Posts by Vikasnagwan

Court can grant more maintenance than what is claimed by wife – MP high court

The Madhya Pradesh High Court has recently held that there is no bar for a court to award maintenance more than what is claimed in Section 125 CrPC application.

“It also appears that the non-applicant works in railway department and has sufficient source of income and thus he has legal and moral obligation to maintain the applicants. Therefore, the learned trial court has rightly held that the non-applicant has sufficient source of income and hence is liable to maintain the applicants.” The court observed.

Case Details: CRIMINAL REVISION No. 1165 of 2010

SMT. DEEPA And Anr versus HARISH RAILWANI

Date of order : 07.11.2023

Unregistered Agreement to sell is admissible in evidence

Agreements are being executed every day in India. Whether corporate or individuals. But there are many problems faced by people while enforcing an agreement. So let us first and foremost keep in mind that on most of the agreements the provisions of The Registration Act, 1908 (Registration Act)
are applicable specially to the agreements which relates to land and immovable property.

Section 17 of the Registration Act provides for mandatory registration of
certain documents such as sale deed, gift deed etc. If the compulsarily registrable instrument is not registered then the said documet may not be taken in evidence in a court of law.

Recently supreme court in In a recent judgment of R. Hemlatha v. Kashthuri
(Hemlatha Case), through a Bench of HMJ M.R. Shah and HMJ C.T. Ravikumar in CIVIL APPEAL NO. 2535/2023 has highlighted the exception to the rule of such compulsarily registrable instruments and agreement.

The Hon’ble Supreme Court in R. Hemlatha v. Kashthuri
(Hemlatha Case), through a Bench of HMJ M.R. Shah and HMJ C.T. Ravikumar in CIVIL APPEAL NO. 2535/2023 has held that an unregistered
agreement to sell can still be admitted as evidence.

In this matter The District Court ruled that the unregistered Agreement was inadmissible as evidence due to its non-registration. This decision was challenged by Kashthuri before the Madras High Court.

In the appeal, the Madras High Court ruled that the proviso to
Section 49 of the Registration Act was aimed to ensure that the
non-registration of a document should not hinder the court from
granting equitable relief, particularly in cases of specific
performance of contracts. Consequently, the Madras High Court held
that the unregistered Agreement could be admitted as evidence,
considering the nature of the suit seeking specific performance.
Aggrieved by the judgment of the Madras High Court, Hemlatha
preferred an appeal before the Supreme Court.

Supreme Court’s Verdict

At the outset, the Supreme Court in R. Hemlatha v. Kashthuri
(Hemlatha Case), through a Bench of HMJ M.R. Shah and HMJ C.T. Ravikumar in CIVIL APPEAL NO. 2535/2023 noted that although the State
of Tamil Nadu had introduced Section 17(1)(g) to the Registration
Act, no corresponding amendment had been made to Section 49. The
Court emphasized that Section 49 was inserted in 1929 and stands
unamended. Taking this into consideration, the Supreme Court
concluded that the unregistered document at hand, namely the
unregistered Agreement, would be admissible as evidence in a suit
for specific performance. As a result, the Supreme Court dismissed
the appeal and upheld the order passed by the Madras High
Court.

Copyright violation can land you in jail – Knit pro international vs State of NCT Delhi

Issue – Can FIR be registered u/s 63 of Copyright act?

What is the nature of offence u/s 63 Copyright act 1957?

Held – Offence u/s 63 copyright act 1957 is cognizable and non bailable. Police can register FIR under this provision.

Introduction
In 2022 itself, the Hon’ble Supreme Court of India, in M/s Knit Pro International v. The State of NCT of Delhi, has observed that offences under Section 63 of the Copyright Act, 1957 (“Copyright Act”) are cognizable and non–bailable.

Factual Matrix

M/s Knit Pro International (“Knit Pro”) had filed an application under Section 156(3) of the Code of Criminal Procedure, 1973 (“CrPC”) seeking directions from the Chief Metropolitan Magistrate (“CMM”) for “registration of FIR against” Respondent No. 2 (“accused”) for offences relating to Sections 51, 63 and 64 of the Copyright Act along with Section 420 of the Indian Penal Code, 1860 (“IPC”). The application was allowed by the CMM by way of an order dated 23rd October 2018 and thus an FIR was registered.
Consequently, the accused filed a Writ Petition before the Delhi High Court (“High Court”), praying for quashing of the criminal proceedings. During the hearing of the case, the accused argued that “the offence under Section 63 of the Copyright Act is not a cognizable and a non-bailable offence” and thus prayed for quashing of the criminal proceedings on that ground alone.
Vide the impugned judgement, the High Court allowed the petition by observing “that the offence under Section 63 of the Copyright Act is a non-cognizable offence.” Aggrieved, Knit Pro approached the Supreme Court in the present proceedings.

