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Criminal procedure

This tag is associated with 29 posts

Quash – Private complaint – Ex-employees filed criminal complaint against the company on criminal charges – Magistrate took cognizance – petition for quash dismissed by High court – again filed the again dismissed – Apex court directed to pay the amounts of complainants and set aside the orders of magistrate and quashed the complaint = J.L. Soman & Ors. … Appellants Vs. State of Bihar & Anr. … Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41100

 Quash – Private complaint – Ex-employees filed criminal complaint against the company on criminal charges – Magistrate took cognizance – petition for quash dismissed by High court – again filed the again dismissed – Apex court directed to pay the amounts of complainants and set aside the orders of magistrate and quashed the complaint =  … Continue reading

Section 468 of the Cr.P.C – F.B .= Whether for the purposes of computing the period of limitation under Section 468 of the Cr.P.C the relevant date is the date of filing of the complaint or the date of institution of prosecution or whether the relevant date is the date on which a Magistrate takes cognizance of the offence? = Mrs. Sarah Mathew … Appellant Versus The Institute of Cardio Vascular Diseases by its Director – Dr. K.M. Cherian & Ors. … Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40992

Whether for the purposes of computing the period  of  limitation  under Section 468 of     the Cr.P.C the relevant date is the date of  filing  of  the  complaint  or  the  date  of   institution   of prosecution or whether the relevant date is the date on which  a    Magistrate takes cognizance of the offence? … Continue reading

When the Magistrate can add additional sections himself on the a petition of Complainant /informant after filing a charge sheet by police ? = If F.I.R. was registered on a private complaint – a Magistrate can add additional sections after filing charge sheet by police : If F.I.R. was registered directly by police through information, a Magistrate can not add additional sections after filing charge sheet , only trial court under sec.211 at the time of trial add the same : STATE OF GUJARAT ..Appellant Versus GIRISH RADHAKRISHNAN VARDE ..Respondent = http://courtnic.nic.in/supremecourt/qrydisp.asp

  When the Magistrate can add additional sections himself on the a petition of Complainant /informant after filing a charge sheet by police ? =   If  F.I.R. was registered on a private complaint – a Magistrate can add additional sections after filing charge sheet by police : If F.I.R. was registered directly by police through information, … Continue reading

Section 482 of the Code of Criminal Procedure (for brevity.P.C.) = Sections 406, 409, 420 and 120(b) IPC = Fraud played on Bank in collusion with Bank Officers for 2.51 crores – Criminal case – Charge sheet filed – Earlier Quash petitions are withdrawn, dismissed and a direction was also given for speedy trial – reached final – Again for Quash – Single judge allowed as it is a civil case – amount can be recovered through civil means – Apex court allowed the appeal filed by state and set aside the orders of High court stating that Alternative relief for recovery of amount is not a ground for quashing the F.I.R and Charge sheet and with out challenging the earlier orders = STATE THROUH DEPUTY SUPERINTENDENT OF POLICE AND ANR. … RESPONDENTS WITH CRIMINAL APEPAL NO. 1959 OF 2013 (ARISING OUT OF SLP(CRL.)NO.1501 OF 2010) TAMIL NADU MERCANTILE BANK LTD. … APPELLANT VS. STATE AND ORS. … RESPONDENTS = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40986

Section  482  of  the  Code  of Criminal Procedure (for  brevity.P.C.) = Sections 406, 409, 420 and 120(b) IPC = Fraud played on Bank in collusion with Bank Officers for 2.51 crores – Criminal case – Charge sheet filed – Earlier Quash petitions are withdrawn, dismissed and a direction was also given for speedy trial – reached final … Continue reading

Sec. 302,498 A etc., – Husband died pending trial – No prima faice proof of conspiracy- The Accused are entitled for discharge = L. Krishna Reddy …..Appellant Versus State by Station House Officer & Ors. …..Respondents – http://judis.nic.in/supremecourt/imgst.aspx?filename=40898

