Case BriefsHigh Courts

Patna High Court: Birendra Kumar, J. allowed the application of the petitioner to set aside the order which had issued a non-bailable warrant of arrest against the petitioners.

The petitioner’s prayer for dispensation with personal appearance and for allowing appearance through their lawyer in the exercise of power under Section 205 of the Code of Criminal Procedure, 1973 was disallowed by the Court. Cognizance was taken for the offence under Section 406 of the Penal Code, 1860 against the petitioners.

 The impugned order revealed that the prayer had been refused on the grounds that the process of non-bailable warrant of arrest had already been issued against the petitioners. Hence, an application under Section 205 of the Code of Criminal Procedure was not maintainable.

Senior Advocate, Chitranjan Sinha and Advocate Rajesh Ranjan submitted for the petitioners that no process was ever served on the petitioners, and the impugned order didn’t reveal that the summons issued were ever served on the petitioners. Without any proof of service of summons, warrant of arrest had been issued, which was in itself an improper order. It was further contended that issuance of a non-bailable warrant of arrest was no bar for consideration of prayer under Section 205 of the Code of Criminal Procedure since the Magistrate could always order for the personal appearance of the accused, whose prayer under Section 205 of the Code of Criminal Procedure had been allowed. The counsel also assured that the petitioners were ready to appear as and when required by the court to facilitate the progress of the trial.

The High Court held that since there was no service report of summons on record when the court issued a bailable warrant of arrest and similarly, there was no service report of the bailable warrant of arrest when the court issued a non-bailable warrant of arrest, the issue of a non-bailable warrant of arrest was not applicable to the facts and circumstances of the instant case. In the interest of substantial justice, the impugned order was set aside and the matter was remitted back to the lower court to pass necessary order in accordance with the law.

In view of the above-noted facts, the instant application was allowed and directions were issued to set aside the impugned order. [Sachida Nand Mishra v. State of Bihar, 2019 SCC OnLine Pat 1763, decided on 23-09-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. allowed a petition filed against the order of the trial court whereby the suit filed by the petitioner under Order 37 (summary procedure) of the Civil Procedure Code was directed to be treated as an ordinary suit.

A suit under Order 37 was filed by the petitioner for recovery of the amount due to them for sale and supply of certain goods to the respondent. The trial court issued summons in the prescribed format under Order 37 which were duly served on the respondent. Despite the service, the respondent failed to enter appearance. When the petitioner applied for the passing of a decree as respondent failed to enter an appearance, the trial court, by the impugned order, held that since the petitioner was claiming balance amount of the invoices and there was some doubt about the authenticity of the invoices, the suit be treated as an ordinary suit.

Vishal Garg, Advocate for the petitioner, the trial court could not have doubted the veracity of the invoices, especially when no appearance was entered by the respondent or any application seeking leave to defend filed and objection taken to the invoices.

Discussing Order 37, the High Court stated: “Order 37 Rule 2(3) CPC specifically lays down that defendant shall not defend the suit unless he enters appearance and in default of his entering appearance the allegations made in the plaint shall be deemed to be admitted and plaintiff would be entitled to a decree for the sum not exceeding the sum mentioned in the summons.” Opining that the trial court had committed error, the High Court observed: “In view of the specific provisions of Order 37 Rule 2(3) CPC, it is not within the powers of the trial court at that stage, to assess as to whether the suit satisfies the requirement of Order 37 CPC or not. Once summons in the prescribed form have been directed to be issued and duly served, the defendant is obliged to enter appearance within the statutory period, and on failure of the defendant to enter appearance within the statutory period, the averments in the plaint are deemed to be admitted and the plaintiff is entitled to a decree forthwith.”

It was noted that the petitioner had specifically contended that the subject suit was based on written contract i.e. invoices which have been duly and acknowledged by the respondent. Therefore, it was not open to the trial court at that stage to reconsider the issue and held that the suit was not maintainable under Order 37. With regard to the finding of redaction of clauses in the invoices by applying white fluid, the High Court held that it was for the respondent to have taken an appropriate objection in an application seeking leave to defend, filed after entering appearance.