Opinion
The infringement of intellectual property rights is one of the biggest problems of modern days.

India is under obligation under the TRIPS AGREEMENT hence the recent judgment of the Hon’ble Supreme Court furtehr strengthens the legal framework of the Copyright Act and CrPC.

Anticipatory Bail in murder case 2022

Anticipatory Bail granted in 302 IPC(murder case)

SUPREME COURT OF INDIA (FROM CALCUTTA) (D.B.)

SK SUPIYAN @ SUFFIYAN @ SUPISAN V/S CENTRAL BUREAU OF INVESTIGATION

Hon’ble Judges: L Nageswara Rao, Abhay S Oka
Eq. Citations: 2022 (3) Scale 42, 2022 (1) Crimes(SC) 409 Case Type: Criminal Appeal
Case No: 198 of 2022
Subject: Criminal
Head Note:

Indian Penal Code, 1860 Sec 149, Sec 148, Sec 147, Sec 302, Sec 325, Sec 326, Sec 323 Code Of Criminal Procedure, 1973 Sec 161, Sec 164, Sec 438(2)(i), Sec 438(2)(iii) – held, appellant deserves to be granted pre-arrest bail. However, the appellant will have to fully cooperate with the respondent-CBI for investigation and will have to remain present for investigation as and when called upon by the investigating officer – the impugned Order is set aside. Pre-arrest bail is granted to the appellant in connection with Case No. RC 0562021S0032 of CBI arising out of Nandigram PS Case No. 224 of 2021, on the conditions incorporated in clauses (i) to (iii) of sub-section (2) of Section 438 CrPC. The appellant shall fully cooperate for investigation and shall remain present for investigation as and when called upon by the respondent-CBI. We make it clear that the pre-arrest bail granted to the appellant is liable to be cancelled if it is found that the appellant is not cooperating for the investigation. We further make it clear that we have not made any adjudication on the merits of the controversy.

Acts Referred:

Indian Penal Code, 1860 Sec 149, Sec 148, Sec 147, Sec 302, Sec 325, Sec 326, Sec 323 Code Of Criminal Procedure, 1973 Sec 161, Sec 164, Sec 438(2)(i), Sec 438(2)(iii)

Final Decision: Appeal disposed

1. The appellant is aggrieved by the impugned Order of the High Court at Calcutta by which he was denied pre-arrest bail. The appellant sought pre- arrest bail in connection with First Information Report (FIR) registered at the Nandigram police station. One Debabrata Maity sustained injuries on 3rd May 2021 in an alleged incident of mob attack. He succumbed to injuries on 13th May 2021. The FIR was registered for the offences punishable under Sections 147, 148, 149, 323, 325, 326, and 302 of the Indian Penal Code (IPC) on 13th May 2021. The appellant was not named in the FIR.

[2] The Central Bureau of Investigation (CBI) took over the investigation of the case on 30th August 2021. Though in September 2021, the appellant was called for investigation by CBI, in the first charge sheet filed on 5th October 2021, the appellant was not named as an accused. As the appellant received a notice from CBI to remain present for

investigation, on 25th October 2021, he filed a petition for seeking anticipatory bail before the High Court. On 27th October 2021, protection against arrest was granted by the High Court to the appellant. The appellant was denied anticipatory bail by the impugned Order dated 29th November 2021. A supplementary charge sheet was filed on 6th January 2022 in which the appellant was not named as an accused.

[3] This Court by Order dated 28th January 2022, while granting interim relief, directed the respondent-CBI to produce copies of statements of the witnesses recorded under Section 164 of the Code of Criminal Procedure, 1973 (for short ‘CrPC’) on which the respondent-CBI was relying upon. Accordingly, copies of the statements of 18 witnesses recorded under Section 161 of CrPC, as well as copies of 5 witnesses recorded under Section 164 CrPC have been placed on record.

