. Poondacha v. K.D. Ganapathi, (2011) 12 SCC 600, wherein it was held that,

 “oblique motives of parties should be looked into by the Court while deciding application for summoning of witnesses under Order 16 Rule 1.”

Karnataka High Court Judgment in Krithi Constructions v. K. Thippa Reddy, ILR 20156 Kar 122, was also relied on, in which it was held that,

“Though it is true that the party to the suit can examine another party to the suit as a witness, such procedure has to be permitted in rarest of rare cases”

High Court’s analysis and observation

Court noted that the dispute in the suit is whether the defendants have violated the copyright in the original work of the plaintiff. The witness Nitish Kumar is defendant 1 in the case. Issues that were framed in the suit were:

  1. Whether the plaintiff is the owner of the copyright in the work “Special Category Status: A Case for Bihar” and if so, whether the defendants are infringing the copyright of the plaintiff?
  2. Whether the plaintiff is entitled to damages, if so, of what amount? 3.
  3. Whether the work “Special Category Status: A Case for Bihar is a Government publication of the defendant no. 4 and accordingly whether the defendant no. 4 is entitled to relief filed in its counter claim against the plaintiff?
  4. Relief

The Court stated that it is clear from the facts and circumstances of the case that on Issue 1, the onus is on the plaintiff to prove that he is the owner of the copyright. Vide the written statements the defendants are contesting the said position and the stand is at variance.

It was further stated that,

Each of the parties shall have to enter the witness box to prove his case. The opposite party shall naturally cross-examine the party in the witness box. So it follows, that defendant 1, coming as a witness, shall in his evidence make good the stand taken by him in his written statement. He shall not prove the case of the plaintiff.

Thus the reasoning of the plaintiff calling defendant 1 as a plaintiff’s witness being so-called “principal actor” and a bona fide act is not convincing.

Hence in the Court’s opinion, the present application was filed only to put pressure on the Chief Minister of State of Bihar as he was being summoned, not in the normal course, but as plaintiff witness without cogent reason as such is not bona fide nor in the interest of justice.

In the above view, the present application has been dismissed. [Atul Kumar Singh v. Nitish Kumar, 2019 SCC OnLine Del 11084, decided on 13-11-2019]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Sharad Kumar Sharma, J. contemplated a criminal revision petition where the issue discussed was related to Section 311 CrPC, it was stated that the Section gave an exclusive power to the Court as defined under the CrPC that it may at ‘any stage’ of an inquiry, trial or other proceedings, and the Court may summon any person as a witness or examine any person in evidence though not summoned as a witness in the earlier set of proceedings.

The counsel for the petitioner challenged the order passed by the Special Judge, POCSO in another case State v. Anand Rana, where the court in trial, exercised its power under Section 311 CrPC for purpose of summoning of the witnesses. It was further alleged that, at the stage, when the proceedings were pending consideration before the court, the prosecution had moved an application, by invoking the provisions of Section 311 CrPC for summoning some of the witnesses at the stage when the trial was pending consideration before the Sessions Court, before it came to any logical conclusion with regard to the offences, which were levied against the accused revisionist.

On the contrary the respondent contended that by the application, preferred under Section 311 of CrPC gave an avenue and ample of powers to the Trial Court to exercise its domain at any stage of the proceedings, to call upon the witness, which the Court considers it to be necessary to be considered for the purposes of better elucidation of the controversy and for settling of the offences as against the present accused persons by their examination and considering their statements before drawing any logical conclusion.

The Court observed that the arguments of the petitioner was not sustainable because it ran contrary to the very spirit and purpose for which legislature had drafted Section 311, “it gave ample of power to the Trial Court to summon and examine the witness which were necessary for the purpose of determination of the issue involved before in the trial at any stage of the proceeding, which according to the Court, included the proceedings even after the closure of the prosecution witnesses or the stage of 313 CrPC.

