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Indian Laws - Case Laws
Showing 461 to 480 of 750 Records
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2023 (5) TMI 1378
Legality of criminal proceeding - mandatory provision under section 202 Cr.P.C not followed and cognizance taken - HELD THAT:- The person who is looking into the day to day affairs of the company and was responsible at the time of offence can only be prosecuted and in that view of the matter in absence of any averment to that effect vicarious liability upon the petitioners are not liable to be fastened upon them as there is no such averment in the complaint petition and the case of the petitioners is fully covered in view of the judgment rendered in the case of State (N.C.T. of Delhi) v. Rajeev Khurana [2010 (7) TMI 283 - SUPREME COURT].
Considering that argument this Court has also decided the same issue in the case of M/s Maithon Power Limited and Others v. The State of Jharkhand and Others [2022 (3) TMI 83 - JHARKHAND HIGH COURT]. It is worth considering that there is no exception to the section 202 Cr.P.C, and in that view of the matter, even in the Government complaint case, section 202 Cr.P.C is mandatory and it is admitted that the petitioners are stationed at Delhi and seeing that the learned magistrate was required to follow the mandatory provision of section 202 Cr.PC which has been amended vide Amendment Act, 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned.
The entire criminal proceeding in connection with G.O.C.R No. 61 of 2013, T.R. No. 879 of 2014 including order taking cognizance dated 15.07.2013 pending in the court of learned Chief Judicial Magistrate, Deoghar are quashed - Petition allowed.
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2023 (5) TMI 1376
Mandate of grant of a personal hearing - Solicitor General states that in respect of his submission that the judgment of the Court should be granted only prospective effect, the State Bank of India may be advised to file a review separately - HELD THAT:- The Miscellaneous Application is disposed of.
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2023 (5) TMI 1368
Dishonour of Cheque - right to fair trial - grievance of the petitioner is that petitioner has been denied right of cross-examination without any default on his part - Violation of principles of natural justice - HELD THAT:- The accused had put in appearance before learned trial Court for the first time on 20.11.2017. He was put to notice under Section 251 Cr.P.C. on 5.12.2017. At that stage, learned trial Court had not shown strict compliance to afore-mentioned direction and rather had not only fixed the case for recording of evidence of complainants but had recorded statement of one of the complainant's witness on 4.6.2018.
The impugned order cannot be sustained as it has divested the accused of his right to cross-examine the prosecution witness. The reason assigned for closing the right of cross-examination also cannot be countenanced for the reason that the accused had not been afforded reasonable opportunity to file the application under Section 145(2) of the Act.
The accused had availed opportunity to lead defence evidence and in order to prove his defence, the accused had moved an application under Section 45 of the Indian Evidence Act for orders of learned trial Court to send the questioned signatures of accused on document Ext.-C-7 relied upon by complainants, with his admitted signatures on the "Vakalatnama" filed in the Court - there is no hesitation to hold that the impugned order dated 12.7.2018 has not only taken away a valuable right of the accused but such order has caused serious prejudice to the right of defence of petitioner in proceedings held after passing the impugned order.
The impugned order dated 12.7.2018, passed by learned Chief Judicial Magistrate, Sirmour District at Nahan in Complaint Case No. 135/3 of 2013 is set aside. As a necessary consequence thereof, the subsequent proceedings and orders passed in Complaint Case No. 135/3 of 2013 are also set aside with a direction to the learned trial Court to afford reasonable opportunity to the accused to cross-examine the witness of complainant whose statement was recorded as preliminary evidence and thereafter to proceed further in the case.
Petition disposed off.
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2023 (5) TMI 1344
Seeking grant of anticipatory bail - sale of car by the petitiners, which was received as dowry - HELD THAT:- For Section 445 CrPC, the Legislature does not distinguish officers from Courts. Further, even the Legislature had made fleeing from justice a penal offense under section 174-A of IPC.
In anticipatory bail, the surety bail bonds have to be to the satisfaction of the Investigator/Arresting Officer. In regular bail and suspension of sentence applications, the surety bonds must satisfy the concerned court, the trial court, or the available Ilaqua Magistrate. In appeals and revisions, the higher Courts ask a convict or an accused to furnish bonds under sections 389, 390, and 397 CrPC. The provisions contained in Chapter XXXIII of CrPC apply to all bails and bonds. Thus, S. 445 CrPC applies to all bails, including those granted under sections 389, 390, 397, 436, 437, 438, and 439 CrPC - section 445 CrPC provides for depositing a sum of money or Government promissory notes in all bonds except the case of a bond for good behavior.
