Case BriefsHigh Courts

Bombay High Court: S.S. Shinde, J. dismissed a writ petition filed against the order of the Magistrate who had directed the petitioner to deposit 20% of the amount of the subject cheques while allowing his application of exemption from appearance on the condition that his Advocate record the plea.

The petitioner was alleged to be a debt of Rs 100 crores due to Aditya Birla Real Estate Fund — the complainant. It was alleged that he had issued 4 cheques in the name of the complainant for discharging the said debt. However, when presented for encashment, the said cheques were dishonoured for insufficiency of funds. After the legal formalities, the complainant registered a complaint under Section 138 (dishonour of cheque) of the Negotiable Instruments Act, 1881. Subsequently, the process was issued by the Magistrate and summons were served on the petitioner. He was, however, not able to appear before the Magistrate due to non-availability of confirmed railway ticket from Gurgaon to Mumbai. But he instructed his Advocate to attend the proceedings and “take appropriate steps in the interest of the petitioner”. The Advocate appeared before the Magistrate and presented an application for personal exemption of the petitioner. The Magistrate passed a conditional order thereby allowing the exemption application on a condition that the Advocate for the petitioner shall record plea on his behalf if the Advocate pleads not guilty then the petitioner shall secure his presence for bail and deposit 20% of the cheque amount as interim compensation within 60 days from the date of the order. The impugned order was passed by the Magistrate in the exercise of his powers under Section 143-A of the NI Act.

Rohan R. Sonawane, Advocate for the petitioner contended that Magistrate erred in passing the impugned order when the petitioner was absent and an exemption application seeking personal exemption for the day was sought on his behalf. Per contra, A.A. Ponda, N. Mndargi, S. Poria and C. Keswani, Advocates for Aditya Birla Real Estate Fund, opposed the present petition.

The High Court referred to several cases of the Supreme Court including Surinder Singh Deswal v. Virender Gandhi, 2019 SCC OnLine SC 739 and Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. (2001) 7 SCC 401. It was noted, The magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with.” The contention of the petitioner was that no written instructions were given to the Advocate, thereby authorising him to record a plea of the accused. On this aspect, the Court stated: “Under Section 205 CrPC on the first day, the Advocate for the accused can record the plea, for which written application by the accused is not contemplated.”

Note was also taken of the fact that the petitioner filed the present petition near about 2 months from the date of passing the impugned order. The proceedings under Section 138 are required to be disposed of within 6 months keeping in view the mandate of Section 143 of the NI Act and within 3 months from the date of assignment of the case as held by the Supreme Court in Indian Bank Assn. v. Union of India, (2014) 5 SCC 590.

Keeping in view the mandate of Section 143, the Court was of the opinion that the Magistrate was right in passing the impugned order. In such view of the matter, it was held that the petition was liable to be rejected.[Sidharth Chauhan v. Aditya Birla Real Estate Fund, 2019 SCC OnLine Bom 1297, decided on 19-07-2019]

Case BriefsForeign Courts

Pakistan Supreme Court: A Full Bench of Manzoor Ahmad Malik, Syed Mansoor Ali Shah, Qazi Muhammad Amin Ahmed, JJ. allowed a criminal appeal against a conviction order under Section 302 (b) of Pakistan Penal Code, 1860 which was passed on the basis of confessional statements.

 Appellants herein were tried before trial court for committing murder of a minor. As the investigation progressed, the accused were hauled up by the police and produced before a Judicial Magistrate when they, one by one, confessed the guilt. They were convicted under Section 302(b) of PPC and sentenced to death. The conviction order was upheld by the Peshawar High Court. Hence, the instant appeal.

The counsels for the appellants, Khalid Mehmood and Zahoor Qureshi, contended that reliance on confessional statements by the Courts below was fraught with multiple errors, heavily impinging upon the principle of safe administration of criminal justice; according to him, the statements were inherently flawed; these were contradicted by prosecution’s own witness, a dichotomy that escaped notice of the courts below.

The Court noted that since the appellants had been handed down the ultimate corporal penalty which was irreversible in nature on the basis of their confessions, the said confessions warranted careful scrutiny.

