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Chartered Accountants Act, 1949: ss. 2(d), 24, 24A, 25, 26 and 28 – Person qualifying the exam of Chartered Accountant but not a member of the Institute of Chartered Accountant of India – Person impersonating as Chartered Accountant, preparing audit reports and forged seals – Criminal complaint before police alleging commission of offences punishable u/ss. 419, 420, 468 and 473 – Prosecution under the provisions of Penal Code r/w ss. 24 and 26 of the Act – Trial court and High Court holding that even though prima facie case made out against the accused u/s. 24, 24A and 26, cognizance could not have been taken on the basis of the complaint because no complaint was filed u/s. 28 ;and that he could not be prosecuted under the Penal Code – On appeal, held: If the particular act of a member or a non-member or a company results in contravention of the provisions contained in s. 24 or sub- section (1) of s.24A, 25 or 26 of the Act and such act also amounts to an offence of criminal misconduct under IPC, then a complaint can be filed by or under the order of the Council u/s. 28, which may result in punishment prescribed u/s. 24 or sub-section (2) of ss. 24A, 25 or 26 – Such member or non-member or company can also be prosecuted for any identified offence under IPC – There is no bar against prosecution of such person if he is charged with the allegations constituting offences under Penal Code or under other laws – Matter remitted to trial court to consider whether allegations contained in the complaint constitute any offence under Penal Code – In the absence of a complaint u/s. 28, no charges could be framed against chartered accountant for the alleged contravention of ss. 24, 24A or 26 – Penal Code, 1860 – ss. 419, 420, 468 and 473. ss. 24A(2), 26 and 25(2) – Expression `without prejudice to any other proceedings which may be taken against him’ in ss. 24A(2), 26 and s. 25(2) – Meaning of – In the context of the Chartered Accountants Act, 1949. Criminal Law: Double jeopardy – Simultaneous prosecution of offender for contravention of ss. 24, 24A and 26 of the 1949 Act and for the offences under the Penal Code – Permissibility of – Held: Simultaneous prosecution is permissible but in view of the bar contained in Article 20(2) r/w s.26 of the 1897 Act and s.300 Cr.P.C., punishment twice for the same offence is barred – Chartered Accountants Act, 1949 – ss. 24, 24A, 26 – Penal Code, 1860 – Constitution of India, 1950 – Article 20(2) – General Clauses Act, 1897 – s. 26. Interpretation of statutes: Construction of statutory provisions – Held: When there are two possible constructions of a statute, then the one which leads to anomaly or absurdity and makes the statute vulnerable to the attack of unconstitutionality should be avoided in preference to the other which makes it rational and immune from the charge of unconstitutionality. The respondent qualified the exam of Chartered Accountant but is not a member of the appellant-Institute. The appellant- Institute filed a complaint before the police against the respondent alleging cheating by impersonation, forgery and counterfeiting of seal of the Institute, punishable under Sections 419, 468, 471 and 472 IPC. The police filed the challan before the Magistrate. The trial court held that there was no basis for framing any charge against the respondent under IPC; and cognizance of offences under Sections 24 and 26 of the Act could not be taken because no complaint was filed by or under the order of the Council of the appellant- Institute, before the Magistrate. Aggrieved, the appellant filed revisions. The Single Judge of High Court dismissed the same. Therefore, the appellant-institute filed the instant appeals. =Allowing the appeals and remitting the matter to the trial court, the Court HELD: 1.1. Section 24 of the Chartered Accountants Act, 1949 provides for punishment of a person who is not a member of the Institute represents himself as a member of the Institute or uses the designation of chartered accountant. Similar punishment can be imposed on a member of the Institute who does not have a certificate of practice but represents that he is in practice or practises as a chartered accountant. Sub-section (2) of Sections 24A, 25 and 26 provide for imposition of different kinds of punishment for violation of the provisions contained in sub-section (1) of those sections. Section 26 provides for imposition of punishment if a person other than a member of the Institute signs any document on behalf of a chartered accountant in practice or a firm of such chartered accountants in his or its professional capacity. [Para 12] 1.2. Section 28 which is couched in negative form declares that no person would be prosecuted under the Act except on a complaint made by or under the order of the Council or of the Central Government. The prohibition contained in Section 28 is attracted only when such person is sought to be prosecuted for contravention of the provisions contained in Section 24 or sub-section (1) of Sections 24A, 25 or 26 and not for any act or omission which constitutes an offence under the IPC. The use of expression `without prejudice to any