Posts in Criminal Law

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

Criminal Law

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

Maintenance-MP-high-court-Deepa-vs-HarishDownload

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

Criminal Law IPR

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

Criminal Law

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?

Criminal Law

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

Criminal Law

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.

Satyaprakash vs State Of U.P 2022

Criminal Law Supreme Court of India

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

satya-prakash-Vs-state-of-UP-2022Download

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

Criminal Law Supreme Court of India

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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TC-thangaraj-Download

Sakiri Vasu Vs state of UP

Criminal Law Supreme Court of India

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

SAKIRI VASU V/S STATE OF U P

Date of Decision: 07 December 2007

Hon’ble Judges: Ashok Kumar Mathur, Markandey Katju

Eq. Citations: 2008 (2) SCC 409, 2008 AIR(SC) 907, 2007 (13) Scale 693, 2008 AIR(SCW) 309, 2007 (8) Supreme 226, 2007 (13) JT 466, 2008 (2) GLR 1666, 2008 (2) GLH 269, 2008 (3) KCCR 198, 2007 (1) RajLW 136, 2008 (1) RajLW 136, 2008 (1) KerLT 724, 2008 (1) RCR(Cri) 392, 2008 (1) RCR(Civ) 392, 2007 (12) SCR 1100, 2008 (1) AICLR 478, 2008 (1) SCC(Cri) 440, 2008 (1) AllCriR 4, 2008 CrLR 62, 2008 (1) AllLJ 752, 2008 (1) OrissaLR 105, 2008 (62) AllIndCas 236, 2008 RCrD(SC) 406, 2008 (106) CutLT 354, 2008 (3) MPWN 73, 2008 (1) MPHT 429, 2008 (60) AllCriC 689, 2008 (1) CurCriR 70, 2008 (1) JCC 113, 2007 (4) Crimes(SC) 338, 2008 (1) CriCC 1, 2008 (1) ApexCJ 324, 2007 (5) LawHerald(SC) 3910, 2008 (2) MhLJ(Cri) 300, 2008 (2) LW(Cri) 902, 2008 (1) CalCriLR 399, 2008 (1) MadLJ(Cri) 1393, 2008 (39) OCR 287, 2008 ALLSCR 1890, 2008 (1) AD(Cri) 85

Case Type: Criminal Appeal; Special Leave Petition (Crimin Case No: 1685 of 2007; 6404 of 2007
Subject: Criminal
Head Note:

(a) Criminal Procedure Code, 1973 -Sections 36,154(3), 200 & 482 – Constitution of India, 1950-Art. 226-Practice and Procedure-Writ petition or petitions under Section 482-Maintainability – Exhaustion of alternative remedy -If there is an

alternative remedy, the High Court should not ordinarily interfere.

The High Court should discourage the practice of filing a writ petition or petition under Section 482 CrPC similarly because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Section 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC.

It is true that alternative remedy is not an absolute bar to writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere.

(b) Constitution of India, 1950 -Arts. 32, 136 & 226 -Delhi Special Police Establishment Act, 1946-Section 3 -CBI inquiry-Directions for-Power to order investigation by CBI-Though the Magistrate cannot order investigation by CBI but the supreme court or the High Court has power to order investigation by CBI – However, that should be done only in some rare and exceptional case.

No doubt the Magistrate cannot order investigation by CBI but this Court or the High Court has power under Article 136 or Article 226 to order investigation by CBI. That, however, should be done only in some rare and exceptional case, otherwise, CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them.

Although the High Court has power to order a CBI inquiry, that power should only be exercised if the High Court after considering the material on record comes to a conclusion that such material discloses prima facie a case calling for investigation by CBI or by any other similar agency. A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some allegation.

(c) Constitution of India, 1950 -Art. 226-CBI inquiry-Directions for -Rejection – Validity-GRP and two courts of inquiry found that it was a case of suicide – Material on record does not a disclose a prima facie case calling for an investigation by CBI -Mere allegation of appellant that his son was murdered

because he had discovered some corruption cannot justify CBI inquiry -Rejecting the prayer for a CBI inquiry-Proper.