There is an absence of comprehensive data demonstrating the role of sureties in bringing the accused to justice. It is also true that the purpose of a cash bond is not to enrich the State's coffers but to secure the accused's presence. Mere recovery of the surety amount by penalty is not equivalent to producing the accused to face trial.
There needs to be more assurance or likelihood of the refund of money taken by a stock surety. Whenever there is a possibility of the accused evading the trial, or is a potential flight risk, or the accused has a history of fleeing from justice, then in such cases, the concerned court can direct imposition of appropriate conditions that all the expenditure that shall be incurred to trace them, shall be recovered from such person, and the State shall have a lien over their assets to make good the loss.
The petitioner is allowed to be released on bail, subject to fulfilment of conditions imposed - bail application allowed.
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2023 (5) TMI 1342
Appeal against judgment of acquittal u/s 138 of N.I. Act - Complainant lent money to the accused, who issued a cheque that bounced - Complainant issued demand notice and the same is returned with an endorsement as ‘not claimed’ - complainant filed a complaint seeking legal action against the accused - HELD THAT:- In the absence of any tangible evidence on record with regard to source of income through agricultural land, it cannot be accepted that complainant get income from agricultural land and given the said money to his Junior uncle-Ramanna. Out of the said saved amount, he has given loan to accused. The material evidence that has been brought on record during the cross examination of PW.1 is sufficient to create reasonable suspicion about the financial capacity of complainant to lend the money. In the present case, accused herself examined as RW.1, for the reasons best know to her did not offer herself for cross examination. Therefore, examination in chief of RW.1 cannot be looked into.
The Trial Court has rightly appreciated the material evidence placed on record and arrived at just and proper conclusion in holding that rebuttal evidence placed on record by accused during the cross examination of PW.1 would be sufficient to displace the initial presumption available in favour of complainant in terms of Sections 118 and 139 of N.I. Act. The finding recorded by the Trial Court are based on the material evidence brought on record in the cross examination of PW.1 and the same does not call for interference by this Court.
The Appeal filed by the Appellant-complainant is hereby dismissed.
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2023 (5) TMI 1327
Grant of bail - Smuggling - possession of codeine phosphate in a consignment of phensedyl bottles loaded in two nylon bags - HELD THAT:- The investigation is complete; chargesheet has been filed, though the charges are yet to be framed. The conclusion of trial will, thus, take some reasonable time, regardless of the direction issued by the High Court to conclude the same within one year from the date of framing of charges. The petitioners do not have any criminal antecedents. There is, thus, substantial compliance of Section 37 of the NDPS Act.
In such circumstances, but without expressing any views on the merits of the case, it is deemed appropriate to release the petitioners on bail subject to the terms and conditions as may be imposed by the Trial Court.
SLP disposed off.
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2023 (5) TMI 1319
Restoration of Arbitral Award - patent illegality apparent on the face of the award or not - Section 34 of Arbitration and Conciliation Act, 1996 - HELD THAT:- The High Court could only be said to have misdirected itself on the major issues concerning merits of the award. However, before concluding, it may be observed that it had not been as if the Commercial Court did not examine the material issues arising for determination while dealing with the case in terms of Section 34 of the Act of 1996.
It is noticed that after taking note of the submissions of parties, the Commercial Court precisely framed the points for determination and then, dealt with every point on the anvil of Section 34 of the Act of 1996. With respect, it is not found the High Court justified in making a comment about framing of points for determination by Commercial Court and then observing that the Commercial Court merely reproduced the findings of the award. The Commercial Court dealing with Section 34 application was not acting as a Court of Appeal. Yet, looking to the long-drawn arguments, the Commercial Court enumerated the issues raised and then returned the findings after examining the record and while rejecting the submissions made on behalf of the State. There had been no such flaw in the judgment and order passed by the Commercial Court which called for interference by the High Court on the parameters and within the periphery of Sections 34/37 of the Act of 1996.
The narrow scope of "patent illegality" cannot be breached by mere use of different expressions which nevertheless refer only to "error" and not to "patent illegality". It is reiterated that what has been stated and underscored by this Court in DELHI AIRPORT METRO EXPRESS PVT. LTD. VERSUS DELHI METRO RAIL CORPORATION LTD. [2021 (9) TMI 1479 - SUPREME COURT] that restraint is required to be shown while examining the validity of arbitral award by the Courts, else interference with the award after reassessing the factual aspects would be defeating the object of the Act of 1996. This is apart from the fact that such an approach would render several judicial pronouncements of this Court redundant if the arbitral awards are set aside by categorizing them as "perverse" or "patently illegal" without appreciating the contours of these expressions.