Since the respondent failed to enter an appearance, the averments in the plaint were deemed to have been admitted and the plaintiff was held entitled to a decree. The suit was directed to be listed before the concerned trial court for passing appropriate order.[S.S. Steel Industry v. Guru Hargobind Steels, 2019 SCC OnLine Del 9964, decided on 05-09-2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Hima Kohli and Asha Menon, JJ. dismissed an appeal filed by the appellant-wife against the order of the Family Court whereby her application under Order 9 Rule 13 read with Section 151 CPC for setting aside of the ex-parte decree of judicial Separation passed in favour of the husband was rejected.

Marriage of the parties to this matter ran into rough weather and the husband filed a petition under Section 10 of the Hindu Marriage Act, 1955 seeking Judicial Separation froths wife. The petition proceeded ex-parte against the wife and a decree of Judicial separation was passed. Thereafter, the wife filed an application under Order 9 Rule 13 read with Section 151 CPC for setting aside the said decree,  claiming that she had never been served. The application was, however,  rejected by the Family Court. Aggrieved thereby, the wife filed the present appeal.

S.S. Panwar, Advocate represented the appellant-wife. Per contra, Navin Kumar Chaudhary, Advocate, appeared for the respondent-husband.

The High Court noted that the trial court dealing with the petition seeking the relief of Judicial Separation had recorded that the notice of the petition issued by the ordinary process was refused by the father of the appellant. It was also noted that the summons despatched by registered cover was refused by the appellant herself and the said refusal on her part to accept service of the notice, was deemed to be an effective service upon her. The court observed that the evidence produced by the appellant was not sufficient to establish that she was in the hospital and had no opportunity to refuse the process of the Court as contended by her.

It was further noted that the address of the appellant being correct, the Family Court rightly drew a presumption of deemed service as contemplated under Section 27 of the General Clauses Act, 1897, to conclude that the appellant was duly served and had failed to contest the petition.

Accordingly, finding no error in the impugned order, the High Court dismissed the appeal.[Ritu v. Sandeep Kumar Prashar, 2019 SCC OnLine Del 9940, decided on 03-09-2019]

Case BriefsHigh Courts

Bombay High Court: S.S Shinde, J. allowed a criminal application to the order passed by the Judicial Magistrate (First Class) issuing process against the applicant for the offences punishable under Section 504 (intentional insult with intent to provoke breach of the peace) 506 (punishment for criminal intimidation) of the Penal Code.

The father-in-law and mother-in-law of the applicant filed an original application against the applicant and others, after which the Magistrate concerned issued process against the applicant for the offences punishable under Sections 502 and 506 as mentioned above.

Swapnil S. Mhatre, Advocate for the applicant submitted that she was not residing within the jurisdiction of the Magistrate concerned, and therefore, in view of the mandate of Section 202 CrPC, the Magistrate was required to cause an inquiry as contemplated under the said section and pass a reasoned order. Reliance was placed on Abhijit Pawar v. Hemant Madhukar Nimbalkar, (2017) 3 SCC 528.

Per Contra, Kaushik Jayant instructed by Amol P. Mhatre along with Mandavkar, Advocates for the respondent in-laws opposed the instant applicant.

On perusal of the impugned order and other material placed on record, the Court was of prima facie opinion, the Magistrate without assigning any reasons in the impugned order, proceeded to issue summons against the applicant. It was observed that the Magistrate was obliged to give reasons so as to reflect the order. It was observed:

“Certainly, the course adopted by the Magistrate is not keeping in view of the observations made by the Supreme Court in para 12 of the judgment in the case of Abhijit Pawar. In facts of the present case, the applicant-accused is residing outside the jurisdiction of JMFC, Thane and therefore, it was incumbent upon the Magistrate to cause the inquiry himself or entrust the said task with concerned Police Officer. However, the Magistrate by cryptic order proceeded to pass the impugned order.”