In the present case, there was an investigation by GRP, Mathura and also two courts of inquiry held by the army authorities and they found that it was a case of suicide. Hence, in our opinion, the High Court was justified in rejecting the prayer for a CBI inquiry.

In our opinion, justify a CBI inquiry, particularly when inquiries were held by the army authorities as well as by GRP at Mathura, which revealed that it was a case of suicide.

(d) Criminal Procedure Code, 1973 -Sections 154 & 156(3)- Criminal trial – Improper investigation -Remedies open to aggrieved person against-Explained.

If a person has a grievance that the police station is not registering his FIR under Section 154 CRPC, then he can approach the Superintendent of Police under Section 154(3) CRPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FiR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) CRPC before the learned Magistrate concerned, In such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was, made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.

Even of an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person an approach the Magistrate under Section 156(3) CrPC, and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order (s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) CrPC.

Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the police

has not done its duty of investigation the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.

Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring 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) CrPC, hough briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.- Appeal Dismissed

Acts Referred:

Constitution Of India Art 136, Art 226, Art 32
Code Of Criminal Procedure, 1973 Sec 156(3), Sec 482, Sec 154(3), Sec 200, Sec 125, Sec 36, Sec 154
Delhi Special Police Establishment Act, 1946 Sec 3

Final Decision: Appeal dismissed Advocates: Dinesh Kumar Garg

Reference Cases: Cases Cited in (+): 651 Cases Referred in (+): 15

Judgement Text:-

Markandeya Katju, J [1] Leave granted.

[2] This appeal is directed against the impugned judgment and order dated 13.7.2007 passed by the Allahabad High Court in Criminal Misc. Writ Petition No. 9308 of 2007.

[3] Heard learned counsel for the parties and perused the record.

[4] The son of the appellant was a Major in the Indian Army. His dead body was found on 23.8.2003 at Mathura Railway Station. The G.R.P, Mathura investigated the matter and gave a detailed report on 29.8.2003 stating that the death was due to an accident or suicide.

[5] The Army officials at Mathura also held two Courts of Inquiry and both times submitted the report that the deceased Major S. Ravishankar had committed suicide at the railway track at Mathura junction. The Court of Inquiry relied on the statement of the Sahayak (domestic servant) Pradeep Kumar who made a statement that “deceased Major Ravishankar never looked cheerful; he used to sit on a chair in the verandah gazing at the roof with blank eyes and deeply involved in some thoughts and used to remain oblivious of the surroundings”. The Court of Inquiry also relied on the deposition of the main eye-witness, gangman Roop Singh, who stated that Major Ravishankar was hit by a goods train that came from Delhi.

[6] The appellant who is the father of Major Ravishankar alleged that in fact it was a case of murder and not suicide. He alleged that in the Mathura unit of the Army there was rampant corruption about which Major Ravishankar came to know and he made oral complaints about it to his superiors and also to his father. According to the appellant, it was for this reason that his son was murdered.

[7] The first Court of Inquiry was held by the Army which gave its report in September, 2003 stating that it was a case of suicide. The appellant was not satisfied with the findings of this Court of Inquiry and hence on 22.4.2004 he made a representation to the then Chief of the Army Staff, General N.C. Vij, as a result of which another Court of Inquiry was held. However, the second Court of Inquiry came to the same conclusion as that of the first inquiry namely, that it was a case of suicide.

[8] Aggrieved, a writ petition was filed in the High Court which was dismissed by the impugned judgment. Hence this appeal.

[9] The petitioner (appellant herein) prayed in the writ petition that the matter be ordered to be investigated by the Central Bureau of Investigation (in short “CBI”). Since his prayer was rejected by the High Court, hence this appeal by way of special leave.