In the impugned judgment, the High Court though referred to the principles laid down by this Court in SSANGYONG ENGINEERING & CONSTRUCTION CO. LTD. VERSUS NATIONAL HIGHWAYS AUTHORITY OF INDIA (NHAI) [2019 (5) TMI 1879 - SUPREME COURT] but then, reproduced an analysis by a learned Single Judge of the High Court and proceeded to decide the matter with reference to the passages so extracted. The enunciation of this Court ought to have been examined by the Division Bench of the High Court while dealing with the matter at hand, rather than relying on the analysis by a learned Single Judge of the High Court. Nothing more is said in this regard, essentially because the latter decisions of this Court like those in Delhi Airport Metro Express and Haryana Tourism Limited were not available before the High Court at the time of passing of the impugned judgment and order dated 08.03.2021. Nevertheless, the principles expounded by this Court in Associate Builders and Ssangyong Engineering were available and the matter was required to be dealt with in reference to those principles. Leaving this aspect at that, suffice it would be to observe for the present purpose that the impugned judgment and order dated 08.03.2021, insofar it interferes with the findings and the conclusions of the award in question, cannot be sustained and is required to be set aside.
Fact of the matter remains that nothing of a patent illegality apparent on the face of the award has been pointed out. The submissions essentially are of indicating some alleged errors on the merits of the case which, as noticed, do not fall within the parameters of Section 34 of the Act of 1996.
That part of the impugned judgment and order dated 08.03.2021 as passed by the High Court, which modifies the award dated 16.02.2018 and the order of the Commercial Court dated 12.09.2019, is set aside and consequently, the award in question is restored in its entirety.
Appeal of claimant allowed.
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2023 (5) TMI 1315
Murder - the only allegation against the present appellant (accused no.2) is that while 6 other accused entered the house of PW3, the appellant was standing near the gate of the gallery with katta (countrymade handgun) in his hand - HELD THAT:- The only circumstance brought on record against the present appellant is in the evidence of PW5, who stated that the appellant was standing outside near the gate of the gallery with a katta in his hand. No overt act was attributed to him. There is a long statement of the appellant under Section 313 of CrPC in which as many as 42 questions were put to the appellant. Question no.13 is about what PW5 deposed. Admittedly, it was not put to the appellant that it is brought on record that he was standing outside near the gate of the gallery with a katta in his hand. It is true that the answer given by him to every question is “I don’t know”. If all the circumstances put to the appellant in his statement under Section 313 CrPC are carefully perused, any person of ordinary intelligence will get the impression that none of the prosecution witnesses has stated anything against him. That is why one cannot find fault with the appellant when he gave standard answers to every question as nothing adverse against him was put to him.
This is a case where there is only a solitary circumstance appearing in the evidence against the appellant. The prosecution examined 37 witnesses. The material against the appellant is in the form of one sentence in the evidence of PW5. As mentioned earlier, on reading 42 questions put to the appellant in his statement under Section 313 of CrPC, any accused having ordinary intelligence will carry an impression that there is absolutely no material against him. The appellant was not confronted during his examination under section 313 of CrPC with the only allegation of the prosecution against him.
When the Trial Judge prepares questions to be put to the accused under Section 313, before putting the questions to the accused, the Judge can always provide copies of the said questions to the learned Public Prosecutor as well as the learned defence Counsel and seek their assistance for ensuring that every relevant material circumstance appearing against the accused is put to him. When the Judge seeks the assistance of the prosecutor and the defence lawyer, the lawyers must act as the officers of the Court and not as mouthpieces of their respective clients. While recording the statement under Section 313 of CrPC in cases involving a large number of prosecution witnesses, the Judicial Officers will be well advised to take benefit of subsection (5) of Section 313 of CrPC, which will ensure that the chances of committing errors and omissions are minimized.
The conviction of the appellant stands vitiated. In the facts of the case, the option of remand will be unjust - the conviction and sentence of the appellant set aside - appeal allowed.
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2023 (5) TMI 1309
Grant of bail - involved in irregularities in framing and implementation of excise policy of GNCTD of Delhi for the Year 2021-22 - HELD THAT:- The law regarding grant of bail is very well settled. The liberty of an individual is sacrosanct and is relatable to Article 21 of the Constitution of India. It is no more res integra that the rule is bail and not jail. It is also a settled proposition that at the stage of bail, the court is not required to enter into the meticulous examination of facts nor it can examine the probative value of the witnesses. The court has merely to see the prima facie case.