other proceedings which may be taken against him’ in sub- section (2) of Sections 24A and 26 and somewhat similar expression in sub- section (2) of Section 25 shows that contravention of the provisions contained in sub-section (1) of those sections can lead to filing of complaint under Section 28 of the Act and if the particular act also amounts an offence under the IPC or any other law, then a complaint can also be filed under Section 200 Cr.P.C. or a first information report lodged with the police under Section 156 Cr.P.C. The said expression cannot be given a restricted meaning in the context of professional and other misconducts which may be committed by a member of the Institute and for which he may be punished under Section 21B(3) because the violation of Sections 24 to 26 can be committed by a person who may or may not be a chartered accountant as defined in Section 2(b). Thus, if the particular act of a member of the Institute or a non-member or a company results in contravention of the provisions contained in Section 24 or sub-section (1) of Sections 24A, 25 or 26 and such act also amounts criminal misconduct which is defined as an offence under the IPC, then a complaint can be filed by or under the order of the Council or of the Central Government under Section 28, which may ultimately result in imposition of the punishment prescribed under Section 24 or sub-section (2) of Sections 24A, 25 or 26 and such member or non-member or company can also be prosecuted for any identified offence under the IPC. The object underlying the prohibition contained in Section 28 is to protect the persons engaged in profession of chartered accountants against false and untenable complaints from dissatisfied litigants and others. However, there is nothing in the language of the provisions contained in Chapter VII from which it can be inferred that Parliament wanted to confer immunity upon the members and non-members from prosecution and punishment if the action of such member or non-member amounts to an offence under the IPC or any other law. [Para 13] 1.3. Unlike ss. 416, 463, 464, 468 and 471 of the Penal Code, the provisions contained in Chapter VII of the Act neither define cheating by personation or forgery or counterfeiting of seal, etc. nor provide for punishment for such offences. If it is held that a person acting in violation of Section 24 or contravening sub-section (1) of Sections 24A and 26 of the Act can be punished only under the Act even though his act also amounts to one or more offence(s) defined under the IPC and that too on a complaint made in accordance with Section 28, then the provisions of Chapter VII would become discriminatory and might have to be struck down on the ground of violation of Article 14. Such an unintended consequence can be, and deserves to be avoided, in interpreting Sections 24A, 25 and 26 keeping in view the settled law that if there are two possible constructions of a statute, then the one which leads to anomaly or absurdity and makes the statute vulnerable to the attack of unconstitutionality should be avoided in preference to the other which makes it rational and immune from the charge of unconstitutionality. That apart, the court cannot interpret the provisions of the Act in a manner which would deprive the victim of his right to prosecute the wrong doer for the offences defined in Sections 416, 463, 464, 468 and 471 by filing a first information report or a complaint under the relevant provisions of Cr.P.C. [Para 14] 1.4. The respondent could have been simultaneously prosecuted for contravention of Sections 24, 24A and 26 of the Act and for the offences defined under the IPC but in view of the bar contained in Article 20(2) of the Constitution read with Section 26 of the General Clauses Act, 1897 and Section 300 Cr.P.C., he could not have been punished twice for the same offence. [Para 15] Maqbool Hussain v. The State of Bombay (1953) 4 SCR 730; T.S. Baliah v. T.S. Rangarchari (1969) 3 SCR 65; State of Bombay v. S.L. Apte (1961) 3 SCR 107; V.K. Agarwal v. Vasantraj B. Bhatia (1988) 3 SCC 467; State of Bihar v. Murad Ali Khan (1988) 4 SCC 655; State of Rajasthan v. Hat Singh (2003) 2 SCC 152, referred to. 1.5. The submission that the Chartered Accountants Act, 1949 is a special legislation vis-
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS._________OF 2010 (Arising out of S.L.P. (Crl.) Nos.3411-3412 of 2009) The Institute of Chartered Accountants of India …….Appellant Versus Vimal Kumar Surana and another …….Respondents J U D G M E N T G.S. Singhvi, J. 1. Leave granted. 2. The question which … Continue reading
As the complaint was taken on the file against 13 accused and the petitioner is one among them and the filing of the present petition, at the time of the disposal of the Sessions Case No.122 of 2008, viewed from any angle, is a speculative one without any just and reasonable cause, much less without any basis to exercise inherent powers under Section 482 of Cr.P.C. Therefore, I see no grounds to quash the proceedings in S.C.No.122 of 2008 on the file of the Court of Assistant Sessions Judge, Tadepalligudem, West Godavari District. Accordingly the Criminal Petition is dismissed.
