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Indian Laws - Case Laws
Showing 521 to 540 of 26755 Records
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2024 (2) TMI 2
Dishonour of Cheque - Section 138 of NI Act - HELD THAT:- Since, the offence under Section 138 of the Act can only be initiated against the person who has issued the cheque, obviously, the proceedings against the petitioner who had not issued the cheque would be unsustainable especially when the only allegation alleged against the petitioner and her husband is of commission of an offence as contemplated under Section 138 of the Act. Consequently, the proceedings as against the petitioner shall stand quashed.
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2024 (2) TMI 1
Seizure of contraband item - 180 kgs. of Khat Leaves - offenses under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) - HELD THAT:- The Learned Sessions Judge was well justified in dismissing the petition for discharge. It cannot at this stage be said that the accusation is groundless. Having considered the facts and circumstances and having gone through the order passed by the Learned Sessions Judge, there are no reason to interfere.
This petition is dismissed.
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2024 (1) TMI 1377
Challenge to the action of Respondent Banks or Non-Banking Financial Companies, based on a Notification dated 29th May, 2015 issued under Section 9 of the Micro, Small and Medium Enterprises Development Act, 2006 - none of the Respondent Banks/NBFCs have followed the procedure as provided under the said Notification, for identifying the incipient stress undergone by the Petitioners and its consequent due classification in the Special Mention Account - Issuance of notices under Section 13(2) of the SARFAESI Act, 2002 - HELD THAT:- From the perusal of the Notification, it can be seen that the whole process as provided under the said Notification starts from identification of ‘Incipient Stress’ in the account of an MSME and thereafter classifying it in 3 sub-categories provided as per Clause 1(1) of the said Notification. None of the learned Counsels appearing for either the Petitioners or the Respondent Banks/NBFCs have submitted anything about this aspect of ‘identification of incipient stress’. This Court has also on its own endeavored to find out guiding principles on this issue, so that it can be beneficially used. However, no such guidance is found. Faced with such a stonewall of non-availability of any precedent or earlier views, only one choice left and that is to go to the very concept of “incipient stress” as it might have been intended by the legislature. After all, it is one of the Court’s fundamental functions to interpret what is provided by the legislature.
On a conjoint reading of Clause 1(1) and Clause 1(3) of the said Notification, leads to an indisputable interpretation that the said Notification can be pressed into service only and only after the MSME [such as the Petitioners] approaches the Banks/NBFCs with an appropriate application supported by an affidavit of the authorized person placing on record the bundle of facts which lead to the conclusion of incipient stress and only after that, the Banks or NBFCs are required to categorize them as SMA-0, SMA-1 and SMA-2.
Leave granted to the Petitioners to agitate the other issues in their petitions, which may vary on facts, on a case-to- case basis by adopting alternate remedies, as available under law.
Petition disposed off.
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2024 (1) TMI 1338
Seeking grant of regular bail - commercial quantity of contraband - improper sampling procedure - HELD THAT:- The prosecution emptied all the packages that were recovered from the trolley bag of the accused persons into one composite whole and thereafter, samples from such composite whole were drawn before the learned Metropolitan Magistrate. Similar exercise was done for the packages recovered from the backpacks carried by the accused. This is clearly is not in compliance with the Standing Orders.
In Shaliender [2022 (8) TMI 1545 - DELHI HIGH COURT], this Court observed that the circumstances under which the sampling procedure could not be followed as per the mandate, needs to be duly considered after evidence has been led on record and the FSL Expert is examined. This Court held that at this stage, there is no reasonable ground to give a finding that the entire proceedings stand vitiated because of alleged sampling procedure adopted by the Investigating Agency. The Court also found the reason given by the learned Trial Court for rejecting the bail to the accused therein, which was that the quantity found even in one package was intermediatory in nature, to be relevant to refuse the bail. The said judgment may not be applicable in the facts of the present case inasmuch as the prosecution has made no endeavour to explain why the procedure set out in the Standing Orders was not followed.
In the present case, prima facie the sampling procedure followed by the prosecution was not in conformity with the terms of the Standing Orders no.1/88 and 1/89. There is also no prior history of any prosecution being pending against the accused persons herein. The accused have already been in custody for more than a year. Both the accused are aged around 20 years and the trial is likely to take long.