It was noted that both the appellants appeared before the Magistrate one after another on the same date which was quite intriguing. Both of them conducted themselves in a comfortable unison even in an extreme crisis situation; and both were in tune with the prosecution, which reasonably excluded the hypothesis of voluntary disclosure, free from taints of inducement or persuasion. The Court observed that it appeared to be more of a negotiated settlement rather than a volitional representation as there was a remarkable similarity in both the statements, in terms of sequential order as well as the pattern these were reduced into writing.

The Court observed that The fate of the prosecution’s case is hinged upon confessional statements, made by the convicts before a Magistrate and it is on the basis of their disclosures that they have been handed down the ultimate corporal penalty, irreversible in nature and thus warrants most careful scrutiny.” On overall analysis of the prosecution’s case, it was held that the confessional statements could not be relied upon without potential risk of error. The Court held that, “In the absence of evidentiary certainty, it would be unsafe to maintain the convictions on moral satisfaction that certainly cannot equate with legal proof.”

In view of the above, the appellants were held entitled the benefit of doubt and their appeal was allowed, thus setting aside the impugned judgments.[Muhammad Azhar Hussain v. State, 2019 SCC OnLine Pak SC 10, decided on 02-05-2019]

Case BriefsForeign Courts

South Africa High Court, Kwazulu–Natal Division: This appeal was preferred before the Bench of Ploos Van Amstel, J., against the order of conviction and sentence of appellant passed by regional Magistrate for commission of crime of rape in contravention of Section 3 of the Criminal Law (Sexual Offences and Related Matters) Act, 2007.

Facts of the case were such that the complainant a minor girl alleged appellant for the offence of raping her on several occasions between the years 2012 to 2015. The case went before the Magistrate where he was sentenced to life imprisonment.

Mkumbuzi, Counsel on behalf of the appellant submitted that complainant was not a competent witness and thus, her evidence was inadmissible on the ground that Magistrate had failed to establish if complainant understood the difference of truth and lies or the consequences of lying in accordance with Section 164(1) of the Act, 1977. Case of DPP v. Minister of Justice and Constitutional Development, 2009 (4) SA 222 (CC) was relied on where it was stated that a child unable to comprehend what it was to speak the truth cannot be admonished to speak the truth and hence, was an incompetent witness and cannot testify.

High Court was of the view that the rationale behind a person to be admonished to speak the truth was to make sure that the evidence was reliable without which the appellant’s right to a fair trial would be compromised.  Agreeing with the submissions of the appellant the conviction and sentence were set aside and the appeal was allowed. [SS v. State, CASE NO. AR 220 of 2018, Order dated 01-03-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. dismissed a hotel owner’s petition assailing dismissal of the application for his discharge, holding that since couples were found in semi-naked condition in hotel rooms adjacent to petitioner’s room, it was a matter requiring a complete trial.

A case of immoral trafficking was registered against the petitioner, pursuant to which he filed an application for discharge under Sections 227 and 228 of the Code of Criminal Procedure, 1973. The said application was rejected by the Magistrate. Hence, the instant petition was filed under Section 482 CrPC.

Learned counsel for the petitioner, Mr Shri Prakash Srivastava, submitted that as per Section 15 of the Immoral Traffic (Prevention) Act, 1956 only a special police officer is empowered to search without a warrant. Since the raid at petitioner’s hotel was not conducted by a special police officer, the whole search was vitiated in law and no criminal prosecution based on the same was permissible. Further, no medical examination was done on the couples produced before the Magistrate to establish any scientific evidence relating to there being immoral trafficking.

Learned counsel for the respondent, Mr Pramod Kumar, submitted that the raid was conducted in presence of Additional/Assistant Superintendent of Police who is notified as a ‘special police officer’ under the Act. Further, Section 15(5-A) of the Act provides for examination by a registered medical practitioner only for the purposes of determination of age, or detection of any injuries. Lastly, the petitioner, being the owner, was in the room adjacent to rooms where couples were recovered in semi-naked condition and, thus, he could not take the plea of innocence or ignorance.