THE HON’BLE SRI JUSTICE K.S.APPA RAO Criminal Petition No.7291 of 2008 23-3-2011 N.Ranga Rao The State of Andhra Pradesh,Rep. by Public Prosecutor,High Court Buildings,Hyderabad and another Counsel for the Petitioner:Sri S.R.Sanku, Advocate. Counsel for the Respondent No.1: Public Prosecutor,High Court of A.P., Hyderabad. Counsel for the Respondent No.2: Sri Y.Vivekananda Swamy, Advocate :ORDER: The present … Continue reading
Custodial Death – Writ petition alleging custodial death – Compensation sought – State responding that FIR lodged and erring officials charged u/ss.330, 342 and 306 IPC, sanction for prosecution granted and cognizance of offences taken – Held: In view of the facts, no further direction required at this stage – Prayer for compensation not acceptable as the issue as to whether the death was custodial, yet to be decided – Penal Code, 1860 – ss. 330, 342 and 306. Constitution of India, 1950 – Articles 21, 20(3) and 22 – Custodial violence and torture is defiance of the rights flowing from Constitution – Increase of such violence raises serious questions about the credibility of rule of law and administration of criminal justice system — universal Declaration of Human Rights, 1948 – Article 5. Criminal trial – Adherence to principle of proof beyond reasonable doubt – In Police torture cases – Held: Exaggerated and strict adherence to the principle in such cases, often results in miscarriage of justice – Courts to deal with such cases in realistic manner. The petitioner filed the writ petition before this Court alleging that his son was done to death in police custody and the police officials were giving the death, a colour of suicide, attempting to protect the erring police officials. Petitioner also sought compensation. On notice, respondent-State stated that FIR had been registered and certain police officials had been charged for commission of offences punishable u/ss. 330, 342 and 306 IPC. Sanction for prosecution had also been given. Charge-sheet had been filed. Accused had surrendered before Court and their bail had been rejected. =Disposing of the petition, the Court HELD:1.1. The Universal Declaration of Human Rights in 1948 which marked the emergence of a worldwide trend of protection and guarantee of certain basic human rights stipulates in Article 5 that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Despite this pious declaration, the crime continues unabated, though every civilized nation shows its concern and makes efforts for its eradication. [Para 6] [831-G-H; 832-A-B] 1.2. Article 21 of the Constitution of India, 1950 mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries. Chapter V CrPC deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is therefore difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system. The community rightly gets disturbed. The cry for justice becomes louder and warrants immediate remedial measures. [Para 8] [832-D-H; 833-A] 1.3. The diabolic recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new and unwarranted peril because guardians of law destroy the human rights by custodial violence and torture and invariably resulting in death. The vulnerability of human rights assumes a traumatic torture when functionaries of the State whose paramount duty is to protect the citizens and not to commit gruesome offences against them, in reality perpetrate them. [Para 9] [833-D-E] Raghubir Singh vs. State of Haryana (1980) 3 SCC 70; Gauri Shanker Sharma v. State of U.P. AIR 1990 SC 709; Bhagwan Singh and Anr. v. State of Punjab (1992) 3 SCC 249; Smt. Nilabati Behera @Lalita Behera v. State of Orissa and Ors. AIR (1993) SC 1960; Pratul Kumar Sinha v. State of Bihar and Anr. (1994) Supp. 3 SCC 100; Kewal Pati (Smt.) v. State of U.P. and Ors. (1995) 3 SCC 600; Inder Singh v. State of Punjab and Ors. (1995) 3 SCC 702 and State of M.P. v. Shyamsunder Trivedi and Ors. (1995) 4 SCC 262, relied on. 2.1. Rarely in cases of police torture or custodial death, there is any direct ocular evidence of the complicity of the police personnel alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues – and the present case is an apt illustration – as to how one after the other police witnesses feigned ignorance about the whole matter. [Para 10] [834-A-B] 2.2. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact-situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach at times by the courts as well because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lock-up because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. [Para 11] [834-C-E] 2.3. The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/under-trial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in `Khaki’ to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading, towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of judiciary itself. [Para 11] [834-F-H; 835-A- B] 3. In view of the fact that sanction for prosecution has been granted, charge sheet had been filed and cognizance had been taken, no further direction at present is necessary. If at any point of time, evidence surfaces before the concerned court to show that some other offences appear to have been committed, necessary orders can be passed. The prayer for compensation is also not acceptable because that would depend upon decision of the issue as