The applicants have been able to meet the test laid down in Section 37 of the NDPS Act and of being enlarged on bail - it is directed that the applicants be released on bail subject to fulfilment of conditions imposed - bail application allowed.
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2024 (1) TMI 1333
Interpretation of Section 47 of The Registration Act, 1908 in a property dispute case - HELD THAT:- The consideration was entirely paid on the date of the execution of the sale deed. The sale deed was registered with the interpolation made about the description/area of the property sold. The first defendant admittedly made the said interpolation after it was executed but before it was registered. In terms of Section 47 of the Registration Act, a registered sale deed where entire consideration is paid would operate from the date of its execution. Thus, the sale deed as originally executed will operate - It is not even the first defendant's case that the subsequent correction or interpolation was made before its registration with the consent of the original plaintiff. Therefore, in this case, what will operate is the sale deed as it existed when it was executed.
There are no error in the view taken by the High Court - The decision of the first Appellate Court was contrary to Section 47 of the Registration Act. The High Court was justified in interfering with the decision of the first Appellate Court in a second appeal under Section 41 of the Punjab Courts Act.
Appeal dismissed.
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2024 (1) TMI 1320
Conviction and sentencing of the appellant under Sections 302 and 201 of the IPC - HELD THAT:- Acquittal of the co-accused, as noticed in paragraph 4 above, again is for want of evidence against them. At best, they were found in possession of the articles connected with the crime on the basis of the disclosure statement (Exhibit P-37) dated 25.04.2008 made by the appellant – Perumal Raja @ Perumal. Section 27 of the Evidence Act could not have been applied to the other co-accused for the simple reason that the provision pertains to information that distinctly relates to the discovery of a 'fact' that was previously unknown, as opposed to fact already disclosed or known. Once information is given by an accused, the same information cannot be used, even if voluntarily made by a co-accused who is in custody. Section 27 of the Evidence Act does apply to joint disclosures, but this is not one such case.
Even if Section 8 of the Evidence Act is to apply, it would not have been possible to convict the co-accused. The trial court rightly held other co-accused not guilty. For the same reason, acquittal of co-accused Chella @ Mukundhan, who was earlier absconding, is also of no avail.
As far as acquittal of the juvenile is concerned, reference can be made to the provisions of Sections 40 to 43 of the Evidence Act.
There are no difficulty in upholding the conviction of the appellant – Perumal Raja @ Perumal. The appeal is dismissed.
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2024 (1) TMI 1319
Initiation of criminal proceedings before a forum which had no territorial jurisdiction by submitting incorrect facts - cheating the complainant for crores of rupees by making false promise of higher returns - HELD THAT:- It would be relevant to note that in the application filed for recall of the merger order by the complainant, it was nowhere mentioned that initially the complainant had advanced loan, which was later on converted into debt equity. It only mentioned that the complainant was a shareholder of the transferor company and as a result of merger their percentage of shareholding and value of shares decreased. It was also nowhere pleaded in the application that the shares held by the company were mortgaged to Sushil Gupta by forging the documents. The new story of forging documents was built up in the complaint filed with the police only to give a criminal colour which actually was commercial in nature.
Most importantly, it needs to be noticed that it was a plain and simple transaction between the corporates. Even as per the complainant’s case, the short-term loan was advanced in the year 2010 for a period of one year. However, when the same was not returned, no steps were taken by the complainant to recover the same until the FIR in question was registered on 29.07.2018 i.e. 8 years & 7 months later.
The entire factual matrix and the time lines clearly reflects that the complainant deliberately and unnecessarily has caused substantial delay and had been waiting for opportune moment for initiating false and frivolous litigation.
The FIR in question, if proceeded further, will result in absolute abuse of process of court. It is a clear case of malicious prosecution. Hence, the same is required to be quashed - the impugned order passed by the High Court is set aside - appeal allowed.
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2024 (1) TMI 1318
Maintainability of petition filed by one of the victims under Article 32 of the Constitution - Grant of remission and early release of respondent Nos.3 to 13 - guilty of committing heinous crimes during the large-scale riots in Gujarat.