The Court opined that no legal provision had been violated. Petitioner being the owner of hotel, and being present in the room adjacent to rooms from where couples were found in semi-naked condition, at this stage, could not be said to be innocent. Thus, the petition was dismissed holding that a full-fledged trial was required in the matter.[Sudhir Kumar v. State of Bihar, 2019 SCC OnLine Pat 289, Order dated 06-03-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J., for the reason of procedural lapses, quashed an order passed by the trial court wherein the Magistrate had convicted the petitioner (accused) after recording the plea of guilt voluntarily made by him.

The petitioner was convicted for the offences punishable under Sections 454 and 380 read with 34 IPC. Darshan Singh, Advocate representing the petitioner submitted that the Magistrate erred in convicting the petitioner by recording his plea of guilt as the trial court had not then reached the stage of framing of charges. Contravention of Section 240 and 241 CrPC contended.

After discussing Sections 238, 239 and 240 CrPC, the High Court was of the view that the conviction of the petitioner could not be sustained. Moreover, at the time when the petitioner was produced before the Magistrate and his plea of guilt was recorded, neither there was no legal counsel representing him, nor any amicus was appointed by the Magistrate. It was observed: “In the present case there is apparently no compliance with Sections 239 and 240 i.e. consideration by the Magistrate of the police report and the material submitted before it and an opinion formed that charge should be framed. Further, no legal counsel apparently has been provided to the petitioner before recording his plea of guilt.” As for non-framing of charges, the Court held: “As no charge was framed there was no question of the Magistrate at that stage to record the plea of guilt or otherwise of the accused, even if voluntarily made.” Holding that failure of justice had been questioned in the present case, the Court quashed the petitioner’s conviction and remitted the matter back to the trial court. [Adi Malik v. State, 2019 SCC OnLine Del 8204, dated 24-04-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J., while dismissing a criminal revision petition, held that the magistrate has a power to pass an order granting interim maintenance under Section 23 of the Protection of Women from Domestic Violence Act, 2005, with effect from the date of filing of the substantive petition under Section 12.

The wife filed a petition under Section 12 against the husband on 10-09-2014. Subsequently, on the wife’s petition under Section 23, by the impugned order the Magistrate awarded interim maintenance of Rs 15,000 for the wife and Rs 15,000 for the minor daughter payable monthly by the husband (appellant). The maintenance was ordered to paid from the date of filing of the substantive petition under Section 12.

Ranjan Bajaj, Advocate for the husband submitted that the trial court was in error in awarding maintenance from the date of filing of petition under Section 12. Per contra, Varun Chawla, Advocate appearing for the wife, supported the impugned order.

The High Court perused the entire record and held that the trial court passed the order of maintenance after proper analysis of all the relevant material. As for the submission of the husband mentioned above, the Court observed, “Section 23 of the DV Act does not provide a substantive right to parties but is a provision which empowers the trial court to pass an order granting interim maintenance in a petition filed under Section 12 of the DV Act. Merely because the trial court has not exercised the power under Section 23 of the DV Act, when a substantive petition under Section 12 of DV Act was filed and chose to pass an order only when a separate application under Section 23 of the DV Act was filed, does not mean that a Magistrate does not have the power to pass an order with effect from the date of filing of the substantive petition under Section 12.” In such view of the matter, the court did not find any merit in the petition which was thus dismissed. [Gaurav Manchanda v. Namrata Singh, 2019 SCC OnLine Del 7353, dated 27-02-2019]

Case BriefsSupreme Court

Supreme Court: In a matter where the Gujarat High Court had set aside the order passed by a Chief Judicial Magistrate who had taken cognizance of the offences punishable under Sections 420, 465, 467, 468, 471, 477A and 120-B IPC on the basis of the second supplementary charge sheet filed by the police and ordered issuance of process to the accused, the bench of R. Banumathi and Indira Banerjee, JJ held that the High Court ought not to have gone into the merits of the matter when the matter is in nascent stage.

Holding that the High Court overstepped in the said matter, the bench said:

“When the prosecution relies upon the materials, strict standard of proof is not to be applied at the stage of issuance of summons nor to examine the probable defence which the accused may take. All that the court is required to do is to satisfy itself as to whether there are sufficient grounds for proceeding.”