On the basis of law as has crystallised is that at time of considering an application for bail, the courts is required to take into account certain factors such as existence of prima facie case against the accused, the gravity of the allegations, the position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the court in administration of justice as well as the criminal antecedents of the accused. It is also well settled that the court ought not to go deep into the merits of the matter while considering an application for bail. However, all that needs to be established from the record is the existence of the prima facie case against the accused.
The present case revolves around the formation of a New Excise Policy replacing the Old Excise Policy. The purported reason for changing the policy was to bring transparency and to enhance the state excise duty revenue. Besides this, the object was to simplify liquor policy pricing mechanism and checking malpractices. The purpose was also to transform the nature of liquor trade commensurating with the changing structure in the national capital. The applicant was admittedly holding a very high influential position of Deputy Chief Minister having 18 portfolios including the Excise department. The applicant was also undisputedly a prominent leader of Aam Aadmi Party which is having the present government in Government of NCT of Delhi. Thus, the role of the applicant in any policy decision including a formation of new excise policy replacing the old one has to be extremely relevant.
The case of the CBI is that the applicant was the pivot of the entire conspiracy and everything was being done under his instructions and supervision. The margin of profit from 5% to 12% was increased in order to recoup the kickbacks which had already been received through Vijay Nair. in this regard reliance has been placed upon the statement of approver Mr. Dinesh Arora. The parameter for grant of the bail has already been stated hereinabove and therefore need not to be repeated again. The court at this stage has only to see the prima facie case. The CBI has brought the material on record in the form of the document and the statements of the witnesses to show that initially Ravi Dhawan Expert Committee Report was presented which was later on not followed by the Government in material aspects and certain provisions were inserted which indicate towards malafide.
In the present case, the allegation is that the New Excise Policy has been brought in and certain provisions have been added to render undue advantage to a particular group against the illegal gratification having been received from them. The allegations if found to be correct are very serious in nature and goes to the very foundation of the case. The court at this stage is not to meticulously examine the material and evidence on the record nor should it make any comment beyond the same as it may prejudice the parties during the trial.
The applicant at this stage, cannot be seen saying that he had no role to play. He being the deputy Chief minister and Minister of Excise, was at the helm of affairs. The witnesses in the present case are mostly public servants. Presently also, the party of the applicant is in power. Therefore, it cannot be disputed that the applicant is a high profile person and has potential to influence the witnesses. Therefore, the apprehension of the CBI that the applicant might tamper with or otherwise adversely influence the witnesses cannot be ignored. The applicant is also not entitled to parity in view of his unparalleled position.
Thus, the allegations are very serious in nature that excise policy was formed at the instance of the "South Group" with malafide intention to give undue advantage to them. Such an act points towards the misconduct of the applicant, who was admittedly a public servant and holding highest position. The statement of the concerned excise officers has been relied upon by the CBI. This court is restraining itself to make any comments and minute examination of the material on record so as to no prejudice is caused to the applicant or the prosecution during the trial. The gravity and the allegations do not entitle the accused to be admitted to bail - the petitioner fails the triple test in the view of the seriousness of the allegations and his position.
The petitioner is not entitled to bail - Petition dismissed.
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2023 (5) TMI 1307
Seeking permanent injunction restraining infringement of trademark and passing off along with other ancillary reliefs - plaintiff failed to comply with provisions of Section 12A of the Commercial Courts Act mandating pre-institution mediation before filing a commercial suit - Order XXXIX Rules 1 and 2 of the CPC - HELD THAT:- In CHANDRA KISHORE CHAURASIA VERSUS RA PERFUMERY WORKS PRIVATE LTD. [2022 (10) TMI 1233 - DELHI HIGH COURT], a Division Bench of this Court interpreted the expression, ‘contemplate any urgent interim relief’ used in Section 12A of the Commercial Courts Act. In the case before the Division Bench, the Commercial Court did not accept the contention of the defendant that the plaint should be rejected under Order VII Rule 11 of the CPC on the ground that the suit had been filed without complying with the mandatory provisions of Section 12A of the Commercial Courts Act.
The facts of the present case are very similar to those before the Coordinate Bench in BOLT TECHNOLOGY OU VERSUS UJOY TECHNOLOGY PRIVATE LIMITED AND ORS. [2022 (8) TMI 1495 - DELHI HIGH COURT]. Like in the present case, the plaintiff in Bolt Technology, had issued a cease and desist notice dated 6th November, 2020 to the petitioner/defendant to which no response was received. In respect of the notice of opposition filed by the plaintiff therein against the trademark application of the defendant, the defendant filed a counter-statement stating that the opposition was frivolous - the Court in the aforesaid case held that the requirement of Section 12 A of the Commercial Courts Act stands satisfied on both counts i.e., i. Firstly, the Plaintiff had attempted an amicable resolution which was clearly refuted, rejected and condemned by the Defendants; Secondly, the Plaintiff has also sought urgent interim relief before this Court and is entitled to maintain the present suit.