to whether there was custodial death. [Para 12] [835-C-D] Case Law Reference: (1980) 3 SCC 70 Relied on Para 9 AIR 1990 SC 709 Relied on Para 9 (1992) 3 SCC 249 Relied on Para 9 AIR (1993) SC 1960 Relied on Para 9 (1994) Supp. 3 SCC 100 Relied on Para 9 (1995) 3 SCC 600 Relied on Para 9 (1995) 3 SCC 702 Relied on Para 9 (1995) 4 SCC 262 Relied on Para 9 CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.) No. 193 of 2006. Kamini Jaiswal for the Petitioner. Kamlendra Mishra for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (Crl.) NO. 193 OF 2006 Dalbir Singh …Petitioner Vs. State of U.P. and Ors. …Respondents JUDGMENT Dr. ARIJIT PASAYAT, J. 1. Alleging that because of custodial torture and diabolic acts of the police officials of Noida Police, Somvir Singh @ Sonu aged 17 … Continue reading
Protection of Human Rights Act, 1993 – s. 12(a) – Complaint against police officials – Alleging physical torture of complainant’s son in police custody – State Human Rights Commission held that police personnel were responsible for violation of human rights and recommended compensation – State Government implementing order of the Commission – Writ petition against order of the Commission dismissed – On appeal, held: finding by the Commission and High Court regarding the torture of the complainant’s son in police custody, is justified – There is no material to refute the complaint of torture. Respondent No. 1 filed a complaint before State Human Rights Commission against the petitioner and respondent Nos. 3 to 5 (the police officials). She alleged that when her son had gone to the stall of `A’ a merchant, he was assaulted and injured by him. When he took her son to the police station, she was asked to wait. In the meantime `A’ and his family came to the police station. Police entertained the complaint of `A’ first. Thereafter police personnel assaulted the son of the complainant and also detained him. Complainant was threatened by the police officials not to reveal the incident to the court and not to make any complaint before court. Her son was released on bail. But once again he was taken to police station and assaulted. The allegations of the complainant were fully supported by her son, who was detained. The police officials, in reply, denied the allegations. In the report submitted by DCP it was mentioned that the son of the complainant demanded `hafta’ from `A’ and on refusal assaulted him; that he inflicted injuries with razor on himself; that he was a habitual offender and proceedings under Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 were also commenced against him. The Commission disbelieved the defence of the police personnel and relying on the medical evidence opined that there was violation of human rights of the son of complainant at the hands of the petitioner and respondent Nos. 3, 4 and 5. The Commission recommended compensation of Rs. 45,000/- to complainant for police atrocity which was to be later recovered from the respondents and the petitioner. The petitioner filed writ petition before High Court, which was withdrawn on account of the understanding given to him by the State Government that it had decided not to implement the order passed by the Commission. The petitioner further filed subsequent writ petition, which was dismissed on the ground that there was no necessity to entertain the writ petition in view of the fact that the earlier writ petition was withdrawn; and that the State had not challenged the order and had also complied with the same. Therefore, the instant special leave petition was filed by the petitioner. =Dismissing the petition, the Court HELD: There is no reason to differ with the order of the State Human Rights Commission which was upheld by the High Court. There is sufficient material, which has been duly looked into by the Commission and the High Court, that the son of the respondent-complainant had been physically tortured while in custody in violation of the norms relating to custody of persons arrested or detained in connection with any offence. It is not for this Court to appraise the evidence further, since two forums have had a chance to look into the same. Except for a bare denial, there is no material on record to refute the complaint of torture of the son of the complainant by the petitioner and the respondent Nos. 3 to 5. It is clear that for whatever reasons, which could also include his antecedents, he was treated differently from `A’ against whom he had come to make a complaint and ended up being the accused. [Para 14] [110-G-H; 111-A-B] CRIMINAL APPELLATE JURISDICTION : SLP (Criminal) No. 6408 of 2006. From the Judgment & Order dated 30.8.2006 of the High Court of Judicature at Bombay in CRLWP No. 1839 of 2005. K.N. Rani for the Petitioner. Sushil Karanjakar, Sanjay Kharde and Asha Gopalan Nair for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION(CRL) No.6408 of 2006 Jaywant P. Sankpal … Petitioner Vs. Suman Gholap & Ors. … Respondents J U D G M E N T ALTAMAS KABIR, J. 1. The Petitioner herein has challenged the order of the Bombay High Court dismissing the Criminal … Continue reading
