Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Stating that, though the Press has a duty to inform the public, the Division Bench of Devan Ramachandran and Sophy Thomas, JJ., observed that, it is the well-accepted thumb rule that the Press shall not indulge in sensationalism; or in speculating upon the guilt or otherwise of any accused or other individual; or to create an opinion about the comportment or character of a person involved in the Trial; and not to embellish, by impelling or sponsoring an opinion they seek.

Appellant challenged the interim order wherein the Single Judge had issued a direction against the appellant ‘not to publish/broadcast/ telecast any item concerning or relating to the petitioner herein while reporting about Crime No.6/2022 of Crime Branch Police Station and S.C.No.118/2018 of Additional Special Sessions Court (SPE/CBI) III, Ernakulam except the order of the Court for a period of three weeks from today’. 

The contention of the appellant was that the above amounted to a complete ban and operates as a violation of the well-recognized principles of the freedom of the Press, to report and publish the truth.

Analysis and Decision

High Court stated that, it will address the issue: Parameters which are to be kept in mind when a News Media reports on an ongoing Criminal Trial or investigation.

For the above-stated issue, Court stated that its path was illuminated by the holdings of the Supreme Court in Sahara India Real Estate Corporation Ltd. v. SEBI, (2012) 10 SCC 603, wherein, the Hon’ble Court has unambiguously declared that orders postponing reporting of certain phases of Criminal Trial (including identity of the victim or the witness or the complainant) can be applied for a short duration and solely in cases of “real and substantial risk of prejudice” to the proper administration of justice or to the fairness of Trial.

Bench expressed that, the various High Courts and the Supreme Court have repeatedly been engaged qua the contours of the tenuous balance between reporting of facts relating to a crime and the unexpendable requirements to be maintained for a Fair Trial; but there can be little doubt that the Press have a duty to inform the public truthfully about the crimes and the facts relating to investigation, arrest and such other.

Expressing in a more elaborate manner, with respect to the above, Court added that the press certainly cannot be allowed to run amok and will have to be imposed with reasonable restrictions, so as to make sure that every trial and investigation is conducted fairly, openly and above board.

“Press has a duty to inform the public, the publication of lurid details and other sensitive investigative inputs, which are within the sole jurisdiction of the courts to decide upon, certainly require to be put on a tight leash.”

Coming to the impugned order, Bench stated that though it does not want to speak in detail on the merits of the rival factual contentions but there is no doubt that direction not to publish/broadcast/ telecast ‘any item’ concerning or relating to the appellant’, certainly travels beyond the reasonableness of the restrictions sanctioned by the Supreme Court. 

The term ‘any item’ is not merely very vague but would also cause an unfair fetter on the Press to make a fair reporting within the parameters of law, and therefore, we (Court) feel it necessary to modify the same, though to a very limited extent.

 Bench deemed it apposite to dispose of the writ appeal, vacating the impugned order to the extent to which it had restrained the appellant from reporting ‘any item’ relating to the first respondent but clarifying that they shall not engage in sensationalism, or pursue any line of reportage intended to forge an impression against the first respondent or any other accused or witness with respect to their involvement or otherwise in the crime; and without in any manner, commenting about the ‘in camera’ proceedings.

Further, the Court stated that, when the Investigating Officers have already been restrained by the aforesaid order against the State Police Chief, the apprehension of the first respondent stands allayed fully; and resultantly, an absolute ban for publication of ‘any item’ relating to the writ petitioner would perhaps be not relevant any further.[Indo-Asian News Channel (P) Ltd. v. T.N. Suraj, 2022 SCC OnLine Ker 2710, decided on 6-5-2022]


Advocates before the Court:

For the appellant:

BY ADVS. SRI.KALEESWARAM RAJ

           C.P. UDAYABHANU

           THULASI K. RAJ

           SHILPA SOMAN

For the Respondents:

BY SR.ADV.SRI.GEORGE POONTHOTTAM

SRI.NAVANEETH KRISHNAN

BY SR. GOVT. PLEADER SRI.BIJOY CHANDRAN

Case BriefsSupreme Court

Supreme Court: While rejecting an appeal to quash proceedings under Section 138 of the N.I. Act, 1881 at pre-trial stage, the Division Bench comprising of K.M. Joseph and Hrishikesh Roy*, JJ., held that when there is legal presumption, it would not be judicious for the quashing Court to carry out a detailed enquiry on the facts alleged, without first permitting the trial Court to evaluate the evidence of the parties.

The Bench upheld the impugned judgment of Delhi High Court wherein the High Court had – while acting as a quashing court under Section 482 of CrPC – refused to quash proceedings at pre-trial stage. The Bench observed,

“The quashing Court should not take upon itself, the burden of separating the wheat from the chaff where facts are contested.”

Factual Backdrop

Evidently, the complainant invested a substantial sum in the appellant’s company, however as some dispute arose between them, the parties decided that the invested money would be returned to the complainant and the shares allotted to the complainant will be proportionately transferred to the appellant. Pursuant to such compromise, the four cheques were issued by the appellant, which on being presented by the complainant, got dishonourned due to insufficient fund. Consequently, proceedings under NI Act came in picture.

Submissions of the Parties

The appellant argued that without satisfying the essential ingredients for the offence under Section 138 of the N.I. Act to the effect that the dishonoured cheque received by the complainant was against “legally enforceable debt or liability”, the criminal process could not have been issued. According to the appellant, the cheques in question were issued as “security” for buyback of shares and not in discharge of any “legally recoverable debt” and therefore they could not have been prematurely presented to the bank and should have been presented for encashment only after transfer of the complainant’s shareholding in the appellant’s company.

On the contrary, the complainant contended that when the cheques were issued and the signatures thereon were admitted, the presumption of a legally enforceable debt would arise in favour of the holder of the cheque. The complainant argued that the appellant should first pay and then as per the usual practice in the trade, the shares would be transferred to the appellant in due course within the time permitted by law.

Analysis and Conclusion

In HMT Watches Ltd. v. M.A. Abida, (2015) 11 SCC 776, and in Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330, it has been held that unless the Court is fully satisfied that the material produced would irrefutably rule out the charges and such materials being of sterling and impeccable quality, the invocation of Section 482 Cr.P.C power to quash the criminal proceedings, would be unmerited.

The Bench opined that when there is legal presumption, it would not be judicious for the quashing Court to carry out a detailed enquiry on the facts alleged, without first permitting the trial Court to evaluate the evidence of the parties. The quashing Court should not take upon itself, the burden of separating the wheat from the chaff where facts are contested. The Bench observed,

“The consequences of scuttling the criminal process at a pre-trial stage can be grave and irreparable.”

The Bench stated that at any rate, whenever facts are disputed the truth should be allowed to emerge by weighing the evidence. Otherwise, the accused may get an un-merited advantage in the criminal process. Hence, the Bench held that when the cheque and the signature were not disputed by the appellant, the balance of convenience was in favour of the complainant/prosecution and the accused will have due opportunity to adduce defence evidence during the trial, to rebut the presumption.

In the light of above, the Bench reached to following findings:

  1. In shares transactions, there is a time lag between money going out from the buyer and shares reaching to the seller.
  2. The burden of proving that there is no existing debt or liability, is to be discharged in the trial.
  3. The legal presumption of the cheque having been issued in the discharge of liability must also receive due weightage.
  4. In a situation where the accused moves Court for quashing even before trial has commenced, the Court’s approach should be careful enough to not to prematurely extinguish the case by disregarding the legal presumption which supports the complaint.

Consequently, the Bench held that when the proceedings are at a nascent stage, scuttling of the criminal process is not merited. Hence, the impugned judgment was upheld as the same was found to be rendered by applying the correct legal principles.

[Rathish Babu Unnikrishnan v. State (NCT of Delhi), 2022 SCC OnLine SC 513, decided on 26-04-2022]


*Judgment by: Justice Hrishikesh Roy


Appearance by:

For the Appellant: Krishnamohan K., Advocate

For the Complainant: K.M. Nataraj, ASG and Rebecca M. John Senior Counsel


Kamini Sharma, Editorial Assistant has put this report together

Business NewsNews

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


Ministry of Corporate Affairs

[Notification dt. 5-5-2022]

Case BriefsHigh Courts

Delhi High Court: Expressing that, the revisional jurisdiction is not meant to test the waters of what might happen in the trial, Chandra Dhari Singh, J., held that at the stage of framing of charge, the judge is merely required to overview the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused.

A revision petition was filed seeking setting aside of the order on charge passed by the Special Judge, CBI Court and for quashing criminal proceedings against the petitioner. As per the impugned order, the petitioner had been charged under Sections 420 and 120-B of the Penal Code, 1860 read with Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988.

Factual Background

It was alleged that, the then DG, Organizing Committee (OC), Commonwealth Games, 2010 and other officers of the OC entered into a criminal conspiracy with the Director of M/s Premier Brands Private Limited (PBPL), with Chairman M/s Compact Disc India Limited and others.

The OC officers scrapped the process of initial Request for Proposal (RFP) on flimsy grounds after receipt of the proposal of PBPL, to extend undue favour to PBPL by appointing the said company as Officer Master Licensee for Merchandising and Online Retail Concessionaire for CWG 2010 against a minimum royalty amount of Rs 7.05 crores.