The plaintiff has also filed along with the plaint an application for grant of ex parte interim injunction under Order XXXIX Rules 1 and 2 of the CPC against the defendant from using the impugned mark. In the said application also, it has been pleaded that the plaintiff shall ‘suffer an irreparable loss and injury, which cannot be compensated in monetary terms unless an immediate order of injunction is passed’. The plaintiff also filed an application seeking exemption from complying with the provisions of Section 12A of the Commercial Courts Act on the ground that the plaintiff is seeking ex parte ad interim injunction against the defendant.
The Commercial Court correctly came to the conclusion that the suit filed by the plaintiff contemplated grant of urgent interim reliefs against the defendant and therefore, the plaintiff was not required to exhaust the remedy of pre-institution mediation as contemplated under Section 12A(1) of the Commercial Courts Act.
There is no merit in the present petition and the same is dismissed.
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2023 (5) TMI 1306
Rejection of bail application (second bail application) - HELD THAT:- The impugned order shows that what has weighed with the Court is the fact that the co-accused who was released on bail has not surrendered. It is this factor alone which can be discerned to be the reason to not entertain the bail application.
The fact that the co-accused who was released on bail has not surrendered cannot be a germane factor to decline bail to the co-accused, namely, the appellant - impugned order is set aside - Appeal allowed.
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2023 (5) TMI 1305
Seeking grant of Default bail - arrest on 18.07.2019 and the chargesheet in the present case was filed on 18.01.2020 without a report from the FSL - indefeasible right to default bail under Section 167(2) of the Cr.P.C. - HELD THAT:- A coordinate bench of this Court in SULEMAN VERSUS THE STATE (NCT OF DELHI) [2022 (8) TMI 1491 - DELHI HIGH COURT], in the background of the similar factual matrix, after discussing various judgments of this Court held At present, the settled law persists in the view that non filing of FSL report with the charge-sheet does not fall within the realms of Section 173(2)CrPC so as to consider it as “incomplete report”. In the present case although FSL report has not been filed, however, the charge-sheet was already filed on 3-3-2021 within the time period as per law. Further, the amount of quantity recovered from the accused is of commercial nature baring the accused from bail under Section 37 of the NDPS Act.
In view of the judgment rendered by a coordinate bench of this Court in Suleman, this Court is of the opinion that the chargesheet filed in the present case is not incomplete - Application dismissed.
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2023 (5) TMI 1304
Maintainability of petition - offence punishable under Sections 304(B)/34 and 120(B) of the Indian Penal Code - the learned counsel for the petitioner seeks not to press the present petition - HELD THAT:- The present modification petition stands dismissed as not pressed.
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2023 (5) TMI 1302
Grant of default bail - valid charge sheet or not - although the chargesheet might have been filed within the statutory time period as prescribed in law yet the chargesheet sans a valid order of sanction passed by a competent authority - cognizance of the chargesheet is necessary to prevent the Accused from seeking default bail or not - Special Court are in a position to take cognizance on account of failure on the part of the prosecution to obtain sanction to prosecute the Accused or not.
HELD THAT:- The chargesheet is nothing but a final report of police officer Under Section 173(2) of the Code of Criminal Procedure. Section 173(2) of the Code of Criminal Procedure provides that on completion of the investigation, the police officer investigating into a cognizable offence shall submit a report. The report must be in the form prescribed by the State Government, stating therein(a) the names of the parties;(b) the nature of the information;(c) the names of the persons who appear to be acquainted with the circumstances of the case;(d) whether any offence appears to have been committed and, if so, by whom(e) whether the Accused has been arrested;(f) whether he had been released on his bond and, if so, whether with or without sureties; and(g) whether he has been forwarded in custody Under Section 170 - In fact, the report Under Section 173(2) of the Code of Criminal Procedure purports to be an opinion of the Investigating Officer that as far as he is concerned he has been able to procure sufficient material for the trial of the Accused by the court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175(5) of the Code of Criminal Procedure. Nothing more need be stated in the report of the Investigating Officer. It is also not necessary that all the details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt to the Accused at a later stage i.e., in the course of the trial of the case by adducing acceptable evidence.
