Case BriefsHigh Courts

Rajasthan High Court: Arun Bhansali, J. dismissed a writ petition filed by the petitioners against an order passed by Rajasthan Non-Government Educational Institution Tribunal, Jaipur (the Tribunal).

In the instant case, during the pendency of a charge sheet leveling four charges against the respondent, the petitioners passed a resolution inter alia compulsorily retiring the respondent under the provisions of Section 16 (1) of the Rajasthan Non-Government Education Institutions Act, 1989. Aggrieved thereby, the respondent approached the Tribunal by filing an appeal which was allowed. In its impugned judgment, the Tribunal quashed the order of compulsory retirement passed by the petitioners holding it illegal. It also ordered for reinstatement of the respondent with all the consequential reliefs including salary and other benefits. Aggrieved thereby, the petitioners filed the instant writ petition assailing the order of the Tribunal.

The learned counsel for the petitioners, Dr Nupur Bhati and Abhishek Mehta, contended that the Tribunal was not justified in passing the impugned order as, “the burden was on the respondent to prove that he was unemployed from the date of his compulsory retirement till reinstatement, which was not proved.”

The Court observed that “the petitioners were bent upon relieving the respondent from service and, therefore, applied the procedure of compulsory retirement, which was not justified.”  Reliance was placed on the judgment in State of Gujarat v. Umedbhai M. Patel, (2001) 3 SCC 314, where certain principles regarding compulsory retirement were laid down. The Court observed that the petitioners acted contrary to those principles, and held that “from the material which came on record, it was apparent that the order of compulsory retirement was passed as a shortcut to avoid departmental enquiry which was already pending and the same was imposed as a punitive measure by the petitioners and in those circumstances the order was clearly contrary to principles (vi) & (viii) above, the findings of the Tribunal qua the wrongful exercise of power of compulsory retirement cannot be faulted.”

Regarding justification of consequential reliefs, it was held that “..during the intervening period as a temporary employee got engagement with some institution cannot be a reason for the petitioners to deny the payment of back salary and other benefits once it is found that their action was against the law and the order of compulsory retirement was passed only with an intention to ease out the respondent from employment during pendency of enquiry.”

In the view of the above, the Court dismissed the petition holding that the same was devoid of substance.[Chopasni Shiksha Samiti v. Gajendra Singh, 2019 SCC OnLine Raj 430, Order dated 09-05-2019]

Case BriefsHigh Courts

Allahabad High Court: This application was addressed by Ajit Singh, J. which was filed under Section 482 Criminal Procedure Code for quashing of the entire criminal proceeding along with the charge sheet arising out of the case filed under Sections 452, 354-K(a), 323, 504, 506 for first applicant and under Ss. 452, 354-K(a), 323, 504, 506 IPC & 3(1)(I)B SC/ST Act for second applicant and cognizance order pending before Special Judge (SC/ST Act), Jhansi.

Applicant contended before the Court that no offence against the applicants was disclosed and that this case was instituted with the malafide intention for harassing the applicants for which applicant had also provided documents and statements supporting his contention.

High Court was of the view that from the materials on record and facts of the case it cannot be said that no offence was made out against the applicants. But since the facts presented are disputed questions of fact, which the Court could not adjudicate under Section 482 of the Criminal Procedure Code. Therefore, Court refused to quash the entire proceeding of the case and it was directed that in case the applicants appear and surrender before the court below within 30 days from today and applies for bail, their prayer for bail shall be considered. [Sunil Kori v. State of U.P., 2019 SCC OnLine All 2065, Order dated 23-04-2019]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and L. Nageswara Rao and Sanjay Kishan Kaul, JJ has set aside the Bombay High Court decision refusing the Maharashtra Police a ninety-day extension to file the charge-sheet under the Unlawful Activities Prevention Act, 1967 against the human rights activists in Bhima Koregaon violence case.