After earning a huge amount from the CWG band properties, PBPL did not pay anything to the OC and the cheque amounting Rs 3.525 Crores were dishonoured by the Bank on instructions from PBPL, which caused pecuniary advantage to Suresh Kumar Seenghal and PBPL and corresponding to the Government Exchequer.

Analysis, Law and Decision

  • Revisional Jurisdiction and Framing of Charge

In the Supreme Court decision of Asian Resurfacing of Road Agency (P) Ltd. v. CBI, (2018) 16 SCC 299, it was held that an order framing charge can be interfered under the revisional jurisdiction.

Further, Supreme Court recently in Sanjay Kumar Rai v. State of U.P., 2021 SCC OnLine SC 367, reiterated the ruling pronounced in the above Supreme Court decision as well as the original position of law as laid down in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

The issue is well settled and the controversy qua revisional jurisdiction is set to rest with the actual position of law being that the order of framing charge or that discharge is neither interlocutory nor final and hence does not attract the bar of Section 397(2) of the Code.

Hence, High Court is competent to entertain a revision petition against such orders.

  • Framing of Charges & Order on Charge

Bombay High Court’s decision of Samadhan Baburao Khakare v. State of Maharashtra, 1995 SCC OnLine Bom 72, highlighted the objective and importance of a Charge in a criminal trial.

The Court concerned with the framing of charges has to merely see whether the commission of offense can be a possibility from the evidence on record or not.

The charge is merely an indication to the accused about the offense for which he is being tried for.

For the above observation, Court referred to the Supreme Court decision in Esher Singh v. State of A.P., (2004) 11 SCC 585.

Framing of charge is a manifestation of the principle of Fair Trial, by giving sufficient notice along with all particulars to the accused being charged so as to enable him to prepare his defence.

In the Supreme Court decision of State of Rajasthan v. Ashok Kumar Kashyap, 2021 SCC OnLine SC 314, it was held that the at the stage of framing of the charge and/or considering the discharge application, a mini trial is not permissible.

The Court observed that the position of law that emerges is that at the stage of discharge/framing of charge, the Judge is merely required to shift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused.

  • Scope of Revisional Jurisdiction – qua Order of Charge

In the case of State of Rajasthan v. Fatehkaran Mehdu, (2017) 3 SCC 198, the Supreme Court has elucidated on the scope of the interference permissible under Section 397 with regard to the framing of a charge.

Recently, in the case of State of Rajasthan v. Ashok Kumar Kashyap, 2021 SCC OnLine SC 314, the Supreme Court held that the evaluation of evidence on merits is beyond the scope of revisional jurisdiction of the High Courts, at the stage of considering the application for discharge.

Hence, under the provisions of Section 397/401 of Code, the Revisional Court has to only consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court.

  • Section 482 of the Code

High Court has inherent power to act ex debito justitiae – to do that real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the Court.

The Section does not confer any new power, rather it only declares that the High Court possesses inherent powers for the purposes specified in the Section.

Hence, the jurisdiction under Section 482 should be exercised sparingly, with circumspection and in rarest of rare cases.

In the present matter, the petitioner failed to make out a case for exercise of the revisional jurisdiction since there was no patent error in the impugned order.

The beauty of procedural law lies in the stages and remedies available during the course of a criminal proceeding.

Conclusion

High Court held that every effort should be made to eradicate Corruption as at the end of the day, it is society and the downtrodden who bear the pangs of the corrupt acts of a few.

Bench added that if the lower court finds that evidence against an accused is prima facie sufficient for framing of charge, then it has the jurisdiction to proceed with the same concerned accused must face trial.

The revision petition was devoid of merit and hence dismissed. [V.K Verma v. CBI, 2022 SCC OnLine Del 1192, decided on 29-4-2022]


Advocates before the Court:

For the Petitioner:

Mr. Ajit Kumar Sinha, Senior Advocate with Mr. Srijan Sinha, Ms. Parul Dhurvey and Mr. Naveen Soni, Advocates.

For the Respondent:

Mr. Prasanta Varma, SPP

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and BV Nagarathna, JJ has held that merely because a long period has lapsed by the time the appeal is decided cannot be a ground to award the punishment which is disproportionate and inadequate.

Factual Background

The Court was deciding the case where the accused was convicted by the trial Court for the offence under Section 307 IPC for having caused serious injuries on the vital part of the body of the victim/injured and sentenced him to undergo three years’ rigorous imprisonment. In the appeal before the Rajasthan High Court, the accused did not challenge the conviction, but only prayed the Court to reduce the sentence to the period already undergone by him by submitting that occurrence took place on 31.03.1989, i.e., about 26 years ago; that they were facing trial since last 26 years; and when the occurrence took place, they were young and now they are aged persons. The High Court, without any detailed analysis of the facts of the case, nature of injuries caused, weapon used, has simply reduced the sentence to the period already undergone (44 days).

Analysis and Ruling

The Court condoned the delay of 1880 days in preferring the appeal and observed that,

“Merely on the technical ground of delay and merely on the ground that after the impugned judgment and order, which is unsustainable, the accused have resettled in their lives and their conduct has since been satisfactory and they have not indulged in any criminal activity, is no ground not to condone the delay and not to consider the appeal on merits.”

The Supreme Court noticed that, in the present case, the accused could have been sentenced to undergo life imprisonment and/or at least up to ten years, however, the trial Court sentenced the accused to undergo three years rigorous imprisonment. Therefore, as such, the trial Court had already taken a very lenient view while imposing the sentence of only three years’ rigorous imprisonment. Therefore, the High Court ought not to have interfered with the same.

Noticing that the High Court has not at all adverted to the relevant factors which were required to be while imposing appropriate/suitable punishment/sentence, the Court held that the High Court had dealt with and disposed of the appeal in a most cavalier manner. The High Court has disposed of the appeal by adopting shortcuts. The manner in which the High Court has dealt with and disposed of the appeal is highly deprecated.

The Court, further made observation on the manner in which many High Courts are disposing off criminal appeals and said,

“We have come across a number of judgments of different High Courts and it is found that in many cases the criminal appeals are disposed of in a cursory manner and by adopting truncated methods. In some cases, the convictions under Section 302 IPC are converted to Section 304 Part I or Section 304 Part II IPC without assigning any adequate reasons and solely recording submissions on behalf of the accused that their conviction may be altered to Section 304 Part I or 304 Part II IPC. … We deprecate such practice of disposing of criminal appeals by adopting shortcuts.”

Therefore, the impugned judgment and order passed by the High Court reducing the sentence to the period already undergone (44 days) from three years rigorous imprisonment imposed by the trial Court was held to be absolutely unsustainable and was hence, quashed and set aside

“The judgment and order passed by the High Court reducing the sentence is nothing but an instance of travesty of justice and against all the principles of law laid down by this Court in a catena of decisions on imposing appropriate punishment/suitable punishment.”

Restoring the judgment of the Trial Court, the Court directed the accused to surrender before the appropriate jail authority/concerned Court, within a period of four weeks from the date of the judgment, to undergo the remaining sentence.

[State of Rajasthan v. Banwari Lal, 2022 SCC OnLine SC 428, decided on 08.04.2022]


*Judgment by: Justice MR Shah


For accused: Advocate Abhishek Gupta

Case BriefsSupreme Court

Supreme Court: In a case where it was argued before the bench of Dr. DY Chandrachud* and Surya Kant, JJ that in case the trial is conducted by the ordinary criminal court and not a court-martial under the Army Act, the accused would not be able to avail the benefit of being awarded a lower punishment under the Army Act, 1950, the Court has held,

“If that was the intent of the legislature – that is to protect persons subject to the Army Act by awarding them lesser punishment even for serious offences – then the Act would not have provided for concurrent jurisdiction of court-martial and ordinary criminal courts at all. Although the Army Act is special law compared to the IPC, if the statute in its text does not make any qualifications or exceptions to the general law, it would be impermissible for the court to read such qualifications in the Act.”

Section 69 of the Army Act

Subject to the provisions of section 70, any person subject to this Act who at any place in or beyond India, commits any civil offence, shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be 39 liable to be tried by a court-martial and, on conviction, be punishable as follows, that is to say,

(a) if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and

(b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.

Jurisdiction of Criminal Court versus Court Martial

Section 69 does not ipso jure oust the jurisdiction of the ordinary criminal court. Where there exists concurrent jurisdiction in the court-martial and in the ordinary criminal court, primarily the discretion of conducting the court-martial in preference to a trial by the ordinary criminal court is entrusted to the designated officer under Section 125. The designated officer has been conferred with the discretion “to decide before which court the proceedings shall be instituted”. Moreover, Section 125 has a conjunctive requirement which is amplified by the expression “and, if that officer decides that they should be instituted before a court-martial”. Thus, the conjunctive requirement under Section 125 is that the competent officer has the discretion to decide before which court the proceedings shall be instituted and if the officer exercises that discretion to institute proceedings before a court-martial, then the officer will direct that the accused be detained in military custody. Section 125, in other words, not only recognizes that an element of discretion has been vested in the designated officer, but it also postulates that the designated officer should have decided that the proceedings be instituted by the court-martial in which event the court-martial would take place.

Is a person tried and convicted by a Court Martial at an advantageous position than a person tried and convicted by a Criminal Court owing to the lower punishment under the Army Act?

