Case BriefsHigh Courts

Sikkim High Court: Arup Kumar Goswami, CJ. quashed a criminal case under Section 482 of the Code of Criminal Procedure, 1973.

In the present case, the respondent filed an FIR as the petitioner insulted the respondent, where there was a possibility of her getting hit. A case was registered under Sections 186, 353, 509 of the Penal Code, 1860. At the time of trial, the Sessions Judge held that there was no material to frame charge under Section 506 of IPC and the said petition was modified. The petitioner also filed a Private Complaint in a police station against the respondent which was pending in the Court of Judicial Magistrate. The respondent filed a revision application to stop the court from summoning her which was dismissed.

Advocate, Simeon Subba appearing on behalf of the petitioner submitted that the parties had resolved their differences and a deed of compromise was entered into by and between them which stated that the petitioner will withdraw the Private Complaint Case and the respondent will not object to the application filed by the petitioner. Therefore, the General Registered Case pending in the Magistrate’s Court should be quashed.

Jorgay Namka, Advocate appearing on behalf of the respondent also submitted the same.

The High Court with respect to the above observed that the petitioner was facing charges under Sections 186, 290 and 353 of the IPC which were non-compoundable offences. The Court further relied on the case of Gian Singh v. State of Punjab, (2012) 10 SCC 303 where it was held that a Court can quash proceedings in a non-compoundable proceeding where it is of the opinion that continuation of the criminal proceedings will be pointless and against the process of securing justice. The Supreme Court also cautioned that such power is to be exercised keeping in mind the nature and gravity of the crime.

Further, adding to its observation, the High Court, said that the offence was not heinous and serious and since the parties had amicably resolved their differences, it would be against the interest of justice to not quash the criminal proceeding against the petitioner and therefore, the case was quashed. [Krishna Lall Timsina v. Kanu Priya Rai, 2019 SCC OnLine Sikk 196, decided on 02-12-2019]

Case BriefsHigh Courts

Gujarat High Court: The Bench of A.P. Thaker, J., allowed the petition filed under Section 482 of the Criminal Procedure Code for quashing and setting aside the FIR filed under Sections 304(A) read with Section 114 of the Penal Code, Sections 3(1)(j), 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 and Sections 5, 6, 7 and 9 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013.

The brief facts of the case were that the complainant was a member of a scheduled caste who on the date of the incident received a message that his father died when he went to clean drainage in the society of the petitioners. He went there and found his father dead. The petitioners contended that the deceased never entered into said side drainage and he died due to heart problem and not by any negligence on the part of the petitioners. Further, they stated that the complainant had filed the complaint because he wanted compensation from the government. It was also contended that they had never called the deceased for any work nor were they present at the time of the alleged incident. Mr. Manish Patel, advocate for the petitioners, stated that the cause of death as revealed from the postmortem report was natural death due to cardiac-respiratory failure.

The Court while deciding the case emphasized on the settled law that for considering the petition under Section 482 of the Code, it was necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court was not to scrutinize the allegations for the purpose of deciding whether such allegations were likely to be upheld in trial. It was held that a criminal proceeding could be quashed where the allegations made in the complaint did not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code. It was further stated that a Court exercising its inherent jurisdiction must examine if, on its face, the averments made in the complaint constitute the ingredients necessary for the offence. The FIR was registered on the basis of hearsay and relying on the postmortem report the application was allowed. [Jaykarbhai Kiritbhai Agnihotri v. State Of Gujarat, 2019 SCC OnLine Guj 761, Order dated 25-04-2019]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench comprising of Janak Raj Kotwal, J., dismissed a petition filed under Section 561-A CrPC. to quash the criminal proceeding under Sections 420, 406, 467, 468, 120-B Ranbir Penal Code, 1989 pending before the Trial Court.

The petitioners (accused) had opened office of a Finance Company under the name and style as “Golden Land Development (India) Ltd,” in Jammu City and in due course of their business they duped the respondent and twenty others, who had deposited money with the said Company.

