Case BriefsHigh Courts

Allahabad High Court: Dinesh Kumar Singh, J. while disposing of this petition gave liberty to the petitioner to move an application for altering the charge against the accused.

This instant petition was filed under Section 482 CrPC challenging the order of Additional District and Sessions Judge (Ex-cadre), Pratapgarh. The charges were framed under Sections 147, 323/149, 452, 504, 506 IPC.

Counsel for the petitioner, Amar Nath Dubey submitted that Sessions Judge did not frame charge under Section 436 IPC. This was done on the incorrect ground that there was no allegation either in the FIR or in the statement of the complainant recorded under Section 161 CrPC that the accused used fire or explosive substance to put on fire the residential property of the complainant or another person. The miscreants/accused persons had put on fire the thatch of Ramadhar.

The Court in view of the above observed that at the stage of framing of charge, a Judge is required to evaluate the evidence to find out prima facie case but he is not required to go in detail every statement or every evidence which has been collected by the Investigating Officer. The Sessions Judge after considering the version of the FIR and the statement of the other witnesses including the complainant was prima facie of the opinion that offence under Section 436 IPC is not made out. If the complainant or the prosecution is of the view, during the course of the trial, that some other offences has/have also been committed by the accused, it is always open to him/her to file an application under Section 216 CrPC to alter the charges. [Nepali Devi v. State of U.P., 2019 SCC OnLine All 4366, decided on 30-10-2019]

Case BriefsHigh Courts

Delhi High Court: Brijesh Sethi, J., while stating that,

“Rape not only causes serious injury to a woman’s body, her honour and dignity and even if such an offence is settled by the offender and victim, this offence being not private in nature but has a serious impact on the society and, therefore, cannot be quashed.”;

dismissed the petition filed with respect to the quashing of FIR and the proceedings emanating therefrom.

The present petition was filed for quashing of FIR under Sections 376 and 380 of the Penal Code, 1860 and the consequential proceedings emanating therefrom.

Background of facts

Petition pleaded that respondent 2 had met the petitioner on account of a professional assignment and thereafter they kept meeting each other regularly and got romantically involved. Respondent 2 entered into a live-in relationship with the petitioner. 

An altercation took place between the petitioner and respondent 2 and the petitioner left respondent 2. Respondent 2 filed a complaint thereafter against the petitioner which culminated into the aforesaid FIR. 

The fact to be noted is that, during the course of the trial, the marriage of the petitioner and respondent 2 was solemnized. However, on account of some differences and misunderstandings, the trial proceedings continued. Upon the intervention of friends the dispute between both resolved by way of the settlement deed. 

Further, respondent 2 gave her ‘No Objection’ affidavit for quashing of the aforesaid FIR and all proceedings emanating therefrom. 

Conclusion

High Court on perusal of the facts and circumstances noted that the FIR under Sections 376 and 380 IPC was registered on the basis of the statement made by complainant/respondent 2 wherein she mentioned about her emotional, physical, mental and sexual abuses at the hands of the petitioner.

Further, the question that arose for consideration was whether the fact that the parties got married and had settled the dispute should be a reason good enough to quash the FIR registered under Section 376 and 380 IPC and consequential proceedings emanating therefrom.

In the Supreme Court decision of Parbathhai Aahir v. State of Gujarat, 2017 SCC Online SC 1189, it was held that scope of power of the High Court under Section 482 CrPC to quash the criminal proceedings on the basis of settlement in a heinous or serious offence is limited.

In Narinder Singh v. State of Punjab, Criminal Appeal No. 686/2014, the Supreme Court held that in respect of offences against society, it is the duty of the state to punish the offender. In consequence, deterrence provides a rationale for punishing the offender. Hence, even when there is a settlement, the view of the offender and victim will not prevail since it is in the interest of the society that the offender should be punished to deter others from committing a similar crime.

Even in the Supreme Court decision of Gian Singh v. State of Punjab, (2012) 10 SCC 303 Court held that the settlement in cases where nature of offence is heinous /serious like murder, rape and dacoity, the criminal proceedings cannot be quashed even if they are settled by the accused and the victim, by invoking the jurisdiction of High Court under Section 482 CrPC.

In the present case, it is the case of the respondent 2 that she was deceived by petitioner and sexual relations were established on the pretext of false promise of marriage and she was, thus, subjected to emotional, physical, mental and sexual abuse and therefore applying the ratio laid down in the above-cited cases, offence committed by petitioner clearly falls under the category of heinous and serious one.

Thus, in Court’s opinion, the FIR and proceedings emanating therefrom cannot be quashed. [Ananda D.V. v. State, 2019 SCC OnLine Del 11163, decided on 14-11-2019]

Case BriefsHigh Courts

Gauhati High Court: Rumi Kumari Phukan, J., allowed and further disposed of the petition in view of the matter being settled outside the Court.