Whether the petition filed by one of the victims in Writ Petition (Crl.) No.491 of 2022 under Article 32 of the Constitution is maintainable? - HELD THAT:- The contention regarding the State of Gujarat not being the competent State to consider the validity of the orders of remission in a petition filed under Article 226 of the Constitution, particularly, when the question of competency was raised, could not have been dealt with by the Gujarat High Court on the principle of judicial propriety. Therefore, for this reason also the petitioner in Writ Petition has, rightly approached this Court challenging the orders of remission. The contentions of learned Senior Counsel, Sri S. Guru Krishna Kumar and Sri Chidambaresh are hence, rejected. Thus, Writ Petition (Crl.) No.491 of 2022 filed under Article 32 of the Constitution is clearly maintainable.
Whether the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission dated 10.08.2022 are maintainable? - HELD THAT:- It is not necessary to answer the point regarding maintainability of the PILs in this case inasmuch as one of the victims, namely, Bilkis Bano has also filed a writ petition invoking Article 32 of the Constitution assailing the orders of remission which is held to be maintainable. The consideration of that petition on its merits would suffice in the instant case. Hence, the question of maintainability of the PILs challenging the orders of remission in the instant case would not call for an answer owing to the aforesaid reason. As a result, we hold that consideration of the point on the maintainability of the PILs has been rendered wholly academic and not requiring an answer in this case. Therefore, the question regarding maintainability of a PIL challenging orders of remission is kept open to be considered in any other appropriate case.
Whether the Government of State of Gujarat was competent to pass the impugned orders of remission? - HELD THAT:- The Government of State of Gujarat (Respondent No. 1 herein) had no jurisdiction to entertain the applications for remission or pass the orders of remission on 10.08.2022 in favour of Respondent No. 3 to 13 herein as it was not the appropriate Government within the meaning of Sub-section (7) of Section 432 of the Code of Criminal Procedure - this Court's order dated 13.05.2022 being vitiated and obtained by fraud is therefore a nullity and non est in law. All proceedings taken pursuant to the said order also stand vitiated and are non est in the eye of law.
Whether the impugned order of remission passed by the Respondent - State of Gujarat in favour of Respondent Nos. 3 to 13 are in accordance with law? - HELD THAT:- It is difficult understand as to, why, the State of Gujarat, first Respondent herein, did not file a review petition seeking correction of the order dated 13.05.2022 passed by this Court in Writ Petition No. 135 of 2022 in the case of Respondent No. 3 herein. Had the State of Gujarat filed an application seeking review of the said order and impressed upon this Court that it was not the "appropriate Government" but the State of Maharashtra was the "appropriate Government", ensuing litigation would not have arisen at all. On the other hand, in the absence of filing any review petition seeking a correction of the order passed by this Court dated 13.05.2022, the first Respondent-State of Gujarat herein has usurped the power of the State of Maharashtra and has passed the impugned orders of remission on the basis of an order of this Court dated 13.05.2022 which is a nullity in law.
The first Respondent State of Gujarat was not at all the appropriate Government, therefore, the proceedings of the Jail Advisory Committee of Dahod Jail, which had recommended remission is itself vitiated and further, there is no compliance of Sub-section (2) of Section 432 of the Code of Criminal Procedure in the instant case in as much as the said opinion was not considered by the appropriate Government. On that score also, the orders of remission dated 10.08.2022 are vitiated.
Petition allowed.
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2024 (1) TMI 1317
Seeking restrain orders against the defendants from, and/or in any way, infringing the plaintiff’s copyright and the acts of passing off - HELD THAT:- The Plaintiff is the registered owner of the domain name https://www.utiitsl.com in India, which specifically caters to Indian citizens. The marks and the Label prominently features on it’s website, which sets out all the details of the Plaintiff, as also the services offered by it. The website is interactive in nature and can be accessed by people from all over India and across the globe. Apart from the said website, the Plaintiff is the owner of several other domain names worldwide and it also provide services from its mobile application, social media (including Facebook, Twitter, etc.), email, video conferencing, chat, etc.