In such view of the matter, the High Court quashed the impugned order passed by the Judicial Magistrate (First Class). The complainants were given liberty to approach the Court concerned afresh for redressal of their grievance.[Amruta Ajay Mane v. Ramesh Dhodiba Mane, 2019 SCC OnLine Bom 1717, decided on 26-08-2019]

Hot Off The PressNews

SEBI Special Court convicted four directors of the Roofers Realty Limited for not complying with the summons issued by the investigating authority of the Securities and Exchange Board of India (SEBI). SEBI had launched investigation into alleged illegal mobilization of funds from the public by Roofers Realty Limited. The investigating Authority appointed by the Board had summoned four directors of the company, viz., Mr. Sauravmoy Ghosh, Jayanti Sounth, Hirak Nath Sounth and Khudiram Sounth to appear before the Authority in relation to the aforesaid investigation. Despite receiving the summons, the directors did not appear before the investigating authority.

Therefore, SEBI launched prosecution proceedings against the aforesaid persons under Section 11C (6) of the Securities and Exchange Board of India Act, 1992. The Special Court convicted the accused on the ground that the directors failed to appear before the investigating authority despite due receipt of the summons. The Court sentenced three directors, viz. Mr. Sauravmoy Ghosh, Jayanti Sounth and Hirak Nath Sounth to one year simple imprisonment and imposed a fine of Rupees Five Lakhs. The Court has also imposed a fine of Rs 2,50,000 on Mr Khudiram Sounth considering his old age.

PR No.: 18/2019

[Press Release dt. 26-07-2019]

Securities and Exchange Board of India

Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. quashed criminal proceeding filed in the year 2013 under Section 497 of the Penal Code, 1860 against a person accused of adultery, in view of Supreme Court’s decision in Joseph Shine v. Union of India, (2019) 3 SCC 39.

Petitioner herein had filed a complaint case against the opposite party 2 alleging adultery with his wife, wherein the Chief Judicial Magistrate issued summons under Section 497 of the Penal Code, 1860. The said order of cognizance was challenged by opposite party 2 before the Sessions Judge by way of a criminal revision petition, and the order of cognizance was set aside. Aggrieved thereby, the instant application was filed under Section 482 of the Code of Criminal Procedure, 1973 praying for setting aside of order dated 22-09-2014.

Counsel for the parties Mr Prabhu Narayan Sharma (for petitioner), Mr Md. Arif (for State) and Mr Saket Tiwary (for opposite party 2) submitted that the aforesaid issue was no more res integra for the reason that a Constitution Bench of the Hon’ble Supreme Court had held Section 497 IPC to be unconstitutional and has also declared Section 198 CrPC, which deals with the procedure for filing complaint in relation to an offence of adultery, as unconstitutional.

In view of the above, the Court held that cognizance against the opposite party 2 under Section 497 IPC could not be sustained. Thus, the entire criminal proceeding arising out of complaint case was quashed.[Devraj Dev v. State of Bihar, 2019 SCC OnLine Pat 431, Order dated 02-04-2019]

Case BriefsHigh Courts

Kerala High Court: The Bench of Devan Ramachandran, J. disposed of a petition cautioning Passport Authority of not taking any action against the petitioner without properly notifying him as any action taken against him without his knowledge, might be detrimental to his employment in the USA.

Petitioner herein had applied for renewal of his passport; but when the Consulate subsequently received information of a criminal case pending against him, he was issued a notice by the Vice-Consul (Passports) asking him to show cause why his passport should not be revoked under Section 10(1)(b) and 10(1)(e) of the Passport Act, 1967. Aggrieved thereby, the instant petition was filed.

Petitioner’s submission was that when he applied for renewal of his passport, he was not aware of any crime pending against him since he had not received any notice or summons from Court with respect to this case.