Sec. 302,498 A etc., – Husband died pending trial – No prima faice     proof of conspiracy- The Accused are entitled for discharge =    whether  the  criminal proceedings could or should have been continued against  his  parents,  namely  Vidyasagar  and  Narasamma,  who  had  preferred  a  Discharge Petition under Section 227 of the Code  of  Criminal … Continue reading

In the absence of any specific overt acts no person should be convicted under sec.147, 148 and 302 read with Section 149 of the IPC – except for his role = PUTCHALAPALLI NARESH REDDY …. APPELLANT VERSUS STATE OF A.P. & ETC. …. RESPONDENTS judis.nic.in/supremecourt/filename=40884

 In the absence of any specific overt acts no person should be convicted under sec.147,     148 and 302 read with Section 149  of  the  IPC – except for his role =   Apex court confirmed the high court orders except modified the sentence from life to simple injury for one of the accused who had … Continue reading

Negotiable Instruments Act – Punishments -substantive punishments- concurrently – default of fine punishment- consecutively = whether the High Court was right in declining the prayer made by the appellant for a direction in terms of Section 427 read with Section 482 of the Code of Criminal Procedure for the sentences awarded to the appellant in connection with the cases under Section 138 of the Negotiable Instruments Act filed against him to run concurrently. = Applying the principle of single transaction referred to above to the above fact situations we are of the view that each one of the loan transactions/financial arrangements was a separate and distinct transaction between the complainant on the one hand and the borrowing company/appellant on the other. If different cheques which are subsequently dishonoured on presentation, are issued by the borrowing company acting through the appellant, the same could be said to be arising out of a single loan transaction so as to justify a direction for concurrent running of the sentences awarded in relation to dishonour of cheques relevant to each such transaction. That being so, the substantive sentence awarded to the appellant in each case relevant to the transactions with each company referred to above ought to run concurrently. We, however, see no reason to extend that concession to transactions in which the borrowing company is different no matter the appellant before us is the promoter/Director of the said other companies also. – We make it clear that the direction regarding concurrent running of sentence shall be limited to the substantive sentence only. The sentence which the appellant has been directed to undergo in default of payment of fine/compensation shall not be affected by this direction. We do so because the provisions of Section 427 of the Cr.P.C. do not, in our opinion, permit a direction for the concurrent running of the substantive sentences with sentences awarded in default of payment of fine/compensation.= In the result, these appeals succeed but only in part and to the following extent: 1) Substantive sentences awarded to the appellant by the Courts of Judicial Magistrate, First Class, Hissar and Additional Chief Judicial Magistrate, Hissar, in Criminal complaint cases No.269-II/97; No.549-II/97; No.393-II/97; No.371-II/97; No.372-II/97; No.373-II/97; No.877-II/96; No.880-II/96; No.878-II/96; No.876-II/96; No.879-II/96; No.485-II/96 relevant to the loan transaction between Haryana Financial Corporation and Arawali Tubes shall run concurrently. 2) Substantive sentences awarded to the appellant by the Court of Judicial Magistrate, First Class, Hissar in Criminal complaint cases No.156-II/1997 and No.396-II/1998 between Haryana Financial Corporation and Arawali Alloys relevant to the transactions shall also run concurrently; 3) Substantive sentences inter se by the Court of Judicial Magistrate,First Class, Hissar in the above two categories and that awarded in complaint case No.331-II/97 shall run consecutively in terms of Section 427 of the Code of Criminal Procedure. 4) No costs.

   published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40532 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.836-851 OF 2013 (Arising out of S.L.P. (Crl.) Nos.10023-10038 of 2011 V.K. Bansal …Appellants Versus State of Haryana and Ors. etc. etc. …Respondents J U D G M E N T T.S. THAKUR, J. 1. Leave granted. 2. The short … Continue reading