[4] Shri Kapil Sibal, the learned Senior Counsel appearing for the appellant pointed out that the appellant was not even named in the two charge sheets filed by CBI on 5th October 2021 and 6th January 2022 respectively. He invited our attention to the statements of witnesses recorded by CBI under Section 164 of CrPC. He pointed out that the first statement relied upon is of one Ranjit Maity. The statement was recorded on 7th September 2021 in which the witness merely stated that he has heard that the appellant was the main leader of the incident. He pointed out that though the statement was recorded on 7th September 2021, in both the charge sheets subsequently filed by CBI, the appellant was not named as an accused. He pointed out that after the application for grant of anticipatory bail was filed by the appellant, statement of one Sulekha Bogri was recorded on 18th November 2021 in which she stated that the incident happened under the leadership of the appellant. He submitted that though witness Ranjit Maity deposed that the appellant was not present at the time of the incident, the version of Sulekha is to the contrary. He pointed out that the statement under Section 164 of CrPC of witnesses Manoj Kumar Bera was recorded on 18th November 2021. The statements of Ashish Das and Bishwajit Panda were belatedly recorded on 24th January 2022. He pointed out that the said three witnesses are not named in both the charge sheets as witnesses. He submitted that on the face of it, the statement of witness Manoj Kumar Bera cannot be believed. The reason is that for the first time in November 2021, he deposed that on 3rd May 2021, the appellant and some other persons ransacked his house and assaulted his mother and wife. He pointed out that the said witness never complained till 18th November 2021 about the incident. He also pointed out that the said witness who was at Village Tarachandbar claims that he heard loud noises from Village Chillagram which is at a distance of 5 km from village

Tarachand Bask. He pointed out that in the statements belatedly recorded on 24th January 2022, the other two witnesses Ashish Das and Bishwajit Panda have tried to ascribe a role to the appellant.

[5] Shri Sibal urged that CBI tried to implicate the appellant for political reasons as the appellant was the election agent of the Chief Minister of West Bengal in the Vidhan Sabha Elections held in 2021. He submitted that most of the witnesses are workers of the Bharatiya Janata Party and for obvious political reasons, the appellant is sought to be falsely implicated. He invited our attention to the media reports about the statements made by one Suvendu Adhikari, who is a leader of BJP who contested election against the Chief Minister. In the said statements made by him in October 2021, he stated that the appellant would be named by the investigating agency and will be arrested. He pointed out that now the respondent-CBI wants to rely upon offences registered against the appellant in the year 2007 relating to agitations at Nandigram. He pointed out that the cases of 2007 were withdrawn by the State Government by invoking Section 321 of CrPC. But, the order of withdrawal was stayed by the High Court of Calcutta. He pointed out that this Court by the Order dated 26th March 2021 has stayed the operation of the order passed by the High Court of Calcutta on the ground that the High Court did not give an opportunity of being heard to the appellant. The learned Senior Counsel by relying upon observations of this Court in the case of Shri Gurbaksh Singh Sibbia and Others v. the State of Punjab, 1980 2 SCC 565 submitted that this is a case where the process of criminal law is tried to be perverted for achieving extraneous ends and, therefore, the appellant deserves to be granted pre-arrest bail.

[6] Shri Aman Lekhi, the learned Additional Solicitor General of India urged that this is a case of a serious offence punishable under Section 302 of IPC and therefore, custodial interrogation of the appellant is necessary. Relying upon statements of the witnesses recorded under Section 164 of CrPC, he urged that looking into the seriousness of the allegations, the appellant does not deserve the protection of pre-arrest bail. He submitted that merely because there is some delay in recording the statements of the witnesses, the appellant cannot be protected considering the seriousness of the offence.

[7] Shri P.S. Patwalia, the learned Senior Counsel appearing for the complainant invited our attention to reasons recorded by the High Court for denying pre-arrest bail. He submitted that the High Court has rightly applied well-settled law governing the grant of anticipatory bail. Accordingly, by considering the gravity of the offence and material in

the form of statements of the witnesses under Section 164 of CrPC, the relief has been rightly denied to the appellant.