Background of the case:

The activists Surendra Gadling, Mahesh Raut, Rona Wilson, Professor Shoma Sen and Sudhir Dhawale were arrested after an FIR was lodged alleging that members of the ‘Kabir Kala Manch’, under the head ‘Bhima Koregaon Shouryadin Prerna Abhiyan’, held a meeting of the Elgar Parishad, where active members of CPI (Maoist) supposedly raised inflammatory slogans and engaged in certain other allied activities, with the intention to conspire, incite and abet the commission of terrorist acts and other unlawful activities by using violent means, thus, promoting enmity between different groups, which ultimately culminated 2 in the break-out of violent riots on 1.1.2018, at a place popularly known as Bhima Koregaon, where a large population of people was said to have gathered to celebrate the 200th anniversary of the battle at Bhima Koregaon.

Alleged non-compliance of the proviso to Section 43D(2)(b) of the Unlawful Activities Prevention Act, 1967:

On the question that whether the necessary ingredients of the proviso to Section 43D(2)(b) of the said Act were set out in the application for extension of a period of 90 days, for further investigation and filing of charge-sheet in the said crime, the Court explained that there are certain requirements that need to be fulfilled, for its proper application of the proviso to Section 43D(2)(b). These are as under:

  1. It has not been possible to complete the investigation within the period of 90 days.
  2. A report to be submitted by the Public Prosecutor.
  3. Said report indicating the progress of investigation and the specific reasons for detention of the accused beyond the period of 90 days.
  4. Satisfaction of the Court in respect of the report of the Public Prosecutor.

After perusing the material placed before it, the Court said that it cannot accept the argument that the material set out in the document does not meet with the requirements of the proviso, insofar as the reasons for seeking extension for the period of investigation are concerned. It, however, said that there is no doubt that the report/application of the public prosecutor, setting out the reasons for extension of 90 days of custody to complete investigation leaves something to be desired.

It was, however, noticed:

“The first document, purporting to be the application of the IO, contains the reasons for such extended period of investigation but the second document details out the grounds in extenso and cannot be said to be only a mere reproduction of what is stated in the first document. It cannot, thus, be said that there has been complete absence of application of mind by the public prosecutor. Undoubtedly the request of an IO for extension of time is not a substitute for the report of the public prosecutor but since we find that there has been, as per the comparison of the two documents, an application of mind by the public prosecutor as well as an endorsement by him, the infirmities in the form should not entitle the respondents to the benefit of a default bail when in substance there has been an application of mind.”

Ruling:

The Court, hence, set aside the Bombay High Court order and held that the respondents would not be entitled to the benefit of default bail. The Court, however, clarified that since charge-sheet has been filed, the observations made in the present order wouldn’t affect the right of accused to seek regular bail.

[State of Maharashtra v. Surendra Pundlik Gadling, 2019 SCC OnLine SC 188, decided on 13.02.2019]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench comprising of Karuna Nand Bajpayee and Ifaqat Ali Khan, JJ., dismissed a petition on the ground that the contentions raised by the petitioners’ counsel were related to disputed questions of fact.

The Court had been called upon to adjudge the worth of prosecution allegations and evaluate the same on the basis of various intricacies of factual details. The veracity and credibility of the indictment was questioned, the absence of material which would substantiate the allegations that were contended and false implication was pleaded.

The High Court dismissing this petition held that only a prima facie satisfaction of the court about the existence of sufficient ingredients constituting the offence is required in order to see whether the FIR required to be investigated or deserves quashing. The ambit of the investigation into the alleged offence is an independent area of operation and does not call for interference in the same except in rarest of rare cases. Further, it stated that the operational liberty to collect sufficient material cannot be scuttled prematurely by any uncalled for overstepping of the Court. It has to be an extremely discreet exercise. Call for determination on pure questions of fact should be adequately discerned either through proper investigation or should be adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial court in case a charge sheet is submitted. The Court did not deem it proper to have a pre-trial before the actual trial begun. The FIR was thus not quashed. [Seraj Ahamad v. State of U.P., 2019 SCC OnLine All 23, Order dated 08-01-2019]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of S.A. Bobde and L. Nageswara Rao, JJ. allowed a criminal petition filed against the judgment of Hyderabad High Court whereby appellants’ petition under Section 482 CrPC was dismissed.