Divorced Muslim wife petition for maintenance under sec.125 Cr.P.C. is directed to be converted suo-moto by Magistrate and directed to decided the same under MWP ACT = i. That divorced muslim wife would be entitled to maintenance from her husband under section 125 of Criminal Procedure Code subject to provisions of MWP Act. ii. That law laid down by the Apex Court in Saha Bano’s case (Supra) [Mohammad Ahamad Khan Vs. Saha Bano Begam AIR1985 SC 945: (1985)2 SCC 556] has been analyzed and codified the same in Muslim Women (Protection of Rights on Divorce) Act 1986. iii. In Dainial Latifi’s case (Supra) The validity of Muslim Women (Protection of Rights on Divorce) Act, 1986 has been upheld. iv. In view of provisions contained in section of 5 of MWP Act if the parties have exercised their option, the parties to be governed by provisions of Section 125 to 128 of Criminal Procedure Code, and not in accordance with the provisions contained in MWP Act. The application so given under MWP Act shall be disposed of in view of the provisions contained in Section 125-128 Cr.P.C. v. In section 125 the word ‘ Divorced women’ include muslim women, who has been married accord to Muslim Law and has been divorced by or has obtained divorce from her husband in accordance with Muslim Law. vi. That MWP Act will not apply to a muslim women whose marriage has been solemnized either under the Indian Special Marriage Act 1954 or a Muslim women whose marriage was dissolved either under Indian Divorce Act, 1969 or Indian Special Marriage Act, 1954. vii. When a petition is filed by divorced muslim women for her maintenance before a family court, section 7 of the Family Court Act, 1987 would be applied. In view of of section 20 of Family Courts Act 1984, the provisions of Family Courts Act shall have overriding effect over all other law for the time being in force including the provisions of MWP Act . Any suit or proceeding for maintenance filed before family Court by any women including muslim women be governed by provisions of Section 125 Cr.P.C, which is a common law applicable to all the women and thus Family Courts are competent to decide the application of muslim divorced women under section 125 Cr.P.C. viii. The court proceeding under section 125 Cr.P.C. if is of the opinion that the matter relates to reasonable and fair provision and maintenance to divorced muslim women it would be open to him to treat the application under MWP Act instead of rejecting the same because the proceeding under section 125 Cr.P.C. and claim made under MWP Act could be tried by one and the same court.

reported/published in http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH  Reserved AFR High Court of judicature at Allahabad, Lucknow Bench, Lucknow District- Lucknow Writ Petition No. – 4909 (M/S) of 2008 Rafiquddin son of Raisul Zama, resident of Village and post Vaishpur, P.S.-Mandhata, District Pratapgarh. ………………… Petitioner Vs. 1. Kishwar Jehan, daughter of Sri Habibur … Continue reading

the first information report registered under Sections 328, 354 and 376 of the Indian Penal Code against the appellant-accused, and the consequential chargesheet dated 28.6.2007, as also the framing of charges by the Additional Sessions Judge, New Delhi on 1.12.2008, deserves to be quashed. The same are accordingly quashed. It was, therefore, that during the course of her medical examination at the AIIMS, a vaginal smear was not taken. Her clothes were also not sent for forensic examination by the AIIMS, because she had allegedly changed the clothes which she had worn at the time of occurrence. In the absence of any such scientific evidence, the proof of sexual intercourse between the complainant/prosecuterix and the appellant- accused would be based on an assertion made by the complainant/prosecuterix. And an unequivocal denial thereof, by the appellant-accused. – A consensual relationship without any assurance, obviously will not substantiate the offence under Section 376 of the Indian Penal Code, alleged against Prashant Bharti.