[8] We have considered the submissions. The incident is of 3rd May 2021. Though two charge sheets have been filed on 5th October 2021 and 9th January 2022, the appellant has not been named as an accused therein. Now, the respondent-CBI is relying upon statements of 5 witnesses recorded under Section 164 of CrPC. The statements of the first two witnesses were recorded on 7 th September 2021 and 11th November 2021 respectively. But the appellant was not named in both the charge sheets filed thereafter. Though the statement of Shri Manoj Kumar Bera was recorded on 18th November 2021, he was not cited as a witness in the first two charge sheets. The statements of the other two witnesses have been belatedly recorded on 24th January 2022.

[9] Considering the peculiar facts of the case, we are of the view that the appellant deserves to be granted pre-arrest bail. However, the appellant will have to fully cooperate with the respondent-CBI for investigation and will have to remain present for investigation as and when called upon by the investigating officer.

[10] Accordingly, the impugned Order is set aside. Pre-arrest bail is granted to the appellant in connection with Case No. RC 0562021S0032 of CBI arising out of Nandigram PS Case No. 224 of 2021, on the conditions incorporated in clauses (i) to (iii) of sub-section (2) of Section 438 CrPC. The appellant shall fully cooperate for investigation and shall remain present for investigation as and when called upon by the respondent-CBI. We make it clear that the pre-arrest bail granted to the appellant is liable to be cancelled if it is found that the appellant is not cooperating for the investigation. We further make it clear that we have not made any adjudication on the merits of the controversy.

[11] The appeal is disposed of in the above terms. All the pending applications, if any, stand disposed of.

Comments:

This judgment passed by the Hon’ble supreme court furthers the principle that bail is a rule and jail is exception.

Can 498a case be filed after seven years of marriage?

Yes, there can be case of 498a even after seven years of marriage.

Section 498a IPC (Indian penal code) provides for the offence of cruelty committed against wife by the husband and his relatives.

Section 498A IPC. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—

a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

As per section 498a IPC the punishment for committing the offence of cruelty may be an imprisonment which may extend to three years and fine.

At the same time section 468 CrPC (Criminal procedure Code) provides for a limitation of three years from the last incident of commission of offence by the husband and his relative.

That does not mean that a complaint can be filed a any point of time by the wife or her family members, if there are no incidents of offence in past three years then the complaint would not be maintainable unless the delay is condoned by the court.

Magistrate has the power to monitor Investigation

The High court of Allahabad reiterating the observations of the Hon’ble Supreme Court has held that the Magistrate can monitor investigation.

One of the cases is titled T.C. Thangaraj vs. V. Engammal, (2011) 12 SCC 328 : (2012) 1 SCC (Cri) 568, wherein the following obeserved by the Hon’ble supreme court of India:

“12. It should also be noted that Section 156 (3) of the Code of Criminal Procedure provides for a check by the Magistrate on the police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the police to carry out the investigation properly, and can monitor the same.

the Hon’ble Supreme Court in M.Subramaniam and another Vs. S.Janaki and another, 2020 SCC online S.C. 341 affirmed the view taken by the Supreme Court in Sakiri Vasu Vs. State of Uttar Pradesh (supra) and held as under:

“17. In our opinion Section 156 (3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156 (3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.”

Now it is ample clear that in case the investigating agency is not conducting a fair and impartial investigation then the court can always monitor and supervise the investigation.

Sample format of 156(3) CrPC

IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE AT _________

COMPLAINT CASE NO. __________ OF 20__

IN THE MATTER OF:

ABC                                                        Applicant

ADDRESS _________________

VS

Name of State or SHO, PS___________                                                Respondent

ADDRESS _________________


Police Station _________

APPLICATION UNDER SECTION SECTION 156(3) OF THE CODE OF CRIMINAL PROCEDURE ON BEHALF OF THE APPLICANT NAMELY________

THE APPLICANT ABOVE NAMED MOST RESPECTFULLY SHOWETH:

1. That the Applicant is a law abiding citizen of India.

2. The based on the information of the applicant the respondent has registerd the FIR bearing no ______ U/s ______ PS____________ on ______(date).

3. That in the case of the said FIR despite lapse of considerable amount of time the investigating agency is not conducting just and proper investigation hence the applicant prefer the present application on following amongst other grounds:

GROUNDS

A…………………………..

B…………………………..

C……………………………

D…………………………. etc.