Another argument raised by the petitioner was that to invoke an application under Section 311 there has had to be a reasonable ground which had to be expressed by the prosecution, to this the Court observed that, it was always a subjective matter for consideration, which depended upon the perception of each and every court as per the requirement of the case and, according to its own wisdom and the intellect which the Court possessed. The Court was of the view that irrespective of whatsoever the logical reasoning was assigned by the prosecution for the purposes of invoking Section 311 CrPC, the accused, who was apprehending the examination of additional witnesses for the purposes of establishment of the offence levied against him, it became inevitable for him to take a stand that the reason given in the application did not justify the invocation of the provisions contained under Section 311 CrPC.

The Court, further mentioned that it did not want to interfere in the challenge because the basic purpose and intention as per the language of Section 311 CrPC was to equip the Court with sufficient power to summon witnesses.

Lastly the argument raised by the petitioner was that the invocation of Section 311 CrPC by prosecution cannot be utilized to fill in the lacunae of the evidence which had already been adduced before the Trial Court by examination of additional witnesses by summoning them under Section 311 of the CrPC the Court to this particular contention stated that at the stage when the Court was under consideration of the application under Section 311 CrPC and considered the justification of summoning the witnesses at the stage when Court decided to summon a witness under Section 311 CrPC, it cannot be a stage where a petitioner had an argument that the prosecution intended to fill in lacunae of the trial, which was pending consideration before the Court. Hence, the revision was dismissed.[Kaushik Bisht v. State of Uttarakhand, 2019 SCC OnLine Utt 794, decided on 30-07-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Vivek Rusia, J. refused to transfer the matrimonial dispute from Mandsaur to Gwalior.

The applicant/wife has filed the present petition under Section 24 of the CPC seeking transfer Matrimonial Case No.208/2017 from Family Court, Mandsaur to Family Court, Gwalior. The petition was filed by the respondent under Section 9 as well as under Section 13 of the Hindu Marriage Act, 1955 before the Family Court, Mandsaur. After receipt of summoning the petitioner has approached this Court by way of filing petition under Section 24 of the CPC seeking transfer mainly on the ground that being a lady it is not possible for her to travel all the way from Gwalior to Mandsaur and her parents and a two-year child is dependent on her.

The Court observed that the rule is that the convenience of a wife is required to be seen in the case of transfer of matrimonial cases. However, in the present case, the applicant is not a housewife but she is holding a higher post than the husband. She is working as Sub Divisional Officer in the Public Health Engineering Department. Further, in a matrimonial case, the presence of parties are not required at every stage, they are required to be present in Court only at the time of conciliation or evidence. Therefore, the wife cannot pray for transfer of all the matters to the place where she is residing as per her own convenience. The Court, therefore, refused to transfer the petition to the Gwalior Family Court.[Monika Gautam v. Jitendra, 2019 SCC OnLine MP 1896, decided on 01-08-2019]

Case BriefsHigh Courts

Delhi High Court: Sunil Gaur, J. allowed a petition filed against the order of the trial court whereby it had passed summoning orders against the petitioners in a complaint filed for committing of an offence under Section 138 (dishonour of cheque) of the Negotiable Instruments Act, 1881.

The petitioners, represented by Senior Advocate N. Hariharan with Ashwani Kr. Dhatwalia, Iti Sharma and Kuljeet Rawal, Advocates, prayed for quashing the summoning orders as well as the complaint filed under Section 138. They relied on Indus Airways (P) Ltd. v. Magnum Aviation (P) Ltd.,(2014) 12 SCC 539 for submitting that the cheques in question were security cheques, they disputed that there was no existing debt or liability. Per contra, Ashish Pratap Singh and Deepa Sharma, Advocates appearing for the complainant submitted that the cheques in question were towards an existing liability and were not security cheques.

The High Court referred to Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 quashed the complaint and the summoning order, as it was found that there were no averments in the complaint on the basis of which a complaint could be maintained. Further, in SMS Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89 reiterated that in the case of Section 138, the essential averments are to be made in the complaint. Again, in Omniplast (P) Ltd. v. Standard Chartered Bank, (2015) 15 SCC 693, it was declared that in the absence of requisite pleadings in respect of the transaction concerned, quashing of the complaint of Section 138 NI Act is justified.

