BCR Criminal March Part 2024

Advisory Board
Hon’ble Shri. Justice Ferdino Rebello, Hon’ble Shri. Justice R.M. Bapat,
Former Chier Justice, Allahabad High Court Former Judge, Andhra Pradesh,
Former Judge, Bombay High Court Former Judge, Bombay High Court
Hon’ble Dr. Justice S. Radhakrishnan, Hon’ble Shri. Justice Ashok N. Mody,

Hon’ble Shri. Justice Abhay M. Thipsay, Hon’ble Shri. Justice M.L. Tahaliyani,
BOMBAY CASES REPORTER (CRIMINAL)

Editorial Board
MARCH PART 2024(1)

Shri. Shirish Gupte, Senior Advocate, Shri. Anil S. Mardikar, Senior Advocate,
E-Book & S.C. Digest
Bombay High Court Bombay High Court, Bench at Nagpur
Complimentary Shri. Rajiv Chavan, Senior Advocate, Shri. Manoj S. Mohite, Senior Advocate,
Bombay High Court Bombay High Court
Shri. Rajendra A. Shirodkar, Senior Advocate, Shri. Sanjog Parab, Senior Advocate,
March Bombay High Court Bombay High Court
2024(1) Bom.C.R.(Cri.)
December Shri. Niteen Pradhan, Advocate, Shri. Jayant Jaybhave, Advocate,
Bom.C.R.(Cri.) Bombay High Court Former Chairman and Member, BCMG
Covering Judgments of :
Nominal & Topical Shri. Avinash Bhide, Advocate, Shri. Ashish Deshmukh, Advocate,
Bombay High
IndexCourt.........38 Former Chairman and Member, BCMG Former Chairman and Member, BCMG
1-16 Pages Shri. Akshay Naik, Advocate, Shri. Joaquim Godinho, Advocate,
Other Journal
High Courts...........03
Section Bombay High Court, Bench at Nagpur Bombay High Court, Bench at Goa
33-48 Pages Shri. Menino Teles, Advocate, Shri. Uday A. Deshmukh, Advocate,
Digest on
SupremeJudgments
Court................32 Bombay High Court, Bench at Goa B.Sc. L.L.B.
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MARCH
2024(1) Bom.C.R.(Cri.)
CONTENTS
Nominal Index, Topical Index 1 - 16 Pages
Journal Section 33 - 48 Pages
Judgments Section 641 - 960 Pages
Subject Index 961-1020 Pages
Supreme Court Digest 33 - 48 Pages
========
Number of Judgments Reported
Appellate Side (Bombay) 22

Nagpur Bench 03
Aurangabad Bench 11
Panaji Bench 02
Supreme Court 04
Other High Courts 03
Digest on Supreme Court 32
========
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THE
(CRIMINAL)
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Citation 2024(1) Bom.C.R.(Cri.) .....

Advisory Board
Former Chief Justice, Allahabad High Court, Former Judge, Andhra Pradesh,
Hon’ble Dr. Justice S. Radhakrishnan, Hon’ble Shri. Justice Ashok N. Mody
Hon’ble Shri. Justice Abhay M. Thipsay Hon’ble Shri. Justice M.L. Tahalyani
Editorial Board
Bombay High Court Bombay High Court, Bench at Nagpur.
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Shri. Rajendra Adhik. Shirodkar, Senior Advocate, Shri. Sanjog Parab, Senior Advocate,
Shri. Niteen Pradhan, Advocate Shri. Jayant Jaybhave, Advocate,
Bombay High Court Former Chairman and Member, BCMG
Shri. Avinash Bhide, Advocate, Shri. Ashish Deshmukh, Advocate,
Former Chairman and Member, BCMG Former Chairman and Member, BCMG
Shri. Akshay Naik, Advocate, Shri. Joaquim Godinho, Advocate,
Bombay High Court, Bench at Nagpur Bombay High Court, Bench at Goa.
Shri. Menino Teles, Advocate, Shri Uday Deshmukh, Advocate, B.Sc., L.L.B.
Bombay High Court, Bench at Goa. Shri. Santosh S. Vhatkar, Advocate,
Shri. Sahebrao S. More, Advocate, B.A., L.L.B. Supreme Court Advocate, M.Com., L.L.B.
Shri. Vinay Bhausaheb Kadam, Advocate, Shri. Nilesh S. Ghanekar, Advocate,
B.S.L., L.L.B. (Spl.) B.S.L., L.L.B. (Spl.)
Chief Editor
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Bombay High Court Nagpur High Court

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2024(1) Bom.C.R.(Cri.)
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THE
B OM BAY CASE S RE PORTE R
(CRIMINAL)
2024(1)
