Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J., while exercising inherent powers under Section 482 CrPC quashed the criminal complaint filed against the petitioners for the offences punishable under Sections 405, 420 and 441 read with Section 120-B IPC. Warrants issued against the petitioners by the Magistrate in the same case were also quashed.

The parties were involved in a landlord-tenant dispute, pursuant to which the said complaint was filed by the landlord. Magistrate took cognizance and issued process against the petitioners. Aggrieved, they filed the instant petition. It was an admitted fact that the petitioners resided beyond the territorial jurisdiction of the Magistrate concerned.

Dismissing Chapter 15 of CrPC which deals with complaints to Magistrates, the High Court relied on Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., 2019 SCC OnLine SC 682, wherein the Supreme Court held that under the amended sub-section (1) to Section 202 CrPC, it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction. he shall inquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fir for finding out whether or not there is sufficient ground for proceeding against the accused. The Supreme Court also held that the order of the Magistrate must reflect that he has applied his mind to the facts of the case and the law applicable thereto. It was also held that the application of mind has to be indicated by disclosure of mind on the satisfaction and considering the duties of the magistrates for issuance of summons to accused in a complaint case, there must be sufficient indication of it. The Supreme Court after referring to a catena of its previous judgments held that summons may be issued if the allegations in the complaint, the complainant statement and other materials would show that there are sufficient grounds for proceeding against the accused.

The records of the instant matter, however, did not reveal that the Magistrate had complied with the provisions of Section 202 CrPC and applied her mind to the facts of the case and the law applicable thereto. The order of taking cognizance stated that “cognizance of the matter is taken against accused no. 1, 2, 3 and 4”. Section 190 CrPC deals with cognizance of offence by Magistrate, which provides that the Magistrate “may take cognizance of any offence.” It is settled law that cognizance is taken of the offence and not the offender. The Magistrate did not even mention which of the offences she had taken cognizance of.

It was, thus, held that the Magistrate failed to exercise her discretion to issue summons against the petitioners residing beyond her territorial jurisdiction in the manner required. Even otherwise, considering the allegations, it was found that there was no material before the Court to proceed under criminal jurisdiction. [Mohd. Yusufuddin Ahmed v. Ruth Karthak Lepchani, 2019 SCC OnLine Sikk 198, decided on 07-12-2019]

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]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for SAFEMA, FEMA, PMLA, NDPS & PBPT Act: The Coram of Manmohan Singh, J. (Chairman) and G.C. Mishra (Member) allowed the appeal of a person whose property, allegedly pertaining to a money laundering transaction, had been seized.

An FIR was registered by the CBI in 2017 under Section 13 of the Prevention of Corruption Act, 1988 and Sections 120B read with Sections 420, 467, 468 and 471 of the Penal Code, 1860 against a company Sterling Biotech Ltd. Sole allegation against appellant was that he was involved in erasing and taking a backup of certain digital data/records pertaining to one Ghanshyam Pandya, and that he was in possession of certain documents/records/property relating to money laundering. His residential premises were searched and the respondent sealed his 4 mobile phones, 2 pen drives, 2 mobile tablets, and 1 laptop. The Adjudicating Authority passed an order under Section 8(3) of Prevention of Money Laundering Act, 2002 confirming retention of the property. Hence, the present appeal.

Dr Shamsuddin, Advocate appearing on behalf of the appellant contended that Section 20(1) of PMLA mandates that the officer authorised by Director is under an obligation to record the ‘reason to believe’ in writing as to why the seized property is to be retained for adjudication under Section 8. Further, the authorised officer must forward a copy of the order for the retention of the property along with the material in his possession in a sealed envelope to the Adjudicating Authority. On the basis of the ‘reason to believe’ recorded under Section 20(1) and the order passed under Section 20(2), Adjudicating Authority must record a satisfaction under Section 20(4) that the property is prima facie involved in money laundering and is required for adjudication under Section 8. There was no compliance of the statutory mandates.

The Court noted that nothing had been brought on record to prove that the seized properties had any nexus or link whatsoever with money laundering. Settled law states that if a particular thing is to be done in a particular manner, it must be done in that manner only and none other. Reliance in this regard was placed on Dipak Babaria v. State of Gujarat, 2014 (3) SCC 502.

Counsel for the respondent Mr Nitish Rana admitted that appellant was not arrayed in the FIR nor any criminal complaint was pending against him. More than one and a half year had passed and still, nothing was revealed against the appellant.

It was opined that Section 8(3)(a) PMLA provides that the attachment or retention of property or record seized shall continue during the investigation for a period not exceeding 90 days. Since the said period had already elapsed, and no prosecution complaint had been filed against the appellant, therefore it was held that the seizure had lapsed. Accordingly, the respondent was directed to return the property retained by it to the appellant. [Arvind Gupta v. Deputy Director Directorate of Enforcement, Delhi, 2019 SCC OnLine ATPMLA 3, Order dated 25-03-2019]

Case BriefsHigh Courts

Bombay High Court: Considering the reply filed by the second respondent in the present case, the Division Bench comprising of V. M Kanade and Nutan Sardessai, JJ., ordered the  quashment of  the criminal complaint filed against the applicant under Sections 376, 323, 504 and 506 of the IPC. In the present case, the second respondent alleged that the applicant had physical relations with her by obtaining her consent on a false promise; however later on, the second respondent filed an affidavit mentioning her condition of depression stating that in consequence of the insecurity she felt, she filed a complaint against the applicant.

The Court relying on the ratio laid down in Narinder Singh v. State of Punjab, (2014) 6 SCC 466, held that, though the complaint filed under Section 376 of the IPC is a punishable offence, but in view of the reply filed by the second respondent, it would not constitute an offence, thereby quashing the criminal complaint. [Manteshwar Hanumantrao Kattimani v. State of Maharashtra, 2016 SCC OnLine Bom 10581 , decided on 2-12-2016 ]