That the police is duty bound to conduct the fair investigation in a timely manners however in the present case the police delaying the investigation process for reason best know to the investigating officer.

9.

P R A Y E R

In view of the aforesaid submission made here in and in the interest of the justice, it is therefore most respectfully prayed that this Hon’ble Court may graciously be pleased to:

1) Call for the status report of the investigation.
2) Direct the investigating officer to file weekly action taken report regarding the status of investigation.

3) Pass such other or further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS, THE HUMBLE APPLICANT AS IN DUTY BOUND, SHALL EVER PRAY.

Applicant

THROUGH

______ADVOCATE

Place :

Date :

Annexures to be attached with the Application

1. Copy of FIR

2. application filed before the SHO concerned

3. Copy of the complaint filed before the senior police officials

4. Any other relevant document related to the incident.

You need to affix a supporting affidavit and affix proper court fee

Kindly Always consult a lawyer before filing anything before police or in court.

This is just a format and does not depict the actual application to be filed in concerned court.

Satyaprakash vs State Of U.P 2022

Court No. – 47
Case :-
CRIMINAL MISC. WRIT PETITION No. – 23 of 2022

Petitioner :- Satyaprakash
Respondent :- State Of U.P And 6 Others
Counsel for Petitioner :- Mohammad Khalid,Pawan Kumar Yadav Counsel for Respondent :- G.A.

Hon’ble Anjani Kumar Mishra,J. Hon’ble Deepak Verma,J.

Heard learned counsel for the petitioner as well as learned A.G.A. for the State- respondents.

The present petition has been filed seeking direction to the respondent authorities to conclude the fair investigation of Case Crime No. 610 of 2021, under Sections 363, 366 I.P.C., P.S. Gunnor, District Sambhal.

Contention of learned counsel for the petitioner is that the police is acting in collusion with the accused persons and as yet neither the accused persons have been arrested nor any charge sheet has been filed against the accused persons.

Admittedly, petitioner is aggrieved by the manner of investigation said to have been conducted against private respondents.

The Apex Court in the case of Sudhir Bhaskarrao Tambe Vs. Hemant Yashwant Dhage, (2016) 6 SCC 277, following its earlier decision in Sakiri Vasu Vs. State of U.P., (2008) 2 SCC 409, held as follows:

“2. This Court has held in Sakiri Vasu v. State of U.P., that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) Cr.P.C. If such an application under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.

3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) Cr.P.C. and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.”

The power of the Magistrate to monitor investigation in exercise of his power under section 156(3) Cr.P.C. has also been recognized in the decision of the Apex Court in the case of T.C. Thangaraj vs. V. Engammal, (2011) 12 SCC 328 : (2012) 1 SCC (Cri) 568, where, in the light of the law laid down in Sakiri Vasu’s case (supra), it has been observed as follows:

“12. It should also be noted that Section 156 (3) of the Code of Criminal Procedure provides for a

check by the Magistrate on the police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the police to carry out the investigation properly, and can monitor the same. (See Sakiri Vasu v. State of U.P.).”

Recently, the Hon’ble Supreme Court in M.Subramaniam and another Vs. S.Janaki and another, 2020 SCC online S.C. 341 affirmed the view taken by the Supreme Court in Sakiri Vasu Vs. State of Uttar Pradesh (supra) and held as under:

“17. In our opinion Section 156 (3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156 (3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.”

In view of the law noticed above, we dispose off this petition with liberty to the petitioner to invoke the power of the Magistrate available under the Code of Criminal Procedure in the light of the law laid down by the Apex Court as noticed above.

Order Date :- 20.1.2022

SUDHIR BHASKARRAO TAMBE V/S HEMANT YASHWANT DHAGE AND OTHERS

SUPREME COURT OF INDIA (FROM BOMBAY) (D.B.)

SUDHIR BHASKARRAO TAMBE V/S HEMANT YASHWANT DHAGE AND OTHERS

Date of Decision: 12 April 2010

Hon’ble Judges: Markandey Katju, A K Patnaik

Eq. Citations: 2016 (6) SCC 277, 2016 (2) SCC(Cri) 549

Case Type: Civil Appeals

Case No: 766 of 2010

Subject: Criminal

Acts Referred:

Code Of Criminal Procedure, 1973 Sec 156(3)

Final Decision: Appeal allowed

Judgement Text:-

[1] Leave granted. These two appeals have been filed against the common impugned judgment of the High Court of Bombay dated 8-9-2009[Hemant Yashwant Dhage v. S.T. Mohite, 2009 SCC OnLine Bom 2251]. The facts in detail have been set out in the

impugned judgment and hence we are not repeating the same here. By the impugned order, the Bombay High Court has, in para 9 of its order, changed the investigating officer and appointed a Special Investigating Officer to investigate into the alleged offence.