Indian Partnership Act, 1932; Section 32: Partnership firm-Liabilities of retiring partners against third party-Held: In the absence of an agreement between third party, new firm and retiring partners discharging retiring partners from liabilities or notice thereof by the retiring partners, their liabilities to third party continue. Creditor adopting reconstituted firm/new firm as debtor-Rights against the old firm-Held: Such an act of adoption of new firm as debtor does not deprive the creditor enforcing his rights against the old firm particularly when there existed no fresh agreement between him and the new firm-In the facts and circumstances of the case priori-assumption that creditor entered into an agreement to discharge retiring partner from liability does not follow. Words and Phrases: `Priori-assumption’-Meaning and applicability of Plaintiff-appellant, a Bank had filed two suits against the respondent- firms for recovery of certain amount borrowed by the firm from the Bank with interest. The firm was dissolved and taken over by one of the partners. Trial Court decreed the suit against the firm and the owner of the new firm. Appellant-Bank filed appeals praying for decree against all the partners of the old firm. The High Court affirmed the decree of the trial Court. Hence the present appeals. It was contended for the appellant-Bank that the loan was availed of by all the partners after jointly executing the requisite documents for getting the loan amount; that dissolution of the firm would not affect the liabilities of partners as inter se agreement between them was not binding on the appellant-bank; and that in view of provisions in the Partnership Act the retiring partners of the firm could not escape from their liabilities against the third party. On behalf of the respondents/partners it was submitted that since notice of dissolution of the firm was given to the appellant-Bank, retiring partners should not be held liable to discharge liabilities of the firm. =Allowing the appeals, the Court HELD: 1.1. Under sub-section (2) of Section 32 of the Indian Partnership Act the liability of the retiring partner as against third party would be discharged only if there is an agreement made by the retiring partner, with the third party, and the partners of the reconstituted firm. Of course, an agreement could be implied by the course of dealing between such third party and the reconstituted firm, after retirement of a partner. In the instant case, there was no agreement between the appellant-Bank and respondent nos.2 and 3 as regards their liability in respect of the dissolved firm. There is also no evidence to show that there was an implied contract between the appellant and respondent no.4, owner of the reconstituted firm, who allegedly agreed to discharge the liabilities of respondent nos.2 and 3. It is also pertinent to note that there was no public notice under sub-Section (3) of Section 32 of the Indian Partnership Act by respondent nos. 2 and 3. Even if there was a public notice, it may not alter the position as the alleged liabilities of respondent nos. 2 and 3 were incurred by them prior to the dissolution of the firm. [217-G, H; 218-A, B] Thummala Rama Rao and Ors v. Chodagam Venkateswara Rao and Ors., AIR (1963) A.P. 154, distinguished. Lindley and Banks on Partnership (Sixth Edition) page 358, referred to. 1.2. There is no priori presumption to the effect that the creditors of a firm do on the retirement of a partner, enter into an agreement to discharge him from liability. An adoption by the creditor of the new firm as his debtor does not by any means necessarily deprive him of his rights against the old firm especially when the creditor is not a party to the arrangement and then there is no fresh agreement between the creditor and the newly constituted firm. After the creditor has taken a new security for a debt from a continuing partner, it may be a strong evidence of an intention to look only the continuing partner for the payment due from the firm, it has long been recognized that partnership is not a species of joint tendency and that, in the absence of some contrary agreement, there is no survivorship as between partners, at least so far as it concerns their beneficial interests in the partnership assets. Having due regard to these principles, the High Court erred in confirming the judgment passed by the trial court and the plaintiff appellant had every right to proceed against all the defendants in the suit. Hence, the impugned decree is modified to the extent that there shall be a decree against all the respondents in both the suits. [219-D-G] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1337 of 1995. From the Judgment and Order dated 7.3.1994 of the Karnataka High Court in R.F.A. No. 631 of 1987. WITH C.A. No. 3765 of 1995. =2003 AIR 1311, 2003(1 )Suppl.SCR213 , 2003(6 )SCC265 , 2003(4 )SCALE648 , 2003(4 )JT578
CASE NO.: Appeal (crl.) 11 of 2000 PETITIONER: Karamjit Singh RESPONDENT: State (Delhi Administration) DATE OF JUDGMENT: 26/03/2003 BENCH: S. Rajendra Babu & G.P. Mathur JUDGMENT: JUDGMENT G.P. Mathur, J. Karamjit Singh has preferred this appeal against the judgment and order dated 2.2.1996 of the Designated Judge, New Delhi in Sessions Case No.140 of 1991, … Continue reading