Sub-section (a) of Section 69 states if a person is convicted of a ‘civil offence’ which is punishable with death or transportation under the law in force, then he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the aforesaid law and such less punishment as is in this Act mentioned. In contrast with sub-Section (a), sub-Section (b) provides that in all other offences, the person convicted shall be liable to suffer the punishment assigned under the laws in force or imprisonment for a term which may extend to seven years, or such less punishment as provided in the Act.

The words of the statute clearly indicate that the legislature provided different punishments for serious offences which under law are punishable with death or life imprisonment, and for all other offences. In case of the former, sub-Section (a) of Section 69 provides that the court-martial may convict him and punish him with death or life imprisonment. In addition to this, the court-martial may also give a lesser punishment under the Army Act (such as cashiering, dismissal from service, etc., provided under Section 71). The use of the word “and” in sub-Section (a) clarifies the intent of the legislature, which is to ensure that the Army authorities have sufficient discretion to grant a punishment for serious offences, over and beyond what is permissible under Penal Code. This however, does not imply that a person who is otherwise liable for death or life imprisonment can be granted a lesser punishment under the Army Act.

In contrast, sub-Section (b) of Section 69 uses the term “or” to indicate that for offences that under the Penal Code or any other law are of less severity, the Army authorities may order a lesser punishment.

If the argument that in case the trial is conducted by the ordinary criminal court and not a court-martial under the Army Act, the accused would not be able to avail the benefit of being awarded a lower punishment under the Army Act, is accepted, it would imply that a person who is convicted and punished by a Court-martial under the Army Act will be in an advantageous position than a person who, though subject to the Army Act, has been convicted by an ordinary criminal court.

[State of Sikkim v. Jasbir Singh, 2022 SCC OnLine SC 128, decided on 01.02.2022[


*Judgment by: Justice Dr. DY Chandrachud


Counsels

For State: Vivek Kohli, Advocate General and Aman Lekhi, Additional Solicitor General

For Accused: Senior Advocate Pradeep Kumar Dey

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Sheel Nagu and Sunita Yadav, JJ. while hearing a petition under Article 227 against order the Central Administrative Tribunal, Jabalpur Bench., dismissed the petition.

The petition was moved to CAT against the order cancelling candidature of the petitioner to the post of Chemical Processor Worker (Semi-skilled) in Ordnance Factory, Itarsi on grounds of petitioner not being acquitted honourable/clean for offences punishable under Sections 376, 384, 509 of IPC read with Section 4 of POCSO Act.

Counsel for the petitioner pointed out the Trial Court’s finding that the genesis of the incident, the complaint was made by prosecutrix to save her from disrepute and urged the Court to treat the acquittal clean and honourable.

The Court reiterated the well-settled principle that unless the acquittal in criminal trial is honourable and clean, the employer has enough discretion to find a candidate to be unfit for employment, subject to various other factors like sensitivity, and since the employment would be under the Ministry of Defence, the element of sovereignty of the nation comes into being. The Court also said that the reliance put forward by the petitioner has no avail in the present case and hence the petition was dismissed.[Vinod Kumar v. Union of India (Ministry of Defence), Misc. Petition No. 503 of 2022 decided on 08-02-2022]


Appearances by:

For Petitioner: Sri Vijay Kumar Tripathi, Advocate.

For Respondents: Sri J.K. Jain, Asstt. Solicitor General.

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 BriefsSupreme Court

Supreme Court: In a case where, on apprehending the accused, while making search of the motor cycle, 900 gm of smack was seized, the bench of Indira Mukherjee and JK Maheshwari, JJ had gone through a number of decisions on the f Narcotic Drugs and Psychotropic Substance Act and has reiterated certain principles relating to the degree of proof in such cases.

  • When the seizure of the vehicle is proved beyond reasonable doubt, the question of ownership of vehicle is not relevant. [1]
  • When the seizure of material is proved on record and is not even disputed, the entire contraband material need not be placed on record.[2] if seizure is otherwise proved and the samples taken from and out of contraband material were kept intact; the report of forensic expert shows potency, nature and quality of contraband material, essential ingredients constituting offence are made out and the non­production of contraband in the Court is not fatal.[3]
  • Merely because independent witnesses were not examined, the conclusion could not be drawn that accused was falsely implicated.[4]

In the present case, the appellant was unable to show any deficiency in following the procedure or perversity to the findings recorded by the Trial Court, affirmed by the High Court. Hence, looking to the facts of the present case, it was held that the findings concurrently recorded by the Courts holding the accused guilty for the charges and to direct him to undergo sentence as prescribed, did not suffer from any perversity, illegality, warranting interference by the Supreme Court.

[Kallu Khan v. State of Rajasthan, 2021 SCC OnLine SC 1223, decided on 11.12.2021]


Counsel

For appellant: Senior Advocate C.N. Srieekumar


*Judgement by: Justice JK Maheshwari


[1] Rizwan Khan v. State of Chhattisgarh (2020) 9 SCC 627

[2] State of Rajasthan v. Sahi Ram (2019) 10 SCC 649

[3] Than Kumar v. State of Haryana (2020) 5 SCC 260

[4] Surinder Kumar v. State of Punjab (2020) 2 SCC 563

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Prakash Shrivastava, CJ and Rajarshi Bharadwaj, J., awarded compensation to a person who was remained in detention for almost 41 years without conclusion of the trial.

Instant suo motu petition was registered by this Court taking note of the factual situation that one person of Nepali origin was arrested and had remained in detention for almost 41 years without conclusion of trial, awaiting the report of appropriate authority as regards his mental status because apparently an issue was raised as to whether the said person was fit to withstand trial on a charge of having committed an offence.

With this Court’s intervention, the above-stated person was released and handed over to his relatives. But the fact remains that the said person was in detention without trial for almost 41 years.

In view of the above background, the issue of awarding compensation to the said person arose.

High Court directed respondent/State to pay a sum of Rs 5 lakhs by transferring the amount in the account of the said person by following due process of law.

Matter to be listed on 17-2-2022. [UTP Dipak Joshi, lodged in Dum Dum Central Correctional Home, In Re., 2021 SCC OnLine Cal 3020, decided on 7-12-2021]


Advocates before the Court:

Mr. Jayanta Narayan Chatterjee, Ms. Jayashree Patra

..for the SLSA.

Mr. Anirban Ray, Mr. Debasish Ghosh

..for the State.

Mr. Saikat Banerjee,

Ms. Juin Dutta Chakraborty, Mr. U.K. Roy

..for High Court Administration.

Case BriefsHigh Courts

Bombay High Court at Goa: A Division Bench of Revati Mohite Dere and M.S. Jawalkar, JJ. rejected Tarun Tejpal’s plea to conduct “in camera” proceedings in connection with the appeal filed against his acquittal in a rape case. The High Court held that:

“Section 327(2) CrPC would only be applicable to ‘inquiry’ or ‘trial’ and that the same will not apply to appeals, either appeal against conviction or an application seeking leave to file appeal against acquittal.”  

Backdrop

The applicant Tarun Tejpal, former Editor-in-Chief of Tahelka magazine, was accused of committing rape on a journalist working with Tahelka. After a trial which went on for 7 years 2 months and 25 days, the Additional Sessions Judge, Mapusa, acquitted him. The Sessions Court gave him benefit of doubt, noting major lapses in investigation and major contradictions/improvements in testimony of the prosecutrix. The incident was of 2013 which allegedly happened during the annual THiNK Fest of Tehelka organised in Goa.

Aggrieved by the judgment and order of acquittal passed by the Sessions Court, the State of Goa filed an application before the Bombay High Court seeking leave to appeal. The High Court issued notice to Tarun Tejpal, who subsequently filed the instant criminal miscellaneous application seeking a direction that all the proceedings connected with the special leave to appeal be conducted “in camera” as per Section 327 CrPC.

Question

The short question for consideration before the High Court was: Whether Section 327 CrPC applies to the proceedings before the appellate court?

Law, Analysis and Decision

At the outset, the High Court referred to Section 327 CrPC (Court to be open) and noted that the words use in sub-section (1) thereof are “inquiring into or trying any offence“. Sub-section (1) of Section 327 states that the place in which any criminal court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open court. However, sub-section (2) makes an exception to the principle of open court. It says that the inquiry into and trial of rape or an offence under Sections 376, 376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB or Section 376-E IPC shall be conducted “in camera”.

Relying on Sakshi v. Union of India, (2004) 5 SCC 518 and Nipun Saxena v. Union of India, (2019) 2 SCC 703, the High Court observed:

“The object of Section 327(2) is to ensure that the inquiry/trial before the Court being to elicit the truth, it is absolutely necessary that the victim or the witnesses are able to depose about the entire incident in a free atmosphere without any embarrassment. Considering the nature of evidence that is required to be led in such cases, i.e. giving details of the acts committed including intimate details, it is imperative that the atmosphere is conducive for the victim to depose the same, far from the watchful eyes/gaze of the public, ruling out any discomfort whilst deposing. It is in keeping in mind the dignity and self-respect of the victim. The legislative intent is also to infuse confidence in the victim whilst deposing, which ultimately will have an impact on the quality of her evidence, which would ultimately assist the Courts in arriving at the truth and sifting truth from falsehood.”