[2] This Court has held in Sakiri Vasu v. State of U.P., 2008 2 SCC 409 , that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC. If such an application under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu v. State of U.P., 2008 2 SCC 409 because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.

[3] We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.

[4] In view of the settled position in Sakiri Vasu v. State of U.P., 2008 2 SCC 409 , the impugned judgment[ Hemant Yashwant Dhage v. ST Mohite, 2009 SCC OnLine Bom 2251] of the High Court cannot be sustained and is hereby set aside. The Magistrate concerned is directed to ensure proper investigation into the alleged offence under Section 156(3) CrPC and if he deems it necessary, he can also recommend to the SSP/SP concerned a change of the investigating officer, so that a proper investigation is done. The Magistrate can also monitor the investigation, though he cannot himself investigate (as investigation is the job of the police). Parties may produce any material they wish before the Magistrate concerned. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court.

[5] The appeals are allowed in the above terms. In view of the aforesaid order, no orders need be passed on the application for intervention and it is disposed of accordingly.

T C THANGARAJ; P SUGANTHI & ANR V/S V ENGAMMAL & ORS

SUPREME COURT OF INDIA (FROM MADRAS) (D.B.)

T C THANGARAJ; P SUGANTHI & ANR V/S V ENGAMMAL & ORS

Date of Decision: 29 July 2011

Hon’ble Judges: A K Patnaik, R V Raveendran

Eq. Citations: 2011 (12) SCC 328, 2011 AIR(SC) 3010, 2011 (8) Scale 120, 2011 AIR(SCW) 4513, 2011 (5) Supreme 407, 2011 CrLJ 4348, 2011 (3) KerLT 115, 2011 (3) RCR(Cri) 751, 2011 (9) SCR 647, 2011 (3) AICLR 683, 2012 (1) SCC(Cri) 568, 2011 (3) AllCriR 3373, 2011 (108) AllIndCas 134, 2011 (4) JCR 76, 2011 (75) AllCriC 965, 2011 (3) Crimes(SC) 157, 2012 (1) LW(Cri) 120, 2012 (1) CalCriLR 353, 2011 (2) UC 1454, 2011 (50) OCR 124, 2011 (2) SCCriR 1428

Case Type: Criminal Appeal Case No: 1504 of 2011 Subject: Criminal
Head Note:

Code of Criminal Procedure, 1973 – Sec 154(3), 156(3), 482 – Constitution of India – Art 226 – Indian Penal Code, 1860 – Sec 34, 409, 420, 471 – complaint power of High Court under Article 226 of Constitution to direct investigation by CBI – High Court held that investigating agency had not done its duty properly and under circumstances, relief claimed by complainant should be granted and accordingly ordered that crime be entrusted to CBI for investigation – such power to be exercised only sparingly, cautiously and in exceptional situations and an order directing to CBI is not to be passed as a matter of routine or merely because a

party has levelled some allegations against local police – in impugned order, High Court has not exercised its constitutional powers under Article 226 of Constitution and directed CBI to investigate into complaint with a view to protect her personal liberty under Art 21 of Constitution or to enforce her fundamental right guaranteed by Part-III of Constitution – High Court has exercised its power under Section 482 Cr.P.C. on a grievance made by complainant that her complaint that she was cheated in a loan transaction of Rs.3 lakh by three accused persons, was not being investigated properly because one of accused persons is an Inspector of Police – it was not exceptional situations calling for exercise of extra- ordinary power of High Court to direct investigation into complaint by CBI – High Court should have directed Superintendent of Police to entrust investigation to an officer senior in rank to Inspector of Police under Sec 154(3) CrPC and not to CBI – impugned order of High Court quashed and Superintend of Police is directed to entrust investigation of Crime to a police officer senior in rank to accused – appeals allowed.