Facts pertaining to the present petition were that the respondent 2 lodged an FIR raising allegations of mental torture, dowry and her father-in-law outraging her modesty. Adding to the said allegations, she filed the FIR with certain other allegations against her husband and father-in-law under Section 498 (A)/ 354 Penal Code, 1860.

Further, during the course of the trial when the trial court impleaded the accused’s they all collectively came forward for quashing the entire proceedings on the ground that they have already settled the matter and the informant has no more interest to proceed with the case.

High Court noted the affidavit sworn by the respondent/wife in respect to the settlement in which it was stated that she is not willing to pursue the case as the matter was already settled amicably between the parties.

Court in the present matter noted that it was in respect to matrimonial offence and the victim herself came forward apprising about the amicable settlement, which implies that the victim/respondent will not support her case.

“Amicable settlement in a case of matrimonial offence can be allowed for the sake of social justice so as to maintain harmony in the society.”

Stating the above, the Court held that as the victim herself has buried her grievances against all the accused persons, the further proceeding will yield no result and it will be an abuse of process of law. [Hiranmoy Das v. State of Assam, 2019 SCC OnLine Gau 5018, decided on 04-11-2019]

Case BriefsHigh Courts

Patna High Court: Ashwani Kumar Singh, J., dismissed the application for quashing of FIR as the FIR clearly stated the incidence of tampering of the meter which would constitute a cognizable offence and hence the investigation is necessary.

In the pertinent case, the petitioner filed the application for the quashing of an FIR registered under Section 135 of the Electricity Act. The Petitioner had, in spot billing of the month of December, 2017, an electric bill for an amount of Rs 1,55,089 showing meter reading as 27678 was issued. The consumption in two days was of 24110 units. Thereafter, he made a complaint on 12-02-2018 through the online portal of South Bihar Power Distribution Company Limited. An electrician came and inspected the said meter was defective and would be reinstalled after repairing. Subsequently, he came back and reinstalled a meter. Thereafter, on 23-02-2018, some officials of the Electric Supply Sub- Division, Jamui came at his house and made an allegation that the petitioner had tampered the meter.

The counsel for the opposite party contended that in the FIR, there is a specific allegation against the petitioner that on 23-02-2018, when the meter installed at the house of the petitioner was inspected, it was found that the body of the meter on the right side tampered and the seal was broken. Further, the meter number on the body and the screen did not match. It was also noticed that the past reading of the meter was reduced. They contended that the allegations made in the FIR clearly attract the ingredients of the offence punishable under Section 135 of the Electricity Act, 2003.

The Court observed that there is specific allegation in the FIR regarding tampering of the meter installed at the house of the petitioner. The seal of the meter was found broken. The aforesaid allegations are sufficient to attract the ingredients of the offence alleged, which is classified as a cognizable offence. In case of a cognizable offence, the police has a statutory right to investigate. Therefore, the Court held that neither the institution of the FIRnor its investigation can be held to be bad. [Bijay Kumar v. State of Bihar, 2019 SCC OnLine Pat 1870, decided on 23-10-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Lisa Gill, J. dismissed the appeal filed by insurance company challenging the amount of compensation granted by the Motor Accidents Claim Tribunal (‘MACT’).

In the present case, one Dalip Singh and Aslam (deceased), met with a motor vehicle accident which led to their fatal death. The MACT had awarded compensation to the families of both the deceased. Aggrieved thereby, the insurance company filed the present appeal stating that the said case did not fall under a motor vehicle accident and thus prayed for reducing the amount of compensation. Appeal was also filed by the claimants praying to increase the amount of compensation awarded.

In the appeal filed by the insurance company, the appellant contended that there was no evidence of a motor vehicle in the FIR, therefore, the respondents could not claim compensation for a motor accident. Also, the age of the deceased was wrongly concluded hence the amount of compensation must be reduced. Whereas in the appeal by the claimants, they contended for an increase in the compensation amount awarded by the Tribunal. However, they accepted the fact that the age of the deceased was wrongly concluded.

The Court after referring to all the facts, and hearing the witness with placed reliance on the judgment in Mangla Ram v. Oriental Insurance Company Ltd., (2018) 5 SCC 656 where it was opined that claimants in proceedings under the Motor Vehicles Act, 1988 have to prove their case on the touchstone of preponderance of probabilities and not beyond reasonable doubt.

It was held that the claimants had successfully proved the involvement of a vehicle and hence the judgment of the MACT was upheld. However, after analyzing the facts and the on consideration of a change in the age of the deceased, the Court reduced the amount of compensation.[IFFCO Tokio General Insurance Co. Ltd. v. Asha Devi, 2019 SCC OnLine P&H 1403, decided on 22-07-2019]

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J. dismissed a writ petition filed by a serving officer of the Indian Army seeking to quash an FIR registered against him in Imphal, Manipur.

At the relevant time, the petitioner was posted at Dimapur, Nagaland, and was the Commanding Officer of 50 Coy ASC (Supply). It was alleged that during his tenure, he accepted illegal gratification from a local contractor engaged in supplying edible oil and pulses to 50 Coy ASC (Supply). An FIR was registered against him by the CBI Anti-Corruption Branch at Imphal.