In the present matter, after perusing the record, the Court was of the opinion that the necessary ingredients to maintain the complaints in question were lacking, thereby rendering the impugned order unsustainable and so, the continuance of proceedings arising out of the complaints in question would be an exercise in futility. Resultantly, the impugned complaints and the summoning orders were quashed.[Shivom Minerals Ltd., v. State, 2019 SCC OnLine Del 9329, decided on 17-07-2019]

Case BriefsSupreme Court

Supreme Court: In a case where the Allahabad High Court passed orders from time to time to secure presence of the public officers, the bench of SK Kaul and Hemant Gupta, JJ held that the High Court was not justified in doing so as,

“The practice of summoning officers to court is not proper and does not serve the purpose of administration of justice in view of the separation of powers of the Executive and the Judiciary. If an order is not legal, the Courts have ample jurisdiction to set aside such order and to issue such directions as may be warranted in the facts of the case.”

The Court said that the officers of the State discharge public functions and duties and the orders are generally presumed to be passed in good faith unless proved otherwise. The officers pass orders as a custodian of public money. Therefore, merely because an order has been passed, it does not warrant their personal presence.

“The summoning of officers to the court to attend proceedings, impinges upon the functioning of the officers and eventually it is the public at large who suffer on account of their absence from the duties assigned to them.”

The Court was hearing the case where the Divisional Director, Social Forestry Division Agra had passed an order on 19.11.2008 that the respondent is not eligible for regularisation/equal pay. The said order was passed based on the Supreme Court ruling in State of U.P and Others. vs. Putti Lal, (2006) 9 SCC 337 where it was held that the daily wagers are entitled to minimum pay scale as is being received by their counter-parts in the Government and would not be entitled to any other allowances or increment so long as they continue as daily wagers. The respondent instead of challenging the abovementioned order declining the claim for regularisation and/or minimum of pay scale, filed a Contempt Application.

The Court held that the grievance regarding regularization of the service on account of a break in service could not have been taken up in Contempt proceedings, when such issue has attained finality in the High Court. Allahabad High Court had passed an order in Visheshwar vs. Principal Secretary Forest Anubhag[1], wherein, it was held that artificial break in the case of regularization has to be ignored.

[N.K. Janu, Deputy Director Social Forestary Division, Agra v. Lakshmi Chandra, 2019 SCC OnLine SC 518, decided on 10.04.2019]

[1] Civil Misc. Writ Petition No. 47568 of 2002 decided on 29.11.2004

Case BriefsHigh Courts

Madras High Court: G.K. Ilanthiraiyan, J., refused to quash the summons issued against Nakkheeran Gopal, Editor, Publisher and Printer of Nakkheeran Publications that unraveled the recent Pollachi serial sex scandal case. The Court, however, modified the summons.

The summons was issued against him pursuant to 2 FIRs registered for various offences punishable under IPC, Information Technology Act, and T.N. Women Harassment Act. The summons was issued by Superintendent of Police, CB CID, South Zone, having his office at Egmore, Chennai. However, the petitioner was summoned for enquiry at Camp Office, Coimbatore.

P.T. Perumal, counsel for the petitioner, submitted that petitioner uploaded his speech on Nakheeran online magazine and its YouTube page in which he narrated the incident, the personalities involved, and the police coverup. The report was also made about the involvement of two sons of the T.N. Legislative Assembly Deputy Speaker. FIR was lodged by the Deputy Speaker and the summons was issued. The petitioner challenged the summons.

