Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J., expressed that

“Sufficient Cause” is an elastic expression and no hard and fast guidelines are prescribed.

In the present matter, Judgment dated 01-02-2019 was sought to be set aside as well as condonation of delay of 582 days.

Factual Matrix

Permanent Injunction restraining infringement and passing off of trademark, copyright, damages, delivery up etc. was sought in the instant suit.

It was averred that the plaintiff’s predecessor had started the business of selling sweets in the year 1912 and trademark/label ‘HIRA SWEETS’ was conceived and adopted by the plaintiffs’ predecessor in the year 1960. Plaintiff 1 was the registered proprietor of the original artistic work ‘HIRA SWEETS’ and it became the registered proprietor of the mark and device ‘HIRA SWEETS’ under Classes 29, 30, 32 and 43 of the Trade Marks Act, 1999 in 2016.

Defendant was served with the summons and after availing various opportunities and filing written statement, stopped appearing before the Court.

On 01-02-2019, Court had come to the conclusion that the defendant had no real prospect of defending the claim. Therefore, the suit was decreed in favour of the plaintiffs.

Analysis, Law and Decision

Order IX Rule 13 CPC

Bench stated that insofar as the scope of an application under Order IX Rule 13 CPC was concerned, Court has to see whether the summons in the suits were duly served or not and/or whether the defendant was prevented by any “sufficient cause” from appearing when the suit was called for hearing.

In the present matter, the defendant was duly served with the summons in the suit and had appeared.

High Court, in its discretion, has to consider the “sufficient cause” in the facts and circumstances of every individual case and in interpreting the said Court has wide discretion.

As per Article 123 of the Limitation Act, the application for setting aside ex-parte decree should be filed within 30 days of passing the decree.

Supreme Court in a recent decision of A. Murugesan v. Jamuna Rani,(2019) 20 SCC 803 affirmed its earlier view in G.P. Srivastava v. R.K. Raizada, (2000) 3 SCC 54.

In the present case, although the defendant blamed her counsel for his non-appearance which resulted in passing of the decree, however, a perusal of the Judgment dated 01-02-2019 would show that the same was passed after considering the merits of the case.

Ex-Parte Decree

Court noted that the defendant had failed to state that after becoming aware of the passing of the ex-parte decree, what steps were taken by it to seek setting aside of the same. Further, the Bench remarked that, it appeared that the defendant preferred to sit over it.

It was noted that after being aware of the ex-parte decree on 18-07-2019, the defendant took no steps against its counsel for more than 14 ½ months when a complaint was stated to be filed and too, two weeks prior to the filing of the captioned applications.

Hence, in view of the above, Court opined that the action taken seemed to be only an afterthought with the aim of filing the present application.

Delay in filing of application

With regard to the delay of 582 days in filing the application, the defendant explained the same stating that some settlement talks were going on between the parties. But the counsel for the plaintiffs denied any settlement talks.

Bench opined that the defendant failed to show any “sufficient cause” for its absence in the Court. Adding to this it was stated that defendant had also failed to satisfactorily explain the delay of 582 days in filing the application and the explanation placed by the defendant was only an eye-wash.

Therefore, the application were dismissed in the above-view. [Hira Sweets and Confectionery (P) Ltd. v. Hira Confectioners,  2021 SCC OnLine Del 1823, decided on 27-04-2021]


Advocates before the Court:

For the plaintiffs: Satish Kumar, Advocate

For the Defendant: B.K. Pandey, Advocate

Case BriefsHigh Courts

Kerala High Court: V.G. Arun, J., addressed an interesting question regarding the validity of summons served through Whatsapp. The Bench stated, No doubt, the evolutionary changes in the field of communication calls for a more pragmatic approach regarding the mode and manner of service of summons, the statutory provisions do not provide for service of summons through WhatsApp.

The petitioner was aggrieved by the non-bailable warrant issued against the petitioner for non-appearance before the Court. The specific case put forth by the petitioner was that the summons, alleged to had been sent through WhatsApp to his mobile phone, had never reached him, as he had not downloaded the WhatsApp application on his phone.

Section 62 of CrPC, dealing with the mode of service of summons, prescribe the following:
“62. Summons how served.

(1) Every summons shall be served by a police officer, or subject to such rules as the State government may make in this behalf, by an officer of the Court issuing it or other public servant.
(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons. (3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.”

Going by Section 65 of CrPC, if service could not be effected as provided under Section 2, the serving officer shall affix one of the duplicates of the summons to the conspicuous part of the house or homestead in which the person summoned ordinarily resides.

The Bench stated, above provisions do not provide for service of summons through WhatsApp. No doubt, the revolutionary changes in the field of communication calls for a more pragmatic approach regarding the mode and manner of service of summons. In this regard, the insertion of Section 144 has been made in the Negotiable Instruments Act for the purpose of overcoming the delay in serving summons, which provide for service of summons by speed post or by approved courier service.

 In Indian Banks Assn. v. Union of India, (2014) 5 SCC 590, the Supreme Court had alerted the Magistrates about the need to adopt a pragmatic and realistic approach while issuing process and had directed to issue summons by post as well as by email.

“In the case at hand, the summon was stated to had been issued through WhatsApp, which is not an accepted mode of service. As such, the court should not have issued non-bailable warrant against the petitioner on the assumption that he had failed to appear after receiving the summons.”

In view of the above, the petitioner was permitted to move an application for bail and the magistrate was directed to consider his application deeming the petitioner to have appeared on summons. The non-bailable warrant issued against the petitioner was directed to be kept in abeyance for a period of four weeks.[Anoop Jacob v. State of Kerala, Crl.MC.No.1658 of 2021, decided on 09-04-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. Manoj P. Kunjachan

For the Respondent: PP T. R. Renjith

Op EdsOP. ED.

Introduction 

This article deals with the concept of discharge in summon cases. The trial of summons case is dealt under Chapter XX of the Criminal Procedure Code, 1973 (hereinafter “CrPC”). There is no special section which exclusively provides for discharge of an accused in summons triable cases. Although in warrant cases discharge word is used but under Chapter XX no such word is used. Now the question which arises is that whether the concept of discharge is absent in summons triable cases? Is it mandatory for a court to proceed with the trail irrespective of any genuine defence the accused has to make while explaining to him the substance of accusation under Section 251 CrPC? Is it proper to provide an accused with the privilege of discharge in warrant triable cases and to deny the same in summons triable cases?  This article examines the provision of discharge in summon triable cases. Is “discharge” included under Section 251 CrPC? To understand this, it is important to first consider the meaning of discharge.

Meaning of Discharge under Criminal Procedure Code

The word “discharge” has been used under various sections of CrPC. The word “discharge” is used under Sections 398, 227, 239, 245 and 249 CrPC. In simple terms it can be said that discharge means refusing to proceed further after issue of process[1]. However, none of these sections deal with summons case. Here it is made clear that summons case means cases in which the punishment is of maximum two years.[2] Summons case can be tried either by instituting a complainant case by any private person and secondly, by registration of a FIR by the police in which State becomes a party.

In complaint cases after the process under Sections 200 and 202 is completed then either the Magistrate issues process under Section 204 CrPC[3] or dismisses the case under Section 203 CrPC[4]. In police case too the court issues process when cognizance is completed. When a notice or summon is given to an accused then in such cases a time is fixed by the court for explanation of substance of accusation under Section 251 CrPC. To understand this section, Section 251 is produced verbatim:

  1. Substance of accusation to be stated.—When in a summons case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.[5]

So, once a notice or a summon is issued to an accused person he or she shall be asked as to whether he or she pleads guilty or not. In case if the accused does not plead guilty, then the Magistrate is required to jot down the defence which the accused makes. Now the question which arises is that whether noting down the defence and listening to the defences of an accused is a mere formality. If the court anyhow has to proceed to explain the substance of accusation then what is the purpose of giving an accused the chance to speak out his defence. If the mind of a Judge is already prejudiced and even after considering the defences of the accused, he or she goes on to explain the substance of accusation then I think there is no need to note down the defences made by an accused under Section 251  CrPC.