Ripu Daman Bhardwaj, Special Public Prosecutor appearing for the Central Bureau of Investigation, at the outset, raised objections regarding the jurisdiction of the Delhi High Court to entertain the instant petition. Per contra, Lovkesh Sawhney, Durgesh Kumar Pandey and Deepak Kumar, Advocates, representing the petitioner, contended that the petition was maintainable.

The Court was of the view that the principal question for consideration was whether the Court should exercise its jurisdiction in the facts of the case. It was noted: “Undeniably, a substantial part of the offence alleged against the petitioner was committed outside the jurisdiction of this Court. As noticed above, the petitioner was posted in Dimapur and the allegation is regarding his conduct of receiving illegal gratification while serving as the commanding officer of 50 Coy ASC (Supply). Whilst it may be correct that the funds are stated to have been received by the petitioner; the allegation is that the same was done at the instance of the petitioner, who was, at the material time, posted in Dimapur.”

In such view of the matter, the High Court was of the view that it would not be apposite for the Court to entertain the instant petition. It was also observed: “Insofar as the principle of forum conveniens is concerned, the said principle has to be applied keeping in view the place where the substantial cause has arisen and where the substantial evidence for adjudicating the cause is available.”

Resultantly, it was held that trial in the instant matter was required to be conducted within the jurisdiction of another High Court. The petition was therefore dismissed.[Amit Sharma v. CBI, 2019 SCC OnLine Del 10129, decided on 13-09-2019]

Case BriefsHigh Courts

Bombay High Court: The Division Bench comprising of Ranjit More and Bharati H. Dangre, JJ. addressed a petition filed by Gautam Navlakha an accused in the Bhima – Koregaon Case, in order to quash the proceedings of FIR registered on 08-01-2018 qua him.

Sequence of events

The FIR was registered pertaining to a complaint, initially, for the offence punishable under Sections 153 A, 505(l) (b), 117 read with Section 34 of Penal Code, 1860. FIR proceeds on the lines that fist informant came to know through social networking sites that there is a programme at Shaniwarwada organised by Elgar Parishad and he attended the same.

Further, he stated that some of the performers at the programme enacted shot-plays, dances and songs which were provocative in nature and had the effect of creating communal disharmony. Few objectionable books and other literature were kept at the venue for sale. In the FIR it was also alleged that the banned organisation CO (Maoist) was inciting violence.

Adding to the stated, the allegation that members of Kabir-Kala Manch spread hatred through their songs, plays and speeches causing enmity between different communities and as a result thereof, there were incidents of violence, arson and stone pelting near Bhima – Koregaon causing loss of lives and public money.

January 1st 2018 – Events occurring at Bhima – Koregaon had wide repercussions throughout the State of Maharashtra, law and order was affected. The investigation revealed that there was deep-rooted conspiracy to create communal disharmony and accordingly Section 120-B was added.

May 17th 2018 – Provisions of Unlawful Activities (Prevention) Act, 1967 were invoked. Sections 13, 16, 17, 18, 18 B, 20, 38, 39 and 40 of the said Act were added to the subject FIR.

August 28th 2018 – Petitioner along with four others came to be arrested from their houses in Delhi and was immediately taken to the Court of CJM, Delhi, who granted two days transit remand to Pune police. On the very same day, a habeas corpus petition was filed on behalf of the petitioner in the Delhi High Court and the Court directed that the petitioner will not be moved from Delhi till further orders. In the evening of the same day, Delhi High Court stayed the mentioned order and directed the house arrest.

August 29th 2018 – Five academicians filed a PIL in the Supreme Court praying for Court-monitored SIT. Supreme Court extended the interim protection granted to the petitioner by Delhi High Court from 28-08-2018.

September 28th 2018 – Supreme Court by majority of 2:1 declined to order a Court-monitored investigation but extended the house arrest.

October 1st 2018 – Delhi High Court quashed the petitioner’s arrest and ordered his release from the house arrest. In pursuance to the liberty granted by the Supreme Court to the petitioner, the present petition is filed. Petition was finally heard on 26-07-2019 and the order was reserved.

Background of the facts

Petitioner claims to be the human right activist for decades and his outspoken views on political issues are claimed to be well within the constitutional guarantee of free speech. He was called upon by the State to assist in securing the release of officials abducted by left-wing extremists in 2011. Petitioner adds that he has been an open critic of left-wing extremist violence.

Contentions

Counsel for the petitioner, Dr Choudhary submitted that the FIR does not disclose any offence under the provisions of UAPA Act. Petitioner had nothing to do with either Elgar Parishad or the organisation of the event as mentioned above, either as the member of the said Parishad or as a participant in the event. Neither the petitioner was present nor involved in the violence of Bhima-Koregaon, therefore, subject FIR is manifestly unjust and is liable to be quashed.