The High Court noted that the summons impugned in the petition only called the petitioner for an enquiry. Also, admittedly, that he was not called as an accused. Therefore, the Court was not inclined to quash the summons. However, it was held that the petitioner had valid apprehension by the politicians and police officials at Coimbatore, and there was a fair chance of an untoward incident. Therefore, the Court modified the summons and directed the petitioner to appear before the Superintendent of Police. CBCID, South Zone at his office in Egmore, Chennai. [Nakkheeran Gopal v. State, 2019 SCC OnLine Mad 892, Order dated 29-03-2019]

Case BriefsSupreme Court

Supreme Court: In case where a man tried to rope in other relatives of his wife in a criminal proceeding that he had initiated against his in-laws, the bench of Dr. DY Chandrachud and Hemant Gupta, JJ held that mere disclosing the names of the appellants cannot be said to be strong and cogent evidence to make them to stand trial for the offence under Section 319 of the Code.

Factual Background:

  • The complainant had alleged that his wife lived with her parents, despite several attempts on his part to bring her with him and that his mother-in-law, father-in-law and brother-in-law threatened that their daughter will not live with him and demanded Rs. 30 lakhs towards maintenance otherwise they will lodge a dowry case against him and his mother.
  • He filed the criminal case against his in-laws and other relatives of his wife after his in-laws, along with 47 other relatives, forcibly entered his house and threatened to kill him if he did not pay Rs. 30 lakhs. They also tried to attack him with sickles and sticks.
  • Though in the FIR, Complainant had mentioned that 15 women and 35 men came by vehicles but the names of 11 persons alone were disclosed in the FIR.
  • He then filed an application under Section 319 of the Code to summon the 20 accused persons named in the application as additional accused.


The Court noticed that the present case was basically a matrimonial dispute wherein, the husband who is the Complainant has levelled allegations against the wife and her other family members. In the statements recorded under Section 161 of the Code during the course of investigation, the Complainant and his witnesses have not disclosed any other name except the 11 persons named in the FIR. Thus, the Court said:

“the Complainant has sought to cast net wide so as to include numerous other persons while moving an application under Section 319 of the Code without there being primary evidence about their role in house trespass or of threatening the Complainant. Large number of people will not come to the house of the Complainant and would return without causing any injury as they were said to be armed with weapons like crowbar, knife and ripper etc.”

The Court also noted that the allegations in the FIR were vague and could be used any time to include any person in the absence of description in the First Information Report to identify such person. Stating that the additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence, the Court said:

“Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused.”

[Periyasami v. S. Nallasamy, 2019 SCC OnLine SC 379, decided on 14.03.2019]

Case BriefsHigh Courts

Bombay High Court: S.J. Kathawalla, J. dealt with some ingenious arguments led by a battery of advocates representing both the sides, while sitting in a matter concerning the interpretation of Order 8 CPC (written statement, set off and counter-claim). 

It is pertinent to note at the very outset that the Proviso to Order 8 Rule 1 (written statement), as added by the Commercial Courts Act, 2015, bars the defendant in a commercial suit from filing the written statement (“WS”) beyond a period of 120 days from the date of service of summon. 

Several defendants in various commercial suits before the Commercial Division of the High Court failed to file their WS within the stipulated period of 120 days. Subsequently, these defendants took out various Notice(s) of Motion seeking condonation of delay in filing their respective WS. At the hearing of motions, the plaintiffs opposed taking on record any WS in view of the newly introduced Proviso to Order 8 Rule 1. 

Consequently, the Court published an open court notice framing a question of law in order to settle the controversy in all such matters: Whether in view of the amendment to CPC by Commercial Courts Act, 2015, the defendants can be allowed to file WS after 120 days from the date of service of the writ of summons in a commercial suit?

Extensive arguments were advanced by counsels appearing for both sides. After considering all the arguments; and referring to several decisions of the Supreme Court; and on a holistic reading of various provisions of CPC and the Commercial Courts Act, Justice Kathawalla reached the conclusion: “In Commercial Suits, a written statement by the defendant cannot be taken on record after the expiry of 120 days from the date of service of the writ of summons”. 