It is very much necessary that the evidence collected by the investigating agency in the form of chargesheet is thoroughly looked into and thereafter, the recommendations are made. The investigating agency gets full 180 days to complete the investigation and file its report before the competent court in accordance with Section 173(2) of the Code of Criminal Procedure. If we accept the argument canvassed on behalf of the Appellants, it comes to this that the investigating agency may have to adjust the period of investigation in such a manner that within the period of 180 days, the sanction is also obtained and placed before the court. We find this argument absolutely unpalatable.
The filing of a chargesheet is sufficient compliance with the provisions of Section 167 of the Code of Criminal Procedure and that an Accused cannot claim any indefeasible right of being released on statutory/default bail Under Section 167(2) of the Code of Criminal Procedure on the ground that cognizance has not been taken before the expiry of the statutory time period to file the chargesheet.
Once the investigation is completed, the report Under Section 173 of the Code of Criminal Procedure is to be filed in the Special Court constituted under the Act. Section 16 of the NIA Act leaves no room for any doubt, as it empowers the Special Court to take cognizance of any offence without the Accused being committed to it, for trial, upon receiving a complaint of facts that constitute such offence or upon a police report of such facts. Thus, by incorporating Section 16 in the NIA Act the legislature has made the Special Court as the court of original jurisdiction unlike the Sessions Court, which is a court of committal under the Code of Criminal Procedure.
The error on the part of the investigating agency in filing chargesheet first before the Court of Magistrate has nothing to do with the right of the Accused to seek statutory/default bail Under Section 167(2) of the Code of Criminal Procedure. The committal proceedings are not warranted, when it comes to prosecution under the UAPA by the NIA by virtue of Section 16 of the NIA Act. This is because the Special Court acts, as one of the original jurisdictions. By virtue of Section 16 of the NIA Act, the Court need not follow the requirements of Section 193 of the Code of Criminal Procedure.
Appeals dismissed.
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2023 (5) TMI 1289
Seeking grant of Regular bail - offences punishable under Sections 409, 419, 465, 467, 468, 471, 120B, 34 of Indian Penal Code, 1860 - HELD THAT:- Even as per the affidavit filed by Investigating Officer, the amount involved qua present applicant is only Rs.50,000/- as pointed by learned advocate Mr. Yash Nanavaty and could not be disputed by learned APP - there is no past antecedent reported against the present applicant - Learned APP could not point out any exceptional circumstances.
The applicant is ordered to be released on regular bail in connection with FIR being C.R.No.11210015220162 of 2022 dated 19.10.2022 registered with D.C.B. Police Station, District: Surat on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions imposed - application allowed.
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2023 (5) TMI 1280
Application filed under section 319 Cr.P.C. to summon the applicant - compromise between the parties was arrived at between them to their satisfaction and the contesting parties were satisfied by the said compromise - Permissibility of the piecemeal compromise between the parties - Expression of word 'Evidence' in Section 319 Cr.P.C.
Permissibility of the piecemeal compromise between the parties - HELD THAT:- The power to do complete justice is the very essence of every judicial justice dispensation system. It cannot be diluted by the distorted perceptions and is not slave to anything, except to caution and circumspection, the standard of which the Court sets before it, in exercise of such plenary and unflattered power inherently vested in it while donning the cloak of compassion to achieve the end of justice. No embargo, be in a shape of Section 320 Cr.PC.(Cr.P.C.) or any other such curtailment, can whittle down the powers under section 482 Cr.P.C.
Similarly, when the Revisional Court considered, it has been clearly mentioned that the offence is not compoundable offence under the provision of Section 320 Cr.P.C, and therefore, it has been mentioned that said compromise have got no bearing in the offence. This proposition of law is unswallowable and cannot be accepted. The scope and ambit of Section 482 Cr.P.C. is in much wider than that of Section 320 Cr.P.C.
Expression of word 'Evidence' in Section 319 Cr.P.C. - HELD THAT:- For the exercise of power under Section 319 Cr.P.C., the use of word `evidence' means material that has come before the court during an inquiry or trial by it and not otherwise. If from the evidence led in the trial the court is of the opinion that a person not accused before it, has also committed the offence, the court may summon such person under Section 319 Cr.P.C.
The word "evidence" therefore has to be understood in its widest sense, both at the stage of trial and, even at the stage of inquiry, as used under Section 319 Cr.P.C. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial as well as the material collected during investigation or even in an inquiry.
Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the chargesheet - the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.
There are no hesitation to quash both the orders of learned A.C.M.M-III, Kanpur Nagar dated 22.11.2022 allowing the application under section 319 Cr.P.C. by the Public Prosecutor and when the same was challenged before the learned Sessions Judge, Kanpur Nagar by way of Criminal Revision No. 390 of 2022, the same was rejected confirming the orders of learned A.C.M.M-III, Kanpur Nagar - present application filed under section 482 Cr.P.C. hereby stands allowed.