References in the computer of a third party are being used against the petitioner, which is not legally permissible. Mere references by name is insufficient for adding someone in the FIR. Counsel also added to his submissions that even if the allegations made in the FIR are taken at face value, they do not make out a case against the petitioner and therefore the subject FIR deserves to be quashed qua the petitioner.

Learned APP, Mrs Pai submitted that the petitioner is found to be working and is an active member of a banned terrorist organisation, namely, Communist Party of India (Moist). Petitioner was also found providing strategic inputs in furtherance of the objective of armed rebellion as per the strategic document of the banned terrorist organisation.

Conclusion

The High Court on perusal of the material filed, contentions, facts and the documents recovered from the electronic devices of the petitioner and others relied upon by the prosecution as disclosed in the charge-sheet, are satisfied that the investigating agency has material to connect the petitioner in the subject crime.

Court stated that in respect to the nature and magnitude of the conspiracy, the investigating agency is required to be given sufficient time to unearth the evidence against the petitioner, especially when the scope of investigation is not restricted to Bhima-Koregaon incident but activities leading to the incident and subsequent activities as well are the subject matter of investigation.

Therefore, the present petition in view of the above is without any merit and the same is accordingly dismissed. [Gautam P. Navlakha v. State of Maharashtra, 2019 SCC OnLine Bom 1866, decided on 13-09-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J., dismissed a petition filed under Article 226 Constitution of India to direct the respondents to register an FIR on the basis of the complaint made by her.

The main question before the High Court to decide was ‘whether a writ petition under Article 226 of the Constitution of India for registration of the FIR is tenable or not?’

The Supreme Court in the case of Divine Retreat Centre v. State of Kerala, (2008) 3 SCC 542 had held that the High Court in exercise of its power under Article 226 can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of abuse of power and non-compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of the process as provided for in the Code. Even in cases where no action is taken by the police on the information given to them, the informant’s remedy would lie under Sections 190, 200 of CrPC, but a writ petition in such a case cannot be entertained.

Similarly, in the case of Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, the Supreme Court held that cases like these do not pertain to issue of entitlement to writ of mandamus for compelling the police to perform statutory duty under Section 154 CrPC without availing alternative remedy under Sections 154(3), 156(3), 190 and 200 of CrPC.

Therefore, the Court finally dismissed the petition as the petitioner still had an efficacious and alternative remedy of filing a criminal complaint before the Court of competent jurisdiction.[Mamta Prajapati v. State of Madhya Pradesh, 2019 SCC OnLine MP 2477, decided on 06-09-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia, J. entertained a writ petition filed under Section 482 of CrPC for quashing FIR registered under Sections 376,366 and 506 of IPC.

The facts of the case were that the petitioner had a relationship with a woman who was already married to one Roshan Lal. It was the story of the petitioner that the woman had a strained relationship with her husband and she was about to get divorced and then get married to the petitioner. Subsequently to execute their plan they left their native place and the woman admitted that she did not want to return as there was a threat to her life as her husband and relatives warned her of dire consequences. The woman had in favour of petitioner filed an affidavit where she swore that she willfully left the company of her husband and went along with the petitioner. Meanwhile, the husband- complainant filed a missing report. When the woman returned, FIR was filed against the petitioner where the woman accused him of rape and kidnapping along with other charges.

The petitioner contended that the parties have compromised the matter and an affidavit was filed for the same. The petitioner further submitted that the woman had mentioned in the affidavit that the FIR was filed under coercion from her husband and she was forced to do it. Hence, the petitioner requested that the husband himself had compromised the matter and did not want to pursue the case further, thus, he sought to quash FIR. Learned counsel for the petitioner had argued that as the parties had compromised the matter, no purpose was served by keeping the proceedings against the petitioner.

On the other hand, the counsel for the State argued that since the offence was not compoundable in nature, the petition should not be dismissed.

The Court noted that the Supreme Court in B.S. Joshi v. State of Haryana, (2003) 4 SCC 675, had held that, “if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. It is well settled that the powers under section 482 have no limits. Of course, where there is more power, it becomes necessary to exercise utmost care and caution while invoking such powers.” A similar case where the Supreme Court had observed thatultimate object of justice is to find out the truth and punish the guilty and protect the innocent. The tendency of implicating the husband and all his immediate relations is also not uncommon. At times, even after the conclusion of the criminal trial, it is difficult to ascertain the real truth. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. The criminal trials lead to immense sufferings for all concerned.”

Hence, the Court took into consideration the case laws already decided by the Supreme Court on similar law points and found the case fit for exercising power under Section 482 CrPC. Thus, FIR was quashed and the petition was disposed of.[Sunny v. State of Himachal Pradesh, 2019 SCC OnLine HP 1350, decided on 27-08-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Gurvinder Singh Gill, J. allowed the anticipatory bail petition in a suicide case. 

A petition was filed for the grant of anticipatory bail for the FIR registered for the offence committed under Section 365 of the Penal Code. 