It is interesting to look at the manner in which the course of arguments on various points developed in the present matter. Equally important is to know how the Court dealt with the contentions raised by various counsels and the manner in which the question of law was decided along with the necessary clarifications. 

Commercial Courts Act, 2015

It is useful to note that the primary aim and object of the Commercial Courts Act was to provide speedy disposal of high-value commercial disputes in order to reduce the pendency of cases. The Act establishes Commercial Courts at the district level and Commercial Divisions in various High Courts (including those having ordinary original civil jurisdiction), to deal with commercial disputes of a “specified value“, as may be notified by the Central Government. 

Justice Kathawalla observed, “In so far as the Commercial Courts Act is concerned, there can be no manner of doubt that the paramount intent of the legislature was to reduce delay in commercial cases and improve our country’s image from the perspective of ease of doing business in India”.

SCG Contracts (India) (P) Ltd. v. K.S. Chamankar Infrastructure (P) Ltd.

During the intervening period that arguments concluded and the date of the order, the Supreme Court in SCG Contracts (India) (P) Ltd. v. K.S. Chamankar Infrastructure (P) Ltd., 2019 SCC OnLine SC 226 considered the subject provision of Order 8 Rule 1. 

Relying on SCG Contracts, Justice Kathawalla observed, The Apex Court’s pronouncement, in my opinion, concludes the interpretation of the newly introduced amendments to Order 5 Rule 1 and Order 8 Rules 1 and 10 in so far as they are applicable to commercial suits. The Apex Court, whilst reaffirming the view of the Delhi High Court has held that in commercial suits, a written statement cannot be taken on record after the expiry of 120 days from the date of service of the summons”. 

In addition to that, according to Justice Kathwalla, “even a literal reading of the amended provisions of Order 8 Rule 1 suggest that not only are penal consequences provided for upon the defendant failing to file its written statement; but the discretion of the Commercial Court/Commercial Division to take on record a written statement thereafter has also been taken away”. 

Application of the Mischief Rule

Nausher Kohli, Advocate for the plaintiff in one of the cases argued that for a true and correct interpretation of the Commercial Courts Act, the High Court ought to use the Mischief Rule of interpretation of a statute as laid down in the Heydon’s case (1584) 3 Co. Rep. 7a, p. 7b: 76 ER 637 decided in the year 1589, and thereby suppress the mischief of delay in filing of WS whilst advancing the remedy of expeditious disposal of commercial suits. Heydon’s case has acquired the status of a classic rule as recorded by the Supreme Court in Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907. 

Considering the said argument, Justice Kathawalla was of the opinion, “Admittedly, the mischief prior to the Commercial Courts Act was belated filings of written statements on flimsy and frivolous grounds. It is for this reason that penal consequences have now been provided and the discretion of the court taken away”.

Amendments introduced in Order 8 Rule 1 are mandatory

Specifying the mandatory nature of the amendments, the Court after considering SCG Contracts and the Mischief Rule, stated, “the Proviso to Order 8 Rule 1 introduced by the Commercial Courts Act, is mandatory. In this respect, I am bound by the view of the Apex Court. I, therefore, reiterate that the amendments introduced by the Commercial Courts Act to Order 5 Rule 1 and Order 8 Rules 1 and 10 are mandatory in nature”.

Commercial Courts Act vis-a-vis Bombay High Court (Original Side) Rules

Senior Advocate J.P. Sen, Senior Advocate V. Anturkar and Zal Andhyarujina, Advocate representing different defendants argued that the High Court can still exercise its powers under the Bombay High Court (Original Side) Rules, 1980 notwithstanding the Commercial Courts Act, to condone the delay and take on record a WS in a commercial suit even after the expiry of 120 days. Per contra, Mr Kohli argued that this contention failed to stand scrutiny when read with the explicit provisions of the Commercial Court Act. Relying on Sections 16 and 21 of the Commercial Courts Act, he argued that the amendments brought forth by the Commercial Courts Act to CPC, ought to prevail over the Bombay High Court (Original Side) Rules in instances where the provisions of these Rules are in conflict with the provisions of CPC as amended by the Commercial Courts Act.