NOMINAL INDEX
1. A.M.J. Dayalraj Vs. Parish Priest, 2024(1) Bom.C.R.(Cri.)(J.)
(KARNT.)26
2. Abdul Salim Ahmad Abdul Jabbar Vs. 2024(1) Bom.C.R.(Cri.)
State of Maharashtra, (N.B.)60
3. Abhay @ Abhi @ Abhya Bhaskar Pore Vs.
State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)451
4. Abhishek Saxena Vs. State of Uttar Pradesh, 2024(1) Bom.C.R.(Cri.) (S.C.)100
5. Ajay Rai Vs. State of Uttar Pradesh, 2024(1) Bom.C.R.(Cri.)(J.)
(ALLAH.)36
6. Ajinkya Chandrashekhar Ghogare Vs. State of
Maharashtra, 2024(1) Bom.C.R.(Cri.) (N.B.)49
7. Alka Bhausaheb Bhad @ Alka Dagadu Shelke Vs.
Bhausaheb Ramrao Bhad, 2024(1) Bom.C.R.(Cri.) 572
8. Amar S. Mulchandani Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 350
9. Amarlal Hasomal Lalwani Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.)934
10. Amit Madhukar Bhogale Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 209
11. Ananda Mahadu Sawant Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)929
12. Anantrao Shankarrao Jagtap Vs. Prakash Nivruthi
Tajanpure, 2024(1) Bom.C.R.(Cri.) 603
13. Aniket Shahadev Labade Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.)
(A.B.)(F.B.)155
14. Anilkumar Uttareshwar Nilakhe Vs. State of
Maharashtra, 2024(1) Bom.C.R.(Cri.) 148
15. Anurag Ravindra Umaley Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.)922
16. Arti Rajesh Karangutkar Vs. Anna Rocky Fernandes, 2024(1) Bom.C.R.(Cri.) 616
17. Ashish Bharat Jadhav Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 1
18. Ashok Gulabrao Bondre Vs. Vilas Madhukarrao Deshmukh, 2024(1) Bom.C.R.(Cri.)
(S.C.)57
19. Aslam Babulal Shaikh Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)842
B
20. Babasaheb Deoram Arane Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)64
21. Balwinder Singh (Binda) Vs. Narcotics Control Bureau, 2024(1) Bom.C.R.(Cri.) (S.C.)35
22. Bansilal S. Kabra Vs. Global Trade Finance Limited, 2024(1) Bom.C.R.(Cri.) (F.B.)815
4 NOMINAL INDEX 2024(1)
23. Bhagwan Nivrutti Wagh Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 93
24. Bhagwan Singh Vs. Dilip Kumar @ Deepu @ Depak, 2024(1) Bom.C.R.(Cri.) (S.C.)123
C
25. Central Bureau of Investigation Vs. Kapil Wadhawan, 2024(1) Bom.C.R.(Cri.) (S.C.)905
26. Central Bureau of Investigation Vs.
R. Bhuvaneswari C.N. Venkataraman, 2024(1) Bom.C.R.(Cri.) 23
27. Chhaya Bhausaheb Bhingardive Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)276
28. Chirag Janardan Doshi Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 475
29. Clinton Fernandes Vs. State of Goa, 2024(1) Bom.C.R.(Cri.) (P.B.)854
D
30. Danish Ali Jamaluddin Ahmed Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 367
31. Debabrata Giri Vs. State of West Bengal, 2024(1) Bom.C.R.(Cri.)(J.)
(CAL.)1
32. Dhanubai @ Dhanno Yashvant Netlekar Vs.
State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)819
33. Digambar @ Digu Baburao Shirole Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)393
E
34. Edunetwork Private Limited Vs. Regional Provident Fund,2024(1) Bom.C.R.(Cri.) 778
35. Ekveera Jewellers Anturli Vs. Shaunak Deepak Kulkarni, 2024(1) Bom.C.R.(Cri.)
(A.B.)492
F
36. Firoz Shah Babbu Shah Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (N.B.) 316
37. Fresenisu Kabi Oncology Ltd. Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)520
G
38. Ganesh Bhatu Shinde (Patil) Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)321
39. Ganesh Shamrao Pendor Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (N.B.)343
40. Gautam P. Navlakha Vs. National Investigating Agency,2024(1) Bom.C.R.(Cri.) 527
41. Govind Yeshwant Adsule Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 104
H
42. Harischandra Damu Baldhye Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)784
43. Harvinder @ Chinku Ajaysingh Labana Vs.
Commissioner of Police, 2024(1) Bom.C.R.(Cri.) 118
44. Himmatsingh Telsingh Chauhan Vs. State of Maharashtra,2024(1) Bom.C.R.(Cri.) (N.B.)90
I
45. Isaack @ Jeyakaran Issack Vs.
State represented by Inspector of Police, Vellore, 2024(1) Bom.C.R.(Cri.)(J.)
(MAD.)17
46. IVY Jewellery Pvt. Ltd. Vs. Chandresh Sampat, 2024(1) Bom.C.R.(Cri.) 651
J
47. Jagdish Sajjankumar Banka Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 131
Bom.C.R.(Cri.) NOMINAL INDEX 5
K
48. Kailash Vithal Waghmare Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)543
49. Kashinath Pandurang Jadhav Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 873
50. Khalil Abbas Fakir Vs. Tabbasum Khalil Fakir @
Tabbasum Gulam Husain Ghare, 2024(1) Bom.C.R.(Cri.) 166
L
51. Laxman Rama Pawar @ Mahakal Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.)951
52. Laxmi Vs. State Nct of Delhi, 2024(1) Bom.C.R.(Cri.)(J.)
(DEL.)30
53. Leena Dasharath Gavkar Vs. State of Maharashtra, 2024(1) Bom.C.R (Cri.) 850
M
54. Madhura Milind Gadgil Vs. Milind Neelkant Gadgil, 2024(1) Bom.C.R.(Cri.) 837
55. Mahesh Panjabrao Andhale Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 828
56. Mahesh Vinayak Patil Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 659
57. Mangesh Pandurang Bandagle Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 82
58. Manish Singh Vs. State of Uttar Pradesh,
Thru.Prin. Secy. Home Lko., 2024(1) Bom.C.R.(Cri.)(J.)