On being convinced that the conduct of the defendants in indulging such an act is illegal, in the wake of the statutory rights under Common Law earned by the plaintiff, and they being infringed/violated and compromised by such dubious websites, as there are unknown persons/entities engaged in fraudulent activity of imitating the applicant and it’s marks, such defendants and all parties known or unknown, deserve to be restrained from infringing the plaintiff’s/applicant’s copyright in the label and passing off the marks, as the rights vests in the plaintiff in rem, being the copyright holder thereof. Without a proper licence issued either by the applicant or the ITD, no person is entitled to benefit from it’s rights, which exclusively belong to the plaintiff/applicant.
On consideration of the necessary information provided in the Interim Application, the plaintiff/applicant deserves an ad-interim ex-parte order even without service, as it is impossible to track all the defendants and effect service upon them, and with the fake websites being continued to be active, it would cause irreparable damage and severe compromise of valuable confidential data of the plaintiff and also pose a threat at a national level.
List the Application for further consideration on 20/2/2024.
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2024 (1) TMI 1313
Third bail application under Section 439 of the Code of Criminal Procedure, 1973 for grant of bail - offence punishable under Section 8 r/w 22 and 29 of N.D.P.S. Act, 1985 - illegal possession of Alprazolam Powder - contraband item - HELD THAT:- Considering all the facts and circumstances of the case and also the nature and gravity of the allegation and also taking note of the fact that in the present case, seized quantity of the contraband is more than the commercial quantity and there is specific bar under Section 37 of NDPS Act and also considering the allegation levelled against the applicant that he has destroyed the material evidence regarding the aforesaid crime and his two applications on earlier occasions have been rejected on merits by this Court and later on, SLP (Criminal) No. 5271/2023 filed before the Apex Court has also been dismissed vide order dated 20.03.2023 by stating that applicant is not entitled for grant of bail at this stage. Although, 2 panch witnesses have been examined but, investigating officer is also Panch witness and he has not been examined yet, therefore, in view of the aforesaid, in the considered opinion of this Court, there are no material changes in the circumstances in which applicant may be entitled for grant of bail.
This repeated 3rd bail application under Section 439 of Cr.P.C. is hereby dismissed on merits.
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2024 (1) TMI 1297
Seeking quashing an F.I.R. registered alleging commission of offences punishable under Sections 420 & 409 of the Indian Penal Code 1860 - financial irregularities detected in a Cooperative Bank of which the appellant was posted as a Branch Manager - chargesheet had been submitted subsequent to filing of the quashing petition.
HELD THAT:- The reasoning of the High Court for dismissing the writ petition of the appellant, not agreed upon, having regard to the ratio of the judgment of this Court in the case of JOSEPH SALVARAJ A. VERSUS STATE OF GUJARAT AND ORS. [2011 (7) TMI 1378 - SUPREME COURT]. That was a case arising from the quashing plea of an F.I.R., where chargesheet was submitted after institution of the petition under Section 482 of the Code of Criminal Procedure 1973. A Coordinate Bench of this Court opined that even if the charge sheet had been filed, the Court could still examine if offences alleged to have been committed were prima facie made out or not on the basis of the F.I.R., chargesheet and other documents.
The impugned order set aside - matter remanded to the High Court. Let the High Court hear the criminal writ petition on merit - appeal allowed.
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2024 (1) TMI 1292
Dishonour of Cheque - rejection of application for oral evidence - permission to adduce oral evidence in support of his defence - HELD THAT:- The question whether the accused, in proceedings under Section 138 of the NI Act, is entitled to file an affidavit in lieu of the examination-in-chief is no more res integra. In the decision of the Supreme Court in the case of MANDVI CO-OP. BANK LTD. VERSUS NIMESH B. THAKORE [2010 (1) TMI 570 - SUPREME COURT], it is held that 'What would be the extent and nature of examination in each case is a different matter and that has to be reasonably construed in light of the provision of Section 145(1) and having regard to the object and purpose of the entire scheme of Sections 143 to 146. The scheme of Sections 143 to 146 does not in any way affect the Judge's powers under section 165 of the Evidence Act.'
In a recent decision of this Court in the case of SBI GLOBAL FACTORS LIMITED VERSUS THE STATE OF MAHARASHTRA, M/S. DHANSHREE TEXTILE INDUSTRIES [2021 (3) TMI 490 - BOMBAY HIGH COURT], this Court has held that an accused could not be permitted to file an affidavit of evidence in lieu of the examination-in-chief.