Holding that the provisions of the Commercial Courts Act have primacy over the Bombay High Court (Original Side) Rules, the Justice Kathawalla observed,  “I am concerned with a dispute between 2 special acts, viz. the Bombay High Court (Original Side) Rules and the Commercial Courts Act. … the Commercial Courts Act is a special act promulgated several decades after the Bombay High Court (Original Side) Rules and would trump the provisions of the former in the event of a conflict”. While concluding the discussion on this point, the Court held, “this Court cannot exercise its powers under the Bombay High Court (Original Side) Rules to condone the delay in filing of a written statement over and above the statutorily mandated period of 120 days”.

“Rule” versus “Rules”

Another argument of the defendants was that Section 16 of the Commercial Courts Act uses the phrase “Rule of the jurisdictional High Court”. According to them, the word Rule has not been defined under the Commercial Courts Act. In this situation, they relied on Section 2(2) of the Commercial Courts Act which provides that words used and not defined in the Commercial Courts Act but defined in CPC, shall have the same meaning as assigned to them in CPC. They then placed reliance on Section 2(18) CPC where rules has been defined. That section had been interpreted by the Supreme Court in Iridium (India) Telecom Ltd. v. Motorola Inc., (2005) 2 SCC 145 to exclude the rules of the High Court on its Original Side. They hence argued that the phrase “Rule of the jurisdictional High Court” in Section 16 of the Commercial Courts Act does not include the Bombay High Court (Original Side) Rules. 

In so far as this submission is concerned, the Court noted that Section 16(3) in fact uses the word Rule as opposed to rules in Section 2(18) CPC. In fact, the term rule finds reference under Section 3(51) of the General Clauses Act, 1897 which reads: 

 (51) “rule” shall mean a rule made in exercise of a power conferred by any enactment, and shall include a Regulation made as a rule under any enactment;

Hence, Justice Kathawalla did not agree with the defendants that the word Rule as used in Section 16(3) is the same as defined under Section 2(18) CPC and does not, therefore, include the High Court’s Original Side Rules. On the contrary, given the scheme of the Commercial Courts Act and especially Section 16, it would appear that Section 16(3) in fact covers the Bombay High Court (Original Side) Rules.

In summation, the Court held, “only those rules of the Bombay High Court (Original Side) Rules which are in conflict with the provisions introduced by the Commercial Courts Act, will stand superseded by the introduction of the Commercial Courts Act. All other rules (which are not in conflict with the provisions introduced by the Commercial Courts Act) will continue to apply to commercial as well as non-commercial suits”.

Interplay of Order 8 Rule 1 with Order 8 Rule 9 

In addition to the aforesaid arguments, Rashmin Khandekar, Firdosh Pooniwala and Rohan Kelkar, Advocates argued that it is only the right of the defendant to file a WS that is forfeited under Order 8 Rule 1, whereas Order 8 Rules 9 and 10 do not circumscribe the power of the Court to take on record a belated WS despite the amendments introduced by the Commercial Courts Act. Thus, the argument flowed that the Court can exercise its discretion under Rule 9 to take on record a belated WS.

Mr Kohli submitted that the arguments put forth by the defendants would result in absurdity or an anomalous situation. He argued that such interpretation ought to be rejected. He further argued that if Order 8 was given the same wide and unbridled interpretation as was sought to be canvassed by the defendants, the distinction if any between a commercial suit and non-commercial suit would only lie in their respective cause titles. Taking on record a WS under Rule 9 despite the expiry of the stipulated period of 120 days under Rule 1, would effectively negate the scheme, object, intent and purpose of the Commercial Courts Act. 

“A” versus “The”

Mr Kelkar submitted that there is a difference in the WS envisaged under the amended Rule 1 and that under Rules 9 and 10. As per him, a written statement as envisaged under Rule 9 refers to a WS separate from the written statement under Rules 1 and 10 and thus, the bar under Rule 1, if mandatory, applies only to the written statement and not a written statement under Rule 9 and hence, the discretion of the Court to allow for WS is kept alive even after the right of the defendant is closed under Rules 1 and 0.