(ALLAH.)10
59. Minakshi Amol Gedam Vs. District Magistrate, 2024(1) Bom.C.R.(Cri.) (N.B.)633
60. Mirza Himayat Beig @ Umar Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 198
61. Mohammed Iqbql Mangu Ismail Vs. State of Maharashtra,2024(1) Bom.C.R.(Cri.) 859
62. Mohan Keshavrao Jayebhaye Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (N.B.)938
63. Munja Jijabhau Bhange Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)773
N
64. Nandkishor Eknath Kothawade Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 668
65. Nandu @ Santosh Pandit Thakre Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)192
66. Nasib Osman Pathan Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)255
67. Naushad Ali Shah Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (N.B.)140
68. Nijil Raj Vs. Union of India Narcotics Control Bureau, 2024(1) Bom.C.R.(Cri) (P.B.)631
69. Nitin Shivdas Satpute Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (N.B.)227
70. Nusrath V.P. Vs. State of Kerala, 2024(1) Bom.C.R.(Cri.)(J.)
(KER.)13
O
71. Omkar Dattatraya Dangat Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 331
P
72. Parvej Khan Rafik Khan Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)6
73. People’s Union for Civil Liberties Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (S.C.)311
74. Prabhat Ram Ambhurkar Vs. State of Maharashtra, 2024(1) Bom.C.R(Cri.) (N.B.)288
6 NOMINAL INDEX 2024(1)
R
75. R. David @ Tamilvanan Vs. G. Premalatha, 2024(1) Bom.C.R.(Cri.)(J.)
(MAD.)33
76. Raees Hanif Sayyed Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)442
77. Rahibai Arjun Pawar Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)832
78. Rahul Rajendra Jain Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (N.B.)237
79. Rajaram Banderao Kulkarni Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 767
80. Rajnikant Gulabdas Patel Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (N.B.)248
81. Rakesh Anand Singh Vs. Anil Madanmohan Gulati, 2024(1) Bom.C.R.(Cri.) (P.B.)263
82. Ramesh Bhanudas Shelke Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)361
83. Ramesh @ Shyam Pandharinath Gawande Vs.
State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (N.B.)688
84. Ranjeet Haribhau Jadhav Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)568
85. Raosaheb Murlidhar Ahire Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 685
86. Rashmi Mehrotra Vs. Manvi Sheth, 2024(1) Bom.C.R. (Cri.)884
87. Ravi Laxman Naik Vs. Police Inspector, 2024(1) Bom.C.R.(Cri.) (P.B.)915
88. Ravsaheb Sahebrao Patil Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)177
89. Richard Alexander Nicholas Geary Vs. State of
Maharashtra, 2024(1) Bom.C.R.(Cri.) 549
90. Rulasha Fernandes Vs. State, 2024 (1) Bom.C.R.(Cri) (P.B.)638
S
91. Sadanand Gangaram Kadam Vs. Directorate of
Enforcement, 2024(1) Bom.C.R.(Cri.) 497
92. Sadhana Ajinkya Rathod Vs. State of Maharashtra,
through PSO Dhantoli Police Station, 2024(1) Bom.C.R.(Cri.) (N.B.)399
93. Sameerkumar Prakash Awasare Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 183
94. Sanil Sreekumar K. Vs. Union of India, 2024(1) Bom.C.R.(Cri.) 790
95. Sanjat Ratan Rajput Vs. Union of India, 2024(1) Bom.C.R.(Cri.) 696
96. Sanjay Gaonkar Vs. State of Goa, 2024(1) Bom.C.R.(Cri.) (P.B.)110
97. Santosh Balaji Nagrale Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (N.B.)382
98. Santosh Gunaji Dudhmal Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)581
99. Santosh Kantilal Kharva Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)644
100. Santosh Subhash Koli Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)880
101. Sarvesh Vernekar Vs. State of Goa, 2024(1) Bom.C.R.(Cri.) (P.B.) 205
102. Satish Bansi Lagad Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)420
103. Satish P. Bhatt Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (S.C.)593
104. Saumya Chaurasia Vs. Directorate of Enforcement, 2024(1) Bom.C.R.(Cri.) (S.C.)483
105. Shabu Bhimappa Dudhale Vs. Vinayak Appasaheb Padavle, 2024(1) Bom.C.R(Cri.) 473
106. Shafi Abdul Rahiman Kudale Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 463
Bom.C.R.(Cri.) NOMINAL INDEX 7
107. Shameem Bano Gulam Kureshi Vs. Union of India, 2024(2) Bom.C.R.(Cri.) 899
108. Shatrughna Atmaram Patil Vs. Vinod Dodhu
Chaudhary, 2024(1) Bom.C.R.(Cri.) (S.C.)958
109. Sheezan Mohd. Khan alias Sheezan Mohd. Vs.
State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 387
110. Sheshrao Makhram Jadhav Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (N.B.)74
111. Shrinath Vijay Rao Vs. Shraddha Shrinath Rao, 2024(1) Bom.C.R.(Cri.) (P.B.)626
112. Sita Soren Vs. Union of India, 2024(1) Bom.C.R.(Cri.) (S.C.)699
113. Sonika Vishnudas Kadam Vs. Vishnudas
Haribhau Kadam, 2024(1) Bom.C.R.(Cri.)894
114. State of Maharashtra Vs.
Sachin Dhananjay Kulkarni @ Chingya, 2024(1) Bom.C.R.(Cri.) 813
115. State of Maharashtra Vs. Vijay Bhika Dive, 2024(1) Bom.C.R.(Cri.) 301
116. Subham Roy Choudhury Vs. State of West Bengal, 2024(1) Bom.C.R.(Cri.)(J.) (CAL.)21
117. Sukhwinder Singh @ Bittu Vs. State of Punjab, 2024(1) Bom.C.R.(Cri.) (S.C.)893
118. Sultan Habib Lodhda Vs. State of Gujarat, 2024(1) Bom.C.R.(Cri.)(J.)
(GUJ.)41
119. Sunil Chhatrapal Kedar Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (N.B.)672
120. Surendrakumar Bhagat Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 628
121. Suryakant Pandurang Holmukhe Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 70
T
122. Tata Capital Ltd. Vs. Umeshkumar Hanumandas Goyal, 2024(1) Bom.C.R.(Cri.) 587