Code of Criminal Procedure, 1973 – s.202(2), proviso- Interpretation of – Whether examination of all witnesses cited in the complaint is sine qua non for taking cognizance by a Magistrate in a case exclusively triable by the Court of Sessions – Held, No – Even though in terms of the proviso to s.202(2), the Magistrate is required to direct the complainant to produce all his witnesses and examine them on oath, failure or inability of the complainant or omission on his part to examine one or some of the witnesses cited in the complaint or whose names are furnished in compliance of the direction issued by the Magistrate, will not preclude the latter from taking cognizance and issuing process or passing committal order if he is satisfied that there exists sufficient ground for doing so – Examination of all the witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of proviso to s.202(2) is not a condition precedent for taking cognizance and issue of process against the persons named as accused in the complaint – Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process. Words and Phrases – “shall” – Meaning of – In context to proviso to s.202(2) CrPC. The appellant’s son was said to have been killed by respondent nos.1 to 4. After conducting investigation, the police submitted final form with the finding that they had no clue about the culprits. Thereupon, the appellant filed a protest petition, which, at the instance of the Judicial Magistrate, was converted into a complaint. The appellant examined himself and two out of the four witnesses cited in the protest petition-cum-complaint. After considering the statements of the appellant and the said two witnesses, the Judicial Magistrate took cognizance against respondent Nos.1 to 4 for offence under Section 302 read with Section 120B IPC and Section 27 of the Arms Act and directed issue of non-bailable warrants against them. Respondents challenged the order of the Judicial Magistrate by filing petition under Section 482 CrPC. The High Court held that the Judicial Magistrate could not have taken cognizance against the respondents without requiring the appellant to examine all the four witnesses named by him and remitted the matter to the concerned court for passing appropriate order after making further inquiry in the light of proviso to Section 202(2) CrPC. Before this Court, it was contended by the appellant that the proviso to s.202(2) Cr.P.C. is not mandatory in character and the High Court committed serious error by remitting the matter to the Judicial Magistrate for further enquiry only on the ground that all the witnesses named by the appellant had not been examined. The appellant contended that non- examination of two witnesses cited in the protest petition-cum-complaint did not preclude the Judicial Magistrate from taking cognizance against respondent nos.1 to 4 since he felt satisfied that a prima facie case was made out against them. The question which thus arose for consideration in the present appeal was whether examination of all witnesses cited in the complaint is sine qua non for taking cognizance by a Magistrate in a case exclusively triable by the Court of Sessions. =Allowing the appeal, the Court HELD:1.1. By its very nomenclature, Cr.P.C. is a compendium of law relating to criminal procedure. The provisions contained therein are required to be interpreted keeping in view the well recognized rule of construction that procedural prescriptions are meant for doing substantial justice. If violation of the procedural provision does not result in denial of fair hearing or causes prejudice to the parties, the same has to be treated as directory notwithstanding the use of word `shall’. [Para 6] [676-D] 1.2. Chapter XIV of CrPC enumerates the conditions for initiation of proceedings. Chapters XV and XVI contain various procedural provisions which are required to be followed by the Magistrate for taking cognizance, issuing of process/summons, dismissal of the complaint, supply of copies of documents and statements to the accused and commitment of case to the Court of Sessions when the offence is triable exclusively by that Court. An analysis of Sections 200, 202, 203, 204, 207, 208 and 209 Cr.P.C. which form part of these Chapters shows that when a complaint is presented before a Magistrate, he can, after examining the complainant and his witnesses on oath, take cognizance of an offence. This procedure is not required to be followed when a written complaint is made by a public servant, acting or purporting to act in discharge of his official duties or when a Court has made the complaint or if the Magistrate makes over the case for inquiry/trial to another Magistrate under Section 192. Section 202(1) empowers the Magistrate to postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person which he thinks fit for the purpose of deciding whether or not there exists sufficient ground for proceeding. By Amending Act No.25 of 2005, the postponement of the issue of process has been made mandatory where the accused is residing in an area beyond the territorial jurisdiction of the concerned Magistrate. Proviso to Section 202(1) lays down that direction for investigation shall not be made where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions or where the complaint has not been made by a Court unless the complainant and the witnesses have been examined on oath under Section 200. Under Section 202(2), the Magistrate making an inquiry under sub-section (1) can take evidence of the witnesses on oath. If the