Stating that while hearing revision under Section 397 Cr.P.C., the High Court does not sit as an appellate court and will not reappreciate the evidence unless the judgment of the lower court suffers from perversity, the bench said:

“materials produced by the prosecution ought not to have been brushed aside by the learned Single Judge to quash the order of issuance of summons to the respondent-accused. As to whether these evidences are sufficient to sustain the conviction of the respondent-accused or whether he has a plausible defence or explanation is the matter to be considered at the stage of trial. The learned Single Judge ought not to have weighed the merits of the case at the initial stage of issuance of summons to the accused.”

The Court explained that while taking cognizance of an offence based upon a police report, it is the satisfaction of the Magistrate that there is sufficient ground to proceed against the accused and when the satisfaction of the Magistrate was based on the charge sheet and the materials placed before him, the satisfaction cannot be said to be erroneous or perverse and the satisfaction ought not to have been interfered with.

It was, hence, held that the High Court committed a serious error in going into the merits and  demerits of the case and hence, the impugned order was set aside. [State of Gujarat v. Afroz Mohammed Hasanfatta, 2019 SCC OnLine SC 132, decided on 05.02.2019]

Case BriefsHigh Courts

Tripura High Court: The Bench of S. Talapatra, J. dismissed a criminal revision petition challenging an order whereby the Sessions Court refused to take cognizance of a police report filed under Section 173(2) of the Code of Criminal Procedure, 1973 on the ground that further investigation was continuing against the arrested and absconding accused persons.

The question before the Court was that whether a police report can be filed in part keeping the investigation incomplete or continuing; and whether such a report could be brought within the definition of ‘police report’ under Section 2(r) of CrPC.

Learned public prosecutor submitted that the trial court was duty bound to consider the police report and infer whether any offence has been disclosed. Whereas counsel on behalf of respondent argued that a police report can be filed only after completion of investigation as there was no other provision in CrPC to file a police report in part.

The Court observed that Section 2(r) of CrPC clearly stated that a report forwarded by a police officer to the Magistrate is a police report. Whether on the basis of the said report, cognizance of any offence shall be taken by the Magistrate, is altogether a different question.

It was opined that after receipt of a police report, the Magistrate can do one of following: (i) he may decide that there is no sufficient ground for proceeding further and drop action; (ii) he may take cognizance of offence under Section 190(1)(b) of CrPC on the basis of materials in the police report; or (iii) he may direct further investigation by the police.

After a perusal of records, the Court noted that eighteen charge sheets had been filed in the instant case. Admittedly, these charge sheets were not a result of the further investigation but of a continuing investigation. Hence, it was inferred that the subject police report was not filed on completion of the investigation. In view thereof, it was held that there was no infirmity in the impugned order.[State of Tripura v. Bimal Chakraborty, 2019 SCC OnLine Tri 1, decided on 03-01-2019]

Case BriefsForeign Courts

Mauritius Intermediate Court: The Bench of B.R. Jannoo- Jaunbocus, set aside the motion of the defendant in relation to the protection of his fundamental rights.

The facts of the case are that the accused was a public official and was charged under Sections 4(1)(b)(2) of the Prevention of Corruption Act, 2002 for unlawfully and criminally, soliciting from another person, a gratification for doing an act which was facilitated by his duties. The case was heard by a differently constituted Bench of the Intermediate Court, which dismissed the matter against the accused.  It was then appealed to the Supreme Court against the acquittal. The Court was faced with the Herculean task of interpreting the Constitution. The questions before the Court were –

  1. Whether the Court on appeal can remit back a case to the lower Court with the direction that another Magistrate, other than the trial Court should hear evidence and proceed to pass sentence in the teeth of Section 10 of the Constitution?
  2. Whether a newly constituted bench can sentence an accused without hearing all the evidence on record?