U
123. Udhav Punjaram Nawsagre Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)655
V
124. Vijay Bubasaheb Kakade Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)597
125. Vikas Babbarsingh ItkanVs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 641
126. Vilas Ashok Aawale Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 447
127. Vilas Gunda Shirolkar Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 435
128. Vinod Dhannulal Jaiswal Vs.
District Magistrate Aurangabad, 2024(1) Bom.C.R.(Cri.) (A.B.)862
129. Vishnu Jagganath Gund Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)608
W
130. Waseem Ahmad Bhat Vs. State of Goa, 2024(1) Bom.C.R.(Cri.) (P.B.)636
X
131. XXXX Vs. State of Goa, 2024(1) Bom.C.R.(Cri.) (P.B.)232
132. XYZ Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)665
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THE
TOPICAL INDEX
Abetment of suicide – There was sufficient gap between incidents involving accused and
deceased’s act of suicide – There is no direct link between two, as deceased had ample
time to consider consequences of suicide – Simply alleging harassment of deceased is not
sufficient to sustain charge under Section 306 IPC – FIR thus, quashed. Suryakant Pandurang
Holmukhe Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 70.
Admissibility of confessional statement – Confessional statement of accused recorded
by Deputy Range Forest Officer is not admissible. Firoz Shah Babbu Shah Vs. State of
Maharashtra, 2024(1) Bom.C.R.(Cri.) (N.B.)316.
Anticipatory bail – Merely calling a person by his caste, though may amount to insult
of abuse to him, same cannot be said to be with intent to humiliate such person. 1982
Cri.L.J. 872 Rel.on. Ajinkya Chandrashekhar Ghogare Vs. State of Maharashtra, 2024(1)
Bom.C.R.(Cri.) (N.B.)49.
Anticipatory bail – Fact that applicant is already in custody in one case does not preclude
him from seeking pre-arrest bail in connection with another case in which he apprehends
arrest. dis. 2022 Supreme (All.) 1331; 2022 All.M.R.(Cri.) 61. Amar S. Mulchandani Vs. State
of Maharashtra, 2024(1) Bom.C.R.(Cri.) 350.
Applicability of Cr.P.C. – To proceeding before special Court under POCSO – Provisions
of Cri.P.C. including provisions as to bail and bonds shall apply to proceedings before a
Special Court inquiring into or trying an offence under POCSO Act and under any other
Statute including S.C. & S.T. Act. Aniket Shahadev Labade Vs. State of Maharashtra,
2024(1) Bom.C.R.(Cri.) (A.B.)(F.B.)155(A).
Applicability of Section 195 of Cr.P.C. – Section 195(1)(b)(ii) Cr.P.C. would be attracted
only when offences enumerated in said provision have been committed with respect to a
document after it has been produced or given in evidence in a proceeding in any Court
i.e. during time when document was in custodia legis. Ashok Gulabrao Bondre Vs. Vilas
Madhukarrao Deshmukh, 2024(1) Bom.C.R.(Cri.) (S.C.)57.
Application for bail by accomplice – Detaining applicant for an indefinite period when
there is nothing on record to indicate when trial will be terminated is not only be unfair
to applicant but will be deterrent to those witnesses seeking tender of pardon in future –
This cannot be object of sub-section 4 of Section 306. Danish Ali Jamaluddin Ahmed Vs. State
of Maharashtra, 2024(1) Bom.C.R.(Cri.) 367.
Application for default bail - Applicant against whom Section 409, IPC is invoked cannot
apply for bail after 60 days on ground of default in completing investigation within 60
days. Kashinath Pandurang Jadhav Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 873(B).
Appreciation of evidence - Mere DNA evidence cannot be made sole basis of conviction.
Parvej Khan Rafik Khan Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)6.
Appreciation of evidence – Unless presence of appellant has been proved, question of
plea of alibi cannot be touched. Ramesh Bhanudas Shelke Vs. State of Maharashtra, 2024(1)
Bom.C.R.(Cri.) (A.B.)361.
Bom.C.R.(Cri.) TOPICAL INDEX 9
Attempt to murder – Accused hit victim with stone causing grievous injuries to her eye
and head – Injuries caused to victim by stone were no doubt grievous in nature but they
cannot be considered to be caused by dangerous weapon that is likely to cause death –
Conviction under Section 307 was modified to one under Section 325 of Penal Code. Sanjay
Gaonkar Vs. State of Goa, 2024(1) Bom.C.R.(Cri.) (P.B.)110(A).
Bail – Delay of trial is a relevant factor while examining plea for bail of accused. A bail
restricting clause cannot denude jurisdiction of a Constitutional Court in testing if con-
tinued detention in a given case would breach concept of liberty enshrined in Article 21
of Constitution of India. Mirza Himayat Beig @ Umar Vs. State of Maharashtra, 2024(1)
Bom.C.R.(Cri.) 198.
Bail – Conditions specified under Section 45 are mandatory - Court is required to be
satisfied that there are reasonable grounds for believing that accused is not guilty of such
offence and he is not likely to commit any offence while on bail. Sadanand Gangaram Kadam
Vs. Directorate of Enforcement, 2024(1) Bom.C.R.(Cri.) 497(A).
Bail – Statement of witness owner of vehicle shows that vehicle in which contraband was
found, was in possession of Applicant – Quantity of MDMA found from scooter which
was in possession of Applicant is commercial – In view of restrictions under Section 37 of
NDPS Act, Applicant is not entitled for bail. Waseem Ahmad Bhat Vs. State of Goa, 2024(1)
Bom.C.R.(Cri.) (P.B.)636.