[10] It has been held by this Court in CBI & another vs. Rajesh Gandhi and another 1997 Cr.L.J 63 (vide para 8) that no one can insist that an offence be investigated by a particular agency. We fully agree with the view in the aforesaid decision. An aggrieved

person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice.

[11] In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.

[12] Thus in Mohd. Yousuf vs. Smt. Afaq Jahan & Anr. JT 2006(1) SC 10, this Court observed:

“The clear position therefore is that any judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigating under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.”

[13] The same view was taken by this Court in Dilawar Singh vs. State of Delhi JT 2007 (10) SC 585 (vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the

investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) Cr.P.C., and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C.

[14] Section 156 (3) states:
“Any Magistrate empowered under Section 190 may order such an

investigation as abovementioned.”

The words `as abovementioned” obviously refer to Section 156 (1), which contemplates investigation by the officer in charge of the Police Station.

[15] Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.

[16] The power in the Magistrate to order further investigation under Section 156(3) is an independent power, and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order re-opening of the investigation even after the police submits the final report, vide State of Bihar vs. A.C. Saldanna AIR 1980 SC 326 (para 19).

[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 F.I.R. 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.

[18] It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that

thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution.

[19] The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in his “Statutory Construction” (3rd edn. page 267):-

“If these details could not be inserted by implication, the drafting of legislation would be an indeterminable process and the legislative intent would likely be defeated by a most insignificant omission”.

[20] In ascertaining a necessary implication, the Court simply determines the legislative will and makes it effective. What is necessarily implied is as much part of the statute as if it were specifically written therein.

[21] An express grant of statutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective. Thus in ITO, Cannanore vs. M.K. Mohammad Kunhi, AIR 1969 SC 430, this Court held that the income tax appellate tribunal has implied powers to grant stay, although no such power has been expressly granted to it by the Income Tax Act.

[22] Similar examples where this Court has affirmed the doctrine of implied powers are Union of India vs. Paras Laminates AIR 1991 SC 696, Reserve Bank of India vs. Peerless General Finance and Investment Company Ltd AIR 1996 SC 646 (at p. 656), Chief Executive Officer & Vice Chairman Gujarat Maritime Board vs. Haji Daud Haji Harun Abu 1996 (11) SCC 23, J. K. Synthetics Ltd. vs. Collector of Central Excise, AIR 1996 SC 3527, State of Karnataka vs. Vishwabharati House Building Co-op Society 2003 (2) SCC 412 (at p. 432) etc.

[23] In Savitri vs. Govind Singh Rawat AIR 1986 SC 984 this Court held that the power conferred on the Magistrate under Section 125Cr.P.C. to grant maintenance to the wife implies the power to grant interim maintenance during the pendency of the proceeding, otherwise she may starve during this period.

[24] In view of the abovementioned legal position, we are of the view that although

Section 156(3) is verybriefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision.

[25] We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3).

[26] If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?

[27] As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under

Section 482 Cr.P.C.

[28] It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere.

[29] In Union of India vs. Prakash P. Hinduja and another 2003 (6) SCC 195 (vide para 13), it has been observed by this Court that a Magistrate cannot interfere with the investigation by the police. However, in our opinion, the ratio of this decision would only apply when a proper investigation is being done by the police. If the Magistrate on an application under Section 156(3) Cr.P.C. is satisfied that proper investigation has not been done, or is not being done by the officer-in-charge of the concerned police station, he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the same (though he should not himself investigate).

[30] It may be further mentioned that in view of Section 36 Cr.P.C. if a person is aggrieved that a proper investigation has not been made by the officer-in-charge of the concerned police station, such aggrieved person can approach the Superintendent of Police or other police officer superior in rank to the officer-in-charge of the police station and such superior officer can, if he so wishes, do the investigation vide CBI vs. State of Rajasthan and another 2001 (3) SCC 333 (vide para 11), R. P. Kapur vs. S.P. Singh AIR 1961 SC 1117 etc. Also, the State Government is competent to direct the Inspector General, Vigilance to take over the investigation of a cognizable offence registered at a police station vide State of Bihar vs. A.C. Saldanna (supra).