The brief facts of the case were that complainant’s sister was married for about 22-23 years and was repeatedly beaten by her in-law and thus she left the house and was residing at her paternal house. The complainant’s sister was threatened to be killed by the petitioner and one day when went missing. On her search, a suicide note was found. It was thus alleged that the petitioner had killed the complainant’s sister. 

Manu Loona, Counsel for the petitioner submits that he was falsely implicated and that the complainant’s sister was living at her own will at her parental house. It was further submitted that complainant sister committed suicide under depression and also presented the suicide note in which she has not blamed anyone for such action. 

Kirat Singh and Peeush Gagneja, Counsel for State and Complainant submit that case where the dead body was recovered and since apparently the relations between the deceased and the petitioner were not cordial as the deceased had recently filed an application under the Domestic Violence Act, the involvement of the petitioner was prima facie evidence. It was further submitted that the handwriting and signature existing on the suicide note did match the complainant’s handwriting and signature. 

The court opined that case especially the fact that as per the suicide note, the deceased has virtually given a clean chit to the petitioner and has stated that she was committing suicide on account of her mental pressure and problem; in my opinion it is not a case warranting custodial interrogation. The petition was allowed and the petitioner was directed to abide by the conditions provided under Section 438(2) of the Code of Criminal Procedure. [Balveer Singh v. State of Punjab, 2019 SCC OnLine P&H 1529, decided on 27-08-2019]

Case BriefsHigh Courts

Patna High Court: Ashwani Kumar Singh, J. dismissed an application for the quashing of FIR by the petitioner under Articles 226 and 227 of the Constitution of India.

An FIR was registered under Section 366 read with Section 34 of the Penal Code, 1860 against the petitioner where it was alleged that he took the daughter of one Ram Narayan Pandey, who was aged about 18 years, when she was going to the Durga Mandir with her mother on 18-04-2019 at about 5.30 p.m. to offer her prayers. The petitioner along with others came there on a Bolero jeep and assaulted his daughter. When his wife protested, the accused pushed aside the informant’s wife and put his daughter in the vehicle and sped away.

The counsel for the petitioner Shubhesh Pandey submitted that the allegations made in the FIR were false and that the alleged victim had attained the age of majority, who out of her own sweet will, went with the petitioner and voluntarily married him.

After a careful perusal of the records, the Court held that the allegations made in the FIR were quite serious and they attracted the ingredients of a cognizable offence. To hold an investigation into a cognizable offence is the statutory right of the police. The defense taken by the petitioner that the victim went together with him out of her own sweet will and married him was to be examined by the police in the course of the investigation. At the stage of the investigation, the court would not come to any conclusion regarding the veracity of allegations made in the FIR. It is a well-settled principle of law that at this stage, the Court has no role to play. The role of the Court would start only after the investigation is completed and a report under Section 173(2) of the Code of Criminal Procedure is filed.

In view of the above-noted facts, the instant application was dismissed since the allegations made in the FIR attracted the ingredients of a cognizable offence, and there was no reason to quash the FIR.[Benkatesh Kumar v. State of Bihar, 2019 SCC OnLine Pat 1355, decided on 22-07-2019]

Case BriefsHigh Courts

Orissa High Court: Dr Akshaya Kumar Mishra, J. quashed lower court proceedings partially and directed to proceed the matter under the Penal Code.

The present case relates to an FIR lodged by the Mining Officer, Office of the Deputy Director of Mines, Koira Circle, Sundargarh alleging that Ajay Mineral & Steels (P) Ltd. procured a certain metric ton of Iron ore lumps in an unauthorized manner for crushing and conversation purpose. The FIR was registered under Section 379 and Section 34 of the Penal Code, 1860 and under Section 21 of Mines and Minerals (Development & Regulation) Act, 1957 (‘MMDR’). Upon investigation of the matter, a charge sheet was submitted basing upon which the learned Sub Divisional Judicial Magistrate, Bonai took cognizance of the matter and nine of the accused persons including the present four petitioners were issued for initiation of the proceedings against them.

Sanjit Mohanty, S.P. Panda, S. Pattnaik, and P.K. Muduli, learned counsels representing the petitioners submitted that the police had no jurisdiction to try the case under the MMDR Act and the matter needs to be quashed due to the entire proceedings being illegal in nature. The Advocates also relied on the decision Surendra Kumar Agarwal v. State of Orissa (2009) 44 OCR 232.

Additional Government Advocate representing the respondent, D.K. Praharaj placing reliance on the Supreme Court judgment in the case of State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 stated that the proceedings should continue due to the case being registered under Section 379 IPC.

The High Court referred to the cited judgments wherein Surendra Kumar Agarwal it has been held that “provisions contained in Section 22 of the MMDR Act and Rule 15 of the 2007 Rules, makes it abundantly clear that no Court shall take cognizance of offence punishable under the said Act or the 2007 Rules made thereunder, except upon a complaint in writing made by the competent authority or person authorized in that behalf by the Central Government or the State Government.” However, as an Apex Court decision shall take priority over a High Court judgment the present court took into consideration the decision of the Apex Court which stated that “Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed.” It also held that “the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such persons is sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitutes an offence under the Penal Code.”