This can be better understood in the light of Malloch v. Aberdeen Corpn.[6], wherein Lord Reid held that right to be heard is available to a dismissed teacher who was not registered as required by the education authority. In defence it was submitted before him that to have afforded a hearing to the appellant before dismissing him would have been a useless formality because whatever he might have said could have made no difference. However the Court held that “If that could be clearly demonstrated it might be a good answer. But I need not decide that because there was here … a substantial possibility that a sufficient number of the commission might have been persuaded not to vote for the appellant’s dismissal.”[7]

In this light one must understand that the law of nature is based on the “ultimate principle of fitness with regard to the nature of man as a rational and social being.[8] The principle of audi alteram partem goes back many centuries in our law and appears in a multitude of judgments of Judges of the highest authority. It means that no one can be condemned unheard. Right to hear is included under Article 19 of the Indian Constitution.[9] Interpreting Section 251 CrPC as not to include discharge is not a good law. Sometimes certain words are not specifically written in the statute book but the court has time and again said that literal interpretation of the statute which is against the constitutional principles and which will lead to injustice has to be avoided. The intention of the legislature is primarily to be gathered from the language used which means that attention should be paid to what has been said.[10]

Doctrine of Interpretation of Statute

To analyse and understand Section 251 CrPC in a better way what is required is to look into the rules of interpretation of the statute. “The fact is that the difficulties of so-called interpretation arise when the legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the Judges have to do is, not to determine that the legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, if the point had been present.”[11]

In Sakiri Vasu v. State of U.P.[12] the Supreme Court held on 7-12-2007 at para 18:

  1. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus, where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution.

Considering the abovementioned case one can say that if a Magistrate has an implied power to explain the substance of accusation under Section 251 CrPC then it includes within it the implied power of discharge as without considering the option of discharge the very purpose of noting down the defence of accused becomes meaningless. In the same judgment[13] it was further held at para 19 by referring to Crawford[14] that the reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. If these details could not be inserted by implication, the drafting of legislation would be an indeterminable process and the legislative intent would likely be defeated by a most insignificant omission.

In Kesavananda Bharati Sripadagalvaru v. State of Kerala[15]  Ray, J. pointed out that a word gets its “colour” in the context in which it is used. So, the purpose in which the accused is allowed to make defences under Section 251 CrPC is to empower the Judges to consider such defences and discharge the accused if prima facie case is not made out after considering those defences.

At para 20 of Sakiri Vasu [16] the Supreme Court held that in ascertaining a necessary implication, the Court simply determines the legislative will and makes it effective. What is necessarily implied is as much part of the statute as if it were specifically written therein[17]. So, merely non-mentioning of the word “discharge” under Section 251 CrPC will not mean that in a summons case the accused cannot make any discharge.

In the words of Justice Cardozo:

“It is true that codes and statutes do not render the Judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled…. There are hardships and wrongs to be mitigated if not avoided. Interpretation is often spoken of as if it were nothing but the search and the discovery of a meaning which, however obscure and latent, had nonetheless a real and ascertainable pre-existence in the legislator’s mind. The process is, indeed, that at times, but it is often something more. The ascertainment of intention may be the least of a Judge’s troubles in ascribing meaning to a statute….”[18]

These words of Justice Cardozo finds its meaning in Arvind Kejriwal v. Amit Sibal[19].  It was held that the provisions contained in CrPCare not exhaustive. In administering justice as prescribed by CrPC, there are necessarily two shortcomings: First, there are cases and circumstances, which are not covered by the “express provisions of the Code”, wherein justice has to be done. The reason is that the legislature can foresee only the most natural and ordinary events; and no rules can regulate for all time to come, so as to make express provision against all inconveniences, which are infinite in number, and so that their dispositions shall express all the cases that may possibly happen. Second, the prescribed rules of procedure may be abused, or so used as to give a mere formality, the significance of substantive effect and thus obstruct, instead of facilitating, the administration of justice as in the present case.

The very purpose of explanation of substance of accusation and listening to the defences made by an accused under Section 251 CrPC is to give an opportunity to the accused to say something in his defence. So, the power to discharge at the stage of Section 251 is inherent in the court who has issued summons to the accused either by considering police report or under Section 204 CrPC. In this regard in Badshah v. Urmila Badshah Godse[20] the Supreme Court has laid down:

“13.3. Thirdly, in such cases, purposive interpretation needs to be given to the provisions of Section 125 CrPC. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve “social justice” which is the constitutional vision, enshrined in the Preamble to the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of the social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society.”

Further the Court stated:

“14. … It is, therefore, respectfully submitted that ‘social context judging’ is essentially the application of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. Apart from the social-economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the Judge has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication. “[21]

At para 18[22] it was stated that:

“18. The court as the interpreter of law is supposed to supply omissions, correct uncertainties, and harmonise results with justice through a method of free decision — libre recherche scientifique i.e. “free scientific research”.”

So, after considering the social context adjudication and doctrine of implied power both provides that an accused can be discharged at the stage of Section 251 CrPC. Let us consider few cases related to these doctrines.

Cases Related to Doctrine of Implied Power

The Supreme Court held that “An express grant of statutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective. Thus in ITO v. M.K. Mohammad Kunhi[23], this Court held that the Income Tax Appellate Tribunal has implied powers to grant stay, although no such power has been expressly granted to it by the Income Tax Act.”[24] Cases where doctrine of implied power was used to infer the implied power where the statutes does not mention about the same,– Union of India v. Paras Laminates (P) Ltd.[25], RBI  v. Peerless General Finance and Investment Co. Ltd.[26],  Gujarat Maritime Board v. Haji Daud Haji Harun Abu[27], J.K. Synthetics Ltd. v. CCE[28], , State of Karnataka v. Vishwabharathi House Building Coop Society[29],  etc.

The General Clauses Act, 1897 provides for the construction of orders, rules, etc. made under enactments. Section 20 of the Act says:

  1. 20. Construction of notifications, etc. issued under enactments.—Where, by any Central Act or regulation, a power to issue any notification, order, scheme, rule form or bye-law is conferred, then expressions used in the notification, order, scheme, rule, form or bye-law, if it is made after the commencement of this Act, shall, unless there is anything repugnant in the subject or context, have the same respective meanings as in the Act or Regulation conferring the power.

Doctrines of implied power has been used to interpret Section 125 CrPC. In Savitri v. Govind Singh Rawat[30] the Supreme Court held that the power conferred on the Magistrate under Section 125 CrPC[31] to grant maintenance to the wife implies the power to grant interim maintenance during the pendency of the proceeding, otherwise she may starve during this period. The same principle has been used to interpret Section 156(3) CrPC[32]. The Court in Sakiri Vasu[33] held that:

“24. In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) CrPC to order registration of a criminal offence and/or to direct the officer in charge of the police station concerned to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) CrPC, we are of the opinion that they are implied in the above provision.”[34]

Cases Related to Discharge in Summons Triable Offences

In Municipal Council, Raipur v. State of M.P.[35] the Supreme Court upheld the discharge of an accused in summons case. To understand the case better let us have a look to the facts of the case. A complaint was filed by the officer concerned before the Special Magistrate and Presiding Officer, Labour Court under Section 3(1) of the Motor Transport Workers Act, 1961[36], who issued summons to the accused, namely, the Municipal Council and the Chief Municipal Officer, Municipal Council, Raipur. The accused appeared by counsel and filed preliminary objections. Before the Magistrate two points were taken: (1) that the Municipal Council was not a “motor transport undertaking” within Section 2(g) of the Act[37]; and (2) that the Council was exempted under Section 38 of the Act[38] insofar as it uses the vehicles for transporting sick or injured persons and for maintenance of public order i.e. for transporting night soil and refuse of the town free of charges. The Magistrate accepted these contentions and dismissed the complaint and discharged the accused persons. This order of discharge was upheld by the Sessions Court and was again challenged in High Court where the High Court too upheld the discharge by the Magistrate in the summons case. Again before the Supreme Court out of the three objections taken, one was that whether a revision lies under Section 439 CrPC[39]. The contention was that the accused had been acquitted and not discharged and, therefore, only an appeal under Section 417 CrPC lies. The Supreme Court held:

“4….we agree with the High Court that the order of the Magistrate was an order of discharge and not of acquittal. It is true that it is a summons case and no formal charge is necessary to be framed under Section  242 CrPC, but even so, here when the accused appeared, before anything was done the accused filed a preliminary objection and no particulars of the offence of which the accused was charged were even stated to him”..