Magistrate thinks that the offence complained of is triable exclusively by the Court of Sessions then in terms of proviso to Section 202, he is required to call upon the complainant to produce all his witnesses and examine them on oath [Paras 6, 7] [676-G-H; 681-G-H; 682-A-C] 1.3. The object of examining the complainant and the witnesses is to ascertain the truth or falsehood of the complaint and determine whether there is a prima facie case against the person who, according to the complainant has committed an offence. If upon examination of the complainant and/or witnesses, the Magistrate is prima facie satisfied that a case is made out against the person accused of committing an offence then he is required to issue process. Section 202 empowers the Magistrate to postpone the issue of process and either inquire into the case himself or direct an investigation to be made by a police officer or such other person as he may think fit for the purpose of deciding whether or not there is sufficient ground for proceeding. Under Section 203, the Magistrate can dismiss the complaint if, after taking into consideration the statements of the complainant and his witnesses and the result of the inquiry/investigation, if any, done under Section 202, he is of the view that there does not exist sufficient ground for proceeding. On the other hand, Section 204 provides for issue of process if the Magistrate is satisfied that there is sufficient ground for doing so. The expression “sufficient ground” used in Sections 203, 204 and 209 means the satisfaction that a prima facie case is made out against the person accused of committing an offence and not sufficient ground for the purpose of conviction. [Para 8] [683-E-H; 684-A-B] 1.4. The use of the word `shall’ in proviso to Section 202(2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 would clearly show that non-examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so. Significantly the word `all’ appearing in proviso to Section 202(2) is qualified by the word `his’. This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process when the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case, that is to say whether or not the allegations contained in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists sufficient ground for proceeding against the accused. [Para 12] [685-H; 686-A-E] 1.5. Even though in terms of the proviso to Section 202(2), the Magistrate is required to direct the complainant to produce all his witnesses and examine them on oath, failure or inability of the complainant or omission on his part to examine one or some of the witnesses cited in the complaint or whose names are furnished in compliance of the direction issued by the Magistrate, will not preclude the latter from taking cognizance and issuing process or passing committal order if he is satisfied that there exists sufficient ground for doing so. Such an order passed by the Magistrate cannot be nullified only on the ground of non-compliance of proviso to Section 202(2). [Para 14] [692-A-D] 1.6. Examination of all the witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of proviso to Section 202(2) is not a condition precedent for taking cognizance and issue of process against the persons named as accused in the complaint. In the present case, the High Court committed serious error in directing the Judicial Magistrate to conduct further inquiry and pass fresh order in the light of proviso to Section 202(2). Since the matter is more than 12 years old, the concerned Magistrate is directed to pass appropriate order in terms of Section 209. It is further directed that after committal of the case, the Sessions Judge, to whom the matter is assigned, shall conduct and complete the trial within a period of 9 months. [Paras 16 and 17] [692-G-H; 693-A-C] Birendra K. Singh v. State of Bihar (2000) 8 SCC 498, held inapplicable. Rosy v. State of Kerala (2000) 2 SCC 230, explained R.C. Ruia v. State of Bombay 1958 SCR 618; Vadilal Panchal v. Duttatraya Dulaji Ghadigaonkar (1961) 1 SCR 1; Chandra Deo Singh v. Prokash Chandra Bose (1964) 1 SCR 639; Nirmaljit Singh Hoon v. State of West Bengal (1973) 3 SCC 753; Kewal Krishan v. Suraj Bhan (1980) Supp SCC 499; Mohinder Singh v. Gulwant Singh (1992) 2 SCC 213 and Chief Enforcement Officer v. Videocon International Ltd. (2008) 2 SCC 492, relied on. Ranjit Singh v. State of Pepsu AIR 1959 SC 843; Moideenkutty Haji v. Kunhikoya (1987) 1 KLT 635; M. Govindaraja Pillai v. Thangavelu Pillai 1983 Cri LJ 917 and Abdul Wahab Ansari v. State of Bihar (2000) 8 SCC 500, referred to. Case Law Reference: (2000) 2 SCC 230 explained Para 5 (2000) 8 SCC 498 held inapplicable Para 5 1958 SCR 618 relied on Para 8 (1961) 1 SCR 1 relied on Para 8 (1964) 1 SCR 639 relied on Para 8 (1973) 3 SCC 753 relied on Para 8 (1980) Supp SCC 499 relied on Para 8 (1992) 2 SCC 213 relied on Para 8 (2008) 2 SCC 492 relied on Para 8 AIR 1959 SC 843 referred to Para 13 (1987) 1 KLT 635 referred to Para 13 1983 Cri LJ 917 referred to Para 13 (2000) 8 SCC 500 referred to Para 15 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1158 of 2010. From the Judgment & Order dated 18.4.2007 of the High Court of Judicature at Patna in Crl. Misc. No. 1778 of 2007. Gaurav Agrawal for the Appellant. Gopal Singh, Akhilesh Kumar Pandey, Sudarsh Saran, Shalini Chandra, Swati Chandra for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1158 OF 2010 (Arising out of SLP (Crl.) No.1416 of 2009) Shivjee Singh ……Appellant Versus Nagendra Tiwary and others ……Respondents JUDGMENT G.S. Singhvi, J. 1. Leave granted. 2. Whether examination of all witnesses cited in the complaint is sine qua non for taking … Continue reading