High Court quashed the lower court order partially stating that for want of complaint, the offence for contravention of Section 4 of MMDR Act cannot be proceeded with and thereby only proceedings under Section 379 of the IPC shall be proceeded with accordingly.[Ramesh Ku. Agarwal v. State of Orissa, 2019 SCC OnLine Ori 226, decided on 09-07-2019]

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Jammu and Kashmir High Court: Sanjeev Kumar, J. dismissed a writ petition which claimed promotion and challenged the government order which was made on the basis of serious allegations regarding the disproportionate acquisition of property.

Respondent 2 herein, on a complaint, conducted a secret verification and found that the petitioner had acquired huge assets both movable and immovable, which were disproportionate to his known sources of income. He registered an FIR against the petitioner for the commission of offence under Section 5(1)(e) read with Section 5(2) of the Jammu and Kashmir Prevention of Corruption Act, 2006. He also wrote a communication to respondent 1 (Administrative Secretary) for initiating departmental action under Jammu and Kashmir Civil Services Rules, 1956 against the petitioner. Respondent 1 by passing an order attaching petitioner with the Chief Engineer, PHE Kashmir. Petitioner was Superintending Engineer in a hydraulic circle, Kargil. He claimed that due to his seniority he was likely to be promoted to the post of Chief Engineer. Aggrieved by the said order, the petitioner challenged both the aforesaid communication as well as government order by way of this petition.

Petitioner claimed that the impugned communication issued by respondent 2 and the impugned government order by Administrative Secretary was illegal, arbitrary, mala fide and without any authority of law; and the same could not be sustained in law as they were not traceable to any provisions of Jammu and Kashmir Civil Services Rules, 1956. He also contended that no employee can be penalized only on the ground that an FIR for his misconduct was registered with the police or Anti-Corruption Bureau and pleaded that the impugned communication and order were only aimed to denude him from his right to seek promotion to the post of Chief Engineer. Respondent 1 denied the allegations of arbitrariness and mala fide and objected the writ petition on the ground that the impugned government order was fully justified as the allegation against the petitioner was serious and disproportionate to his known sources of income. He also claimed that the petitioner had been attached with the Chief Engineer not only because an FIR regarding his misconduct was pending investigation before respondent 2 but also because a full-fledged departmental enquiry against him was contemplated.

Court held that the department was competent to hold a departmental enquiry solely on the basis of the allegations made against an employee and this power of the employer was independent of the power of the police and the Anti Corruption Bureau to register FIR and investigate the allegations. The delinquent employee may be acquitted by the Court of law on finding that the prosecution could not prove his guilt, but he can be penalized in the disciplinary proceedings, which were decided on the basis of preponderance of probabilities. The Court also observed that as per Section 31 of Jammu and Kashmir Civil Services Rules, 1956 he could also be suspended, if the complaint against him of any criminal offence was under investigation or trial. Hence, respondent 1 had shown leniency and instead of suspending him had only attached him with the Chief Engineer. Therefore, it could not be said that the order by respondent 1 was without jurisdiction or without any sanction of law. Thus, the petition was dismissed for being devoid of merit.[Sarwan Singh v. State of J&K, 2019 SCC OnLine J&K 518, decided on 07-06-2019]

Case BriefsHigh Courts

Uttaranchal High Court: Manoj K. Tiwari, J. dismissed a petition thwarting the request for quashing the FIR where it prima facie disclosed the commission of offence.

In the present matter, the petitioner sought for quashing the FIR registered under Sections 420 and 120-B of the Penal Code, 1860. Ramji Srivastava, Advocate for the petitioner had submitted that he was falsely implicated in the crime as there is no evidence to support the alleged incident. Whereas Pratiroop Pande, AGA submitted that the petitioner had a long criminal history.

High Court relied on the Supreme Court case, State of W.B v. Swapan Kumar, 1982 (1) SCC 561  and was of the opinion that “if the FIR, prima facie, discloses the commission of an offence, the Court does not normally stop the investigation, for, to do so would be to trench upon the lawful power of the police to investigate into cognizable offences”.[Amit Agarwal v. State of Uttarakhand, 2019 SCC OnLine Utt 537, decided on 24-06-2019]

Case BriefsHigh Courts

Allahabad High Court: Dinesh Kumar Singh, J. quashed the application under Section 482 of Code of Criminal Procedure, 1973 on the ground that as the evidence cannot be scrutinized it cannot be said that no cognizable offence was made out against the applicant.

An application was made to quash the charge sheet made under Sections 323, 506, 452, 354-A of the Penal Code.

Aushim Malhotra, advocate for the applicant submits that the applicant has been falsely implicated. The victim had suffered not any serious injury except that she was having a complaint of pain. There was also the delay of 9 days in lodging the FIR.  It was further submitted that the accused had no criminal history, hence prayed for quashing the FIR.