In K.M. Mathew v. State of Keralar[40] the Supreme Court set aside the order of High Court stating that it is too technical. However, in Adalat Prasad v. Rooplal Jindal[41] the three-Judge Bench of the Supreme Court overruled the ruling of K.M. Mathew[42]. Before coming to Adalat Prasad case[43] it is important to look into the fact of the case of K.M. Mathew[44]. The Magistrate issued summons to the accused under Section 500[45] read with Section 34[46] IPC. On the date of appearance the accused pleaded not guilty. The appellant requested the Magistrate to drop the proceedings against him, before the evidence was recorded, contending that there was no averment in the complaint that he had perused the material or edited before its publication or that it was published with his knowledge or consent. The Magistrate considering thi­­s defence by the accused dropped the proceedings against the accused.

But the High Court quashed the proceeding ruling that there is no provision in the Code for dropping the proceedings against any accused and so it was challenged by the accused in the Supreme Court.  Allowing the appeal, the Supreme Court held in favour of the accused. It was made clear that the power to drop proceedings against the accused cannot be denied to the Magistrate. Explaining further the Court held that Section 204 CrPC indicates that the proceedings before the Magistrate  commences upon taking cognizance of the offence and the issue of summons to the accused. When the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code. But the need to try the accused arises when there is allegation in the complaint that the accused has committed the crime.  If there is no allegation in the complaint involving the accused in the commission of the crime, it is implied that the Magistrate  has no jurisdiction to proceed against  the accused.[47]

Further while discussing the right of the accused the Court held that:

“7. It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision required for the Magistrate to drop the proceedings or rescind the process.  The order issuing the process is an interim order and not a judgment.  It can be varied or recalled. The fact that the process has already been issued is no bar to   drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused.”[48]

Although the word “discharge” was wholly absent in K.M. Mathew case[49] and it was held that proceedings can be dropped by the Magistrate without any specific provisions. This ratio was overruled by Adalat Prasad[50] stating that there was no basis for recalling the process issued by a court, which happens after due consideration even if it was an interim order, and the only basis for challenging this order was by moving the High Court under Section 482 CrPC however, it can be said that since the concept of discharge was not the basis of these cases so to conclude that under Section 251 CrPC an accused cannot be discharged is not a proper law. Adalat Prasad case[51] is not an authority to discharge the accused under Section 251 CrPC.

In Raujeev Taneja v. NCT of Delhi[52], a summoning order under Section 138 of the Negotiable Instruments Act[53] was challenged before the Court. Sunil Gaur, J. relying upon Bhushan Kumar v. State (NCT of Delhi)[54] and Krishna Kumar Variar v. Share Shoppe[55] directed the accused to urge the plea before the learned trial court at the stage of framing of notice whereupon the trial court shall deal with the pleas raised herein by passing a speaking order and if the trial court proceeds to drop the proceedings qua petitioners, then the Supreme Court’s decision in Adalat Prasad v. Rooplal Jindal[56] would not stand in the way of the trial court to do so. The relevant portion of the said judgment in Krishna Kumar Variar[57]  is reproduced hereunder:

“4. In our opinion, in such cases where the accused or any other person raises an objection that the trial court has no jurisdiction in the matter, the said person should file an application before the trial court making this averment and giving the relevant facts. Whether a court has jurisdiction to try/entertain a case will, at least in part, depend upon the facts of the case. Hence, instead of rushing to the higher court against the summoning order, the person concerned should approach the trial court with a suitable application for this purpose and the trial court should after hearing both the sides and recording evidence, if necessary, decide the question of jurisdiction before proceeding further with the case.

  1. 5. For the reasons stated herein above, the impugned judgment and order is set aside and the appeal is allowed. The appellant, if so advised, may approach the trial court with a suitable application in this connection and, if such an application is filed, the trial court shall after hearing both the sides and after recording evidence on the question on jurisdiction, shall decide the question of jurisdiction before further proceeding with the trial.”[58]

In Kamala Rajaram v. D.Y.S.P. office of the SP (Rural)[59] the Kerala High Court  laid down that under these circumstances notwithstanding the dictum in Adalat Prasad v. Rooplal Jindal[60] held that:

  1. The larger question whether Section 251would justify discontinuance of the proceedings in all summons cases whether instituted on a police report or otherwise need not be considered in this case. Suffice it to say that in a summons case instituted otherwise than upon a complaint, Section 251read with Section 258 CrPC does clothe the learned Magistrate with the requisite power to discontinue further proceedings and release the accused at the stage of Section 251 CrPC or later if the learned Magistrate feels that the allegations and the materials placed before him do not justify continuance of the proceedings against the indictede. Directing continuance of proceedings when allegations and materials collected do not justify such continuance will be the worst form of injustice.[61]

In S.K. Bhalla v. State[62] the Delhi High Court makes it clear that the facts of this case are distinct from the facts of Adalat Prasad case[63]. Explaining further it said that in Adalat Prasad case[64] the learned Metropolitan Magistrate had recalled the summoning order by allowing the application under Section 203 CrPC after the issue of process under Section 204 CrPC. However, in the instant case, Respondents 2 to 4 have been discharged by the learned trial court at the stage of serving of notice under Section 251 CrPC. At this subsequent stage, the learned Metropolitan Magistrate was of the view that the charge-sheet/complaint did not disclose necessary ingredients of the offence under Section 509 IPC[65], as such, he discharged Respondents 2 to 4 for the commission of abetment of offence under Section 509 IPC.

At para 15 of S.K. Bhalla case[66] the Court further explained the implications of Section 251 CrPC.   Section 251 CrPC deals with the stage subsequent to issue of process under Section 204 CrPC in a summons trial case. This section casts a duty upon the Magistrate to state to the accused person the particulars of the offence allegedly committed by him and ask him whether he pleads guilty. This can be done by the Magistrate only if the charge-sheet/complaint/preliminary evidence recorded during enquiry discloses commission of a punishable offence. If the charge-sheet/complaint does not make out a triable offence, how can a Magistrate state the particulars of non-existing offence for which the accused is to be tried. Therefore, it is inherent in Section 251 of the Code of Criminal Procedure that when an accused appears before the trial court pursuant to summons issued under Section 204 CrPC in a summons trial case, it is bounden duty of the trial court to carefully go through the allegations made in the charge-sheet/complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty, otherwise, he is bound to discharge the accused.

Same justification was given in a case by the Patna High Court[67]. The petitioners had prayed for quashing the order dated 12-12-2011 passed by the Judicial Magistrate, 1st Class, Danapur in Complaint Case No. 1235 C of 2008 by which and whereunder he had rejected the petition dated 12-8-2011 filed on behalf of the petitioners on the ground that in summon triable cases there is no provision for discharge of the accused from the proceeding. By an oral order, Hemant Kumar Srivastava, J.  held that upon bare perusal of the impugned order dated 12-12-2011, it is obvious that the learned Judicial Magistrate did not consider the points raised on behalf of the petitioners at the time of explanation of accusation rather he dismissed the petition filed on behalf of the petitioners only on the ground of maintainability completely ignoring the observation given by the Court in Cr. Misc. No. 29286 of 2009. It is here clarified that in Misc. No. 29286 of 2009 the High Court had directed the JM-I to consider the defence of the accused during the time of explanation of substance of accusation and it had disposed of the petition under Section 482 CrPC filed before it. The High Court in many cases has asked the accused who have filed quashing of summoning order under Section 482 CrPC to argue their cases at the stage of framing notice.