Coming to the substantive issue, the Court emphatically negatived the contention that the term “inquiry” would apply to the instant proceedings. Referring to the term “inquiry” as defined in Section 2(g) CrPC, the High Court held that instant proceedings cannot be an inquiry by any stretch of imagination. In equally emphatic terms, the Court held that the instant proceedings were not a trial, i.e. continuation of proceedings, for the purpose of extending the benefit of sub-section (2) of Section 327 CrPC.

Discussing the terms “inquiry” and “trial”, the Court observed:

“There is a difference between an ‘inquiry’ and a ‘trial’. In criminal matters, inquiry is something different from a trial. Inquiry stops when trial begins, so all those proceedings before a Magistrate before framing the charge which do not result in conviction or acquittal can be termed as inquiry. Trial presupposes the idea of an offence but inquiry relates to offences and matters which are not offences viz., security proceedings and other inquiries relating to dispute about possession of immovable property, etc. Inquiry is the second stage of a criminal proceeding and is always to be conducted by a Magistrate and not by a police officer. Inquiry relates to proceedings prior to trial. The term ‘trial’ as used in the Code pre-supposes the commission of an offence but an inquiry may cover inquiries into matters other than offences. The word ‘trial’ is not defined in the Code but the definition of ‘inquiry’ impliedly defines ‘trial’ as every proceeding which is not an inquiry.”

Having regard to the above discussion, the High Court held that Section 327(2) CrPC will only apply to “inquiry” or “trial” and that the same will not apply to appeals, either appeal against conviction or an application seeking leave to file appeal against acquittal.

Next, the applicant had contended that having regard to Section 6 CrPC (Classes of Criminal Courts), Section 327 will also apply to proceedings before the High Court as it is also a “Criminal Court”. However, the Court found no merit in this submission. It was observed that the High Court is not created by the Code. Under the Constitution, it has powers of superintendence over all courts and tribunals situated within its territorial jurisdiction.

Lastly, the applicant contended that Article 21 will have to be read in Section 327(2) CrPC, inasmuch as the applicant’s right to privacy and reputation is infringed if “in camera” hearing is not afforded to the applicant in the instant proceedings. The High Court found itself unable to accede to this submission as well. The Court said that the applicant’s apprehension that his right to defend is taken away if he is not permitted to freely argue his case for fear of publication, was not justified. The Court observed:

“In proceedings such as these, i.e. rape cases in general, it is expected that all parties conduct themselves with dignity, sobriety and some sensitivity that is required, particularly, whilst reading evidence pertaining to intimate details. This, we think is not too much to expect from the Advocates appearing for the respective parties. Maintaining decorum in the courtroom is not merely a superficial means of protecting the image of lawyers and judges – but it is absolutely essential to the administration of justice.”

In such view of the matter, the High Court found the instant application was devoid of merits, and therefore it was rejected. [Tarunjit Tejpal v. State of Goa, 2021 SCC OnLine Bom 5465, decided on 24-11-2021]


Destruction of crucial evidence, calculated narrative, conduct not natural of rape victim, et al.: 22-pointer comprehensive analysis of the 527-pages judgment of Sessions Court acquitting rape-accused Tarun Tejpal  

Case BriefsSupreme Court

Supreme Court: In an important ruling, the 3-judge bench of Dr. DY Chandrachud, Vikram Nath and BV Nagarathna, JJ has held that though the Special Court does not have, in the absence of a specific provision to that effect, the power to take cognizance of an offence under the Mines and Mineral (Development and Regulation) Act 1957 (MMDR Act) without the case being committed to it by the Magistrate under Section 209 CrPC; even if the order taking cognizance is irregular, it would not vitiate the proceedings in view of Section 465 CrPC. This was held keeping in mind the objective of Section 465 CrPC, which is to prevent the delay in the commencement and completion of trial.

FACTUAL BACKGROUND

Persistent complaints were made against the appellants for being involved in large-scale illegal mining and transportation of iron ore, and illegal encroachment in forest areas for the purpose of illegal mining. The iron ore is alleged to have been stocked in an unauthorized stockyard without bulk permits from the department of Mines and Geology and to have been transported without an authorized forest way pass. Acting in conspiracy, the accused are alleged to have caused a loss of Rs.3,27,83,379/- to the state exchequer.

They were, hence, charged with offences punishable under the provisions of Sections 409 and 420 read with Section 120B IPC, Sections 21 and 23 read with Sections 4(1) and 4(1)(A) of the Mines and Mineral (Development and Regulation) Act 19571 and Rule 165 read with Rule 144 of the Karnataka Forest Rules 1969.

After the Additional City Civil Sessions Judge and Special Judge for Prevention of Corruption Act at Bengaluru City took cognizance after perusing the final report, it was contended that:

  • the Special Judge did not the power to take cognizance of offences under the MMDR Act without a complaint by the authorized officer in view of Section 22 of the MMDR Act.
  • the order did not mention the offences for which cognizance was taken, thereby, reflecting non-application of mind.

ANALYSIS

Special Court’s power to take cognizance

The general principle which is embodied in Section 465 CrPC is that a finding or order is not reversible due to irregularities unless a ‗failure of justice‘ is proved. Subsection (2) of Section 465 provides that while determining whether there has been a failure of justice, the appellate Court shall have regard to whether the objection regarding the irregularity could and should have been raised at an earlier stage in the proceeding.

“The cardinal principle that guides Section 465(2) CrPC is that the challenge to an irregular order must be urged at the earliest.”

Further, the test established for determining if there has been a failure of justice for the purpose of Section 465 is whether the irregularity has caused prejudice to the accused. No straitjacket formula can be applied. However, while determining if there was a failure of justice, the Courts could decide with reference to inter alia the stage of challenge, the seriousness of the offence charged, and apparent intention to prolong proceedings. It must be determined if the failure of justice would override the concern of delay in the conclusion of the proceedings and the objective of the provision to curb the menace of frivolous litigation.

In the instant case, the cognizance order was challenged by the appellant two years after cognizance was taken. No reason was given to explain the inordinate delay. Hence, it was held that no failure of justice has been demonstrated in the case at hand.

Authorised person‟ and Section 22 of MMDR Act

Section 22 of the MMDR Act stipulates that no Court shall take cognizance of any offence punishable under this Act or Rules, except upon a complaint made in writing by a person authorised on that behalf by the Central or the State Government. It has been contended by the appellant that before the Special Court (Sessions Court) took cognizance of the offence, no complaint was filed by the authorised person.

A combined reading of the notifications dated 29 May 2014 and 21 January 2014 indicate that the Sub-Inspector of Lokayukta is an authorized person for the purpose of Section 22 of the MMDR Act. The FIR that was filed to overcome the bar under Section 22 has been signed by the Sub-Inspector of Lokayukta Police and the information was given by the SIT. Therefore, the respondent hads complied with Section 22 CrPC.

Application of mind by the Special Judge

The Special Judge, it must be noted, took cognizance on the basis of a report submitted under Section 173 CrPC and not on the basis of a private complaint. The Special Judge took note of the FIR, the witness statements, and connected documents before taking cognizance of the offence. In this backdrop, it would be far-fetched to fault the order of the Special Judge on the ground that it does not adduce detailed reasons for taking cognizance or that it does not indicate that an application of mind. In the facts of this case, therefore, the order taking cognizance is not erroneous.

Cognizance against the offence and not the offender

The Special Judge by an order dated 30 December 2015 referred to all the relevant material before him, including the FIR and witness statements, before taking cognizance. However, the cognizance order mentioned that cognizance was taken against the “accused” instead of the offence.

The Court, however, held that this would not vitiate the entire proceedings, particularly where material information on the commission of the offence had been brought to the notice of and had been perused by the Special Judge.

“Moreover, bearing in mind the objective behind prescribing that cognizance has to be taken of the offence and not the offender, a mere change in the form of the cognizance order would not alter the effect of the order for any injustice to be meted out.”

[Pradeep S. Wodeyar v. State of Karnataka, 2021 SCC OnLine SC 1140, decided on 29.11.2021]


Counsels

For appellants: Senior Advocates Siddharth Dave and Pravin H Parekh

For State: Advocate Nikhil Goel


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: In a case where two accused absconded and hence, the trial was split and three accused came to be tried for dacoity under Section 391 IPC, the bench of Dr. DY Chandrachud and MR Shah*, JJ has held that merely because some of the accused absconded and less than five persons came to be tried in the trial, it cannot be said that the offence under Section 391 IPC punishable under Section 395 IPC is not made out.

In the case at hand in the FIR there was a reference to five persons involved in committing the crime. Even the charge-sheet was filed against five persons. However, as two accused absconded, the trial was split and three accused came to be tried. One accused Benny came to be tried subsequently and one person is still absconding. Even there are concurrent findings recorded by all the courts below that five persons were involved in committing the offence of robbery

It was, however, argued that since only three accused were tried and subsequently one another accused Benny came to be tried, the condition precedent for bringing the case under Section 391 IPC (Dacoity) has not been satisfied as the involvement of five or more persons in commission of the offence has not been established and proved and only four accused were tried.

Rejecting the aforementioned submission, the Court noted that as such all the accused were charged by the trial Court for the offences under Section 395 IPC as well as 397 IPC. With the aforesaid offences parties went for trial.