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2023 (5) TMI 1276
Restoration of decree of dismissal of the suit by the trial Court - Regular Civil Suit is one for possession of suit land on the strength of title - Plaintiff proves that he purchased the suit field from Defendants or not - sale deed was nominal and by way of collateral security and the said transaction was hit by the provisions of Section 8 of the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act or not - HELD THAT:- There is dichotomy between the contention of the first respondent/ the second defendant founded on the Fragmentation Act as mentioned above and also his contention of absolute absence of a transaction partaking the real nature of sale. This is because Section 9 (1) of the Fragmentation Act makes void only the transfer or partition of any land contrary to the provisions of the said Act. The word ‘transfer’ is not defined under the Fragmentation Act though the expression ‘land’ has been defined thereunder. As per Section 2 (5) of the Fragmentation Act, the term ‘land’ means, ‘agricultural land whether alienated or unalienated’ - A conjoint reading of Section 54 of the TP Act and Section 17 of the Indian Registration Act, 1908, mandates that transfer of ownership of any land worth more than Rs.100/- shall be effected by a registered deed. Therefore, transfer of a land worth more than Rs.100/- by a registered deed implies transmutation of all rights as the vendor possessed in the property concerned.
A conjoint reading of Section 36A and 36B of the Fragmentation Act would reveal that when a suit is instituted in a Civil Court, the Court concerned has to consider if the suit involves any issue(s) which is/are required to be settled, decided or dealt with by any competent authority to settle, decide or dealt with, such issues under the said Act. If it does, then after staying the suit the said issue(s) is to be referred to such competent authority for determination. Apparently, no such consideration had been made by the trial Court as also by the High Court.
A careful scanning of the impugned judgment would reveal that virtually, the High Court considered the validity of the sale deed dated 04.07.1978 executed by the second defendant in favour of the first defendant under ‘the Fragmentation Act’, without directly framing an issue precisely on the same and then, decided the validity of the sale deed dated 21.04.1979 executed by the second defendant in favour of the plaintiff - the decision of the High Court on the validity of the sale transaction covered under the sale deed dated 04.07.1978 executed by the second defendant in favour of the first defendant, in terms of the provisions under the Fragmentation Act (when that question was not legally available to be considered in the subject suit) and the virtual declaration of the said sale as void, are absolutely unsustainable. It is the product of erroneous assumption of jurisdiction and also erroneous and perverse appreciation of evidence.
The High Court has committed a serious error based on perverse appreciation of evidence, in setting aside the judgment and decree of the First Appellate Court decreeing the subject suit and in restoring the decree of dismissal of the suit of the trial Court.
Appeal allowed.
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2023 (5) TMI 1273
Seeking grant of bail - defalcation of amount - Amicable settlement of disputes between parties - applicant has submitted that the involved amount of Rs. 68 lakhs being paid today only through demand draft to the complainant and the complainant has no objection if the bail application is allowed.
HELD THAT:- On perusal of the case diary as also the documents filed on record, taking note of the fact that the parties have amicably settled their dispute, this Court finds it expedient to allow the present bail application. Accordingly, without commenting on the merits of the case, the application filed by the applicant is allowed.
The applicant is directed to be released on bail upon furnishing a personal bond in the sum of Rs. 25,000/- with one solvent surety in the like amount to the satisfaction of the trial Court for his/her regular appearance before the trial Court during trial with a condition that he/she shall remain present before the court concerned during trial and shall also abide by the conditions enumerated under Section 437 (3) Criminal Procedure Code, 1973.
Application allowed.
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2023 (5) TMI 1265
Grant of Interim Bail - appropriate forum - non-bailable offence - petitioners contends that the custody of petitioners No. 2 and 3 being illegal, they need not to keep in custody merely because the petitioners have, instead of approaching the trial Court, approached the High Court by way of present petition - HELD THAT:- Keeping in view the facts and circumstances of the present case, where on the bare reading of the FIR and as per the short reply, which has been filed by the respondents, the factual aspect is not disputed with reference to the allegations against the petitioners especially with regard to petitioners No. 2 and 3. The said allegations in the FIR do not make out an offence which would be non-bailable qua them.