The order of learned Magistrate of not permitting the petitioner to adduce oral evidence, does not stand. Since, earlier the petitioner himself submitted affidavit of evidence in lieu of his oral evidence, he was cross-examined. This consumed a lot of time of the Trial Court. Therefore, the petition needs to be allowed.
Petition allowed.
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2024 (1) TMI 1287
Dishonour of cheque for want of sufficient funds - Challenging the conviction and sentence for the offence u/s 138 of the N.I Act - Onus to prove financial capacity - HELD THAT:- Complainant has not chosen to produce his account extract to show that immediately prior to the lending of Rs.3.5 lakhs to the accused he was in receipt of Rs.4,80,000/- towards sale consideration of the tempo. He has also not chosen to examine the purchaser Prabhakar. When questioned whether he is ready to examine the said Prabhakar, the complainant has replied that Prabhakar is not ready to come and give evidence.
Though the complainant has claimed that the amount of Rs.3.5 lakhs paid to the accused was withdrawn from his account, standing in Corporation Bank and there is no difficulty for him to produce the same. However, the complainant has not produced his account extract to evidence the said fact. It would have been sufficient for the complainant to produce the said account extract to establish Rs.3.5 lakhs paid to the accused was withdrawn by him from his account. Thus, the complainant has failed to prove his financial capacity, despite making a vain attempt to prove that a vehicle was sold for Rs.4,80,000/- and out of the said amount, he lent Rs.3.5 lakhs to the complainant.
In the complaint, the complainant has specifically pleaded that the sale of tempo was made on 18.05.2015 and the loan was advanced during January 2016 and the accused has issued the cheque on 14.07.2016. However, during his cross-examination, the complainant has stated that accused gave him cheque during January 2016. This also creates doubt as to the veracity of complainant’s case. Anyhow, having failed to prove his financial capacity, the complainant has failed to discharge the burden placed on him beyond reasonable doubt.
The trial Court as well as the Session Court have failed to examine the oral and document evidence placed on record in proper perspective. They have swayed away by the fact that presumption under Sections 118 and 139 of N.I. Act is operating in favour of the complainant. But both Courts have failed to examine whether the complainant has proved his financial capacity or not, and thereby fell into error. Consequently, the impugned order has caused gross miscarriage of justice, manifest illegality and suffers from perversity calling for interference by this Court under exercise of revision jurisdiction.
In the result, the impugned judgments and orders of trial Court as well as the Sessions Court are liable to be set aside and the accused is entitled for acquittal. Petition filed by the petitioner u/s 397 r/w 401 CrPC is allowed.
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2024 (1) TMI 1286
Rejection of bail - covert or overt Act of terrorism - proviso to Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 - HELD THAT:- This Court had the occasion to examine the provisions of Section 43D(5) proviso inserted by Act 35 of 2008, in the case of NATIONAL INVESTIGATION AGENCY VERSUS ZAHOOR AHMAD SHAH WATALI [2019 (4) TMI 2023 - SUPREME COURT]. The ratio indicates that the Court must be satisfied that there are reasonable grounds for believing the accusation against the accused are prima facie, not true.
Proceeding with the understanding of the law enunciated by this Court in Watali and the discussion of the same ratio in the case of Vernon Vs. The State of Maharashtra & Anr. [2023 (7) TMI 1384 - SUPREME COURT], together with the materials in the shape of the chargesheet made available before this Court and looking into the criminal antecedent of the accused in a case of similar nature, the bail is not merited in the present matter.
The SLP is dismissed.
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2024 (1) TMI 1281
Interim application - Prayer for modification of prayer imposed, while directing to release of the Appellant on bail - it was directed that Appellant shall not create any untoward situation in public and shall not be involved in any political activities, directly or indirectly - HELD THAT:- It needs to be mentioned here that according to the allegations made against the Appellant he was involved in 57 cases earlier. Upon hearing both parties and considering present situation as it remains a fact that he was not only involved in other cases but also murderous attempt was made upon him, it would be unjustified to modify the condition of the bail permitting the Appellant to take part in political activities which would be in further deterrence of law and order situation in the locality involving the Appellant.