“Therefore, once a case under Section 391 IPC punishable under Section 395 IPC is made out, they can be convicted for the offence under Section 391 IPC punishable under Section 395 IPC as no prejudice shall be caused to the accused.”

The Court, further, stated that what is required to be considered is the involvement and commission of the offence of robbery by five persons or more and not whether five or more persons were tried.

“Once it is found on evidence that five or more persons conjointly committed the offence of robbery or attempted to commit the robbery a case would fall under Section 391 IPC and would fall within the definition of ‘dacoity’.”

Therefore, in the facts and circumstances, it was held that the accused can be convicted for the offence under Section 391 IPC punishable under Section 395 IPC.

[Ganesan v. State, 2021 SCC OnLine SC 1023, decided on 29.10.2021]


Counsels

For State: Senior Advocate Dr. Joseph Aristotle S


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud*, Vikram Nath and BV Nagarathna, JJ has lucidly laid down the principles governing the power of the Courts to direct re-trial, Joint Trial and Separate trial and has held retrial and joint trial can be ordered only in exceptional circumstances.

Principles governing Retrial

  1. The Appellate Court may direct a retrial only in ‘exceptional’ circumstances to avert a miscarriage of justice;
  2. Mere lapses in the investigation are not sufficient to warrant a direction for retrial. Only if the lapses are so grave so as to prejudice the rights of the parties, can a retrial be directed;
  3. A determination of whether a ‘shoddy’ investigation/trial has prejudiced the party, must be based on the facts of each case pursuant to a thorough reading of the evidence;
  4. It is not sufficient if the accused/ prosecution makes a facial argument that there has been a miscarriage of justice warranting a retrial. It is incumbent on the Appellant Court directing a retrial to provide a reasoned order on the nature of the miscarriage of justice caused with reference to the evidence and investigatory process;
  5. If a matter is directed for re-trial, the evidence and record of the previous trial is completely wiped out; and

The following are some instances, not intended to be exhaustive, of when the Court could order a retrial on the ground of miscarriage of justice :

a) The trial court has proceeded with the trial in the absence of jurisdiction;

b) The trial has been vitiated by an illegality or irregularity based on a misconception of the nature of the proceedings; and

c) The prosecutor has been disabled or prevented from adducing evidence as regards the nature of the charge, resulting in the trial being rendered a farce, sham or charade.

Ukha Kolhe v. State of Maharashtra, (1964) 1 SCR 926 [Constitution Bench]

“An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of re-trial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons. [..]”

Principles governing joint trial and separate trials

State of Andhra Pradesh v. Cheemalapati Ganeswara Rao, AIR 1963 SC 1850

“… a separate trial is the rule and a joint trial is the exception. However, in case the accused persons commit different offences forming a part of the same transaction, a joint trial would be the rule unless it is proved that joint trial would cause difficulty”

  1. Section 218 provides that separate trials shall be conducted for distinct offences alleged to be committed by a person. Sections 219 – 221 CrPC provide exceptions to this general rule. If a person falls under these exceptions, then a joint trial for the offences which a person is charged with may be conducted. Similarly, under Section 223 CrPC, a joint trial may be held for persons charged with different offences if any of the clauses in the provision are separately or on a combination satisfied;
  2. While applying the principles enunciated in Sections 218 – 223 CrPC on conducting joint and separate trials, the trial court should apply a two-pronged test, namely, (i) whether conducting a joint/separate trial will prejudice the defence of the accused; and/or (ii) whether conducting a joint/separate trial would cause judicial delay.
  3. The possibility of conducting a joint trial will have to be determined at the beginning of the trial and not after the trial based on the result of the trial. The Appellate Court may determine the validity of the argument that there ought to have been a separate/joint trial only based on whether the trial had prejudiced the right of accused or the prosecutrix;
  4. Since the provisions which engraft an exception use the phrase ‘may’ with reference to conducting a joint trial, a separate trial is usually not contrary to law even if a joint trial could be conducted, unless proven to cause a miscarriage of justice; and
  5. A conviction or acquittal of the accused cannot be set aside on the mere ground that there was a possibility of a joint or a separate trial. To set aside the order of conviction or acquittal, it must be proved that the rights of the parties were prejudiced because of the joint or separate trial, as the case may be.

[Nasib Singh v. State of Punjab,  2021 SCC OnLine SC 924, decided on 08.10.2021]

_____________________________________________________________________________________________

Counsels:

Amicus curiae: Senior Advocate D Bharat Kumar

For appellant: Advocate Vipin Gogia

For State of Punjab: Advocate Uttara Babbar

For other accused: Advocates Nishesh Sharma, Narender Kumar Verma


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: K.Haripal, J., granted bail to the accused involved in post poll murder case of a Muslim League member. The Bench opined,

“No doubt, the allegations against the accused are very grave. Still, so long as the final report is laid, it is not in the interest of justice, unless overwhelming reasons are made out, to keep the suspects in custody.”

 The instant case dealt with post poll murder that was a culmination of political rivalry between the activists of the Communist Party of India (CPI (M)) and rival political group i.e., Indian Union Muslim League. It had come out that there were some clashes between the two groups, later, while the deceased was moving on his motor cycle on the eve of the last Assembly elections, a gang of persons, including the petitioners intercepted and attacked him with dangerous weapons; and country made bombs were also hurled at him. The petitioners were implicated for causing death of one member of the Muslim League and severely injuring one other member (brother of the deceased).

The Petitioners who were 10 in number were booked under Sections 143, 147, 148, 302, 341, 323, 324, 326, 307 read with 149 of the Penal Code, 1860 and also under Sections 3 and 5 of the Explosive Substances Act and Sections 25(1)(B)(b) and 27(1) of the Arms Act. Noticeably, one of the accused had committed suicide, another absconded and the rest had approached the Court for seeking their release on bail.

Noticing that the total number of sessions cases pending in the Thakassery division was 5498, in which number of murder cases where custodial trial was intended was 8, the Bench opined that the Sessions Courts in that division were very heavy as Thalassery was a hub of political rivalry and clashes. Hence, considering that huge number of sessions cases were pending in the courts, the Bench opined,

“In the circumstances, it is unlikely that the trial of the case will be able to be taken up in the near future. That would result in protraction of trial and indefinite detention of the petitioners in custody. Such a pre-trial detention is not expedient nor in public interest.”

 Moreover, considering the guidelines issued by the Supreme Court for easing the crowd in prisons during to Covid pandemic, the Bench favoured the bail application of the petitioners. Rejecting the apprehensions of the prosecution that if released the accused may influence prosecution witnesses, the Bench stated that since all the material witnesses were members or sympathisers of the Indian Union Muslim League, rival political fraction of the accused, normally, such witnesses were not susceptible to any kind of influence, that might be exerted by the accused in the event of their release on bail.

Accordingly, the Bench held that the accused can be detained in custody indefinitely only if very strong circumstances are made out. The bail application was allowed. [Shinos.K.K v. State of Kerala, 2021 SCC OnLine Ker 3449, decided on 13-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For The Accused: Sr. Advocate P.Vijaya Bhanu, Advocate K.Viswan, Advocate M.Revikrishnan, Advocate D.Arun Bose

For The State Of Kerala: Senior Public Prosecutor Sreeja V. and Senior Public Prosecutor Renjith T.R.

For Respondent: Advocate C.K.Sreedharan and Advocate Sunny Mathew

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: Ajit Borthakur, J., granted bail to an IIT student accused of raping his junior. The Bench stated,

“Both the informant/victim girl and the accused were the state’s future assets being talented students pursuing technical courses at the I.I.T., Guwahati, who were young in the age group of 19 to 21 years only, the continuation of detention of the accused was not necessary.”

The instant petition was filed by the accused, namely Utsav Kadam praying for grant of bail in connection with a rape case pending before the Addl. Sessions Judge. The accused was a youngster aged about 21 years and was a student of B. Tech Pre-final year of Indian Institute of Technology (‘I.I.T.’), Guwahati in chemical engineering.

The case against the accused was that on 28-03-2021 at around 9 p.m., the accused lured the informant/victim female student of the same educational institution to Aksara School premises, in the pretext of discussing about her responsibility as the Joint Secretary of the Finance and Economic Club of the students of the I.I.T., Guwahati and after making her unconscious, by forcibly administering alcohol raped her. The victim regained her consciousness at around 5 a.m., the next morning at Guwahati Medical College and Hospital, where she underwent treatment and forensic examination etc.

The petitioner contended that he had been in judicial custody for about 120 days in connection with the case, which was entirely based on assumption of commission of the offence of rape without any credible evidence. Therefore, it was urged by the petitioner that as the investigation had already been completed and as there was no chance of him jumping the course of justice in any manner, being a student of I.I.T., Guwahati, further continuation of his detention for the purpose of trial may not be warranted and that would amount to causing further damage to his brilliant academic pursuit.

While strongly opposing the bail application, Mr D. Das, counsel for the State contended that allegations made in detail by the victim girl, who was a student of 2nd year B. Tech Chemical Engineering of I.I.T., Guwahati, prima facie established a clear case in favour of the victim girl. Therefore, if liberty of bail was granted to the accused, the trial of the case was certain to be hampered, which may occasion gross injustice to the victim.