The Court noted that it was virtually admitted that there was a criminal case pending against the petitioner at the time of submitting an application for renewal. It may be true that the petitioner was not aware of pendency of the criminal case, because he had not received any notice/summons from Court. However, these are issues that the petitioner ought to have brought to notice of Consulate General of India.

It was opined that since the impugned notice was only a show cause notice, there was no need for petitioner to approach this Court by filing this writ petition since these issues could certainly have been considered by the appropriate authority in terms of Passport Act. In view thereof, petitioner was directed to answer the show cause, detailing all his defences and the Passport Authority was directed to consider the same, after affording the petitioner an opportunity of hearing.[Arun Harshan v. Union of India, 2019 SCC OnLine Ker 776, Order dated 01-03-2019]

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

Bombay High Court: A Single Judge Bench comprising of A.M. Dhavale, J. allowed an appeal filed by the appellant-wife challenging an ex-parte order passed by a District Judge under Section 25 of the Guardians and Wards Act, 1890.

Vide the order impugned, custody of the minor girl aged 7 years was ordered to be handed over to the respondent-husband. The grievance of the appellant was that there was no proper service of summons on her and still the trial Judge proceeded ex-parte. As per the record of the trial court, summons were issued against the appellant in the present matter relating to the custody of the minor child. The bailiff visited her house. The appellant was out of station, the summons returned unserved. Trial Judge observed that summons were sent to the appellant but it returned with an endorsement as unserved. Therefore, he proceeded ex-parte against the appellant. Aggrieved by the said order, the appellant filed the instant appeal.

The High Court reiterated that the rule of fair trial is that nobody should be condemned unheard. It was observed that the present was not a case of proper service and the trial judge had no discretion to proceed ex-parte only on the basis of a  finding that notice was returned unserved.The envelope that was returned nowhere showed that the summons were refused by the appellant. The Court also referred to Order V CPC which deals with issue and service of summons. The Court was of the view that this was a child custody matter and the trial Judge was expected to be sensitive to the rights of the parties. The Court further observed, even it is assumed that the envelope returned with an endorsement as not claimed, still it does not mean that it is an endorsement of refusal to accept the service. Furthermore, even if there would have been a refusal to accept the service as per Order V Rule 17 CPC, service by affixing the copy of summons + plaint on the outer door or some other conspicuous part of the house. It was held that as there was no service of summons, the ex-parte order is not tenable and deserved to be set aside. [Jayshri Gajendra Mahajan v. Gajendra Pandit Mahajan,2018 SCC OnLine Bom 2233, dated 07-08-2018]

Case BriefsHigh Courts

High Court of Judicature at Madras: A Single Judge Bench comprising of C.T. Selvam J., recently addressed a Criminal Revision Petition filed under Sections 397 and 401 of the Criminal Procedure Code against the order of the Judicial Magistrate.

The facts of the case are that the petitioners had filed a petition seeking permission to leave India and travel to Oman and that they be allowed to appear before the Court of the Judicial Magistrate on receipt of summons. This Court allowed the petition with the condition that the petitioners would have to return to India by 1/12/2018. Aggrieved by the condition placed on them, the petitioners moved the present revision.

The counsel for the petitioners argued that since the petitioners were engaged in business which required of them to travel abroad frequently, the aforementioned condition of returning to India by a certain date would be of great inconvenience to them. The High Court thus held that giving consideration to the situation of the petitioners, it would allow modifications to the order in question in the sense that the petitioners would have to file affidavits conceding to take communications of summons to their e-mail addresses as sufficient service on them.

Accordingly, the High Court allowed the revision petition and modified the order of the Judicial Magistrate and directed for the service of summons on the petitioners to their e-mail addresses as well as the residential address. [Premkumar Thangadurai v. State by The Inspector of Police; Crl.R.C. No.31 of 2018, order dated 11/1/2018]