As such, this Court is not inclined to modify the condition as prayed for and accordingly the interim applications are rejected.
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2024 (1) TMI 1268
Doctrine of merger and doctrine of binding precedent - Civil suit for declaration of title, possession and permanent injunction against the respondents - 8 cents of land and the construction standing thereon - HELD THAT:- The doctrine of merger is a common law doctrine that is rooted in the idea of maintenance of the decorum of hierarchy of courts and tribunals. The doctrine is based on the simple reasoning that there cannot be, at the same time, more than one operative order governing the same subject matter.
In the current case, as previously mentioned, the High Court's judgment from the initial round dated 30.03.1990, noted that the disputed property included 8 cents of land, not just the building structure on it. As per the Doctrine of Merger, the judgments of the Trial Court and the First Appellate Court from the first round of litigation are absorbed into the High Court's judgment dated 30.03.1990. This 1990 judgment should be regarded as the conclusive and binding order from the initial litigation. Following the principles of judicial discipline, lower or subordinate Courts do not have the authority to contradict the decisions of higher Courts. In the current case, the Trial Court and the High Court, in the second round of litigation, violated this judicial discipline by adopting a position contrary to the High Court's final judgment dated 30.03.1990, from the first round of litigation.
The argument of the Counsel for respondents is mainly that the judgment of the Trial Court and First Appellate Court in the first round of litigation clearly stated in the case of the plaintiff that it was with respect to the constructed portion only in which the mother of the appellant was residing and not the whole area of 8 cents purchased by them. The High Court committed a bona fide error in recording that the suit property was 8 cents along with constructions standing over it. As such the Trial Court and the High Court in the present round were correct in limiting the decree only to the constructions and not the entire area of 8 cents.
A suit for possession with respect to such a property would be liable to be dismissed on the ground of its identifiability. Further, it may be noted that if the construction by the defendant were not made over 8 cents of purchased land, then the plaintiff therein would not have a claim to possession of the same. The argument thus has to be rejected not only on facts but also on legal grounds.
The impugned judgment and order of the High Court is set aside and that of the First Appellate Court dated 13.10.2003 passed by the Sub-Judge, Padmana bhapuram is restored and maintained - Appeal allowed.
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2024 (1) TMI 1261
Retention of certain goods as security - claiming release of goods - it was held by Supreme Court that No case for interference under Article 136 of the Constitution of India is made out - However, it will be always open for the petitioner to raise all permissible objections/contentions before the Arbitral Tribunal in accordance with law - HELD THAT:- The application is completely mis-conceived and the same is accordingly dismissed. The petitioner in the Special Leave Petition has been permitted to raise contentions provided the same are permissible in accordance with law.
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2024 (1) TMI 1258
Seeking refund of money alongwith interest and damages - Plaintiff was falsely induced, on account of the Defendant’s misrepresentation to execute a Film Rights Assignment Agreement and to part with the said amount - HELD THAT:- There are no difficulty in accepting the submission of the learned senior counsel Mr.Godbole, that when ‘action’ is electronically received in the registry, it shall be considered as the date of e-filing and it is sufficient substance in his submission, since it is quite possible, that on an ‘action’ being generated, there may be objections which will have to be notified on a subsequent date, as in case of physical filing of any proceedings, the date of its filing, is the date when it is tendered in the Registry of the Court. The objections may be notified at a subsequent point of time and time shall be given to cure the objections, but the filing date do not get postponed till the removal of office objections and for all purposes it shall be the date on which the proceedings are for the first time tendered in the Registry.
The parties shall, suffer irreparably an ‘action’ being uploaded through e-filing, but if the Registry do not take note of the objections as in the present case, it is seen that the scrutiny of the Written Statement/Interim Application occurred only on 24.03.2023, much later than the date of uploading of the document and it is not possible to label this document merely as a mere ‘Draft’ awaiting clearance of office objections.
There are no merit in the submission of respondent that merely because Written Statement/Interim Application was filed OnLine and an email is generated, unless and until it is perfected in all aspects by removing office objections, it shall not be construed to have been filed.
Application is allowed by condoning delay of 85 days in filing the Written Statement.