On hearing both sides and after considering relevant documents, i.e. FIR, medical report,  statements under Sections 161 and 164 Criminal Procedure Code, 1973, the contents of the charge-sheet and the Fact-Finding Committee Report etc., the Bench opined that there was a  prima facie case as alleged against the accused petitioner. However, as the investigation in the case was completed and both the informant/victim girl and the accused were the state’s future assets being talented students pursuing technical courses at the I.I.T., Guwahati, who were young in the age group of 19 to 21 years only the Bench was of the view that continuation of detention of the accused was not necessary.

Also, the Court stated that there was no possibility of the accused tampering with their evidence or influencing them directly or indirectly, if released on bail. Hence, the accused was directed to be released on bail of Rs. 30,000 with two sureties of the like amount.[Utsav Kadam v. State of Assam, Bail Appln. No. 1623 of 2021, decided on 13-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Advocate for the Petitioner: Mr. K N Choudhury

Advocate for the Respondent: PP, Assam

Op EdsOP. ED.

If I were “death” I would be inevitable but I am not death and I fight death every day. How do I do that? Well, I go out on the road and escape moronic drivers running over people, at home I hope to survive falling roofs, accidental fires, etc. Adding to other factors, if I am not a male foetus I hope I am able to beat death even before I am born. I try and survive thoughts of self-harm and suicide. So, I survive death every day in a million ways. Interestingly, the Government wants me to live too even though it may seem like they do not care. The laws and the Constitution very categorically promote living happily, so much so that an attempt to suicide is punishable with imprisonment. One can say they are granting the death wish sending him/her to jail. Peter Cook said “One should realise suicide is a criminal offense, in less enlightened times they would have hung you for it.”  While we are talking about life, we are focused on human life here, though animals have rights too they cannot sue the offending party. So, they do not get to fight death the way humans do.

Life, a precious gift

In Hinduism life and death are the gift of God and no human being has the right to take away the said gift; in Islam, human dignity stems from the belief that man is a creation of God – the creation that God loves more than any other. There is no debate that life is the most precious thing that the human world can possess.

It is ironic that once one enters the world, one loses control over one’s life, the Government takes over in the name of the God of course. No one reserves the right to end any life even one’s own, the right reserves with God and the almighty State. Governments yield powers which even God does not presume, therefore, they have taken up the responsibility of doing God’s work and enabled themselves to end lives under the procedure established by law. Arnaud Almaric said “ask no questions. Just shoot them all, and let God sort them out”. Well, it is a little more complicated than that, at least for now. Our Constitution provides for the “Rule of Law” and protection of life and personal liberty.

Going to primitive times, the trials were bizarre. Guilty or innocent, history is replete with trials that ensured the death of the undertrial. The times have evolved and so did the trials and the sentencing. The death penalties were frequent in the early 18th and 19th centuries. However, over the period death penalties have not been the norm. The courts have relied on the facts that life and death are acts of the divine and the divine’s authority has been delegated to the courts of law to be only exercised in exceptional circumstances with utmost caution. Therefore, the first and foremost effort of the courts should be to continue the life till its natural end. This delegated authority should be exercised cautiously under extreme judicial checks. The Code of Criminal Procedure, 1973 makes it mandatory that “when the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court”1. The High Court is duty-bound to ensure that only after concluding that no other punishment but for death will serve the ends of justice the death penalty shall be confirmed. This shows the seriousness and thoughtfulness that our legal system puts into a decision of death. Status quo ante in terms of life cannot be obtained, therefore, it is only fair that no such decisions are taken in haste.

Reformative, not retributive

It is never the endeavour of the State or the courts to take away life. The endeavour is to achieve an orderly society while protecting the rights and liberties of the citizens. The objective of the State, through laws and penalties, is to achieve deterrence, prevention, reformation and rehabilitation. Our penal system is reformative and not retributive. Wherever there seems a possibility of reformation, the courts may be inclined to not punish with a death sentence. We have witnessed some extremely gruesome crimes. Some were punished with death sentences, while a lot of them were given life sentences while a few may have walked out of jail with some punishment. Regardless of their outcomes the nation unanimously prayed for a death sentence in a number of these cases. But the judicious minds may not have concurred with the minds of ordinary citizens. After all, they deliver justice and not revenge. Francis Bacon2 said “revenge to be a kind of wild justice that offends the law and putteth the law out of office”. Many philosophers and jurists oppose capital punishment as they find death sentences to include an instinct of revenge which is barbarous. Capital punishment in modern jurisprudence will always be a matter of debate. Reformation and rehabilitation of a criminal is the primary object of punishment. The imposition of the death penalty nullifies that purpose. Retribution in the sense of vengeance is no longer an acceptable end of punishment. It is for these reasons noted jurists even opposed the hanging of those convicted in the infamous Nirbhaya case.3  Having said that, a Constitutional Bench of the Supreme Court4 had unanimously upheld the validity of capital punishment by reserving the death penalty. Law helps the element of retribution merge into the element of deterrence based on the philosophy of “gravest crime deserves the gravest punishment”. The Supreme Court held that a real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. Therefore, that ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.5

Rarest of rare doctrine

Sentencing follows conviction, sentence is proportional to the degree of the crime. However, there is no straitjacket formula that can be applied in awarding punishment. Everything boils to the facts and circumstances of the case. Taking an example of Section 3026 of the Penal Code which states that “whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine”, shows that not all murders deserve a death sentence. Ordinarily, courts find life imprisonment to be sufficient, but the discretion lies with the judicial minds. The cases in which a death sentence can be given are a few with a peculiar set of facts being grave and gruesome thereby falling in the category of the rarest of rare crimes. The legislature in Section 354(3)7 mandates that in case of a death sentence the court must record special reasons which show that the sentence of life imprisonment shall not be a sufficient punishment.

Rarest of rare is an expression to convey the horrific and dastardly nature of the act. The actions which shake the conscience of human existence, which affect the very existence of our humanistic values. It is more to do with the perpetrator than the offense itself, when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society. The perpetrators of such acts cannot be considered to be capable of being reformed and pose a threat to society at large. Though debatable and unproven, a death sentence is considered a deterring force in the prevention of crime. The rationale given by the courts is that when a crime shocks the collective conscience of the community, sympathy in any form would be misplaced. It would shake the confidence of the public in the administration of the criminal justice system irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty.8 However, should a court take into account the desires of the community, because the community does not always look for legally valid solution and maybe blinded by hate and emotions.

Determining rarest of rare

The Supreme Court, over some time, has put several cases in the rarest of rare category. But, the power to judge a case to be in that category is discretionary. There are parameters to hold it, but those parameters are subjective. The Supreme Court stated that a court may look into aggravating and mitigating circumstances while imposing the death penalty in its discretionary power. The Supreme Court stated that a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.9 This discretion may be arbitrary, while discretion and equity are the rightful prerogative of courts but in the matter of death, any discretion could lead to arbitrariness. What if something was considered rarest of rare a decade ago but has become not so rare owing to the decadent society. Would it be fair to let a man off a death sentence when someone had been hanged a few years ago with a unanimous verdict?

One of the observations in the infamous Nirbhaya case by the Supreme Court was where the victims are helpless women, children or old persons and the accused displayed depraved mentality, committing a crime in a diabolic manner, the accused should be shown no remorse and the death penalty should be awarded. However, in a recent case, the Supreme Court commuted the death sentence of a convict to life imprisonment whose 2-year-old niece fell prey to his savage lust and thereafter lost her life.10 This shows that how discretionary powers in matters of death sentence could be arbitrary. As the saying goes “Equity is as big as the Chancellor’s foot.” The Supreme Court has attempted to remove arbitrariness, yet the discretionary powers are wide. What constitutes the rarest of rare is not set in strict terms. What moved the society a decade ago may not affect the society to the same level as before. If capital punishment has to prevail, it must be under strict norms and set principles of law. One of the mitigating factors is the probability that the accused can be reformed and rehabilitated. If not, then the death sentence can be confirmed.

Conclusion

Articles 7211 and 16112 show that the framers of our Constitution had always intended it to be a part of our penal system. Therefore, capital punishments are not unconstitutional but they were aware of the seriousness and severity. It is for this reason, a remedy of clemency is provided enabling the executive of the State outside the purview of the judiciary. The judicial process is also carefully crafted in terms of the death penalty. The requirement of confirmation of a death penalty by the High Court is a step to ensure that there are no slips. However, the test of “the rarest of rare” is open to interpretation, which allows room for arbitrariness. The argument favour of capital punishment is that some people are beyond redemption and rehabilitation. But the biggest flaw in this argument is that one undermines the reformative capability of a human being. Buddhists believe anyone can attain enlightenment and the story of Angulimala is the prime example. Somewhere, it is the failure of the society to not tap into one’s highest potential, so we are punishing a soul for our failure? Dr Sarvapalli Radhakrishnan said “even the worst sinner has a future, even the greatest saint has had a past”. In the end, the courts and the Judges are doing God’s work as God created life. Will ending a life before its natural course be God’s work? But why let a life prosper who endangers the lives of several others. It is a simple calculation, more than one life is more important than one life. So, it is done in the name of the greater good. Abraham Lincoln said “my concern is not whether God is on our side; my greatest concern is to be on God’s side, for God is always right”. I guess we will never know if by allowing capital punishment we are being on God’s side or are just doing the easy thing.