The quashing was sought on the merits of the case, primarily, on the ground that petitioners and the respondents of the alleged offences have had entered into a compromise by virtue of the compromise deed after the charge sheet was filed by the Crime Branch.

The matter of concern before the court was whether one respondent could be allowed to enter into a compromise deed on behalf of twenty other respondents.

The Court came to the conclusion that as only one person has been arrayed as the respondent, therefore, other victims cannot be said to have had entered into compromise on behalf of that respondent also nor that would have sufficed for the purpose of compounding the offences and hence the question of grant of permission to compound shall be considered only when made by all the respondents.[Vinod Mahajan v. State, 2018 SCC OnLine J&K 563, order dated 04-07-2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Rajasekhar Mantha, J. dismissed an appeal filed against the judgment and order of the Additional District Judge whereby the appellant along with seven others was convicted under Section 395 IPC.

In January 2005, the accused persons committed a dacoity in Samali Primary Block Health Center and took away Rs 6,74,784 by placing a bhojali (large knife) on the throat of one of the official. The accused persons were apprehended and convicted as mentioned above. While challenging the judgment of conviction, it was argued by the appellant that he was not identified by the seizure witness in Court. Also, that he was not identified in TI parade.

The High Court, while rejecting the submission of the appellant, held that in case of the appellant, the TI parade would have been useless. The appellant was absconding in January (when incident occurred) and was apprehended only in September. He was, however, named in the first charge sheet. The Court held that it was useless to conduct any TI parade of the appellant after a period of 9 months of the incident. For such and other reasons, the appeal was dismissed. While concluding, the Court also found that the money involved in the case that was recovered had not been deposited in the treasury which was indeed shocking. As such, the Court recommended departmental enquiry for major penalty and also criminal proceedings against the Investigating Officers concerned. [Madha Rai v. State of W.B.,2018 SCC OnLine Cal 5882, dated 31-08-2018]

Case BriefsHigh Courts

Patna High Court: The Division Bench comprising of Rajendra Menon, CJ, and Ravi Ranjan J., held in a challenge made by the petitioner that withholding his gratuity and encashment of earned leaves was valid if, at the time of superannuation, departmental or criminal proceedings were pending.

In a nutshell, the brief facts of the case are that the petitioner was working with the Public Works Department and a case was registered against him in the year 2013 when a raid was conducted in which the property and money found on his premises was found to be disproportionate in reference to the known source of income of the employee. Therefore, petitioner was booked under Sections 13(2) with Section 13(1) (e) of the Prevention of Corruption Act, 1988, in the continuance of these proceedings, he superannuated in the year 2015.

The submissions of the petitioner stated that he was sanctioned 90% of the provisional pension. Provident fund dues, 10% pension, full gratuity and admissible leave encashment were withheld. He placed reliance on a Supreme Court case of State of Bihar v. Md. Adris Ansari; 1995 Supp (3) SCC 56 in which it was stated that “until and unless the employee concerned is held guilty of the misconduct levelled against him or punished in the judicial proceedings pending, in view of the provisions of Rule 43(b) pension, gratuity and leave encashment cannot be withheld.” Similarly in the case of Bajrang Deo Narain Sinha v. State of Bihar; 1999 SCC OnLine Pat 673, the Court again placed reliance on Rule 43(b) of the Pension Rules, stating that “the dues of the petitioner including gratuity, pension and leave encashment cannot be withheld.

However, on recordance of the stated statutory provisions and various circulars, it was clear that 10% pension could be withheld during the pendency of the departmental proceedings or a criminal case, whereas 90% provisional pension is to be granted. The High Court stated that if an employee is facing a criminal case or a departmental proceeding at the time of his retirement, the government has the power to withhold leave encashment.

Therefore, by stating the case of Vijay Kumar Mishra v. State of Bihar; 2017 (1) PLJR 575, it was held that leave encashment of a Government employee can be withheld and its withholding by executive instructions is permissible. [Arvind Kumar Singh v. State of Bihar; 2018 SCC OnLine Pat 749; dated 02-05-2018]