Bail – Application for – Offence under NDPS Act – Accused is 29 yrs. of age – He was in
custody since long – Charge-sheet was also filed and 21 witnesses to be examined in
matter – Bail granted. Sukhwinder Singh @ Bittu Vs. State of Punjab, 2024(1) Bom.C.R.(Cri.)
(S.C.)893.
Bail application – Bail granted by trial Court – FIR registered alleging gang rape, threat
of making video of rape recorded viral and extortion – Delay by itself would not be fatal
for all times to come and criminality attached to incident would not evaporate into thin
air or get extinguished by virtue of such delay. Bhagwan Singh Vs. Dilip Kumar @ Deepu @
Depak, 2024(1) Bom.C.R.(Cri.) (S.C.)123.
Bail application – Scheduled offences – Offences mentioned in charge-sheet by I.O. could
never be said to be final conclusion as to whether offences scheduled in PMLA existed or
not, more particularly when same were mentioned in FIR registered against accused.
Saumya Chaurasia Vs. Directorate of Enforcement, 2024(1) Bom.C.R.(Cri.) (S.C.)483.
Bail application – Applicants were found in possession of commercial quantity of ganja
– Considering nature and quantity of contraband recovered from possession of appli-
cants, bail may not be granted to them in view of Section 37 of NDPS Act. Nijil Raj Vs.
Union of India Narcotics Control Bureau, 2024(1) Bom.C.R.(Cri) (P.B.)631.
Benefit of doubt – Merely, on account of mere lapse on part of investigating machinery,
benefit would not go to accused. Satish Bansi Lagad Vs. State of Maharashtra, 2024(1)
Cancellation of bail - Bail once granted should not be cancelled in a mechanical manner
without considering whether any supervening circumstances have rendered it
unfavourable to a fair trial to allow accused to retain his or her freedom by enjoying
concession of bail during trial. Leena Dasharath Gavkar Vs. State of Maharashtra, 2024(1)
Bom.C.R (Cri.) 850.
10 TOPICAL INDEX 2024(1)
Cancellation of default bail – Only when a charge-sheet is not filed and investigation is
kept pending, benefit of proviso appended to sub-section (2) of Section 167 of Code would
be available to an offender; once, however, a charge-sheet is filed, said right ceases. Central
Bureau of Investigation Vs. Kapil Wadhawan, 2024(1) Bom.C.R.(Cri.) (S.C.)905.
Cheque dishonour – Allegation that cheque issued towards discharge of liability of
debt of other persons owned by him to complainant, does not survive in absence of
instrument of assignment of debt. IVY Jewellery Pvt. Ltd. Vs. Chandresh Sampat, 2024(1)
Bom.C.R.(Cri.) 651.
Child witness – Some discrepancies in statement of a child witness cannot be made basis
for discarding testimony. Kailash Vithal Waghmare Vs. State of Maharashtra, 2024(1)
Child witness – A mere answer of child that he is deposing as per say of prosecution
itself would not be a ground to doubt his testimony – There is nothing unusual in
prosecutor appraising witness prior to his evidence, more particularly, when witness is
of tender age of 7 years. Harischandra Damu Baldhye Vs. State of Maharashtra, 2024(1)
Bom.C.R.(Cri.) (A.B.)784(B).
Common intention - There is absolutely no material on record to indicate that co- accused
shared a common intention with appellant to commit offence - In absence of any cogent
materials against appellant, impugned judgment and order is set aside. Mohammed Iqbql
Mangu Ismail Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 859.
Criminal breach of trust – Facts clearly reveal that admittedly amount of USD 3 million
was paid by first informant company to accused company – There was thus an entrustment
of property by informant to accused who represented that company would procure and
sell sugar as per agreement – Invoking Section 409 of IPC is justified. Kashinath Pandurang
Jadhav Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 873(A).
Culpable homicide not amounting to murder – To avail benefit of Exception 4 defence is
required to probabilise that offence was committed without premeditation in a sudden
fight, in heat of passion upon a sudden quarrel and offender had not taken any undue
advantage and offender had not acted in a cruel or unusual manner. Santosh Kantilal Kharva
Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)644.
Custody of child – Courts should decide issue of custody only based on what is in best
interest of child. Richard Alexander Nicholas Geary Vs. State of Maharashtra, 2024(1)
Bom.C.R.(Cri.) 549(B).
Default bail – If investigation is concluded within prescribed period, no right accrues to
accused concerned to be released on bail under proviso to section 167(2) of Cr.P.C. Appli-
cants can always avail remedies available in law to redress their grievance as well as
apply for regular bail. Amit Madhukar Bhogale Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.)
209(A).
Default bail – Intention of Legislature seems to be to grant no discretion to Court and to
make it obligatory for it to release accused on bail if investigation cannot be completed
within period stipulated by section 167(2) of Cr.P.C. – If investigation is not completed
within aforesaid period, then even in serious and ghastly types of crimes accused will be
entitled to be released on bail. Amit Madhukar Bhogale Vs. State of Maharashtra, 2024(1)
Bom.C.R.(Cri.) 209(B).
Demand and acceptance of bribe – Admittedly, appellant is not public servant and there-
fore, he could not have been convicted under Section 13(1)(d) read with Section 13(2) of
P.C. Act – Necessary ingredients of abetting offence, not proved as demand, essential
feature of Section 7 of Act, by public servant, itself has not been proved by prosecution –
Conviction of accused under Section 12 of P.C. Act, set aside. Anilkumar Uttareshwar Nilakhe
Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 148.