Finally in Arvind Kejriwal v. Amit Sibal[68] the Court dealt with Section251 CrPC. It was held:

10. It cannot be said that, in the above circumstances, courts have no power to do justice or redress a wrong merely because no express provision of the Code can be found to meet the requirements of a case. All courts, whether civil or criminal, possess, in the absence of express provision in the Code for that purpose, as inherent in its very constitution, all such powers as are necessary to do the right and to undo a wrong in the course of the administration of justice. This is based on the principle, embodied in the maxim quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest — when the law gives a person anything, it gives him that, without which, it cannot exist. The High Court has, in addition thereto, and in view of its general jurisdiction over all the criminal courts subordinate to it, inherent power to give effect to any order of any such court under the Code, and to prevent the abuse of process of any such Court, or otherwise to secure the ends of justice.”

This judgment was challenged before the Supreme Court.[69] The Court has not gone into the merit of the case as both the parties had consented to revert the matter back to the High Court and the Supreme Court has refused to say anything on the merit of the case. It can therefore be concluded that the petition of discharge under Section 251 CrPC can well be considered by the courts in India.


* LLM (NET qualified), currently associated with Bihar Judiciary.

[1] See Sohan Lal v. State of Rajasthan, (1990) 4 SCC 580, 592-593, para 30

[2] See Sections  2(w) and (x) of the Criminal Procedure Code, 1973.

[3] http://www.scconline.com/DocumentLink/7tuON2N4.

[4] http://www.scconline.com/DocumentLink/U6oAwGb7.

[5] http://www.scconline.com/DocumentLink/uP4Sg656.

[6] (1971) 1 WLR 1578 : (1971) 2 All ER 1278, 1283 (HL)  .

[7] Id., 1582-1583.

[8] See Pollock, The History of the Law of Nature, reprinted in Jurisprudence and Legal Essays, 124 (1961).

[9] http://www.scconline.com/DocumentLink/74roly04.

[10]  N.S. Bindra, Interpretation of Statutes 4 (9th Edn. ,2002).

[11] See Gray, The Nature and Sources of Law, 176 (2nd Edn.).

[12]  (2008) 2 SCC 409, 414.

[13] Ibid.

[14] See Crawford observes in his Statutory Construction (3rd Edn.) at p. 267.

[15] See (1973) 4 SCC 225.

[16] Supra Note 12.

[17]Ibid.

[18] See Cardozo Benjamin N. (1921), The Nature of the Judicial Process, The Storrs Lectures Delivered at Yale University.

[19] 2014 SCC OnLine Del 212.

[20] (2014) 1 SCC 188.

[21] Ibid

[22] Ibid.

[23] AIR 1969 SC 430.

[24] Supra Note 12  at para 21.

[25] (1990) 4 SCC 453.

[26] (1996) 1 SCC 642.

[27] (1996) 11 SCC 23.

[28] (1996) 6 SCC 92 .

[29] (2003) 2 SCC 412, 432.

[30] (1985) 4 SCC 337  .

[31] http://www.scconline.com/DocumentLink/TGeyaIg2.

[32] http://www.scconline.com/DocumentLink/CJ6W1i2V.

[33] Supra Note 12.

[34] Ibid.

[35] (1969) 2 SCC 582

[36] http://www.scconline.com/DocumentLink/gu4Ta7V0.

[37] http://www.scconline.com/DocumentLink/60m314oL.

[38] http://www.scconline.com/DocumentLink/7tKlYJpX.

[39] http://www.scconline.com/DocumentLink/vK8FcNA1.

[40] (1992) 1 SCC 217  .

[41] (2004) 7 SCC 338 .

[42] Supra Note 40.

[43] Supra Note 41.

[44] Supra Note 40.

[45] http://www.scconline.com/DocumentLink/O87Hni6W.

[46] http://www.scconline.com/DocumentLink/7mc674C3

[47]  Supra Note 40.

[48] Ibid at para 7.

[49] Supra Note 40.

[50] Supra Note 41.

[51] Ibid.

[52] 2013 SCC OnLine Del 6528

[53] http://www.scconline.com/DocumentLink/1g6m30k5.

[54](2012) 5 SCC 424. The Supreme Court observed that it is the bounden duty of the trial court in S. 251 CrPC to satisfy whether the offence against the accused is made out or not and to discharge the accused if no case is made out against him.

[55] (2010) 12 SCC 485 .

[56] Supra Note 41.

[57] Supra Note 55.

[58] Ibid.

[59] 2005 SCC OnLine Ker 302.

[60] Supra Note 41.

[61]  Supra Note 59, para 8.

[62]  2011 SCC OnLine Del 2254.

[63] Supra Note 41.

[64] Ibid.

[65] http://www.scconline.com/DocumentLink/oEscOU97.

[66] Supra Note 62, para 15.

[67] Awadhesh Singh  v.  State of Bihar, 2012 SCC OnLine Pat 1738.

[68] 2014 SCC OnLine Del 212.

[69] Amit Sibal  v. Arvind Kejriwal, (2018) 12 SCC 165 .

Case BriefsHigh Courts

Allahabad High Court: Ravi Nath Tilhari, J., addressed a matter wherein a person being the director of the company signed a cheque on behalf of the company and since the said cheque got dishonoured, he was made liable, without the company being made liable under the offence of Section 138 of Negotiable Instruments Act, 1881.

The instant petition was filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing of summoning order passed by Additional Chief Judicial Magistrate under Section 138 of the Negotiable Instruments Act.

Facts as stated by the applicant

Applicant has been stated to be the Director of a Company and complainant/OP 2, an employee in the railways, by giving assurance of contract of road construction from his superior officers in favour of applicant’s company obtained post-dated cheque of 5 lakh rupees in terms of security money.

Complainant had assured the applicant that once he starts earning profits from the said contract work he would return the post-dated cheques.

However, applicant without any prior notice to the company, complainant presented the cheque in the bank which was dishonoured due to non-availability of funds. One of the legal notice, though was not received by the applicant, but the second notice was served.

Points that arose for consideration:

High Court formulated the following points of consideration:

  • Whether criminal prosecution against the person in charge of, and responsible for conduct of the business of the company under Section 138 NI Act, can be maintained, in the absence of any prosecution of the Company for such offence and without making the company an accused, in view of Section 141 of the NI Act?
  • Whether the cheque in question was issued by the applicant in his personal capacity or in the capacity of director of the company?
  • Whether the orders under challenge and the criminal proceedings against the applicant deserve to be quashed in the exercise of jurisdiction under Section 482 CrPC?

Analysis of the above points:

In order to consider the first point, Court referred to Sections 138 and 141 of the Negotiable Instruments Act, 1881.

On perusal of the said provisions, the essential ingredients of offence under Section 138 NI Act as laid down by the Bench were:

  • The person drew a cheque on an account maintained by him with the banker
  • When such a cheque is presented to the bank is returned by the bank unpaid
  • such cheque was presented to the bank within a period of six months from the date it was drawn or within the period of its validity, whichever is earlier;
  • the payee demanded in writing from the drawer of the cheque the payment of the amount of money due under the cheque to the payee
  • Such a notice of payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding return of the cheque, as unpaid and
  • Inspite of the demand notice the drawer of the cheque failed to make the payment within a period of 15 days from the date of receipt of the demand notice

For the offence to be constituted under Section 138 NI Act, all the above ingredients need to co-exist.

Supreme Court decision in Aneeta Hada v. Godfather Travels and Tours (P) Ltd., (2012) 5 SCC 661, held that Section 141 of NI Act is concerned with the offences by the company. It makes the other persons, vicariously liable for commission of an offence on the part of the company.

The vicarious liability gets attracted when the condition precedent laid down in Section 141 NI Act stands satisfied. There can be no vicarious liability unless there is a prosecution against the company. For maintaining a prosecution under Section 141 NI Act, arraying of the company as an accused is imperative.

 In Supreme Court’s decision of Standard Chartered Bank v. State of Maharashtra, (2016) 6 SCC 62, it was held that there cannot be any vicarious liability unless there was a prosecution against the Company.

In Harihara Krishnan v. J Thomas, (2018) 13 SCC 663, Supreme Court held that Section 141 stipulates the liability for the offence punishable under Section 138 NI Act when the person committing such an offence happens to be a company.

In Aneeta Hada v. Godfather Travels and Tours (P) Ltd., (2012) 5 SCC 661, it was settled that for maintaining a prosecution against the person in charge of and responsible for conduct of the business of the company under Section 138 NI Act, arraigning of the Company as an accused is imperative in view of Section 141 of the Act, as such a person can only be held vicariously liable.