Respondent 2-wife filed a complaint alleging harassment by her husband and his relatives including the appellants herein. The appellants were maternal uncles of the husband. Pursuant to the said complaint, an FIR was filed under Section 498-A IPC. The appellants filed the petition before the High Court for quashing the FIR. However, the High Court, vide the judgment impugned, dismissed the petition of the appellants. Aggrieved thus, the appellants filed the instant appeal.

The Supreme Court perused the charge sheet and found that the appellants were not the immediate family members of the husband. Except for the statement that they support the husband who was harassing the wife, nothing showed their involvement in the offence alleged. The Court referred to Kans Raj v. State of Punjab, (2000) 5 SCC 207 and Kailash Chandra Agarwal v. State of U.P., (2014) 16 SCC 551 and observed that the relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out. On the facts and circumstances of the present case, the Court held that not even a prima facie case was made out against the appellants. Resultantly, the appeal was allowed; the judgment impugned was set aside; and criminal proceedings qua the appellants, in the matter concerned, were quashed. [K. Subba Rao v. State of Telangana, 2018 SCC OnLine SC 1080, dated 21-08-2018]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench of Raja Vijayaraghavan, J.,  decided a bail application filed under Section 239 of the CrPC wherein it granted bail to the accused because of the default of the prosecution in filing the charge sheet.

The applicant herein was the sixth accused and was remanded to judicial custody on 19.5.2018. He had been languishing in judicial custody for more than 60 days. The counsel on behalf of the applicant submitted that the applicant was entitled to be released on bail on the default of the prosecution in filing the charge sheet within the prescribed period, which was 60 days in the present case.

The High Court observed that more than 60 days had elapsed from the date of remand of the applicant. The final report had not been filed after completion of investigation. The Court held that the applicant had absolute right to be released on bail and it found no reason to refuse the same. The application was accordingly allowed.[Sanal v. State of Kerala,2018 SCC OnLine Ker 3010, dated 09-08-2018]

Case BriefsHigh Courts

Gauhati High Court: A Single Judge Bench comprising of Mir Alfaz Ali, J., dismissed a criminal petition filed under Section 482 CrPC wherein the petitioners sought quashing of charge-sheet and proceedings in criminal cases.

The petitioners were alleged to have trespassed into the land of Respondent 2 and caused damages to the fencing and RCC post. A criminal case was registered and charge-sheet was submitted under Sections 447, 427, 452 IPC against the petitioners.

The High  Court observed that witness statements under Section 161 CrPC clearly show that petitioners trespassed into the land of Respondent 2. A prima facie case for the said was made out. It was noted to be a trite law that for the purpose of exercising inherent power under Section 482, the Court needs to see whether allegations made in the FIR or evidence collected, on its face value, make out any offence. The Court relied on Radhey Shyam Khemka v. State of Bihar, (1993) 3 SCC 54, wherein it was held that the High Court while exercising such power cannot usurp the jurisdiction of trial court. The power has to be exercised to quash prosecution that amounts to abuse of process of court. It cannot be used to hold a parallel trial. In the instant case, having found that there was a prima facie case, the Court declined to interfere with the proceedings impugned. [Promod Adhikari v. State of Assam,2018 SCC OnLine Gau 822, dated 27-07-2018]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Aditya Kumar Trivedi, J. allowed a criminal appeal and set aside the conviction and sentence of the appellant under Section 307, 333 and 34 IPC along with Section 27(1) of Arms Act.

The appellant was accused of firing gunshot at the injured Assistant Sub-Inspector (informant) while he was returning from election duty. It was alleged that the appellant came on a motorcycle from behind along with the co-accused and fired gunshot at the petitioner thereby injuring him. The FIR was registered in the case, the appellant was apprehended, charge sheet filed, and he was tried, convicted and sentenced as mentioned above. The appellant challenged the order of the trial court in the instant appeal.