Detention order – There was variance in version of in-camera statements, with respect to
time and date of incident referred by both witnesses, as recorded in original Marathi lan-
guage, typed version and English translation of said statements – Order of detention quashed.
foll.((1990)1 S.C.C. 606; 2013 B.C.I. (soft)1186; 2016(4) Bom.C.R.(Cri.) 700 . Harvinder @ Chinku
Ajaysingh Labana Vs. Commissioner of Police, 2024(1) Bom.C.R.(Cri.) 118.
Detention order – If detaining authority is of opinion that it is necessary to detain a
person under Act to prevent him from indulging in sale of goods dangerous for human
consumption same should be based on some material and copies of such material should
be given to detenu. Dhanubai @ Dhanno Yashvant Netlekar Vs. State of Maharashtra, 2024(1)
Detention order – Purpose of arrest in respect of crime is aimed at conclusion of the
investigation, whereas, detention of a person under preventive detention law is to prevent
him from indulging in certain activities. Vinod Dhannulal Jaiswal Vs. District Magistrate
Aurangabad, 2024(1) Bom.C.R.(Cri.) (A.B.)862.
Discharge application – At stage of framing of charge Court is required to evaluate ma-
terial and documents on record with a view to finding out if facts emerging there from,
taken at their face value, disclosed existence of all ingredients constituting alleged of-
fence. Central Bureau of Investigation Vs. R. Bhuvaneswari C.N. Venkataraman, 2024(1)
Bom.C.R.(Cri.) 23(A).
Discharge application – Only incriminating material relied upon by prosecution against
him is statement of police official that applicant who is a customer, was found in a room
with victim – Statement of victim was not recorded – It does not disclose existence of
ingredients necessary to constitute offence – Application is allowed. Mahesh Vinayak Patil
Discharge application – Merely because applicant’s premises was in occupation of co-
accused who were indulging in activities which constitute aforesaid offence will not be
sufficient to proceed against applicant unless requirements of Section 3 of PITA Act
necessary to constitute an offence qua applicant-are satisfied. Mahesh Panjabrao Andhale
Discharge application – Duty of Court while deciding same – Stated – While considering
provisions of Section 227 of CrPC, Court is having a duty to sift and weigh all evidence for
limited purpose to find out whether there is any prima facie case to proceed against accused
and to frame charge. Clinton Fernandes Vs. State of Goa, 2024(1) Bom.C.R.(Cri.) (P.B.)854(C).
Discharge of accused – Powers under Section 256, Cr.P.C. not to be exercised only for
purpose of disposing of cases. Rel. on (1998)1 S.C.C. 687. Shabu Bhimappa Dudhale Vs.
Vinayak Appasaheb Padavle, 2024(1) Bom.C.R(Cri.) 473.
Dishonour of Cheque – Cross-examination of complainant – Order of Trial Court, on an
application under Section 145(2), cannot in any manner have effect of defeating absolute
and unqualified right of accused to cross-examine complainant. Rakesh Anand Singh Vs.
Anil Madanmohan Gulati, 2024(1) Bom.C.R.(Cri.) (P.B.)263.
Dishonour of cheque – Petitioners, being independent/professional directors, could not
be said to have been in charge of and were responsible to Company for conduct of busi-
ness of Company when cheques in question were issued – Continuation of proceedings,
under Section 138 against them would be abuse of process of Court. Chirag Janardan Doshi
Dishonour of cheque – Invoking provision under Secyion269SS of IT Act by Magistrate
in while dismissing cheque bounce complaint - Restriction under Section 269SS is on
taker and not on person who makes cash advance of more than 20,000/ - Penalty for
taking such advance or deposit in contravention of provisions of Section 269SS of IT Act
was to be suffered by taker who accepts advance - Magistrate has wrongly invoked afore-
said provisions while dismissing complaint. Arti Rajesh Karangutkar Vs. Anna Rocky
Fernandes, 2024(1) Bom.C.R.(Cri.) 616.
Doctrine of stare decisis – Judgment of majority in 1998 DGLS(SC) 464, which grants
immunity from prosecution to a member of legislature who has allegedly engaged in
bribery for casting a vote or speaking has wide ramifications on public interest, probity in
public life and parliamentary democracy. There is a grave danger of this Court allowing
an error to be perpetuated if decision were not reconsidered. Sita Soren Vs. Union of India,
2024(1) Bom.C.R.(Cri.) (S.C.)699(B).
Enlargement of applicant on bail - Recording of finding mandated under Section 37 of
NDPS Act is a sine qua non for granting bail to an accused under NDPS Act. Shameem
Bano Gulam Kureshi Vs. Union of India, 2024(2) Bom.C.R. (Cri.)899.
Extortion – Twin ingredients are to be satisfied: (i) Intentionally putting a person in fear
of injury to himself or another; (ii) Dishonestly inducing person so put to deliver to any
person any property or valuable security. Abhishek Saxena Vs. State of Uttar Pradesh, 2024(1)
Bom.C.R.(Cri.) (S.C.)100(B).
Extra-judicial confession – Extra-judicial confession is a weak piece of evidence and where
it is not corroborated by any other evidence, accused is entitled to benefit of doubt.
Sameerkumar Prakash Awasare Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 183.
False caste certificate – Forgery – Merely because applicant failed to prove to have be-
longed to Scheduled Tribe, no conclusion can be drawn that tribe certificate was false,
fabricated and forged one. Vilas Gunda Shirolkar Vs. State of Maharashtra, 2024(1)
Bom.C.R.(Cri.) 435.
Framing of charge – Is only on basis of material available in charge sheet itself – Court
cannot look into any other material or even so called affidavit and reply filed by respective
parties in order to come to conclusion whether to frame charge or not – Power are limited
to material which is appended to charge sheet. Clinton Fernandes Vs. State of Goa, 2024(1)
Bom.C.R.(Cri.) (P.B.)854(B).