With regard to point 1, hence Court held that such a person, cannot be prosecuted unless there was prosecution of the company.

Second Point

 Whether the cheque in question was issued by the applicant in his personal capacity or in the capacity of the Director of the Company?

The above-stated question can be determined from perusal of the cheque itself. It is one of the essential ingredients to constitute an offence under Section 138 NI Act, that the person drew a cheque on an account maintained with the Banker and the existence of this ingredient is to be proved from the document itself, i.e. the cheque, and for its proof no other evidence is required. Hence, Court could determine if the cheque was issued as authorized signatory or in personal capacity by the applicant by exercising its jurisdiction under Section 482 CrPC.

On perusal of the copy f the cheque it was found that the said was signed by Sanjay Singh, the applicant for Udit Infraheights Private Limited, as its authorized signatory.

Hence the cheque was not issued in the applicant’s personal capacity.

In the absence of the company, as accused, any offence was not made out, even prima facie, against the applicant for his summoning under Section 138 read with Section 141 of the NI Act.

While referring to the Supreme Court decision in Ashoke Bafna v. Upper India Steel Manufacturing and Engineering Company Ltd., (2018) 14 SCC 202, it was held that before summoning an accused under Section 138 NI Act, the Magistrate is expected to examine the nature of the allegations made in the complaint and the evidence, both oral and documentary, in support thereof, and then to proceed further with the proper application of mind to the legal principle of the issue.

Last Point

 With regard to the last point of consideration, Bench referred to the decision of Supreme Court in Rishipal Singh v. State of U.P., (2014) 7 SCC 215, Supreme Court, while considering the scope of Section 482 CrPC held that when a prosecution at the initial stage is asked to be quashed, the test to be applied is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case.

In Pooja Ravinder Devidasani v. State of Maharshtra, (2015) 88 ACC 613, Supreme Court held that the Superior Court should maintain purity in the administration of justice and should not allow the abuse of process of the Court.

Therefore, Court opined that the complaint was not filed against the company, as the company was not made a party accused and no vicarious liability could be imposed upon the accused applicant.

Since, the cheque was not signed by the applicant in his personal capacity, the complaint could not have proceeded against him and no offence could be made out against the applicant.

Petition was allowed and the orders challenged were quashed. [Sanjay Singh v. State of U.P., 2021 SCC OnLine All 120, decided on 10-02-2021]

Case BriefsHigh Courts

Kerala High Court: V.G. Arun, J.,  dismissed the instant petition whereby the petitioner had challenged his re-incarceration contending violation of natural justice by authorities.

On 18-02-2011, the government ordered premature release of 209 prisoners who had completed imprisonment of 10 years (with remission) and above and in whose cases, favourable reports, either from the police or probation officer, had been received. The said order was challenged in Suo Motu v. State of Kerala, 2019 SCC OnLine Ker 335, before full Bench on the ground that the order was result of arbitrary exercise of power under Article 161 of the Constitution. The Court found out that power under Article 161 had been exercised without government applying its mind to the individual cases. Consequently, the impugned order was quashed and government was directed to examine the proposal for premature release of the 209 prisoners, afresh. Further, the Court directed government to consider the release of prisoners on two grounds namely, non-involvement in crime after release and favourable reports by police or probation officers.

Accordingly, a State Level Committee was constituted, which, after analysing each case, observed that among the 209 prisoners, 22 had expired, 27 had involved in criminal cases after release and the remaining 160 were not involved in any criminal activity and had lived with good conduct. Hence, the government issued an order directing 30 persons from among the 209 to be re-incarcerated, for completing the remaining period of their sentence.

The petitioner being one among the 30 ordered to be re-incarcerated was issued with summons from the trial court. Aggrieved by the order for his re-incarceration, the petitioner contended that government could not have ordered his re-incarceration without even affording an opportunity of hearing and the reason for re-incarceration being not discernible from the summon order, was indicative of absolute non-application of mind. It was further contended that,

Quashing of order for release by the Court did not absolve the government from complying with the fundamental principles of natural justice and fair play.

 The Bench observed the order of full Bench that in case of the Government failing to take a decision within six months, it would be deemed that there was no exercise of power under Article 161 in favour of the prisoners concerned and steps should be taken to re-incarcerate such prisoners for serving out the remainder of their sentence. The Bench stated,

All 209 prisoners were liable to be re-incarcerated, but, on humanitarian consideration, the Full Bench allowed the Government to consider the cases of prisoners who could be granted exemption from re-incarceration based on their exceptional conduct and favourable reports from all authorities.

Therefore, the consideration was to be made with respect to the prisoners who could be exempted and not about those who were to be re-incarcerated. Being so, the principle of audi alteram partem had no application in the case of petitioner. The petitioner got involved in two crimes after his release and did not satisfy the strict conditions imposed for being exempted from re-incarceration. Referring to the order of Full Bench, the Court emphasised it needs no reiteration that interim orders, unlike judgments, do not have any persuasive effect. [Ramesh K.S v. State of Kerala,  2021 SCC OnLine Ker 600, decided on 05-02-2021]


Kamini Sharma, Editorial Assistant has put this story together

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., reversed the order of the lower court issuing summons against the accused in a case under Section 138 of the Negotiable Instruments Act, holding that the lower courts fell in error while computing the period of limitation.

Factual Matrix

Petitioner had borrowed a sum of Rs 10 Lacs from respondent 2 who had lent the same vide two cheques amounting to Rs 5 lacs each. Further, it was stated that after approximately 3 years, respondent 2 approached petitioner for repayment of the loan amount, petitioner assured that he will return the entire amount and in order to discharge his part liability he issued a cheque amounting to Rs 10 lacs, which was dishonored with remarks “funds insufficient”.

Complainant stated that when the above-said was informed to the petitioner, he paid no heed to his complaint and thereafter, a legal demand notice was served upon him, yet petitioner failed to make payment, therefore a complaint was filed under Section 138 NI Act.

In view of the above complaint, summons were directed to be issued against the petitioner.

The above Order was challenged and the revisional court dismissed the said petition which has been challenged.

Contentions

Petitioners Counsel submitted that the Metropolitan Magistrate had no jurisdiction to take cognizance under Section 138 NI Act without that being accompanied by application under Section 142 (1) (b) NI Act for condoning the delay in filing the complaint.

Further, while taking cognizance of the complaint, Metropolitan Magistrate did not take note of the fact that the complaint was filed beyond the limitation period and did not rightly calculate the days and therefore, directed to issue summons to the petitioner was illegal and without jurisdiction.

Analysis and Decision

Bench referred to the decision of Supreme Court in Econ Antri Ltd. v. Rom Industries Ltd., (2014) 11 SCC 769, while deciding the issue of calculation of limitation period with regard to proviso (c) to Sections 138 and 142(b) of the NI Act.

Further, the Court added that the ratio of the decision in Saketh India Ltd. v. India Securities Limited, (1999) 3 SCC 1 has to be applied to the case in hand.

Crux in the instant case was that the 15 days period with regard to legal demand notice lapsed. In terms of Supreme Court decision in Saketh India Ltd. v. India Securities Limited,  (1999) 3 SCC 1 one day has to be excluded for counting the one month limitation period and therefore, excluding the day of 19-06-2019, the limitation period started from 20-06-2019 and the limitation period expired with the day in the succeeding month immediately preceding the day corresponding to the date upon which the period started.

Consequently, the limitation period in this case, which commenced on 20-06-2019, expired in the succeeding month on a day preceding the date of commencement i.e. 19-07-2019. Admittedly, the complaint, in this case, was instituted on 20-07-2019 i.e. 01 day after the limitation period had expired.

Hence, Bench held that both the courts below have fallen in error while computing the period of limitation. Moreover, at the time of filing, the complaint was not even accompanied by an application under Section 142(1) (b) NI Act for condoning the delay.

Adding to the above, Court stated that the Revisional Court erroneously took into consideration two different dates for service of demand notice while computing the limitation period.