Acts Referred:

Indian Penal Code, 1860 Sec 34, Sec 420, Sec 409, Sec 471 Code Of Criminal Procedure, 1973 Sec 482

Final Decision: Appeal allowed

Advocates: R Anand Padmanabhan, Prthvi Raj B N, Naveen, Pramod Dayal, P P Malhotra, Guru Krishna Kumar, Ranga Ramanujam, Rajiv Nanda, S Siddiqui, A K Sharma, Subramanium Prasad, Anesh Paul, Prasannv, B Krishna Prasad, S Ashok Kumar, Gouri Karuna Das Mohanti, Sanjeev Kumar Sharma, Prakhar Sharma, Rani Jethmalani, S Thananjayan

Judgement Text:-

A K Patnaik, J

[1] Delay condoned in S.L.P. (Crl.) No.1589 of 2008.

[2] Leave granted.

[3] These are two appeals against the order dated 26.10.2007 of the Madras High Court, Madurai Bench, in Criminal Original Petition No.10987 of 2007 directing that investigation into the case registered as Crime No.14 of 2006 with the District Crime Branch (DCB), Virudunagar, be entrusted to the Central Bureau of Investigation, Chennai (for short `the CBI’).

[4] The facts briefly are that on 04.08.2006 a complaint was submitted by V. Engammal, who has been impleaded as a respondent in both the appeals (hereinafter referred to as `the complainant’), to the Superintendent of Police, Virudunagar District, Tamil Nadu. The complainant made following allegations in the complaint: P. Kalaikathiravan, appellant no.2 in criminal appeal arising out of SLP (Crl.) No. 1589 of 2008, who was the then S.I. of Town Police Station, told her and her husband that he was going to do the business of real estate and that they should become partners in the business but they told him that the business will not work and thereafter he asked them to give a loan of Rs.3 lakh and they handed over Rs.3 lakh to his wife P. Suganthi, appellant no.1 in criminal appeal arising out of SLP (Crl.) No. 1589 of 2008. P. Kalaikathiravan then introduced T.C. Thangaraj, the appellant in criminal appeal arising out of SLP (Crl.) No. 1585 of 2008, and one Nagendran who were doing real estate business. When P. Kalaikathiravan was transferred to Sethur Krishnapuram, the complainant and her husband demanded repayment of Rs.3 lakh, but P. Kalaikathiravan asked them to collect the money from T.C. Thangaraj. T.C. Thangaraj accepted the liability and gave two cheques dated 30.01.2004 and 04.02.2004 each of Rs.50,000/-, but the cheques were returned with remarks from the bank that there were no sufficient funds in the accounts. After P. Kalaikathiravan came back to Virudunagar on promotion as Inspector, her husband went to him many times and demanded money but he refused to pay the same and sent him away. In the complaint, the complainant requested the Superintendent of Police to initiate action against the Inspector, P. Kalaikathiravan, his wife P. Suganthi and T.C. Thangaraj, who had cheated the complainant and her husband. The Superintendent of Police sent the complaint to the Office In- charge of DCB, Police Station Virudunagar, on 04.08.2006 and the complaint was registered as Crime No.14 of 2006 under Sections 409, 420, 471 read with Section 34 of the Indian Penal Code, 1860 (for short `the IPC’).

[5] When there was no progress in the investigation on the complaint, the complainant

filed Crl. O.P. No.8782 of 2006 under Section 482 of the Criminal Procedure Code, 1973 (for short `the Cr.P.C.’) before the Madras High Court, Madurai Bench, with a prayer to entrust the case to the CBI for proper investigation. The High Court in its order dated 13.04.2007 noticed that the case is against a police officer and the grievance of the complainant was that the police department was not taking interest in pursuing the matter. The High Court, however, found that the matter was before the Judicial Magistrate and disposed of the petition giving liberty to the complainant to appear before the Judicial Magistrate concerned and file, if necessary, a protest petition if the case has been treated as a mistake of fact. The High Court further directed that the Judicial Magistrate shall consider the protest petition of the respondent keeping in mind the seriousness of the allegations made in the complaint as well as in the affidavit filed before the High Court.