The Court held that the right of the accused to a fair hearing at sentencing stage and the duty upon the court to give an accused party the opportunity to be heard before sentence should be passed upon him. An omission to hear a defendant before passing sentence is a serious breach of procedural fairness. The direction given by the Supreme Court in the present case was that of directing the Presiding Magistrate to designate another magistrate “to hear evidence on the appropriate sentence to be passed and proceed to sentence”. The Court concluded that there was no infringement of the principle laid down in Sip Heng Wong Ng v. R (Privy Council Appeal No 52 of 1985) [1985 MR 142], if it were to proceed with the hearing for the purpose of sentencing. The motion of the defence was set aside. [Independent Commission Against Corruption v. JOTTEE Dharmanund, 2019 INT 3, decided on 17-01-2019]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Sabyasachi Bhattacharya, J. allowed a challenge to the order of Additional District Judge for execution of an order passed under Section 24 of the Hindu Marriage Act, 1955.

The facts of the case are such that the Additional District Judge, while taking up an execution case in connection with an alimony order passed under the Hindu Marriage Act, suffered an identity crisis and acted as a Magistrate to invoke provisions of Section 125(3) CrPC and allied provisions to issue a distress warrant against the husband. The Collector was directed to realise the maintenance allowance as arrears of land revenue. The husband assailed the order as sans jurisdiction.

The High Court, at the outset, observed that it is unheard of that an order passed under Section 24 HMA would be executed by taking resort to the provisions of CrPC. In view of the Court, this was a case the execution application was filed under the correct provisions of law, but the Additional District Judge consciously resorted to powers which have no nexus with the proceedings under consideration; the powers that are conferred on a Magistrate and not on an Additional District Judge. As such, it was held that the order impugned was devoid of inherent jurisdiction and could not stand a moment’s scrutiny. Accordingly, the order impugned was set aside. The Additional District Judge was directed to dispose of the matter in accordance with appropriate provisions of law. [Taraknath Mukherjee v. Sandhya Mukherjee, 2018 SCC OnLine Cal 6154, dated 07-09-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Mangesh S. Patil, J. dismissed a writ petition filed against the order of the Magistrate recalling his earlier order.

Brief facts of the case are that the Magistrate concerned, on an earlier occasion, had ordered investigation under Section 156 CrPC in a criminal case. Subsequently, the same Magistrate, vide the order impugned, recalled his earlier order. The petitioner submitted that the subsequent order was passed without jurisdiction as CrPC does not empower a Magistrate to recall his earlier orders. Reliance was placed upon Supreme Court decisions in Subramanium Sethuraman v. State of Maharashtra, (2004) 13 SCC 324 and Iris Computers Ltd. v. Askari Infotech (P) Ltd., (2015) 14 SCC 399.

The High Court, at the outset, observed that the principle laid down in the cases mentioned hereinabove does not cover a case of the instant nature. A trite principle was laid down in the said cases that a Magistrate does not have any power under CrPC to recall, review or reconsider his own order, howsoever illegal it might be. However, in the present case, it was not a matter of legality or otherwise of the order passed by the Magistrate but the manner in which the order was procured by misleading the Court by suppression of material facts and circumstances. Fraud vitiates everything, observed the Court. It was noted that the petitioner failed to disclose the fact of filing a complaint with the police; he misused the process by approaching a different Magistrate and had solicited the order which was subsequently set aside by the order impugned. Such and additional facts were serious matters which constitute fraud on the court. The Court was of the view that there was no illegality committed by the Magistrate in recalling his own order. The writ petition was accordingly dismissed. [Deepak v. Shriram,2018 SCC OnLine Bom 2199, dated 20-08-2018]

Case BriefsHigh Courts

Calcutta High Court: The Division Bench comprising of Joymalya Bagchi and Ravi Krishan Kapur JJ., while setting aside the conviction and sentence imposed upon the appellant, stated that the evidence placed are too flimsy and contradictory to inspire confidence.

The factual matrix of the case was that the appellant was detained by the Air Intelligence Unit (AIU) at the NSCBI Airport while he was proceeding towards immigration and subsequently on interrogation and suspicion of possession of contraband a complaint was filed under Sections 21(b) and 23(b) of the NDPS Act. An X-Ray was conducted of the abdomen of the appellant further on being detained under surveillance at the AIU office, 49 pieces of bullet shaped capsules were allegedly recovered from the appellant’s stool. The contents which were recovered consisted of ‘Hashish’.