[31] No doubt the Magistrate cannot order investigation by the CBI vide CBI vs. State of Rajasthan and another (Supra), but this Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them.

[32] In the present case, there was an investigation by the G.R.P., Mathura and also two Courts of Inquiry held by the Army authorities and they found that it was a case of suicide. Hence, in our opinion, the High Court was justified in rejecting the prayer for a CBI inquiry.

[33] In Secretary, Minor Irrigation & Rural Engineering Services U.P. and others vs.

Sahngoo Ram Arya and another 2002 (5) SCC 521 (vide para 6) , this Court observed that although the High Court has power to order a CBI inquiry, that power should only be exercised if the High Court after considering the material on record comes to a conclusion that such material discloses prima facie a case calling for investigation by the CBI or by any other similar agency. A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some allegation.

[34] In the present case, we are of the opinion that the material on record does not disclose a prima facie case calling for an investigation by the CBI. The mere allegation of the appellant that his son was murdered because he had discovered some corruption cannot, in our opinion, justify a CBI inquiry, particularly when inquiries were held by the Army authorities as well as by the G.R.P. at Mathura, which revealed that it was a case of suicide.

[35] It has been stated in the impugned order of the High Court that the G.R.P. at Mathura had investigated the matter and gave a detailed report on 29.8.2003. It is not clear whether this report was accepted by the Magistrate or not. If the report has been accepted by the Magistrate and no appeal/revision was filed against the order of the learned Magistrate accepting the police report, then that is the end of the matter. However, if the Magistrate has not yet passed any order on the police report, he may do so in accordance with law and in the light of the observations made above.

[36] With the above observations, this appeal stands dismissed.

[37] Let a copy of this judgment be sent by the Secretary General of this Court to the Registrar Generals/Registrars of all the High Courts, who shall circulate a copy of this Judgment to all the Hon”ble Judges of the High Courts.

sakiri-vasu-vs-state-of-UP-2008-Adv-Vikas-nagwanDownload

Anticipatory Bail granted By Delhi High court in 376/509/506 IPC case

Criminal Law

The Hon’ble High court of delhi has granted anticipatory bail in 376 IPC matter wherein allegation of rape has been leveled against the accused.

The case is based upon a complaint filed by a daughter against her step father which resulted in to an FIR under section 376/509/506 IPC. During the investigation the NBWs have also been issued against the accused.

The Hon’ble High court of Delhi based on the obersations of the Hon’ble Supreme court in Siddharam Sthlingappa Mhetre case has held that even though the allegations against the applicant are serious in nature but the severity of the allegations is not the only consideration which should result in denial of grant of bail to the petitioner. The totality of the circumstances deserves to be seen before a person is granted or denied anticipatory bail.

The Hon’ble High court has further held that In the instant case, the petitioner has been able to make out a case for grant of anticipatory bail on account of the fact that no recovery of any articles is to be effected inasmuch as this is a case where all the articles have been seized by the police as per the Status Report and he had joined the investigation at least six times.

There are two more considerations which are being taken into account for grant of anticipatory bail. Firstly, the petitioner is having roots in the society and no apprehension has been shown by the prosecution that there is a chance of fleeing away of the petitioner from the process of law.

The accused has been granted anticipatory bail on his furnishing a personal bond in the sum of Rs. 50,000/- with one surety of the like amount to the satisfaction of the IO/SHO concerned with the condition that he shall not tamper with the evidence or threaten any of the witnesses.