Under those circumstances, firstly, the officer, who had taken these two petitioners in custody, could not have done so without making them aware of the fact that they could avail of the remedy of release on submission of bail bonds or surety. The same would be the position as regards the order of remand at the hands of the Duty Magistrate as also the Special Court. It appears that at no stage, the provisions of the Statute were actually gone into or seen. In a mechanical manner, initially the Arresting Officer and thereafter, the Judicial Officers proceeded to pass orders of arrest and remand. Continuance of a citizen in custody without there being a mandate of law i.e. illegal custody cannot be permitted.
These being prima-facie the principled questions, which need to be decided apart from the other issues, as has been raised in the present petition and by the State, as recorded in the order dated 06.05.2023 as also mentioned by the learned Additional Advocate General, Punjab today and recorded above, as an interim measure, therefore, this Court grants interim bail to petitioners No. 2 and 3. Mr. Mritunjay Kumar son of Sh. Satish Rai and Parmender Singh Rawat son of Sh. Rajendra Singh are ordered to be released on interim bail to the satisfaction of the Judicial Magistrate/Duty Magistrate, Ludhiana.
Hearing of the case is deferred to 22.05.2023.
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2023 (5) TMI 1260
Seeking grant of Default Bail - criminal conspiracy thereby cheating and inducing a consortium of 17 banks led by Union Bank of India (UBI) to sanction huge loans - siphoning off and misappropriation of funds - default on repayment of the legitimate dues - HELD THAT:- The Constitution of India is a fountainhead of the law of the land and procedures and is a shining light to show and guide us in order to secure the ends of the justice. Part-III of the Constitution of India confers fundamental rights. One of the most important fundamental rights enshrined in the Constitution of India is that of personal liberty. The basic underlying idea of Part –III of the Constitution of India is to protect the people against the might of the State - Any law in this country has to be subservient to the Constitution of India and must fulfil the object and intendment of the same.
The provisions in the Cr. PC also in a way are meant to safeguard the rights of an individual. Thus, the strict adherence to the provisions of the Cr. P.C. in fact amounts to ensuring the fulfilment of the golden principles laid down in the Constitution of India. Section 57 of the Cr. P.C. provides that a person arrested cannot be detained for more than 24 hours and such person has to be produced within such time before the Court of law - It is a settled proposition that in the first 15 days, the Court can remand such accused to judicial or police custody. Section 167 (2) (a) (i) of the Cr. P.C. provides that such a custody cannot exceed 90 days where the investigation relates to an offence punishable with death imprisonment for life or imprisonment for a term not less than ten years. Section 167 (2) (a) (ii) states that the detention cannot exceed 60 days where the investigation relates to any other offence.
The Court is very clear in its mind that merely because in the charge sheet if the investigating agency has stated they want to conduct further investigation, the charge sheet cannot be termed as a preliminary charge sheet. The police has a right to conduct further investigation. However, at the same time, the investigating agency under the garb of further investigation cannot be allowed to file the police report without completion of investigation, only to defeat the right of statutory bail. The basic concept is that to fulfil the provision of Section 167, the charge sheet has to be filed upon completion of investigation - The material collected by the investigating agency so far, to the mind of this Court falls too short. Rather, if, this report is considered to be a complete investigation qua the accused persons, the investigating agency will suffer a lot. The Court as a guardian of the administration of justice has to ensure that there is strict compliance of the provisions. The investigating agency in its anxiety of keeping the accused persons in custody may take a plea that investigation is complete. However, the best judge in this regard should be the trial Court.
This Court considers that the learned Trial has rightly made an observation that now the time has come when the legislature will have to make certain provisions where the period of investigation for such serious offences have to be extended subject to certain limitations and restrictions. It has repeatedly been held that merely because cognizance has been taken, the right to statutory bail cannot be extended or defeated - This Court is of the considered opinion that the charge sheet filed by the CBI in the present case is an incomplete/piecemeal charge sheet and terming the same as a final report under section 173 (2) Cr.P.C. merely to ruse the statutory and fundamental right of default bail to the accused shall negate the provision under Section 167 Cr. PC and will also be against the mandate of Article 21 of the Constitution of India.
There is no illegality or perversity in the order of the learned Sessions Judge - The Court is the guardian of the rights bestowed upon the accused persons. Strict compliance of the procedure is necessary to protect the fundamental rights of an individual. Merely, filing of the chargesheet, whether incomplete or piecemeal cannot defeat the basic purpose of Section 167 (2) Cr. P.C. - Section 167 (2) Cr.P.C. must be interpretated bearing in mind the three-fold objectives expressed by the legislature namely ensuring a fair trial, expeditious investigation and trial, and establishing a rationalized procedure that protects the interests of the indigent strata of society. These objects essentially serve as components of the overarching fundamental right guaranteed under Article 21 of the Constitution of India.
The present petition is dismissed.
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