Framing of charge –When duty is cast upon Court to look into prima facie material and
assume that such material is true on face of it, accused cannot, by taking recourse of
Section 91 of Cr.P.C. seek an order from Court directing production of any document
which according to him proves his innocence. Ravi Laxman Naik Vs. Police Inspector, 2024(1)
Bom.C.R.(Cri.) (P.B.)915.
Issuance of process – Dishonour of cheques with endorsement “payment stopped by
drawers” – Mandate under Section 202 of Cri.P.C. has been ignored by Magistrate while
passing order of issuance of process – Non-observance of aforesaid mandate would vitiates
order. T Ekveera Jewellers Anturli Vs. Shaunak Deepak Kulkarni, 2024(1) Bom.C.R.(Cri.) (A.B.)492.
Lowering of sentence – Only in deserving cases, considering nature of crimes, age and
mitigating circumstances, powers can be exercised by Appellate Courts to lower sen-
tence. Abhay @ Abhi @ Abhya Bhaskar Pore Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.)
(A.B.)451.
Maintenance – If maintenance order passed by Magistrate Court under Section 125 of
Cr.P.C., Revision Court has no power to reassess evidence and substitute its own findings
since questions whether applicant is a married wife, children are legitimate/illegitimate,
are pre-eminently questions of fact. Alka Bhausaheb Bhad @ Alka Dagadu Shelke Vs. Bhausaheb
Ramrao Bhad, 2024(1) Bom.C.R.(Cri.) 572.
Maintenance to divorced wife – Fact of divorce between husband and wife is in itself
sufficient for wife to claim maintenance under Section 3(1)(a) of Muslim Women (Protec-
tion of Rights on Divorce) Act. Khalil Abbas Fakir Vs. Tabbasum Khalil Fakir @ Tabbasum
Gulam Husain Ghare, 2024(1) Bom.C.R.(Cri.) 166.
Murder – Deceased has stated that, it is not only appellant but other three persons jointly
acted upon by pouring petrol and set him on fire – But prosecution failed to explain why
investigation has not extended to investigate about involvement of other three persons
also - Appellant entitled to benefit of doubt. Isaack @ Jeyakaran Issack Vs. State represented
by Inspector of Police, Vellore, 2024(1) Bom.C.R.(Cri.)(J.) (MAD.)17.
Murder – Mere identification of accused on strength of DNA report is itself not sufficient
as there has to be incriminating evidence against appellant to connect him with death,
but we have not noticed any incriminating material and circumstances on reappreciation
and re-evaluation of evidence Ganesh Bhatu Shinde (Patil) Vs. State of Maharashtra 2024(1)
Murder – Premeditation and intention to kill are two vital circumstances amongst others
which are to be considered by Court before holding accused guilty of an offence under
Section 302 of IPC. Santosh Balaji Nagrale Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.)
(N.B.)382.
Murder – To derive benefit of Exception 4 to Section 300 of IPC, it has to be satisfied that
firstly it was a sudden fight, secondly there was no premeditation, thirdly act was done in
a heat of passion, fourthly assailant had not taken any undue advantage or acted in a
cruel manner. Digambar @ Digu Baburao Shirole Vs. State of Maharashtra, 2024(1)
Murder – No sooner deceased spitted, accused got annoyed and suddenly while cutting
wood diverted to deceased and by same axe gave blows - There was total absence of
prearranged plan nor evidence suggests so - Case would squarely fall within Section
299(c), IPC. Ramesh @ Shyam Pandharinath Gawande Vs. State of Maharashtra, 2024(1)
Murder – Felicide – Accused allegedly sat on his 11 years old daughter and strangulated
her to death – Father of accused set law into motion but he turned hostile – However, 7
years old son of accused who witnessed incident supported prosecution case – His evidence
is found creditworthy and reliable – Conviction of accused proper. Harischandra Damu
Baldhye Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)784(A).
Murder – Incident was preceded by a quarrel and even manhandling between parties.
Appellant fished out a knife like weapon and gave its two blows - Incident took place in
a spur of moment - All of them had been to Masjid to offer prayers - Appellant’s case gets
covered by Exception 4 to Section 302 of Indian Penal Code. Aslam Babulal Shaikh Vs. State
of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)842.
Offence by Company – Complaint where company is accused of commission of crime
under Drugs and Cosmetics Act, complainant has to show, by averments in complaint
that directors concerned were either in-charge of or responsible to company for its day to
day management or were responsible for conduct of its business. Rajnikant Gulabdas Patel
Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (N.B.)248.
Offence of bribery – Bribery is not protected by parliamentary privilege – Bribery is not
rendered immune under Article 105(2) of Constitution and corresponding provision of
Article 194 because a member engaging in bribery commits a crime which is not essential
to casting of vote or ability to decide on how vote should be cast. Sita Soren Vs. Union of
India, 2024(1) Bom.C.R.(Cri.) (S.C.)699(A).
Offence of bribery – Investigation by an officer not authorised to investigate offence –
Thus, conviction of appellant is liable to be set aside. Rajaram Banderao Kulkarni Vs. State of
Maharashtra, 2024(1) Bom.C.R.(Cri.) 767.
Offence of Sale of contraband – Possession of contraband is a sine qua non to secure a
conviction under Section 21 of NDPS Act and that such a contraband article should be
recovered in accordance with provisions of Section 50 of NDPS Act, being a statutory
safeguard favouring accused; otherwise recovery itself shall stand vitiated in law. Appel-
lant in Criminal Appeal No. 1933 of 2014 has failed to make out a case for acquittal. Ap-
pellant in Appeal No. 1136 of 2014 is acquitted. Balwinder Singh (Binda) Vs. Narcotics Con-
trol Bureau, 2024(1) Bom.C.R.(Cri.) (S.C.)(35A).