READ COMPLETE ORDER BELOW:

HIGH COURT OF DELHI

AMEET KHANDELWAL V/S STATE OF NCT OF DELHI

Date of Decision: 23 April 2021

Hon’ble Judges: Rajnish Bhatnagar Case Type: Bail Application
Case No: 1162 of 2021
Subject: Criminal

Acts Referred:

INDIAN PENAL CODE, 1860 SEC 376, SEC 509, SEC 506 CODE OF CRIMINAL PROCEDURE, 1973 SEC 438, SEC 164 NEGOTIABLE INSTRUMENTS ACT, 1881 SEC 138

Judgement Text:-

Rajnish Bhatnagar, J

[1] The present bail application has been filed under Section 438 Cr.P.C. on behalf of the petitioner for grant of anticipatory bail in case FIR No. 005/2021 under Sections 376/506/509 IPC registered at Police Station Greater Kailash as the Court of Sessions dismissed his anticipatory bail application on 01.04.2021, holding that the allegations against the petitioner are serious and it is not a fit case for grant of anticipatory bail.

[2] Briefly stated, the facts of the case are that on 29.12.2020 a complaint was lodged by the victim at P.S. Greater Kailash against the petitioner who is her step father. In the said complaint, the complainant stated that she was pursuing Economics from D.U. and was staying with her mother after the separation of her mother from her father in the year 2001. It is stated that her mother is a business woman and in the year 2010 her mother met the petitioner who was also divorcee, and they married each other in the year 2012. Thereafter the petitioner also started living with them and started working in the complainant’s mother company. It is alleged that shortly, after the marriage between the petitioner and mother of the complainant, behaviour of the petitioner from the beginning was over friendly with her and was always finding excuses to physically touch her and hug her.

[3] It is further alleged that the complainant objected to the behaviour of the petitioner who told her that he was only trying to teach her and discipline her and she could not take it otherwise. It is further alleged that soon his behaviour progressed in the direction of aggressive sexual harassment and was always trying to touch the body of the complainant when no one was looking. It is alleged that the complainant was severely, emotionally depressed and then she started to object very loudly telling the petitioner not to touch her on her bum or any other part of her body even as a friendly gesture.

[4] It is further alleged that after observing this kind of behaviour for a long time, the complainant started avoiding the petitioner whom she always addressed as daddy. It is further alleged that the behaviour of the petitioner was very vulgar and cheap in front of the complainant and he had no respect for her mother. It is further alleged that the life style of the petitioner is like a street goon and he always dresses inappropriately and used to roam around inside the house and in front of the complainant wearing only shorts and with bare chest. It is further alleged that the complainant always used to suspect that he is trying to mix some medicines in her drink such as tea, coffee, juice as on several occasions, she noticed that the taste of the drinks were strange. It is alleged that once after consuming such drink, the complainant felt dizzy and felt like she was going unconscious so she immediately took a bath with cold water to keep herself

awake. It is further alleged that thereafter the complainant avoided having tea, coffee, juice etc. whenever the petitioner was near her or near the kitchen.

[5] It is further alleged that she has not shared this with her mother. One day her mother had a cup of green tea made by the petitioner for the complainant which she did not drink, but her mother consumed this green tea, and she became unconscious and woke up next morning with a severe headache and other symptoms. It is further alleged that after this incident the complainant completely stopped drinking and eating near the petitioner. It is further alleged that every time the petitioner went on international trips, he always wanted to go or come via Bangkok where he would often stay at night to satisfy his lusts. It is alleged that the petitioner used to bring his goon type friends to the house to drink and then they would cheaply speak in the house.

[6] It is alleged that on 18.05.2020 around 09-09:30 a.m. when the complainant was taking bath in her bathroom, she forgot to take her towel inside. It is alleged that after she finished bathing, she shouted out loud to the maid to hand her towel. It is alleged that there was a knock on the door which the complainant thought was maid but to her shock it was the petitioner at the door and he pushed opened the door and grabbed her and licked the face of the complainant. It is further alleged that the petitioner inserted his finger inside her private part and refused to leave her. When the complainant struggled and shouted the petitioner pushed her and punched her in her stomach and asked her to keep quiet. It is alleged that thereafter he took out his mobile and told that he was making nude video of the complainant and if she would make noise then he would show this video on the internet. It is alleged that the petitioner also threatened her to kill the complainant and her mother. It is alleged that thereafter the petitioner left the house and ran away. It is alleged that when she discussed and shared the incident with her mother, she broke down and assured the complainant not to worry and that she would support her and would not keep quiet about this incident, even if the complainant published the nude pictures of the complainant.