[6] Thereafter, the complainant filed Crl. O.P. No.10987 of 2007 under Section 482 of Cr.P.C. before the Madras High Court, Madurai Bench, reiterating her prayer to entrust Crime No.14 of 2006 to the CBI for proper investigation. The High Court in the impugned order dated 16.10.2007 took note of the fact that the complainant had received back the sum of Rs.3 lakh in question and given a receipt dated 05.08.2006 but she had a grievance that her complaint had not been properly investigated and the investigating agency should file a final report in accordance with law. However, the High Court after perusing the entire case diary found that some witnesses have been examined but the investigation had been stopped suddenly on the ground that the complainant had received back the sum of Rs.3 lakh on 05.08.2006. The High Court held in the impugned order that even though the amount in question had been received back by the complainant, the investigating agency ought to have conducted proper investigation and filed a final report in accordance with law, but the investigating agency had failed to do it. The High Court further held that as the accused No.1 was an Inspector of Police, the investigating agency has not done its duty properly and under the circumstances, relief claimed by the complainant should be granted and accordingly ordered that Crime No.14 of 2006 be entrusted to the CBI for investigation.

[7] Learned counsel for the appellants submitted that the reasons given by the High Court in the impugned order that the accused No.1 was an Inspector of Police and therefore the investigating agency has not done its duty properly, have not been held to be good reasons for entrusting the investigation to the CBI by the Constitution Bench of this Court in State of West Bengal & Ors. v. Committee for Protection of Democratic Rights, West Bengal & Ors., 2010 3 SCC 571.

[8] Learned counsel for the complainant, on the other hand, cited a decision of two- Judge Bench of this Court in Ramesh Kumari v. State (N.C.T. of Delhi) & Ors., 2006 2 SCC 677, in which this Court directed the CBI to register a case and investigate into the complaint of the appellant because the complaint was against the police officer and the Court was of the view that the interest of justice would be better served if the case is registered and investigated by an independent agency like the CBI.

[9] The decision of the two-Judge Bench of this Court in Ramesh Kumari v. State (N.C.T. of Delhi) & Ors., 2006 2 SCC 677 will have to be now read in the light of the principles laid down by the Constitution Bench of this Court in State of West Bengal & Ors. v. Committee for Protection of Democratic Rights, West Bengal & Ors., 2010 3 SCC 571. The Constitution Bench has considered at length the power of the High Court to direct investigation by the CBI into a cognizable offence alleged to have been committed within the territorial jurisdiction of a State and while taking the view that the High Court has wide powers under Article 226 of the Constitution cautioned that the Courts must bear in mind certain self-imposed limitations. Para 70 of the opinion of the Constitution Bench in State of West Bengal & Ors. v. Committee for Protection of Democratic Rights, West Bengal & Ors., 2010 3 SCC 571 is extracted hereinbelow :

“Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with

unsatisfactory investigations.”

[10] It will be clear from the opinion of the Constitution Bench quoted above that the power of the High Court under Article 226 of the Constitution to direct investigation by the CBI is to be exercised only sparingly, cautiously and in exceptional situations and an order directing to CBI is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. In the impugned order, the High Court has not exercised its constitutional powers under Article 226 of the Constitution and directed the CBI to investigate into the complaint with a view to protect her personal liberty under Article 21 of the Constitution or to enforce her fundamental right guaranteed by Part-III of the Constitution. The High Court has exercised its power under Section 482 Cr.P.C. on a grievance made by the complainant that her complaint that she was cheated in a loan transaction of Rs.3 lakh by the three accused persons, was not being investigated properly because one of the accused persons is an Inspector of Police. In our considered view, this was not one of those exceptional situations calling for exercise of extra-ordinary power of the High Court to direct investigation into the complaint by the CBI. If the High Court found that the investigation was not being completed because P. Kalaikathiravan, an Inspector of Police, was one of the accused persons, the High Court should have directed the Superintendent of Police to entrust the investigation to an officer senior in rank to the Inspector of Police under Section 154(3) Cr.P.C. and not to the CBI. It should also be noted that Section 156(3) of the Code of Criminal Procedure provides for a check by the Magistrate on the police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the Police to carry out the investigation properly, and can monitor the same. (see Sakiri Vasu v. State of U.P. & Ors., 2008 2 SCC 409.

[11] For these reasons, we quash the impugned order of the High Court and direct that the Superintend of Police, Virudunagar District, Tamil Nadu, will entrust the investigation of Crime No. 14 of 2006 to a police officer senior in rank to P. Kalaikathiravan. The appeals are accordingly allowed.

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