supervision services for implementing the law over the govt.=the Court has been monitoring the implementation of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short `the Act’). The Court has already passed several orders for constitution of Juvenile Justice Boards under Section 4 of the Act and Child Welfare Committees under Section 29 of the Act in different States and Union Territories
IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 473 OF 2005 Sampurna Behura …..Petitioner Versus Union of India and Others …..Respondents O R D E R In this Writ Petition under Article 32 of the Constitution, the Court has been monitoring the implementation of the Juvenile Justice (Care and Protection … Continue reading
The appellant lost her husband, a former Member of Parliament, in the calamitous events which took place on 28th February, 2002, in the surroundings of Gulberg Society, Ahmedabad, where the appellant resided along with her family. An FIR relating to the incident was registered by the Police with Meghaninagar Police Station, Ahmedabad. After investigation, on the filing of the charge-sheet, the 2
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1765 OF 2011 (ARISING OUT OF S.L.P. (CRL.) NO. 1088 OF 2008) JAKIA NASIM AHESAN & ANR. — APPELLANTS VERSUS STATE OF GUJARAT & ORS. — RESPONDENTS O R D E R 1. Leave granted. 2. This appeal by special leave, arises … Continue reading
APEX COURT GUIDE LINES WHILE EXECUTING NON-BAILABLE WARRANTS =Justice Cardozo puts it “on the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice.”“We therefore, find that there was no justification for issuance of non-bailable warrant on 7 th August, 2002 merely because the petitioner had remained absent in Criminal Case No. 163/P/2000 (sic) by the Metropolitan Magistrate. The Magistrate could have issued either a notice or a bailable warrant depending upon the 3facts revealed from the records. Once the warrant was cancelled on 12 th August, 2002, it was necessary for the Court to immediately communicate the same to the concerned Police authority so that no inconvenience could have been caused to the person against whom the warrant was initially issued. Once the warrant was sought to be executed on holiday and the concerned police officer was categorically informed that the warrant had already been cancelled and the police officer being fully aware of the circumstances and nature of the case in which warrant had been issued, it was necessary for the police officer to ascertain and to find out whether the warrant which was sought to be executed was still enforceable or had already been cancelled and not to rush to execute the warrant in those circumstances and that too on a holiday. Having produced the necessary documents confirming the cancellation of the warrant much prior to the date on which it was sought to be (sic) enforced, it was the duty of the police officer to tender the necessary apology to the petitioner for executing such warrant on the holiday, and the concerned officer having failed to tender the apology it apparently shows that he had not performed his duty in the manner he was required to perform as a responsible police officer. Even the affidavit filed by the respondent No. 2 nowhere discloses any repentance for having executed the warrant which was already cancelled. It is a clear case of unnecessary interference with the liberty of a citizen.”
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1758 OF 2011 (Arising out of S.L.P. (Crl.) No.5412 of 2008) RAGHUVANSH DEWANCHAND BHASIN — APPELLANT VERSUS STATE OF MAHARASHTRA & ANR. — RESPONDENTS J U D G M E N T D.K. JAIN, J.: Leave granted. 2. This appeal, by special … Continue reading
whether such negligence of the appellant was sufficient for the disciplinary authority to dismiss him from service. There was no charge against the appellant that he had in any way aided or abetted the offence under Section 392 IPC or that he knew that his son had stolen the car and yet he did not inform the police. The appellant, as we have held, was guilty of negligence of not having enquired from his son about the car kept in front of the government quarters occupied by him. The appellant had served the government as a Constable and thereafter as a Head Constable from 07.08.1971 till he was dismissed from service on 28.02.2005, i.e. for 34 years, and for such long service he had earned pension. In our considered opinion, the punishment of dismissal of the appellant from service so as to deprive him of his pension for the service that he had rendered for long 34 years was shockingly disproportionate to the negligence proved against him.
Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 7548 OF 2011 (Arising out of S.L.P. (C) No. 19150 of 2008) Surendra Prasad Shukla … Appellant Versus The State of Jharkhand & Ors. … Respondents O R D E R A. K. PATNAIK, J. Leave granted. 2. This is an appeal … Continue reading
advocatemmmohan 