The appellant had denied all the charges by stating that the procedure to recover contraband was in violation of Section 103 of the Customs Act, also no order of the Magistrate in terms of Section 103(6) of the mentioned Act was obtained.

Therefore, the Court denying the contentions of the respondents and giving due consideration to the circumstances and facts of the case, stated that the appellant was kept under surveillance at the AIU office until the time he defecated ejecting the contraband from his body. The said move by the authorities was said to be a violation of the statutory scheme but also an infringement of the fundamental right under Article 21 of the Constitution of India, especially on no permission been taken from the magistrate for the same.

“Procedure entailing recovery of Narcotics/contraband from the body of the suspect requires invasion into the physical body of the suspect and an encroachment into his privacy such exercise should be in strict compliance with statutory safeguards”. [Mursaleen Mohammad v. Union of India,2018 SCC OnLine Cal 4885, dated 19-06-2018]

Case BriefsSupreme Court

Supreme Court: Ashok Bhushan, J. discussed the validity of procedure of taking fingerprints under Identification of Prisoners Act 1920, while delivering a separate opinion in a decision along with Indu Malhotra, J. who also delivered the Judgment wherein the appellant-convict was acquitted from the offence under Sections 302 and 392 read with Section 34 IPC.

Bhushan, J., in his opinion interpreted Sections 3, 4 and 5 of the Act. Firstly, the Judge observed, looking at the objects and reasons of the Act, the purpose behind enacting it was to remedy the mischief where police officers took fingerprints of convicts and suspects without legal sanction for the same. Looking at the Sections named above the Judge observed, those were separate and independent provisions pertaining to taking of fingerprints. Section 4 (taking fingerprints of a non-convict) does not exclude the cases where punishment for the offence is death or life imprisonment. Neither there is any bar on taking of fingerprints by the police officer in absence of orders taken from the Magistrate. Further, the police officer is not denuded of powers to take fingerprints under Sections 3 and 4, even in absence of rules made by the State under Section 8.

However, in the instant case, the Hon’ble Bench held that even if the chance fingerprint of the appellant was accepted in evidence, it did not complete the chain of events, unerringly pointed towards the guilt of the appellant in commision of the murder. Further Malhotra, J. in the Judgment delivered by her noted that there was no eyewitness to the incident, the conviction was based on circumstantial evidence; however, the prosecution failed to complete the chain of events to prove the guilt of the appellant beyond reasonable doubt. As such, the appeal was allowed and the appellant was acquitted. [Sonvir v. State (NCT of Delhi), 2018 SCC OnLine SC 650, decided on 02-07-2018]

Case BriefsHigh Courts

High Court of Judicature of Madras: A Single Judge Bench comprising of M. S. Ramesh, J., recently addressed a petition that was filed under Section 482 Code of Criminal Procedure Code which prayed to the Court to direct the respondent Police to not harass the petitioners under the pretence of ongoing investigation/enquiry.

The Court acknowledged that Investigation Officers hold unfettered powers with respect to an enquiry into a non cognizable offence or a cognizable offence but it needs to be ensured that such powers are legitimately exercised. The Court observed that even though the Magistrate is empowered with the privileges of being a guardian in all stages of the police investigation, he’s still not handed over with powers which allow him to interfere with the actual investigation or the mode of investigation.

The Court held that its exercising of powers under Section 482 of the Criminal Procedure Code would not normally allow it to interfere with the investigation conducted by a police officer but, it would also not turn a blind eye to instances of harassment under the guise of investigation by the police. It also observed that what constitutes as “harassment” could fall under a broad ambit and hence, “harassment” in the words of the petitioners could be different from what the respondents thought to be “harassment”.

The Court issued the following guidelines to curb harassment from taking place while investigation was going on:

(i) When a person named in a complaint, or a witness needs to be summoned, the police officer shall present such a person with a written summon under Section 160 of the Criminal Procedure Code specifying the date and time for appearing before the enquiry;

(ii) The minutes of the enquiry shall be recorded in the general diary of the police station;

(iii) The Police Officers shall not indulge in harassing the persons being investigated.