The High Court, on a careful consideration of the record, inter alia observed that the informant saw the appellant who came from behind, only after the gunshot had been fired. As there was no other person to be seen on the road, the informant inferred that it was the appellant who had injured him. The conviction was based on the fardbeyan of the informant, and such inference as was made by the informant could not be made a basis for conviction of the appellant. Further, identification of the appellant was done by the informant while he was in the police station in another case, and no proper test identification parade was conducted which was another irregularity which demanded consideration while deciding the case. In such circumstances, the High Court allowed the appeal and set aside the order of conviction and sentence passed against the appellant. [Santosh Yadav v. State of Bihar,2018 SCC OnLine Pat 955, dated 29.05.2018]

Case BriefsSupreme Court

Supreme Court: The bench of SA Bobde and L Nageswara Rao, JJ defined the scope of the words ‘competent Court’ in Section 2(d) of Maharashtra Control of Organised Crime Act, 1999 (MCOCA) and held that the meaning of the term is not restricted to Courts in Delhi and charge sheets filed in Courts in other States can be taken into account for the purpose of constituting continuing unlawful activity. It was also held that there cannot be a prosecution under MCOCA without an organised crime being committed within Delhi.

The Court was hearing the issue relating to conviction of the respondent who was involved in in committing unlawful activities along with other members of a crime syndicate since 1985 in an organized manner, apart from being involved in 20 cases of attempt to murder, murder, extortion, rioting, cheating, forgery and for offences under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. The competent criminal Courts in and outside Delhi had taken cognizance of 8 crimes. Considering the nature of the crimes committed by the respondent, it was deemed proper to invoke MCOCA.

Senior Advocate Siddharth Luthra, appearing for the State of Delhi submitted before the Court that:

“organized crime is a serious threat to the society and that statement of objects and reasons have to be taken into account for interpretation of the provisions of the Act.”

He said that criminal cases in which cognizance was taken by Courts outside Delhi are relevant for the purpose of proceeding against the respondents under MCOCA. He added that organized crime is not restricted to territory within a State and a restrictive reading of the word ‘Competent Court’ would defeat the purpose for which the statute was enacted.

Respondent’s counsel, Senior Advocate UU Lalit, on the other hand, argued that MCOCA operates only within the territorial limits of National Capital Territory of Delhi and said:

“MCOCA is a special legislation which deals with organized crime and unless the essential ingredients of the offences under Sections 3 and 4 are made out, a case under the said statute cannot be registered.”

He further supported his argument by the fact that 6 out of 8 charge sheets filed against the respondents were filed in the State of Uttar Pradesh and had no nexus with the charge sheets filed in Delhi.

Agreeing with the arguments of the State, the Court said:

“Organised crime is not an activity restricted to a particular State which is apparent from a perusal of the Statement of Objects and Reasons. A restrictive reading of the words “competent Court” appearing in Section 2 (1)(d) of MCOCA will stultify the object of the Act.”

The Court further said that if members of an organised crime syndicate indulge in continuing unlawful activity across the country, it cannot by any stretch of imagination said, that there is no nexus between the charge sheets filed in Courts in States other than Delhi and the offence under MCOCA registered in Delhi.

The Court, however, agreed with the respondents on the argument that an activity of organized crime in Delhi is a sine qua non for registration of a crime under MCOCA. In the absence of an organized crime being committed in Delhi, the accused cannot be prosecuted on the basis of charge sheets filed outside Delhi. Noticing that there was no organised crime committed by the Respondents within the territory of Delhi, the Court held that there was no cause of action for initiation of proceedings under MCOCA in the present case and that the case should be heard by the competent court that has the territorial jurisdiction. [State of NCT of Delhi v. Brijesh Singh,  2017 SCC OnLine SC 1206, decided on 09.10.2017]