Vimal Kumar Pandey, AGA vehemently opposed the prayer for quashing the same.

The Court after going through the matter on record held that opposite party was attempted to be molested by the accused-applicant and when she tried to defend herself, she was beaten with fists & kicks and when the mother-in-law of the victim had arrived, she was also pushed off.  It was further submitted that “From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings under Section 482 CrPC.”  The disputed defense of the accused cannot be considered at this stage. Thus the prayer for quashing the proceedings was refused. But the Court on the settled principle of the law in the case of Amrawati v. State of U.P., 2004 (57) ALR 290 held that if the applicant appears and surrenders before the Court below within 30 days from today and applies for bail, his prayer for bail may be considered. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.[Ram Vilas v. State of U.P., 2019 SCC OnLine All 2272, decided on 14-06-2019]

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Uttaranchal High Court: The instant petition was entertained by Ravindra Maithani, J. where the petitioner under Section 482 CrPC applied for quashing of the chargesheet and impugned cognizance order for offence under Section 420 IPC, which was pending before Civil Judge. 

Petitioner had stated that an FIR was lodged in 2016 against him, where the petitioner was accused of cheating 52 students. In the FIR it was stated that, the petitioner took the educational documents, photos, identity card as well as income certificate of all those students and got them admitted in more than one colleges and thereby received the scholarship. In the FIR name of 41 such students have been mentioned. After investigation charge sheet was submitted against the petitioner. The Investigating Officer found the allegations levelled in the FIR as true.

Learned counsel for the petitioner argued that the allegations were not believable; It was categorically averred that one person cannot do such an act on his own; what was requested was that direction may be issued that bail application of the petitioner may be considered on the same day when it was presented before the court. 

The Court observed that the petitioner had filed the present application under Section 482, material that was also available at this stage before the Court was an FIR, which definitely discloses the commission of cognizable offence and a charge sheet, which stated that in fact, the offence as alleged in the FIR has been proved. In the absence of any other material, the Court didn’t presume that the story was not believable. Investigating Officer had found that the offence was committed. Therefore, there was no reason to make any interference and the petition deserved to be dismissed.[Chandra Kiran v. State of Uttarakhand, 2019 SCC OnLine Utt 506, decided on 29-05-2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Manmohan and Sangita Dhingra Sehgal, JJ. appreciated the Delhi Police for the alacrity with which it reacted to the suggestions made by the High Court regarding online registrations of FIRs.

On 23-04-2019, a letter was received by the Court wherein the author of the letter stated that her daughter, who had been working as a maid, had gone missing. The letter was marked to the Delhi Police. Despite that, the FIR was registered only on 18-05-2019. Due to delay in lodging the FIR, the “golden hour” of the investigation was lost and in all probabilities, the important leads had dried up.

On 13-05-2019, while considering another petition, the Court had directed the Delhi Police to consider allowing online registration of FIRs by way of SMS, emails and WhatsApp. The suggestion was made as it was observed in a number of writ petitions filed by the family members of missing persons that either the FIRs had not been registered or had been registered belatedly. With online registration of FIRs, the human interface — which normally causes a delay in registration of FIR — would be obviated. On the present hearing, the Deputy Commissioner of police (Legal Cell) submitted a “Proposed Road Map for online reporting on Missing Persons through Delhi Police Web Portal and Mobile Application.” The Court appreciated the alacrity with which the Delhi Police has reacted to the suggestions made by it. It hoped that the time-frame mentioned in the road map shall be duly complied with.

This Court was of the view that at the police station level as well as at the district level, the investigation procedure followed by AHTU/Crime Branch should be replicated. For this purpose, not only the latest technology and training but also the general guidelines in the form of Standard Operating Procedure should be issued and followed at the ground level. The intent behind directing issuance of SOP/guidelines is not to control the discretion of the investigating officer, but to ensure that certain essential steps like flashing of message on wireless and placing the information of the missing person on the ZIPNET are taken in a time bound manner.

Directions were given to file fresh status report in regard to aforesaid developments within eight weeks. Further, a status report with regard to facts of the present petition was directed to be filed within 4 weeks. [Court on its own motion v. State, 2019 SCC OnLine Del 8807, decided on 30-05-2019]

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Kerala High Court: R. Narayana Pisharadi, J. quashed the proceedings under Kerala Police Act, 2011 against the petitioner by invoking the power under Section 482 of the Code of Criminal Procedure, 1973.

The facts of the case were that the Sub Inspector found petitioner making obscene gestures having sexual flavors, degrading the dignity of the women who were passing through the road. The Sub Inspector arrested the petitioner from the spot. The report was thus made after investigation, on which the petition was filed to quash the present application.

Sri. P. Rahul, learned counsel for the petitioner after completion of the investigation urged for the quashing of the proceedings on the ground that there was a lacuna in the investigation process and the police officer who detected the offence himself conducted the investigation thereby causing the prejudice to the petitioner. It was submitted that no woman was questioned by the police and civil police were cited as the witness to prove the incident. It was further submitted that the final report does not reveal the petitioner has committed any act punishable under Section 119(1)(a) of the Kerala Police Act, 2011.