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2024 (1) TMI 1153
Grant of default bail under Section 167(2) Cr.P.C. - criminal conspiracy to cheat the consortium of 17 banks led by Union Bank of India - induced the consortium banks to sanction huge loans - siphoning off of the funds - investigation qua some of the accused named in the FIR was pending, though the report under sub-section (2) of Section 173 (Chargesheet) against respondents along with the other accused was filed within the prescribed time limit - cognizance of the offence was taken by the special court before the consideration of the application of the respondents seeking default bail under Section 167 (2) Cr.P.C.
HELD THAT:- There cannot be any disagreement with the well settled legal position that the right of default bail under Section 167(2) Cr.P.C. is not only a statutory right but is a right that flows from Article 21 of the Constitution of India. It is an indefeasible right, nonetheless it is enforceable only prior to the filing of the challan or the chargesheet, and does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to the accused after the filing of the challan.
In SURESH KUMAR BHIKAMCHAND JAIN VERSUS STATE OF MAHARASHTRA & ANR. [2013 (2) TMI 821 - SUPREME COURT] the appellant-accused had sought default bail under Section 167(2) on the ground that though the chargesheet was filed within the stipulated time, the cognizance was not taken by the court, for want of sanction to prosecute the accused. The court dispelling the claim of the accused held an investigating authority fails to file the charge-sheet within the stipulated period, the accused is entitled to be released on statutory bail. In such a situation, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court trying the offence, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Section 309 CrPC. The two stages are different, but one follows the other so as to maintain a continuity of the custody of the accused with a court.
There remains no shadow of doubt that the statutory requirement of the report under Section 173 (2) would be complied with if the various details prescribed therein are included in the report. The report under Section 173 is an intimation to the court that upon investigation into the cognizable offence, the investigating officer has been able to procure sufficient evidence for the court to inquire into the offence and the necessary information is being sent to the court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175 (5). As settled in the afore-stated case, it is not necessary that all the details of the offence must be stated.
The benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to the offender only when a chargesheet is not filed and the investigation is kept pending against him. Once however, a chargesheet is filed, the said right ceases. It may be noted that the right of the investigating officer to pray for further investigation in terms of sub-section (8) of Section 173 is not taken away only because a chargesheet is filed under sub-section (2) thereof against the accused - Once from the material produced along with the chargesheet, the court is satisfied about the commission of an offence and takes cognizance of the offence allegedly committed by the accused, it is immaterial whether the further investigation in terms of Section 173(8) is pending or not. The pendency of the further investigation qua the other accused or for production of some documents not available at the time of filing of chargesheet would neither vitiate the chargesheet, nor would it entitle the accused to claim right to get default bail on the ground that the chargesheet was an incomplete chargesheet or that the chargesheet was not filed in terms of Section 173(2) of Cr.P.C.
There are no hesitation in holding that the chargesheet having been filed against the respondents-accused within the prescribed time limit and the cognizance having been taken by the Special Court of the offences allegedly committed by them, the respondents could not have claimed the statutory right of default bail under Section 167(2) on the ground that the investigation qua other accused was pending. Both, the Special Court as well as the High Court having committed serious error of law in disregarding the legal position enunciated and settled by this Court, the impugned orders deserve to be set aside and are accordingly set aside.
Appeal allowed.
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2024 (1) TMI 1152
Dismissal from service - Disciplinary proceedings against police officer - appellant has been acquitted in the criminal case - Involvement in Customs case of Smuggling of heroin - multiple proceedings - HELD THAT:- In the instant case, the appellant deliberately kept away from the inquiry proceedings. He was aware of the manner in which the disciplinary proceedings were going on but elected to stay away. He did not report for duty from 23rd February, 1989 till the order of dismissal from service was passed against him by the respondent No. 4 - Disciplinary Authority on 20th December, 1991. It took the appellant seven long years to approach the Appellate Authority against the dismissal order passed against him sometime in the year 1998.
The factum of the appellant having been discharged in the criminal case would not be of any material consideration as the Disciplinary Authority1 had taken action against the appellant for remaining absent from duty which is clearly brought out from the record.
The present appeal is dismissed as meritless while leaving the parties to bear their own expenses.
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9911796707