“REPORTABLE” IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 175 OF 2013 (Arising out of SLP (Criminal) No. 1800 OF 2009) Prashant Bharti …. Appellant Versus State of NCT of Delhi …. Respondent J U D G M E N T JAGDISH SINGH KHEHAR, J. 1. Leave granted. 2. On 16.2.2007, … Continue reading

Code of Criminal Procedure, 1973; Ss. 188, 468, 470, 473 & 482/Penal Code, 1860; Ss. 406 and 498A/Dowry Prohibition Act, 1961; Ss. 4 & 6: Matrimonial offences-Court’s power to take cognizance beyond period of limitation-Quashing of proceedings before Magistrate on ground of limitation-Held: In the interest of justice, court could take cognizance of an offence after expiry of limitation period by liberally exercising power u/s.473 Cr.P.C.-High Court should be extremely cautious and slow to interfere with investigation/trial of criminal cases-It could exercise inherent powers u/s.482 Cr.P.C. only when it is satisfied that FIR does not disclose commission of cognizable offence or prosecution is barred by limitation or to prevent abuse of process of the Court or continuation of proceeding of the criminal case would result in failure of justice-Magistrate took cognizance of offence after lapse of three years-A co-ordinate Bench of High Court quashed the proceeding qua the parents of appellants on the ground that Magistrate could not have taken cognizance of offence after three years-Appellants do not appear to have drawn attention of Single Judge of the High Court about quashing of the said proceedings-In such peculiar facts of the case, continuation of the proceedings would amount to abuse of process of the Court-Hence, the proceedings as against accused, pending in the Court of Metropolitan Magistrate, quashed-Limitation-Courts power to relax. Appellant No.1, an engineer working in USA, married the eldest daughter of respondent no. 2. Before marriage, the appellant and their parents demanded certain amount of cash and jewellery as dowry. They also demanded transfer of certain property belonging to the parents of the girl in favour of the parents of appellant No.1. Appellant No.1 and his parents accepted the proposal and performed betrothal. Later, they demanded Zen car and threatened to cancel the engagement unless the car was given. The demand was fulfilled by the parents of the girl by raising loan. After marriage, when she went to USA along with the parents of the appellants, she stayed at New Jersey in U.S.A. from 1.11.1998 to 2.12.1998. During this period, she was allegedly subjected to cruelty and harassment by the appellants and their parents for demand of more and more dowry. She left her matrimonial home and stayed with her relatives. Later, appellant No.1 instituted divorce petition in Superior Court at New Jersey and an ex parte decree was passed in his favour. In the meanwhile, the victim informed to her parents about the ill-treatment meted out to her by her husband and his parents. Thereupon, respondent no. 2-mother of the victim, filed a complaint in the Court of Metropolitan Magistrate. The Magistrate referred the complaint for investigation under Section 156(3) Cr.P.C. After investigation, the Inspector of Police, Women Protection Cell, C.I.D., submitted the final report with the suggestion to close the case. The Investigating Officer also made a reference to the direction given by Additional Director General of Police, CID to close the case due to lack of evidence. The Magistrate rejected the final report and directed the police to make further investigation. The police conducted further investigation and a Notice was also issued to the victim to appear before CID Police. Respondent no. 2 filed a Criminal Petition under Section 482 Cr.P.C. for quashing the notice for appearance of her daughter. The same was disposed of by the Single Judge with liberty to the petitioner to approach the investigating agency/Court and inform it about the efforts being made by her daughter to come to India. Respondent no. 2 also filed a Writ Petition for issuance of a direction to the Regional Passport Officer to impound the passport of appellant no. 1. That petition was allowed by the Single Judge of the High Court. The victim obtained duplicate passport and visa and came to India. She appeared before the Investigating Officer and gave statement under Section 161 Cr.P.C. The police filed a charge-sheet under Sections 498A and 406 IPC read with Sections 3, 4 and 6 of the Dowry Act. The Magistrate took cognizance of the case and issued summons to the appellants and their parents. The parents of the appellants