Rejecting this argument, Justice Kathawalla observed, “While an ingenious argument has been canvassed, if I were to allow it, I would find that my decision would be directly in the teeth of the legislative mandate of the Commercial Courts Act, its provisions and legislative intent. … what has been prohibited from being done directly, cannot be allowed to be done indirectly. If this Court has been expressly divested of its powers to take on record ‘the’ written statement after the expiry of 120 days, allowing the same to be taken on record in another way, i.e. under the cover of it being ‘a’ written statement would be a travesty of procedure as well as a mockery of the legislative mandate. It would be ridiculous to imagine that, what the legislature prohibited in one rule, would be allowed to be circumvented via another rule in the same order of CPC”.

Non-commercial suits

The Court was of the opinion that since the amendment to CPC as applicable to commercial suits has been brought about by a special act, a general rule under Rule 9 would have to yield to it. However, it was clarified that Rules 9 and 10 would continue to be discretionary powers in non-commercial suits to condone the delay in filing of a belated WS as the provisions introduced by the Commercial Courts Act will not apply to non-commercial suits.

Court of Equity

In addition to the above, Mr Kelkar submitted that eventually, the Court is one of equity and that it cannot ignore emergent circumstances that a defendant may undergo due to which it would be unable to file its WS.

The Court noted that the Supreme Court in a catena of decisions has held that considerations of equity cannot be grounds/reasons/justifications to not follow the law as laid down by the legislature. It was of the opinion that no matter how harsh the result, if a statute stipulates that an act must be performed within a certain period of time and provides for no exceptions, then the Courts must not allow such an act to be performed after the expiry of the time mandated by the statute, directly or indirectly.

Plaintiff’s obligation

Considering another important aspect of the matter, the Court was of the view that the provisions of the Commercial Courts Act will be given full credence, only in the event strict timelines are imposed not only on defendants but also on plaintiffs invoking the Commercial Courts Act. It was observed, “If a defendant’s right to file its written statement stands forfeited after the expiry of 120 days, the plaintiff too ought to adhere to strict timelines. Hence, it is recommended that such provisions and rules are introduced so as to ensure that in a commercial suit filed before a Commercial Court/Commercial Division, the plaintiffs are directed to remove all office objections and have the commercial plaint numbered within the time limit so prescribed. … In the event the plaintiff and its advocates fail to adhere to these timelines, the commercial suits so filed and belatedly numbered/served ought to be dismissed without any further reference to the Commercial Court/Commercial Division”.

Parties’ consent cannot vest jurisdiction

Having answered the question of law as above, it was clarified that there may be instances wherein the plaintiff is ready and willing for a belated WS to be taken on record subject to payment of costs. However, it is important to note that parties cannot by consent, vest the court with discretion/jurisdiction/powers which it otherwise is barred from exercising under statute. Jurisdiction can be vested only by statute and not by consent and acquiescence. It is well settled that jurisdiction cannot be conferred on a court by consent, acquiescence or waiver where there is none, nor can it be ousted where there is.

Commencement of 120 days period

The Court thought it necessary to clarify when the aforesaid period of 120 days commences? 

It was stated, “the period of 120 days will commence from the date of service of the writ of summons and not the date a defendant first enters appearance. However, in order to ensure expeditious disposal of commercial suits and in order to save time of this Court as also the office of Prothonotary & Senior Master of this Court, in the event a defendant/its advocate enters appearance and by consent, agrees to waive service, the period of 120 days will commence from the date of such waiver”.

After having an in-depth discussion, the Court delivered the 158-pages long judgment covering the very many aspects on the subject. The matter was disposed of after deciding the question of law in the manner above. [Axis Bank Ltd. v. Mira Gehani, 2019 SCC OnLine Bom 358, dated 27-2-2019]