Advocate, Delhi High Court.

1 S. 366, Code of Criminal Procedure, 1973

2 Francis Bacon, 1st Viscount St Alban also known as Lord Verulam, was an English philosopher and statesman who served as Attorney General and as Lord Chancellor of England. His works are seen as developing the scientific method and remained influential through the scientific revolution.

3 <https://www.thehindu.com/news/national/indira-jaising-urges-nirbhayas-mother-to-follow-sonia-gandhis-example/article>.

4 Jagmohan Singh v. State of U.P., (1973) 1 SCC 20

5 Bachan Singh v. State of Punjab, (1980) 2 SCC 684

6 <http://www.scconline.com/DocumentLink/36kB36D7>.

7 When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence. <http://www.scconline.com/DocumentLink/7S71Hz0t>.

8 Mukesh Kumar v. State (NCT of Delhi), (2017) 6 SCC 1

9 Mukesh Kumar v. State (NCT of Delhi), (2017) 6 SCC 1

10 Shatrughna Baban Meshram v. State of Maharashtra, (2021) 1 SCC 596

11 < http://www.scconline.com/DocumentLink/nA4c4Sy5>.

12 < http://www.scconline.com/DocumentLink/nA4c4Sy5>.

Op EdsOP. ED.

The substantive legal provision dealing with extraterritorial jurisdiction under the Penal Code, 1860[1] (IPC) are Section 3[2] and Section 4[3] and its procedural counterpart under the Criminal Procedure Code, 1973 (CrPC) is Section 188 CrPC[4].

The proviso to Section 188 casts an obligation to obtain previous sanction of the Central Government for inquiry and trial of offences committed outside India. It is a procedural impediment while conducting criminal trial under Section 188 CrPC. The rationale behind the same lies in the principle of double jeopardy.

One of the first judgments which discussed the ambit for the term “inquiry” within the meaning of Section 188 CrPC is Sanoop v. State of Kerala[5]. The Court gave a broad interpretation of the word “inquiry” and included certain stages of investigation also (arrest and detention) within its sweep, to attract the sanction requirement under the proviso to Section 188 CrPC. However, this judgment runs contradictory to the jurisprudence constante of the Supreme Court in Ajay Aggarwal  v. Union of India[6], Thota Venkateswarlu v. State of A.P.[7] and  Hardeep Singh v. State of Punjab[8].

A Single-Judge Bench in Remla v. SP of  Police[9]  by relying upon State of W.B. v. Jugal Kishore More[10] ,  Nikka Singh v. State[11]  and Narumal v. State of Bombay[12] , held that the proviso to Section 188 casts an obligation to obtain previous sanction of the Central Government to inquire into and try such person and that Section 188 has a message that for the pre-inquiry stage, no such sanction is needed and since the pre-inquiry stage substantially relates to investigation of the crime, no sanction is required for investigation.

Interpretation of the word “dealt with” under Section 188 CrPC

In order to understand whether sanction will be required under Section 188 CrPC for investigation, the words “dealt with” under Section 188 CrPC need detailed construction. The most significant Supreme Court judgment on this point is Delhi Admn. v. Ram Singh[13]. The Court broadly constructed the words “dealt with” under Section 188 CrPC to include within its sweep not only “inquiry” and “trial” but other aspects also. The words “dealt with” in Section 188 CrPC, must be held to include “investigation” also, apart from “inquiry” and “trial”. It was also held that the “words ‘dealt with’ in the main part cannot be restricted to ‘inquiry’ and ‘trial’ used in the proviso”. Also, on a conjoint reading of Section 188 CrPC and Section 4 IPC, it must cover the procedure relating to investigation and hence the scope and ambit of the main part of Section188 CrPC cannot be controlled by the proviso. In the backdrop of conflicting High Court judgments on this point, the Full Judge Bench of Samaruddin v. Director of Enforcement[14], following Delhi Admn. case[15] upheld  the views rendered in Remla case[16] and in Mohd. Shameer Ali v. State of Kerala[17]

Ambit of “inquiry” under Section 188 CrPC: At what stage of inquiry will the sanction be needed – Post-cognizance or pre-cognizance

The judiciary was embroiled in a huge controversy over the interpretation of the word “inquiry” for attracting the proviso to Section 188 CrPC. After a perusal of rationale rendered in Rabindra Rai v. State of Bihar[18], State of U.P. v. Lakshmi Brahman[19]  and Dalu Gour v. Moheswar Mahato[20] it can be clearly said that the moment the charge-sheet is filed before the court, the inquiry is said to commence under Section 2(g) CrPC[21]. It is not necessary that such inquiry shall commence only after a formal order is passed by the Magistrate. In order to understand what stage of inquiry will attract the proviso of Section 188 CrPC, it is relevant to note four important judgments.

Firstly, in C.V. Padmarajan v. Govt. of Kerala[22], the Court under para 20 held that application of judicial mind to the police report, deciding to take cognizance of offences will certainly be part of the “inquiry” which is barred unless the prior sanction of the Central Government has been obtained under Section 188 CrPC in respect of the offences committed outside India. In other words, the Court held that taking cognizance of an offence will attract the proviso to Section 188 CrPC.

Secondly, in para 27 of Ajay Aggarwal  v. Union of India[23], the Court held that prior sanction under the proviso to Section 188  CrPC is not a condition precedent for taking cognizance of the offence and that if need be, such sanction could be obtained after the trial begins. However, since the offence in this case was committed at Chandigarh in India and not outside India and therefore, Section 188 CrPC was not attracted and hence, is only an obiter dictum which cannot be treated as law laid down by the Supreme Court within the meaning of Article 141 of the Constitution of India[24].

Thirdly, a 3-Judge Bench of the Supreme Court in Thota Venkateswarlu v. State of A.P.[25] has held that bar in the conduct of “inquiry” by the Magistrate Court in relation to an offence committed outside India without obtaining sanction of the Central Government as per the proviso to Section 188 CrPC would apply only in respect of the “post-cognizance inquiries”. The Court by applying “purposive and contextual interpretation” held that only “inquiries” within the meaning of Section 2(g) which are to be conducted after the taking of cognizance and before the framing of the charges alone would come within the zone of prohibition of the proviso to Section 188 CrPC, thus partially overruling Padmarajan case[26].

Fourthly, the 5-Judge Bench in Hardeep Singh v. State of Punjab[27] held that all “inquiries” held after submission of the final report/charge-sheet, including the “inquiry” by the court in the matter of taking cognizance, will be also barred by the proviso to Section 188 CrPC however, the Court made it clear that so long as the above specific legal position in Thota Venkateswarlu case[28] is not specifically overruled by the Supreme Court, it is only to be held that even taking of cognizance is not barred in such cases.

From the abovementioned analysis, it can be said that the Courts have given a restrictive interpretation of the word “sanction” restricting it to post-cognizance stage and not to the investigation. The rationale for the same is twofold:

  • Firstly, as investigation is the very first stage that will determine the flow of criminal proceedings in later stages, the requirement for sanction at the first stage will derail the criminal process in totality. To ensure that investigation is not in any manner fettered by the restriction as per the proviso to Section 188 CrPC and to ensure full freedom on the police to conduct investigation, it is kept outside the zone of prohibition under the proviso to Section 188 CrPC.
  • Secondly, to prevent enormous and unrealistic burdens[29] on the Central Government to take decisions on the question of sanction in each and every case, which may arise in various parts of the country, the Court logically kept investigation outside the requirement of sanction from the Central Government.

Conclusion

Thus, from the above discussion, it can be succinctly said that the bar as per the proviso to Section 188 (requirement of sanction) can be only in relation to conduct of inquiry and trial and the said proviso cannot impose any restriction on the powers of the police to the conduct of investigation into such offences committed outside India. Investigation is kept outside the requirement of sanction of the Central Government under the proviso to Section 188 CrPC.


*3rd year student, BA LLB (Hons.), Maharashtra National Law University, Nagpur. Author can be reached at shreyatripathi.204@gmail.com.

[1] Penal Code, 1860

[2] Section 3 IPC. 

[3] Section 4 IPC. 

[4] Section 188 CrPC.  

[5] 2018 SCC OnLine Ker 1268. 

[6] (1993) 3 SCC 609. 

[7] (2011)  9 SCC 527. 

[8] (2014) 3 SCC 92.

[9] 1992 SCC OnLine Ker 323. 

[10] (1969) 1 SCC 440. 

[11] 1950 SCC OnLine Punj 126. 

[12] 1960 Cri LJ 1674: AIR 1960 SC 1329.

[13] (1962) 2 SCR 694.   

[14] 1999 SCC OnLine Ker 279. 

[15] Supra Note 13.

[16] Supra Note 9.

[17] 2019 SCC OnLine Ker 2778. 

[18] 1983 SCC OnLine Pat 155. 

[19] (1983) 2 SCC 372. 

[20] 1946 SCC OnLine Pat 175.

[21] Section 2(g) CrPC

[22] (2009) 1 ILR Ker 36 : 2009 (1) KHC 65.

[23] (1993) 3 SCC 609. 

[24] Article 141 of the Constitution of India

[25] Supra Note 7.