challenged the proceedings in the Criminal Petition filed by the parents of the victim under Section 482 Cr.P.C. The Single Judge quashed the proceedings. The appellant also filed a petition for quashing the proceedings against him. However, the Single Judge of the High Court held that the proceedings in Criminal Petition cannot be quashed against him as the Magistrate had taken cognizance within three years. Hence the present appeal. Appellants contended that the Single Judge of the High Court committed an error by refusing to quash the proceedings in the Criminal Petition filed by the parents of the victim ignoring the fact that the Magistrate had taken cognizance after almost four years of the last act of alleged cruelty committed against the victim; that after dissolution of the marriage, the victim had taken back the Gold and Silver jewellery and then contracted marriage with another person and this fact ought to have been considered by the Single Judge of the High Court while examining the appellants’ pleas that the proceedings of criminal case instituted against them amounts to an abuse of the process of law; and that in exercise of the power under Section 482 Cr.P.C., the High Court is duty bound to quash the proceedings which are barred by time and protect the appellants against unwarranted persecution. Respondent No.2 submitted that Single Judge of the High Court rightly declined to quash the proceedings in the criminal petition filed by her because the offences committed by the appellants were continuing in nature; that even though as on the date of taking cognizance of offences by the Magistrate, a period of more than three years had elapsed, the proceedings in the Criminal Petition cannot be declared as barred by limitation because the appellants were not in India and the period of their absence is liable to be excluded in terms of Section 470(4) Cr.P.C.; that offences of cruelty and criminal breach of trust are continuing offences and prosecution launched against the appellants cannot be treated as barred by time; that the Magistrate could also exercise power under Section 473 Cr.P.C. for extending the period of limitation because the appellants and their parents did not co-operate in the investigation and also prevented the victim from coming to India to give her statement; and that the proceedings of the criminal case cannot be quashed only on the ground of lack of sanction under Section 188 Cr. P.C. Allowing the appeal, the Court HELD: 1. While considering the applicability of Section 468 Cr.P.C. to the complaints made by the victims of matrimonial offences, the court can invoke Section 473 Cr.P.C. and can take cognizance of an offence after expiry of the period of limitation keeping in view the nature of allegations, the time taken by the police in investigation and the fact that the offence of cruelty is a continuing offence and affects the society at large. To put it differently, in cases involving matrimonial offences the court should not adopt a narrow and pedantic approach and should, in the interest of justice, liberally exercise power under Section 473 for extending the period of limitation. [Para 23] [496-F, G; 497-A] State of Punjab v. Sarwan Singh, [1981] 3 SCC 34; Venka Radhamanohari v. Vanka Venkata Reddy, [1993] 3 SCC 4; Arun Vyas v. Anita Vyas, [1999] 4 SCC 690; State of Himachal Pradesh v. Tara Dutt [2000] 1 SCC 230 and Ramesh v. State of Tamil Nadu, [2005] 3 SCC 507, relied on. 2.1. The High Court should be extremely cautious and slow to interfere with the investigation and/or trial of criminal cases and should not stall the investigation and/or prosecution except when it is convinced beyond any manner of doubt that the FIR does not disclose commission of any offence or that the allegations contained in the FIR do not constitute any cognizable offence or that the prosecution is barred by law or the High Court is convinced that it is necessary to interfere to prevent abuse of the process of the court. In dealing with such cases, the High Court has to bear in mind that judicial intervention at the threshold of the legal process initiated against a person accused of committing offence is highly detrimental to the larger public and societal interest. [Para 30] [501-E, F, G] R.P. Kapur v. State of Punjab, AIR (1960) SC 866; State of Haryana v. Bhajanlal, [1992] Supp. 1 SCC 335; State of Bihar v. J.A.C. Saldanha, [1980] 1 SCC 554 and State of West Bengal v. Swapan Kumar Guha, [1982] 1 SCC 561 and M/s Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque, [2005] 7 SCC 