[7] I have heard Mr. Sudhir Nandrajog, Sr. Adv., counsel for the petitioner as well as Ld. APP for the State. The private counsel representing the complainant had also made her submissions and assisted the Ld. APP.

[8] The main contention of the Ld. Sr. Counsel for the petitioner is that the petitioner has been falsely implicated in the instant case. It is submitted that the marriage between the mother of the complainant and the petitioner is their second marriage and they had incorporated a company namely “Prayer Dhoop Agarbatti Pvt. Ltd.” of which they are the owners of 50% share holding as well as directors in the company. It is further submitted that Mrs. Pooja Goela was caught cheating by the petitioner as the photographs of Ms. Pooja Goela with another person were revealed to the petitioner and the differences arose due to the infidelity of Mrs. Pooja Goela and for this reason the petitioner left the property where he was living with her family and started living with his friend at Laxmi Nagar from January 2020 till march 2020.

[9] It is submitted that the memorandum of settlement on 05.03.2020 was entered into between the petitioner and Mrs. Pooja Goela which noted the differences between the petitioner and Mrs. Pooja Goela and they agreed to live separately for six months and it was also agreed that separate payments with respect to accommodation for the petitioner shall be paid by the company. It is further urged that the petitioner also arranged for an alternate accommodation in the name of the company in East of Kailash and a lease deed dated 06.03.2020 was executed and the possession was handed over to the petitioner. He further submitted that Mrs. Pooja Goela started misappropriating the funds of the company and started new company namely “Prayer Ensemble Pvt. Ltd.” in which she had share holding of 80% and the same was created with the sole purpose to cause monetary loss to the petitioner. It is submitted that since Mrs. Pooja Goela was indiscriminately withdrawing the money from the account of the company, the petitioner preferred letters to the banker of the company i.e. ICICI Bank to freeze the account of the company, so, acting on the complaint of the petitioner ICICI Bank imposed debit freeze on the account of the company.

[10] It is further submitted that Mrs. Pooja Goela preferred a company petition and vide order dated 10.11.2020, conditional release was granted for limited purpose. It is further urged by the Ld. Sr. cousnel that Mrs. Pooja Goela in collusion with ICICI Bank indiscriminately withdrew money in gross violation of the orders of NCLT so that the petitioner was compelled to initiate contempt proceedings against Mrs. Pooja Goela and ICICI bank. It is further submitted that the cheques issued to the petitioner by the company were dis-honoured by the bankers of the petitioner as Ms. Pooja Goela had stopped the cheques, so complaints U/s 138 NI Act have been preferred by the petitioner against the company and Mrs. Pooja Goela. It is further submitted by the Ld. Sr. counsel for the petitioner that the petitioner was regularly threatened implications in false cases about which he made complaints at P.S. Greater Kailash at different point of time. It is further submitted that there is a delay of more than 7 months in filing the present complaint by the complainant and there is no explanation for the delay. It is further submitted that the alleged incident is dated 18.05.2020 but the complainant preferred the complaint on 29.12.2020 which has been filed solely with the purpose that the petitioner may not pursue his business interest in the company.

[11] It is further urged that the petitioner was not residing at the residence R-64, 3rd Floor, Greater Kailalsh-1, where the complainant was present on the date of the incident and the IO made no efforts to obtain the location of the petitioner’s mobile phone. It is further submitted that the petitioner had never absconded and has joined investigation on 10.02.2021, 11.02.2021, 12.02.2021, 15.02,2021, 16.02,2021 and 17.02.2021. It is further submitted that the allegations in the FIR are totally false and no dates, day, time has been mentioned about the incidents. It is further submitted that no custodial interrogation is required and the petitioner has clean past antecedents. It is further submitted by the Ld. Sr. counsel that the contents of the FIR are highly improbable and cannot be believed. It is further submitted that according to the complainant, the petitioner prior to the alleged incident of 18.05.2020 has been misbehaving and sexually harassing the complainant but she had never made any complaint to her mother or brother which shows that she had no complaints.