[26] Supra Note 22.

[27] (2014) 3 SCC 92 

[28] Supra Note 7.

[29]Mohd. Shameer Ali v. State of Kerala, 2019 SCC OnLine Ker 2778, para 34

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: The Division Bench of Dhiraj Singh Thakur and Puneet Gupta, JJ., dismissed the application seeking suspension of sentence and for grant of bail to the applicant/appellant on the ground of delay.

The applicant had submitted that he had been put in jail for more than thirteen years. Noticing that the appeal against the order of conviction and sentence dated 23-07-2020 was filed on 06-08-2020. The issue with regard to suspension of sentence and grant of bail on account of delay in disposal of the criminal appeal had been considered by a coordinate bench of this court in Rakesh Kumar v. State of J&K, CRA No. 12 of 2018, wherein the Bench had relied on   Akhtari Bi v. State of M.P., (2001) 4 SCC 355, where the Supreme Court had held that speedy justice was a fundamental right flowing from Article 21 of the Constitution. It was held that a right accrued in favour of the accused to apply for bail in a case where there was delay in the disposal of the trial and appeals in criminal cases. It was further held that if an appeal was not disposed of within a period of 5 years for no fault of the appellant, such convicts may be released on bail on conditions as may be deemed fit and proper by the Court. In computing the period of 5 years the delay for any period, which is requisite in preparation of the record and the delay attributable to the convict or his counsel can be deducted. It was, further clarified that there may be cases where even after the lapse of 5 years the convicts may, under the special circumstances of the case, be held not entitled to bail pending the appeals filed by them.

Noticing that the appeal was preferred in the year 2018 and therefore, 5 years period had not been completed and even otherwise assuming the said period was over, the Bench said that even then it could not have mechanically granted bail without considering whether the delay in the disposal of the appeal was attributable to the appellant. Considerations as mentioned in the case of Akhtari Bi, for refusal of bail beyond 5 years also indicate that grant of bail at the expiry of five years pendency did not follow as a matter of routine. The nature, gravity and seriousness of the offence would also have to be seen. Hence, the Bench held that since five years had not elapsed from the date of the filing of the present appeal and the matter was already listed in the final hearing column, no ground was made out for suspending the sentence and granting bail in the present case.

[Raghubir Singh v. UT of J&K, 2021 SCC OnLine J&K 375, decided on 28-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court:

Counsel for the Applicant: Adv. Anil Gupta

Counsel for UT of J&K: AAG Aseem Sawhney

Case BriefsHigh Courts

Madras High Court: S.M. Subramaniam, J., held that

Protraction and prolongation of litigations affecting women can never be encouraged by the Courts.

Husband and wife used to live in Singapore and when a misunderstanding arose between the two, the husband stated that the respondent/wife deserted him in the year 2018. Hence, the husband sought the relief of Restitution of Conjugal Rights by filing a petition in the Family Court, Chennai.

Wife had filed a Domestic Violence Complaint against the husband and further filed the maintenance seeking maintenance.

Under the above-stated circumstances, an instant transfer petition was filed to transfer the Domestic Violence Act case.

Questions of Legal Importance

Whether the High Court in the exercise of power of superintendence under Article 227 of the Constitution of India transfer the criminal proceedings from the Criminal Court to the Family Court, when the powers of transfers of cases are already conferred on the High Court under the provisions of the Criminal Procedure Code and Civil Procedure Code?

Presuming, the powers under Article 227 of the Constitution of India is exercised, in order to transfer a criminal case to a Civil Court or Family Court, what would be the consequences and the provisions governing such transfers and the Constitution of Special Courts under the Special enactments?

Whether the decision of this Court in Mohana Seshadri v. Anuja, CDJ 2020 MHC 944, can be followed as a precedent in the present matter?

Analysis

The above case cited by the petitioners need not be relied upon for the purpose of entertaining a transfer petition under Article 227 of the Constitution of India. In the present petition, this Court has to consider the provisions of the Special Acts namely the Domestic Violence Act, Family Courts Act and also the Code of Criminal Procedure for the purpose of forming an opinion.

Domestic Violence Act

Provisions of the ‘DV Act’ are unambiguous that an application is entertainable before the Judicial Magistrate Class I or the Metropolitan Magistrate as the case may be for seeking one or more reliefs under the Act.

Proceedings under the ‘DV Act’ are regulated under the Code of Criminal Procedure as contemplated under Section 28 of the ‘DV Act’. Thus, a complaint registered under Section 12 of the DV Act is criminal proceedings on the criminal side of the judiciary and accordingly the said proceedings are to be regulated under the Criminal Procedure Code.

Generalia Specialibus non derogant (when there is a conflict, general and special provision, the later will prevail)

It is to be held that Special Act will prevail over the General Laws.

Therefore, when a Special enactment is in force to deal with certain specific offences, in the present context, Domestic Violence Act, then the other general laws cannot have any application and all such Domestic Violence’s are to be tried by following the procedures as contemplated under the Special Enactment and this being the legal principles, the application under

Section 12 of the Domestic Violence Act cannot be construed as a civil natured proceeding.

Family Courts Act, 1984

Applications which are all filed seeking maintenance for wife, children and parents alone shall be tried by exercising the powers conferred under Section 7(2)(a) of the Family Courts Act, 1984. Hence, with regard to the jurisdiction as contemplated under the DV Act, the Family Courts/Civil Courts are not having jurisdiction to deal with certain offences defined under the provisions of the DV Act.

Criminal Procedure Code

Section 407 of the Criminal Procedure Code provides Power of High Court to transfer cases and appeals.

 Hence, the High Court is empowered to transfer the case from one Court to another Court as the case may be as contemplated under the provisions of Section 407 of the CrPC.

Civil Procedure Code

Under Section 24 of CPC, Civil Proceedings can be transferred from one Civil Court to another Civil Court.

 However, Criminal Proceedings cannot be transferred from one Criminal Court to a Civil Court/Family Court.

Article 227 of the Constitution of India

In the Supreme Court decision of Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329, there was an elaborate consideration of High Court’s Power of Superintendence under Article 227 of the Constitution.

Power of High Court

High Court’s power under Article 227 to be plenary and unfettered but at the same time, the High Court should be cautious in its exercise.

“…in cases, where the High Court exercise its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claiming it as as a matter of right.”

Jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields. Jurisdiction under Article 227 is exercised by the High Court for the vindication of its position as the highest judicial authority in the State

Scope of the power under Article 227 of the Constitution cannot be exercised overriding the provisions of the Special Enactments, wherein the specific reliefs are provided for redressal.

Thus, the proceedings instituted under the Family Courts Act before the Family Courts are to be regulated in accordance with the provisions as contemplated.

Equally, an application filed under Section 12 of the Domestic Violence Act is to be regulated under the provisions of the ‘DV Act’ and the application registered under Section 12 of the Domestic Violence Act is a criminal proceedings and the entire provisions of the ‘DV Act’ unambiguously portrays that the nature of proceedings are under criminal law. The procedures as contemplated under the Criminal Procedure Code is to be followed for trial of the cases under the ‘DV Act’.

Thus, there is no reason to form an opinion that application filed under the ‘DV Act’ is a “Civil natured proceeding”.

Bench added that when the scope of Article 227 does not permit the High Court to entertain a transfer petition to transfer a criminal case to a Civil Court or a Civil case to a Criminal Court, then conversion of such power under Article 227 for transfer of cases is certainly beyond the scope of the principles settled by Supreme Court decisions.

Transfer not Traceable

The power of transfer conferred under the Code of Criminal Procedure and the Code of Civil Procedure are expected to be exercised by the High Courts and such power of transfer is not traceable under Article 227 of the Constitution of India.

Multiple options are provided under the special enactments, facilitating the aggrieved women to redress their grievances which are to be dealt in accordance with the provisions of such enactments and speedy disposal being the paramount importance, Courts are bound to ensure all such cases, affecting women must be disposed of at the earliest possible.

Proceedings under the Domestic Violence Act

Further, the Court added to its elaborative analysis that the initiation of proceedings under the Domestic Violence Act with reference to the bodily injuries contemplated under the provisions of the Act, are Criminal acts and therefore, the Domestic Violence proceedings are criminal in nature and to be tried by the competent Judicial Magistrate.

Offences/Bodily Injuries as contemplated under the DV Act are against the society at large and therefore, the proceedings are criminal and competent criminal Court of Law is empowered to try those cases.

In view of the above discussion, Court concluded that criminal proceedings instituted under the Domestic Violence Act cannot be converted as Civil proceedings nor construed as proceedings of civil nature, so as to transfer such criminal proceedings before the Civil Court or Family Court by exercising the supervisory powers under Article 227 of the Constitution of India.

Therefore, any transfer petition, if at all filed to transfer a case registered under the Domestic Violence Act must be entertained only under the Code of Criminal Procedure and certainly not by invoking power under Article 227.

On transferring the DV Act proceedings to Family Court, the appropriate reliefs are depraved.

Hence, the objections regarding the maintainability of the transfer petition raised by the Registry, High Court of Madras, is perfectly in consonance with provisions of law and said objections stands confirmed. [P. Arun Prakash v. S. Sudhamary, 2021 SCC OnLine Mad 1954, decided on 01-04-2021]