254, referred to. 2.2. The people and the society have a legitimate expectation that those committing offences either against an individual or the society are expeditiously brought to trial and, if found guilty, adequately punished. Therefore, while deciding a petition filed for quashing the FIR or complaint or restraining the competent authority from investigating the allegations contained in the FIR or complaint or for stalling the trial of the case, the High Court should be extremely careful and circumspect. If the allegations contained in the FIR or complaint discloses commission of some crime, then the High Court must keep its hands off and allow the investigating agency to complete the investigation without any fetter and also refrain from passing order which may impede the trial. [Para 30] [501-H; 502-A, B] 2.3. The High Court should not go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against the author of the FIR or the complainant. The High Court must also refrain from making imaginary journey in the realm of possible harassment which may be caused to the petitioner on account of investigation of the FIR or complaint. Such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same. However, if the High Court is satisfied that the complaint does not disclose commission of any offence or prosecution is barred by limitation or that the proceedings of criminal case would result in failure of justice, then it may exercise inherent power under Section 482 Cr.P.C. [Para 30] [502-C, D, E] 3.1. In the instant case, although the Single Judge of High Court dealt with various points raised by the appellants and negatived the same by recording the detailed order, his attention does not appear to have been drawn to the order dated 24.10.2006 passed by the Co-Ordinate Bench in Criminal Petition No.1302/2003 whereby the proceedings of CC No.240/2002 were quashed qua the parents of the appellants on the ground that the Magistrate could not have taken cognizance after three years. Respondent No.2 is not shown to have challenged the order, therefore, that order will be deemed to have become final. If attention of the Single Judge who decided Criminal Petition filed by the appellants had been drawn to the order passed by another Single Judge in Criminal Petition No.1302/2003, he may have, by taking note of the fact that the Magistrate did not pass an order for condonation of delay or extension of the period of limitation in terms of Section 473 Cr.P.C., quashed the proceedings of CC No.240/2002. [Para 32] [502-F, G; 503-A, B] 3.2. In the peculiar facts of this case, continuation of proceedings of CC No.240/2002 will amount to abuse of the process of the Court. It is not in dispute that after marriage, the victim lived with appellant No.1 for less than one and a half months. It is also not in dispute that their marriage was dissolved by the Superior Court at New Jersey, U.S.A. The victim is not shown to have challenged the decree of divorce. As a matter of fact, she had solemnized second marriage with another person and has two children from the second marriage. She also received all the articles of dowry (including jewellery). Almost nine years has elapsed since the marriage of appellant No.1 with the victim and seven years from her second marriage. Therefore, at this belated stage, there does not appear to be any justification for continuation of the proceedings in CC No.240/2002. Rather, it would amount to sheer harassment to the appellant and the victim who are settled in USA, if they are required to come to India for giving evidence in relation to an offence allegedly committed in 1998-99. It is also extremely doubtful whether the Government of India will, after lapse of such a long time, give sanction in terms of Section 188 Cr.P.C. Hence, the proceedings of CC No.240/2002, pending in the Court of Metropolitan Magistrate, are quashed. [Paras 33 and 34] [503-B, C, D, E, F, G] Bina Madhavan and S. Udaya Kumar Sagar (for M/s. Lawyer’s Knit & Co.) for the Appellants. I.V. Narayana, T.N. Rao, Manjeet Kirpal, Paramjeet Singh and L.D. Rajendar for the Respondents.2008 AIR 787 , 2007(13 )SCR478 , , 2007(14 )SCALE321 ,

CASE NO.: Appeal (crl.) 1708 of 2007 PETITIONER: Sanapareddy Maheedhar and Another RESPONDENT: State of Andhra Pradesh and Another DATE OF JUDGMENT: 13/12/2007 BENCH: S.B. Sinha & G.S. Singhvi JUDGMENT: J U D G M E N T (arising out of Special Leave Petition (Crl.) No. 6680 OF 2006) G.S. Singhvi, J. Leave granted. This … Continue reading

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