[12] It is further submitted that as per the complainant once the mother of the complainant fell un-conscious after drinking green tea which was meant for the complainant but the mother of the complainant drank the same, still the complainant failed to bring to the notice of her mother the alleged conduct of sexual harassment to the notice of her mother. It is further submitted by the Ld. Sr. counsel that the complainant even had a grown up brother and she never brought even to his notice the alleged misconduct/sexual harassment being done by the petitioner. It is further submitted that the FIR has been filed after 7 months of the alleged incident under a well planned strategy to extort money from the petitioner and to take revenge from the petitioner for the cases filed by him for redressal of bonafide grievances as the owner of the company. It is further submitted by the Ld. Sr. counsel that the mother of the complainant was pursuing all sorts of litigations against the petitioner prior to the date of complaint which is 29-12-2020 and had any such incident taken place, there was no reason for the complainant or her mother to keep quiet and it also cannot be said that they were not conversant with the law or had no brush with the court cases.

[13] On the other hand, it is submitted by the Ld. APP that the allegations against the petitioner are grave and serious in nature. The petitioner is step father of the complainant and if the daughter is not safe with one’s father, then she has no place to go. It is further submitted by the Ld. APP that the location of the petitioner as per the ID chart of mobile phone was found at the place of occurrence. It is further submitted that the complainant’s statement U/s 164 Cr.P.C has been recorded wherein she has reiterated the version given in the FIR. It is submitted by the counsel for the complainant that the accused/petitioner may not be available for the trial as he has mentioned different addresses in the bail petition and there are chances that he may flee from the justice. It is further submitted that there is an independent witness who is the maid working at the time of the incident in the house of the complainant. As regard the delay in lodging the FIR, it is submitted that the complainant remained silent to save the matrimonial trauma of her mother and the marriage of the complainant was fixed during that period and if the fiance of the complainant would have come to know about the incident, he would have broken the relationship.

[14] No doubt, the allegations against the petitioner are serious in nature but the severity of the allegations is not the only consideration which should result in denial of grant of bail to the petitioner. The totality of the circumstances deserves to be seen before a person is granted or denied anticipatory bail. The Supreme Court in case titled Siddharam Satlingappa Mhetre Vs. State of Maharashtra, 2011 1 SCC 694 has laid down that the Court should be loath to reject the grant of anticipatory bail in as much as it impinges on the personal liberty of a person. Meaning thereby, unless and until there is an imminent and a great imperative to have a custodial interrogation of an accused, the anticipatory bail does not deserve to be denied.

[15] In the instant case, there is no denial to the fact that the petitioner and his wife who is the mother of the complainant are involved in various litigations amongst each other. The mobile phone has already been recovered and the petitioner has already joined the investigation on 10.02.2021, 11.02.2021, 12.02.2021, 15.02,2021, 16.02,2021 and 17.02.2021. As per the status report, filed by the state in compliance of the order dated 09.02.2021 of Sh. Gaurav Rao, Ld. ASJ, Saket Court, New Delhi, the verification of the complaints given by the petitioner has also been done and it has been found that the applicant/petitioner has filed 3 complaints at P.S. Greater Kailash, wherein he has mentioned about his apprehension of being arrayed in a false case of molestation by his step daughter on the instructions of his wife. As per the status report, all the information with regard to the mobile phones being used by the petitioner has been supplied to the police.

[16] As already observed hereinabove, the petitioner has joined the investigation on numerous occasions. There is a history of litigations in regard to the control of business between the petitioner and the mother of the complainant. Ld. Sr. counsel for the petitioner has also laid much emphasis on the delay in lodging the FIR and contended that there is no plausible explanation for the delay and the same is fatal to the case of the complainant. In the instant case, the alleged offence took place on 18.05.2020 and on the same very day, according to the complainant she had informed her mother about the incident and also discussed with her but the complaint was only lodged on 29.12.2020. In between this period from the record, it is evident that the petitioner and the mother of the complainant have been litigating.