Therefore, the lower courts orders were set aside. [Simranpal Singh Suri v. State,  2021 SCC OnLine Del 236, decided on 01-02-2021]


Advocates for the parties:

Petitioner: M.S. Oberoi, Siddharth Khattar and Gaurav Rohilla, Advocates

Respondents: Izhar Ahmed, Additional Public Prosecutor for respondent 1

Anil Kumar Dhupar, Advocate for respondent 2

Case BriefsHigh Courts

Karnataka High Court: Suraj Govindaraj J., dismissed the petition being devoid of merits.

The facts of the case are such that two police stations were attacked on account of a blasphemous Facebook post, which took an ugly turn allegedly on account of lack of timely intervention and action by the police, pursuant to which FIR was lodged under Sections 353, 143,147, 148, 333, 436, 427 read with 149 of Penal Code, 1860 i.e IPC, Section 4 of Prevention of Damage to Public Property Act, 1984 and Sections 15, 16, 18 and 20 of Unlawful Activities (Prevention) Act, 1967. During the course of investigation several persons were arrested and their voluntary statements recorded consequent to which search warrants were issued by the Sessions Court under Section 93 of Code of Criminal Procedure i.e. CrPC and searches were conducted thereby. Being aggrieved by this, instant petition was filed for quashing the said order.

Counsel for the petitioner submitted that it is mandatory for a notice under Section 91(1) CrPC to be issued before a warrant of search being issued. It was also submitted that a search warrant should be issued only when the Court has come to a conclusion that the incriminating articles could either be destroyed or done away with if the search warrant is not issued and the order must show details regarding such application of mind.

Counsel for the respondents submitted that the offences alleged are serious in nature as the offices of petitioner’s political organization were used for calling meeting and instigating the mob to indulge in violence. It was further submitted that the impugned order was passed after due perusal of statements of witnesses and other records hence the order is proper and correct.

The Court observed that a perusal of Section 91 CrPC read with Section 93 of Cr PC as a whole would mean that when Section 93 (1) (a) (b) (c) are qualified with the word ‘or’ after each of the said sub-clauses that would mean that they are in the alternate to each other and if any one of the requirements is satisfied, a search warrant can be issued.  Section 93 only provides for three different alternate circumstances. There is neither a priority in the circumstances nor a serial chain link in the circumstances. In that, if any one of the requirements is satisfied, the Court may issue a search warrant to search or inspect the premises.

The Court thus held that the instant case is covered by Section 93 (1) (c) instead of Section 93 (1) (a) and thus the search warrants issued under Section 93 CrPC is dehors and over and above the requirements under Section 91 (1) of CrPC and hence it is not required in all circumstances to issue a summons prior to issuance of search warrant and hence each warrant could be issued in terms of Section 93 (1) (c) without issuing a summon under Section 91 of the CrPC.

In view of the above, petition was dismissed.[Social Democratic Party of India v. State, 2021 SCC OnLine Kar 90, decided on 12-1-2021]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Delhi High Court: Rajiv Shakdher, J., issued the summons in the suit filed by Elsevier Ltd. against Alexandra Elbakyan and others alleging infringement of Elsevier’s copyright in several medical journals, articles, etc.

The instant application was filed by the plaintiffs under Section 151 of the Code of Civil Procedure, 1908 seeking exemption not only from filing original and certified copies of certain documents but also from filing legible copies of the dim annexures.

Senior Counsel, Amit Sibal who appeared along with Saikrishna Rajagopal, Advocate said that the plaintiffs who have copyright in several medical journals, articles, etc., have been constrained to approach this Court on account of defendant 1 and defendant 2 infringing their copyright.

Given the stand taken by Mr Sibal appearing for the plaintiff, Mr Jain representing the defendant said the no new articles or publication in which the plaintiff has copyright will be uploaded or made available by Alexandra Elbakyan.

Matter to be listed on 06-01-2021.[Elsevier Ltd. v. Alexandra Elbakyan, 2020 SCC OnLine Del 1677, decided on 24-12-2020]

Case BriefsHigh Courts

Kerala High Court: V. G. Arun, J., dismissed the instant petition filed by the petitioner, the Additional Private Secretary to the Chief Minister of Kerala, seeking to restrain the Enforcement Directorate (ED) from detaining the petitioner beyond reasonable time and to permit the presence of a legal practitioner during questioning.

The petitioner contended that are such that, repeated summons were issued to him in spite of his ailments and weak physical condition, which speaks volumes about the arbitrariness and mala fides behind the actions of ED. The petitioner apprehends that he will be detained for long hours and made to give statements against his will. It was submitted that having recently recovered from Covid-19 the continuous interrogation for long hours would have an adverse impact on the already weak health condition of the petitioner. The counsel for the petitioner further submitted that the petition is not against the power of ED to issue the summons, but against the injudicious manner in which the power is being exercised.

Additional Solicitor General, S.V. Raju, on behalf of respondent questioned the maintainability of the petition. It was contended that the writ petition is liable to be dismissed as premature since, the mere issuance of summons under Section 50 of the Prevention of Money Laundering Act, 2002 does not give rise to any cause of action. The respondent relied on Commissioner of Customs, Calcutta v. M.M.Exports, (2010) 15 SCC 647, wherein the Supreme Court had cautioned that, as far as possible, High Courts should not interfere at the stage when the Department has issued the summons.

The Court disposed of the petition, reiterating the Supreme Court’s decision in Kirit Shrimankar v. Union of India, 2014 SCC OnLine SC 1614, that no cause of action arises merely for the reason of a person being called upon to state the truth or to make statements and produce documents. The Court further relied on Dukhishyam Benupani, Assistant Director, Enforcement Directorate v. Arun Kumar Bajoria, (1998)1 SCC 52, where the Supreme Court held that it is not for this Court to monitor the investigation and to decide the venue, the timings, the questions and the manner of questioning. [C.M.Raveendran v. Union of India, WP(C) No. 28049 of 2020(E), decided on 17-02-020]

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., while addressing a criminal revision observed that, Trial Court Judge should not insist on the presence of complainant at the stage of service of summons/warrants and/as their presence would not be required for any adjudicatory purpose.

FACTUAL MATRIX

Complainant a practising advocate complained to the Chief Judicial Magistrate, Moradabad about the commission of offences under Sections 379, 504 and 505 of the Penal Code, 1860.

Section 379. Punishment for theft.

Section 504. Intentional insult with intent to provoke breach of the peace.

Section 505. Statements conducing to public mischief

Summons were issued to the accused, but instead of appearing before the Court, he preferred a revision that was rejected.

Judge predecessor to the one who passed the order on 13-08-2018 had even sent notices to the higher authorities to procure the presence of the accused which went in vain.

The complainant fell sick and the Judge below dismissed the complaint under Section 204(4) of CrPC and hence the said Order is under challenge.

Section 204 (4) of CrPC:

When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

ANALYSIS & DECISION

Bench noted that,

it is very strange that the Judge whose order is under challenge did not pass orders for procuring the presence of the accused.

Further, it was observed that the order dated 13-8-2018 which is under challenge, goes to show that despite the fact that the accused lost before the appellate authority was successful in evading appearance and the complainant sought to be lodged by an advocate was dismissed.

“…instead of procuring presence of the accused, the Magistrate dismissed the complaint under Section 204 (4) of CrPC. Once the summons was already sent, there was no necessity of paying further court fees.”

Declaring the order to be perverse, Court stated that the Magistrate instead of dismissing the complaint should have sought the presence of the accused as per the provisions of Section 87 of the CrPC.

87Issue of warrant in lieu ofor in addition tosummons:

 A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest—

(a)if, either before the issue of such summonsor after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summonsor

(b)if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.

Hence, the Order in challenge is required to be set aside and quashed.

Order passed by the Judge below dimissing the case is absolutely cryptic.

Bench also added to its analysis that, the stage was for the appearance of the accused who was evading summons and was aware that the summoning order was passed. The accused is shield by the Superintendent of Police, Moradabad.

At stage of seeking the presence of accused, the presence of the complainant was not at all necessary.

Court directed that the presence of the accused be procured first and thereafter the presence of the complainant be insisted upon.