[A. N. Lalman Lal v. State of Tamil Nadu, 2017 SCC OnLine Mad 10974, order dated 7.12.2017]

Case BriefsSupreme Court

Supreme Court: Interpreting Section 173 CrPC with reference to the power of the investigative agency, the Court said that the un-amended and the amended sub-Section (8) of Section 173 of the Code if read in juxtaposition, would overwhelmingly attest that by the latter, the investigating agency/officer alone has been authorized to conduct further investigation without limiting the stage of the proceedings relatable thereto. This power qua the investigating agency/officer is thus legislatively intended to be available at any stage of the proceedings.

The bench of Dipak Misra and Amitava Roy, JJ said that though the Magistrate has the power to direct investigation under Section 156(3) CrPC at the pre-cognizance stage even after a charge-sheet or a closure report is submitted, once cognizance is taken and the accused person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant. The direction for investigation by the Magistrate under Section 202 CrPC, while dealing with a complaint, though is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. Such a direction for investigation is not in the nature of further investigation, as contemplated under Section 173(8) CrPC. Had it been the intention of the legislature to invest such a power, Section 173(8) of the Cr.P.C would have been worded accordingly to accommodate and ordain the same having regard to the backdrop of the incorporation thereof. The Court said that the recommendation of the Law Commission in its 41st Report which manifesting heralded the amendment, significantly had limited its proposal to the empowerment of the investigating agency alone.

It was held that after a report is submitted by the police on completion of the investigation, the Magistrate, in both the contingencies, namely; when he takes cognizance of the offence or discharges the accused, would be committed to a course, whereafter though the investigating agency may for good reasons inform him and seek his permission to conduct further investigation, he suo motu cannot embark upon such a step or take that initiative on the request or prayer made by the complainant/informant. Not only such power to the Magistrate to direct further investigation suo motu or on the request or prayer of the complainant/informant after cognizance is taken and the accused person appears, pursuant to the process, issued or is discharged is incompatible with the statutory design and dispensation, it would even otherwise render the provisions of Sections 311 and 319 Cr.P.C., whereunder any witness can be summoned by a Court and a person can be issued notice to stand trial at any stage, in a way redundant. [Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel, 2017 SCC OnLine SC 86, decided on 02.02.2017]

Case BriefsHigh Courts

Orissa High Court: In a criminal revision petition challenging the impugned order passed by the Sessions Judge, Cuttack, involving the transfer of custody of a five-year old to the mother by an ex-parte interim order, the Bench of S.K. Sahoo J. held that the Magistrate is empowered to pass an ex parte order in granting interim/temporary custody of any child or children to the aggrieved party even based on the affidavit filed by such aggrieved party without notice to the respondent as is clear from the conjoint reading of Section 21 and Section 23(2) of the Protection of Women from Domestic Violence Act .The only criteria must be a case of exigency under the facts and circumstances of each case which can only be considered if the application prima facie discloses regarding commission of domestic violence or likelihood of commission of such domestic violence on the aggrieved person. The Court further stated that the Magistrate has got the power to revoke the ex parte order if he is satisfied that it has been obtained by the aggrieved person by suppression of material facts or by playing fraud upon the Court.

This Court observed that the learned Magistrate had rightly passed the order of granting custody of the girl child in favour of the mother considering the welfare of the child and the petitioner is at liberty to establish before the Magistrate at appropriate stage that the psychological disorder of the opposite party, if any, is of such a nature that it would be harmful for the girl child to stay in the company of the opposite party. “This arrangement is purely interim in nature which will be decided finally by the Magistrate while considering the application filed under Section 25(2) of the PWDV Act filed by the petitioner or while disposing of the application under Section 12 of the PWD. Act”, said the Bench. [Vinay Gupta v. Saveri Nayak, 2016 SCC OnLine Ori 862, decided on 28.11.2016]


Case BriefsHigh Courts

Allahabad High Court: Deciding an application under Section 482 CrPC, for quashing the order passed by the Chief Judicial Magistrate, Bulandshahar the Bench of Abhai Kumar, J held that under Section 156 CrPC, the Magistrate has the whole sole authority to monitor the investigation and in case the investigation is not going on in a proper or fair manner, the Magistrate even has the authority to interfere in the investigation.