[17] No doubt, the delay in lodging the FIR is not always fatal and it depends upon the facts of each case. The reasons given by the counsel for the complainant for the delay is that the complainant never wanted to spoil the matrimonial home of her mother and secondly her fiance would have left her if he had come to know about the conduct of the petitioner. Though, the complainant has tried to explain the delay, but the same can be looked into at the time of trial and as to what would be the fate of such delay would be seen at that particular stage.

[18] The perusal of the FIR shows that no day, date, month and time has been given by the petitioner with regard to the incident prior to 18.05.2020. It is also not understood as to why she had not even once made any complaint to her mother and brother about the misconduct and sexual harassment being meted out by the petitioner and when at one stage according to the complainant, her mother even fell unconscious after drinking green tea which the petitioner brought for the complainant but was drank by the mother of the complainant but then also the complainant failed to tell her mother and brother about the conduct of the petitioner as already observed.

[19] In the instant case, the petitioner has been able to make out a case for grant of anticipatory bail on account of the fact that no recovery of any articles is to be effected inasmuch as this is a case where all the articles have been seized by the police as per the Status Report and he had joined the investigation at least six times.

[20] There are two more considerations which are being taken into account for grant of anticipatory bail. Firstly, the petitioner is having roots in the society and no apprehension has been shown by the prosecution that there is a chance of fleeing away of the petitioner from the process of law.

[21] In so far as the contention of the petitioner tampering with the evidence or threatening the witnesses are concerned a generalize statement has been made by the counsel for the complainant and nothing has been shown to the Court in the form of any cogent and prim-facie evidence which could show that he has threatened anybody or tried to tamper with the evidence.

[22] It has also been argued by the Ld. APP that NBWs were obtained against the petitioner as he has not been joining the investigation but thereafter as per the status report, the petitioner has joined the investigation. Merely because the NBWs were issued against the petitioner cannot be a sufficient ground for denying the grant of anticipatory bail, if it is otherwise made out. Every reasonable person who has approached the Court for grant of anticipatory bail will keep away from the investigation for some time so that his bail application may not become infructuous.

[23] Having regard to the facts and circumstances of this case, I am inclined to admit the petitioner to anticipatory bail on his furnishing a personal bond in the sum of Rs. 50,000/- with one surety of the like amount to the satisfaction of the IO/SHO concerned with the condition that he shall not tamper with the evidence or threaten any of the witnesses. The bail application is disposed of accordingly.

[24] Nothing stated hereinabove shall tantamount to the expression of any opinion on the merits of this case.

Court has to decide bail application

Criminal Law

Whenever an accused appears before the court or is brought before the court, he/she has the option to apply for bail. In such cases when the bail application is filed, the court has to first ascertain whether the offence the person is accused of, is bailable or  non bailable. In bailable offence or bailable cases, the accused can get the bail from police station itself as per the mandate of section 436 CrPC if the accused is ready to furnish bail and furnishes bail.  In cases of non bailable offences the grant of bail is a discretion of the court.

In State versus Captain Joginder Singh 1961 Supreme court ash observed that “Whenever an application for bail is made to a court, the first question that it has to decide is whether the, offence, for which the accused is being prosecuted is bailable or otherwise. If the offence, is bailable, hail will be granted, under s. 496 of the Code of Criminal Procedure without more ado ; but if the offence is not bailable, further considerations will arise and the court will decide the question of grant of bail in the light of those further considerations.”

Section 436 provides for the bail in bailable offences whereas section 437 CrPC provides for bail in non bailable offences. In such cases the court shall adhere to the principles provided under section 437 CrPC.

In non bailable offences, the Magistrate may release the accused under section 437 CrPC whereas the Court of session or the Hon’ble High court may release the applicant under section 439 CrPC.