In the present matter, there is a clear misuse of the process of law by the accused who even after coming to know that summons were issued against them and there revision was dismissed, did not appear before the Court below and strange enough the Magistrate dismissed the matter of the complainant at the stage of issuance of the bailable warrant as accused had not appeared before it pursuant to the summons already issued.

Concluding its decision, bench stated that the Trial Court Judge should not insist on the presence of complainant at the stage of service of summons/warrants and/as their presence would not be required for any adjudicatory purpose.

Once the process fees has been affixed, it is the duty of the police authority through the Court to procure the presence of the accused unless orders otherwise are passed.

Compliance of the Order to be filed on or before 25-10-2020. [Rajbahadur Singh v. State of U.P., 2020 SCC OnLine All 1042, decided on 22-09-2020]

Case BriefsHigh Courts

Madras High Court: V. Bharathidasan, J., dismissed a revision petition filed against the order of the trial court whereby the application filed by the petitioner-defendant to convert the original summary suit filed by the respondent-plaintiff under Order 37 CPC into a regular suit was dismissed.

The respondent had filed a suit for the recovery of money against the petitioner. In that suit, while serving the summons, the copy of the plaint and the enclosures were not served on the petitioner. Hence, the petitioner filed an application stating that as there is a mandatory violation of Order 37 Rule 2 CPC, the suit is not maintainable and the same has to be converted into a regular suit. The trial court dismissed the said application. Challenging the same, the instant revision was filed.

P. Sureshbabu, counsel appearing for the petitioner, contended that under Order 37 Rule 2 CPC, the plaintiff has to necessarily serve summons along with a copy of the plaint and the enclosures to the defendant. But in the instant case, a copy of the plaint and enclosure were not served on the defendant. Hence, as there is mandatory violation he cannot maintain the suit under Order 37 CPC and it should be treated as a regular suit.

The High Court considered the record and noted that according to the trial court, along with the summons, a copy of the plaint and documents were sent to the defendant and as he was not available, the summons was returned and hence it could not be stated as a mandatory violation of Order 37 CPC. That apart, as copies could not be served on the defendant, on that ground alone a summary suit could not be converted into a regular suit. In the above circumstances, the trial court dismissed the said application.

Affirming the findings and observations of the trial court, the High Court held that there was no merit in the instant revision petition and, therefore, it was dismissed. The trial court was directed to serve a copy of the plaint and the documents enclosed along with the plaint to the defendant within a period of one week. [D. Elangovan v. Shrenik Kumar, 2020 SCC OnLine Mad 367, decided on 06-02-2020]

Case BriefsHigh Courts

Bombay High Court: K.R. Shriram, J., dismissed an appeal filed by the Union of India against the order of the trial court whereby the respondents were acquitted of offences under various provisions of the Customs Act, 1962.

The respondents were accused of illegal dealing in foreign marked gold biscuits. Pursuant to information received, the Directorate of Revenue Intelligence affected a raid and search of premises where they found the respondents and recovered 24 marked gold biscuits along with large quantities of foreign and Indian currency. The respondents were brought to the DRI Office. Summons were issued to them under Section 108 of the Customs Act and their statements were recorded. After completion of the investigation, a complaint was filed against the respondents. Before the trial court, the respondents took the stand they were poor villagers who came to Mumbai in search of work. While searching for a job, somebody gave them the address of the said premises, and they had reached there just a couple of minutes prior to the raiding party. At the conclusion of the trial, the respondents were acquitted by the trial court, Aggrieved thereby, the Union of India filed the instant appeal.

The High Court noted that the respondents had, at the first opportunity, filed an application before the Metropolitan Magistrate for retracting their statements recorded under Section 108. The prosecution asserted that the statements of the respondents were voluntarily and correctly recorded without any force or inducement. However, the High Court found that there was no independent corroboration by any witness of the Section 108 statements of the respondents.

Discussing whether the statement of respondents was to corroborated, K.R. Shriram, J. observed, “If I have to simply accept the statement recorded under Section 108 as gospel truth and without any corroboration, I ask myself another question, as to why should anyone then go through a trial. The moment the Customs authorities recorded the statement under section 108, in which the accused has confessed about his involvement in carrying contraband gold, the accused could be straightaway sent to jail without the trial court having recorded any evidence or conducting a trial.”

The Court reiterated that in absence of any corroboration by an independent and reliable witness, a statement recorded under Section 108 in isolation could not be relied upon.

Furthermore, it was also noted that the Judgment of acquittal was passed in 2001 and more than 19 years have passed since. In such view of the matter, the High Court held that the order of acquittal passed by the trial court did not warrant interference. Accordingly, the appeal filed by the Union of India was dismissed. [Union of India v. Kisan Ratan Singh, 2020 SCC OnLine Bom 39, decided on 07-01-2020]

Case BriefsHigh Courts

Bombay High Court: K.R. Shriram, J., dismissed a criminal appeal filed against the order of the Metropolitan Magistrate whereby he had acquitted the accused-respondent for the absence of the complainant-appellant and his advocate at the stage when the case was placed for evidence.

It may be noted that the matter was listed before the trial court on 31 occasions, out of which, the complainant (appellant herein) was absent 11 times. On the 31st occasion as well, when the matter was placed for evidence, the complainant and his advocate were absent. Consequently, the trial Magistrate passed the impugned order mentioned above. In the instant appeal, it was submitted by the complainant that it was due to inadvertence of his counsel, who misheard the next date of hearing, that the complainant was not able to present himself before the trial court on the day the impugned order was passed.

On facts, the High Court found that the pleas made by the appellant were unsubstantiated and no relief could be given to him.

Explaining the mandate of Section 256 CrPC, the Court observed:

“Section 256 mandates that if the complainant does not remain present on the appointed day after the summons has been issued on the complaint and unless attendance of complainant has been dispensed with, the Magistrate shall acquit the accused. If the Magistrate feels that the order of acquittal should not be passed on that date, the Magistrate has to give reasons.”

Reiterating that speedy trial is a fundamental right of the accused, the Court noted that the Magistrate cannot allow a case to remain pending for an indefinite period.

The Court observed that “the Magistrate in terms of sub-section (1) of Section 256 exercises wide jurisdiction”. In the present case, it was noted, the Magistrate had acquitted the accused as provided under Section 256 because he did not find any reason to adjourn the hearing of the case to some other day. As noted above, out of the 31 dates, on 11 dates the complainant was absent but still the Magistrate did not dismiss the complaint on those dates.

In such a situation, the High Court was of the opinion that there was no illegality in the impugned order so as to require any interference. The appeal was, therefore, dismissed. [Champalal Kapoorchand Jain v. Navyug Cloth Stores, 2019 SCC OnLine Bom 4805, decided on 26-11-2019]

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., dismissed a criminal petition wherein the petitioner sought quashing of the summoning order passed by the Metropolitan Magistrate and also the criminal complaint under Section 138 read with 142 of the Negotiable Instruments Act, 1881.

The petitioner represented by Ehraz Zafar, Akash Tyagi and Sataya Anand, Advocates, submitted that the complaint in question was filed on 2-5-2013, however, the cognizance was taken by the court by issuing summons against the petitioner on 17-04-2017. The punishment under Section 138 is two years and the cognizance taken by the trial court is after more than four years. It was contended that, therefore, the complaint was liable to be rejected.

At the outset, the High Court noted the fact remains that the instant was not the case of a warrant. The complaint was filed under Section 138 NI Act which is a summary trial. Relying on the Supreme Court decision in Indra Kumar Patodia v. Reliance Industries Ltd., (2012) 13 SCC 1, the High Court held that, The limitation provided under Section 468 is not applicable,

It was further held that, ”Moreover, the cognizance of the complaint was taken by the CMM concerned, who thereafter marked the case to the trial court concerned. The trial court after going through the contents of the complaint and evidence on record, issued summons. However, it is provided in Section 138 and 142 of the NI Act that the summons shall be issued within the prescribed time.”

In such view of the matter, the Court did not find any merit in the instant petition and, therefore, dismissed the same. [Uma Kant Umesh v. State (NCT of Delhi), 2019 SCC OnLine Del 10754, decided on 22-10-2019]

Case BriefsHigh Courts

Patna High Court: Birendra Kumar, J. allowed the application of the petitioner to set aside the order which had issued a non-bailable warrant of arrest against the petitioners.