The Magistrate by the impugned order had dismissed the surrender application filed by the applicant doctor, who was accused of medical negligence, on the ground that interference in the investigation cannot be done. The surrender application also prayed that various papers along with the surrender application be sent to the Investigating Officer and after taking into consideration the papers, report may be called for from the Investigating Officer.

The Court observed that “the learned Magistrate while passing the impugned order observed that court cannot interfere in the investigation. The observation of the Magistrate can be correct up to certain extent, but what does interfere mean is entirely dependent upon the facts and circumstances of the case.”

Referring to the law as laid down in Sakiri Vasu v. State of UP, (2008) 2 SCC 409, the Court observed that a special duty has been casted by the Apex Court upon the Magistrate while monitoring the investigation. Doctrine of implied power was also applied by the Apex Court and even asserted that the Income Tax Appellate Tribunal has implied power to grant stay, although no such power was expressly granted to it by the Income Tax Act. The Court further inferred that there is no express power to the Magistrate regarding the monitoring of the investigation but under Section 156 CrPC, that implied power is there and the Magistrate is having whole sole authority to monitor the investigation and in case investigation is not going on in a proper or fair manner, the Magistrate is even having authority to interfere in the investigation.

Dismissing the application, the Court held that the applicant cannot be allowed to bye-pass the regular procedure and only on the apprehension that applicant will be arrested, he cannot be allowed not to cooperate with the investigating agency thereby prolonging the investigation. Prayer for quashing of FIR by co-accused Dr Kuldeep Kaushik and others was also refused. [Dr. Kuldeep Kaushik v. State Of U.P., 2016 SCC OnLine All 722 , decided on September 2, 2016]

Case BriefsSupreme Court

Supreme Court: The case before the bench comprising of A.K. Sikri & R.K Agarwal,JJ was whether the Court of Sessions is empowered to take the cognizance of offence when a similar application to this effect was rejected by the Judicial Magistrate while committing the case to Sessions Court, taking cognizance of offence only under Section 306 IPC and specifically refusing to take cognizance of offence under Sections 304-B and 498-A IPC.

The Court observed that normally, such a course of action would not be permissible. But referring to the present case, the court held that the power of Magistrate in refusing to take cognizance against the appellants is revisable by a superior Court, the Court of Sessions in this case, either on the revision petition that can be filed by the aggrieved party or even suo moto by the revisional Court itself. Also, it was not a case wherein the opportunity was not given to the other party to file a reply at the sessions Court against the order of Cognizance and the Court also heard their arguments. Thus, Court can take the cognizance of the matter and the appeal is dismissed. [Balveer Singh. v. State of Rajasthan, 2016 SCC OnLine SC 481, decided on 10.05.2016]

Supreme Court

Supreme Court: Giving an affirmative answer to the question that whether a Magistrate after accepting a negative final report submitted by the Police can take action on the basis of the protest petition filed by the complainant/first informant, the bench of SJ Mukhopadhaya and Ranjan Gogoi, JJ held that that only because the Magistrate has accepted a final report, the same by itself would not stand in his way to take cognizance of the offence on a protest/complaint petition.

In the present case, a case was registered under Section 364 IPC by the respondents, before the Supreme Court, against the appellants and two other accused before the Magistrate and on completion of investigation, the investigating officer submitted a final report to the court that no case is made out and the accused have been falsely implicated. However, the Magistrate accepted the final report but simultaneously directed that the case be proceeded with as a complaint case which resulted into a petition before the Allahabad High Court where it was held that the Magistrate was correct in taking cognizance against the accused even after accepting the final negative report.

The Court, rejecting the contention of the appellants represented by Shirish Mishra, dismissed the petition and held that having accepted the final report the Magistrate had not become “functus officio” and was not denuded of all power to proceed in the matter. Rakesh v. State of UP, Criminal Appeal No.1412 of 2014, decided on 13.08.2014

To read the full judgment, refer SCCOnLine