Sheeba K.K., Public Prosecutor opposed the quashing of the petition on the ground that the offence alleged involves public interest and thus should not be quashed.

The Court held that the grounds alleged by the petitioner for quashing the present petition were not fatal to the prosecution case against the petitioner as there was no mandate that the act was to be done against the particular woman. Although on the ground that in the statement made in FIR and final report there was no disclosure by the two civil police officer of what was the obscene or sexual gesture or act performed by the petitioner which was necessary as the petitioner cannot be made guessing what is the specific allegation against him, the court decided to quash the proceedings. The court further directed  that complaint or the first information report, as the case may be, shall contain recital as to the specific gesture or act performed by the accused, which according to the prosecution, was degrading to the dignity of women and which would attract the offence under Section 119(1)(a) of the Act.[Arun v. State of Kerala, 2019 SCC OnLine Ker 1623, decided on 22-05-2019]

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Delhi High Court: Chander Shekhar, J. dismissed a criminal revision petition filed against the order of the Additional Sessions Judge whereby he refused the petitioner’s application for supply of an advance copy of the questionnaire to enable him to file the written statement in terms of Section 313(5) CrPC.

An FIR was registered against the petitioner and other co-accused persons for offences punishable under the Penal Code and the Arms Act. The matter went to trial and prosecution evidence was closed. Thereafter, the petitioner made the application as aforesaid which was rejected. Aggrieved thereby, the petitioner filed the present revision.

Ritesh Bahri and Vipin Bansal, Advocates representing the petitioner contended that he was entitled to have an advanced copy of the questionnaire. Per contra, Ashish Dutta, APP appearing for the State supported the impugned order.

The High Court was of the view: “It is a settled law that the general rule is that, an accused must answer the questions under Section 313 of the CrPC by personally remaining present in the Court and it is only in exceptional circumstances that the general rule can be dispensed with.” It was noted: “The questions under Section 313 of the CrPC are confined to the evidence already on record, the copies whereof must have been available with the accused and his counsel by that time hence, there is no need for supplying the questionnaire in advance.” In such view of the matter, it was held that there was no infirmity in the impugned order and there was no merit in the present petition, which was accordingly dismissed. [Raja v. State (NCT of Delhi), 2019 SCC OnLine Del 8652, dated 14-05-2019]

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Chhattisgarh High Court: Sanjay K. Agarwal, J. while allowing a writ petition filed by a registered medical practitioner, held that the jurisdictional criminal court has to follow the directions issued by the Supreme Court in the matters of Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 and Martin F. D’Souza v. Mohd. Ishfaq, (2009) 3 SCC 1, while directing registration of FIR and investigation under Section 156(3) CrPC against medical professionals.

The petitioner was a qualified gynaecologist. One patient, who was admitted to her Nursing Home, delivered a girl child and thereafter Conventional Tubectomy was performed on her by the petitioner. However, after that, the patient developed some complaints and she was shifted to another hospital where she passed away. Relatives of the deceased accused the petitioner of medical negligence. Complaint was filed against her with the Police. Inquiry was made; the Chief Medical and Health Officer also deputed four doctors to file a report. In the said report, it was found that there was no negligence on the part of the petitioner. However, some time thereafter, the mother of the deceased approached the Chief Judicial Magistrate with an application under Section 156(3), where under the CJM directed the SHO concerned to hold a preliminary enquiry, after which FIR was registered against the petitioner for offences punishable under Sections 269 and 304-A IPC. Aggrieved thereby, the petitioner filed the present petition.

Abhishek Sinha and Vaibhav Maheshwari, Advocates for the petitioner contended that the impugned order was sustainable as the petitioner did not first comply with provisions of Sections 154(1) and 154(3), Ravi Kumar Bhagat, Deputy Government Advocate submitted that the final closure report was yet to be filed. Abhishek Sharma, Advocate representing the mother of the deceased supported the order under challenge.

The High Court noted precautions and principles laid down by the Supreme Court in the aforenoted two cases which have been consistently followed in subsequent judgments. The High Court was of the view that the order of the CJM was not unsustainable for more than one reason. It was, inter alia, held: “the principle of law laid down by the Supreme Court in Jacob Mathew and Martin D’Souza for registration of criminal case against a doctor before registering an FIR under Section 154(1) of the CrPC by getting an expert opinion from a qualified doctor would apply with equal force while registering /directing for registration of offence under Section 156(3)…” It was reiterated: “obtaining a medical opinion from experts was sine qua non for direction of registration and investigation of offences against medical practitioners.” Since the directions were not followed by the CJM in the present case, the impugned order was held unsustainable was thereby quashed. The petition was, thus allowed. [Krishna Dixit v. State of Chhattisgarh, 2019 SCC OnLine Chh 47, dated 14-05-2019]