The petitioner’s prayer for dispensation with personal appearance and for allowing appearance through their lawyer in the exercise of power under Section 205 of the Code of Criminal Procedure, 1973 was disallowed by the Court. Cognizance was taken for the offence under Section 406 of the Penal Code, 1860 against the petitioners.

 The impugned order revealed that the prayer had been refused on the grounds that the process of non-bailable warrant of arrest had already been issued against the petitioners. Hence, an application under Section 205 of the Code of Criminal Procedure was not maintainable.

Senior Advocate, Chitranjan Sinha and Advocate Rajesh Ranjan submitted for the petitioners that no process was ever served on the petitioners, and the impugned order didn’t reveal that the summons issued were ever served on the petitioners. Without any proof of service of summons, warrant of arrest had been issued, which was in itself an improper order. It was further contended that issuance of a non-bailable warrant of arrest was no bar for consideration of prayer under Section 205 of the Code of Criminal Procedure since the Magistrate could always order for the personal appearance of the accused, whose prayer under Section 205 of the Code of Criminal Procedure had been allowed. The counsel also assured that the petitioners were ready to appear as and when required by the court to facilitate the progress of the trial.

The High Court held that since there was no service report of summons on record when the court issued a bailable warrant of arrest and similarly, there was no service report of the bailable warrant of arrest when the court issued a non-bailable warrant of arrest, the issue of a non-bailable warrant of arrest was not applicable to the facts and circumstances of the instant case. In the interest of substantial justice, the impugned order was set aside and the matter was remitted back to the lower court to pass necessary order in accordance with the law.

In view of the above-noted facts, the instant application was allowed and directions were issued to set aside the impugned order. [Sachida Nand Mishra v. State of Bihar, 2019 SCC OnLine Pat 1763, decided on 23-09-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. allowed a petition filed against the order of the trial court whereby the suit filed by the petitioner under Order 37 (summary procedure) of the Civil Procedure Code was directed to be treated as an ordinary suit.

A suit under Order 37 was filed by the petitioner for recovery of the amount due to them for sale and supply of certain goods to the respondent. The trial court issued summons in the prescribed format under Order 37 which were duly served on the respondent. Despite the service, the respondent failed to enter appearance. When the petitioner applied for the passing of a decree as respondent failed to enter an appearance, the trial court, by the impugned order, held that since the petitioner was claiming balance amount of the invoices and there was some doubt about the authenticity of the invoices, the suit be treated as an ordinary suit.

Vishal Garg, Advocate for the petitioner, the trial court could not have doubted the veracity of the invoices, especially when no appearance was entered by the respondent or any application seeking leave to defend filed and objection taken to the invoices.

Discussing Order 37, the High Court stated: “Order 37 Rule 2(3) CPC specifically lays down that defendant shall not defend the suit unless he enters appearance and in default of his entering appearance the allegations made in the plaint shall be deemed to be admitted and plaintiff would be entitled to a decree for the sum not exceeding the sum mentioned in the summons.” Opining that the trial court had committed error, the High Court observed: “In view of the specific provisions of Order 37 Rule 2(3) CPC, it is not within the powers of the trial court at that stage, to assess as to whether the suit satisfies the requirement of Order 37 CPC or not. Once summons in the prescribed form have been directed to be issued and duly served, the defendant is obliged to enter appearance within the statutory period, and on failure of the defendant to enter appearance within the statutory period, the averments in the plaint are deemed to be admitted and the plaintiff is entitled to a decree forthwith.”

It was noted that the petitioner had specifically contended that the subject suit was based on written contract i.e. invoices which have been duly and acknowledged by the respondent. Therefore, it was not open to the trial court at that stage to reconsider the issue and held that the suit was not maintainable under Order 37. With regard to the finding of redaction of clauses in the invoices by applying white fluid, the High Court held that it was for the respondent to have taken an appropriate objection in an application seeking leave to defend, filed after entering appearance.

Since the respondent failed to enter an appearance, the averments in the plaint were deemed to have been admitted and the plaintiff was held entitled to a decree. The suit was directed to be listed before the concerned trial court for passing appropriate order.[S.S. Steel Industry v. Guru Hargobind Steels, 2019 SCC OnLine Del 9964, decided on 05-09-2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Hima Kohli and Asha Menon, JJ. dismissed an appeal filed by the appellant-wife against the order of the Family Court whereby her application under Order 9 Rule 13 read with Section 151 CPC for setting aside of the ex-parte decree of judicial Separation passed in favour of the husband was rejected.

Marriage of the parties to this matter ran into rough weather and the husband filed a petition under Section 10 of the Hindu Marriage Act, 1955 seeking Judicial Separation froths wife. The petition proceeded ex-parte against the wife and a decree of Judicial separation was passed. Thereafter, the wife filed an application under Order 9 Rule 13 read with Section 151 CPC for setting aside the said decree,  claiming that she had never been served. The application was, however,  rejected by the Family Court. Aggrieved thereby, the wife filed the present appeal.

S.S. Panwar, Advocate represented the appellant-wife. Per contra, Navin Kumar Chaudhary, Advocate, appeared for the respondent-husband.

The High Court noted that the trial court dealing with the petition seeking the relief of Judicial Separation had recorded that the notice of the petition issued by the ordinary process was refused by the father of the appellant. It was also noted that the summons despatched by registered cover was refused by the appellant herself and the said refusal on her part to accept service of the notice, was deemed to be an effective service upon her. The court observed that the evidence produced by the appellant was not sufficient to establish that she was in the hospital and had no opportunity to refuse the process of the Court as contended by her.

It was further noted that the address of the appellant being correct, the Family Court rightly drew a presumption of deemed service as contemplated under Section 27 of the General Clauses Act, 1897, to conclude that the appellant was duly served and had failed to contest the petition.

Accordingly, finding no error in the impugned order, the High Court dismissed the appeal.[Ritu v. Sandeep Kumar Prashar, 2019 SCC OnLine Del 9940, decided on 03-09-2019]

Case BriefsHigh Courts

Bombay High Court: S.S Shinde, J. allowed a criminal application to the order passed by the Judicial Magistrate (First Class) issuing process against the applicant for the offences punishable under Section 504 (intentional insult with intent to provoke breach of the peace) 506 (punishment for criminal intimidation) of the Penal Code.

The father-in-law and mother-in-law of the applicant filed an original application against the applicant and others, after which the Magistrate concerned issued process against the applicant for the offences punishable under Sections 502 and 506 as mentioned above.

Swapnil S. Mhatre, Advocate for the applicant submitted that she was not residing within the jurisdiction of the Magistrate concerned, and therefore, in view of the mandate of Section 202 CrPC, the Magistrate was required to cause an inquiry as contemplated under the said section and pass a reasoned order. Reliance was placed on Abhijit Pawar v. Hemant Madhukar Nimbalkar, (2017) 3 SCC 528.

Per Contra, Kaushik Jayant instructed by Amol P. Mhatre along with Mandavkar, Advocates for the respondent in-laws opposed the instant applicant.

On perusal of the impugned order and other material placed on record, the Court was of prima facie opinion, the Magistrate without assigning any reasons in the impugned order, proceeded to issue summons against the applicant. It was observed that the Magistrate was obliged to give reasons so as to reflect the order. It was observed:

“Certainly, the course adopted by the Magistrate is not keeping in view of the observations made by the Supreme Court in para 12 of the judgment in the case of Abhijit Pawar. In facts of the present case, the applicant-accused is residing outside the jurisdiction of JMFC, Thane and therefore, it was incumbent upon the Magistrate to cause the inquiry himself or entrust the said task with concerned Police Officer. However, the Magistrate by cryptic order proceeded to pass the impugned order.”

In such view of the matter, the High Court quashed the impugned order passed by the Judicial Magistrate (First Class). The complainants were given liberty to approach the Court concerned afresh for redressal of their grievance.[Amruta Ajay Mane v. Ramesh Dhodiba Mane, 2019 SCC OnLine Bom 1717, decided on 26-08-2019]

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