Oral dying declarations – Oral dying declaration would have to be considered as a whole
or would have to be discarded as a whole. Vishnu Jagganath Gund Vs. State of Maharashtra,
2024(1) Bom.C.R.(Cri.) (A.B.)608.
Order of detention – Any non-application of mind by detaining authority would amount
to a breach of constitutional imperative and would render continued detention imper-
missible and illegal. Foll. 2013 DGLS(Bom.) 195; (1990)1 S.C.C. 606. Vilas Ashok Aawale Vs.
State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 447.
Order of detention – Applicability of Section 5A – Section 5A has no application if challenge
on ground of delay, violation of principal of natural justice or violation of Article 22(5) of
Constitution – If grounds of challenge are based on subjective satisfaction, propriety,
sufficiency of incriminating material, Section 5A of Act steps in. Santosh Subhash Koli Vs.
State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)880(B).
Order of externment – There was no explanation by Authorities for abnormal delay in
filing proposal for externment, more than year after last alleged offence – Impugned or-
der on face of it, suffers from arbitrariness. foll. 1988(2) Bom.C.R. 724; 1991(2) Bom.C.R.
85; 2018(3) Bom.C.R.(Cri.) 353. Naushad Ali Shah Vs. State of Maharashtra, 2024(1)
Police custody remand – No explanation is given in application filed by State, seeking
police custody remand of respondents-accused, belatedly – Prosecution has failed to
explain delay of 55 days, in filing application, as mandated by Section 21(7) of MCOC Act
– Rejection of application, proper. State of Maharashtra Vs. Sachin Dhananjay Kulkarni @
Chingya, 2024(1) Bom.C.R.(Cri.) 813.
Powers of writ Court to grant bail – Despite statutory restrictions of Section 21(4) of
MCOC Act, ability of constitutional Court, per se, does not oust its powers to grant bail to
under trials on grounds of violation of part III of Constitution. Laxman Rama Pawar @
Mahakal Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 951.
Preventive detention – If any delay is occurred in disposal of a representation by detenue,
such delay should be explained by appropriate authority to satisfaction of Court. Minakshi
Amol Gedam Vs. District Magistrate, 2024(1) Bom.C.R.(Cri.) (N.B.)633.
Quashing of criminal proceeding under Section 125 Cr.P. – Wife specifically averred in her
complaint that she had no income of her own – This is not fit case for quashing – Petition
dismissed. Subham Roy Choudhury Vs. State of West Bengal, 2024(1) Bom.C.R.(Cri.)(J.) (CAL.)21.
Quashing of FIR – At stage of deciding an application under Section 482 Cr.P.C., it is not
permissible for High Court to go into correctness or otherwise of material placed by pros-
ecution in charge-sheet. Surendrakumar Bhagat Vs. State of Maharashtra, 2024(1)
Bom.C.R.(Cri.) 628.
Quashing of FIR – Serious allegations of embezzlement amounting to Rs. 16,17,833.00,
collected unlawfully from impoverished farmers by Officiating Secretary of Co-operative
Society –Petitioner neither contends that criminal proceedings against him is tainted with
malice nor suggests any ulterior motives in initiation of prosecution – Petition dismissed.
Ajay Rai Vs. State of Uttar Pradesh, 2024(1) Bom.C.R.(Cri.)(J.) (ALLAH.)36.
Quashing of proceeding – When complaint refers to instances of violence and abuse at
stage of cognizance, proceedings cannot be dropped on ground of delay. Shrinath Vijay
Rao Vs. Shraddha Shrinath Rao, 2024(1) Bom.C.R.(Cri.) (P.B.)626.
Quashing of proceeding – Allegation of cruelty by husband and his relatives – Apart
from making a vague statement that husband had demanded a car and cash from her
parents, complainant wife has not given any further details, particularly year in which
such demand was made – Application is allowed. Amarlal Hasomal Lalwani Vs. State of
Maharashtra, 2024(1) Bom.C.R.(Cri.) 934.
Quashing of process – Criminal proceedings are resorted to against applicants for
redressing a grievance of a civil in nature is acceptable – Order of issuance of process, set
aside. Raosaheb Murlidhar Ahire Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 685.
Quashment of FIR – When Order of investigation is made under Section 202 of Cr.P.C.,
such Order is made after taking cognizance of matter and after making such order,
Magistrate cannot make order under Section 156(3) of Cr.P.C. Nandkishor Eknath Kothawade
Rape – Conduct of victim of accompanying accused without raising alarm and further
accompanying him to another district and staying there for a few days without resisting
or raising alarm or attempting to make her escape good - Gives rise to inference that she
was consenting party : Conviction set aside Munja Jijabhau Bhange Vs. State of Maharashtra,
2024(1) Bom.C.R.(Cri.) (A.B.)773.
Rape on minor – Accused allegedly manipulated a minor girl, established physical rela-
tionship with her and made her pregnant – DNA analysis of baby which established that
accused and the victim are biological parents of child – Accused liable to be handled with
stern hands. Omkar Dattatraya Dangat Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 331.
Regular bail in NDPS cases – Seriousness and gravity of crime to be considered - Courts
cannot lose sight of fact that menace of crime of smuggling of contraband drugs is on
increase and therefore, perpetrators of crime who are destroying society and younger
generations rendering them incapacitated by falling prey to drug abuse must be dealt
with iron hands. Sultan Habib Lodhda Vs. State of Gujarat, 2024(1) Bom.C.R.(Cri.)(J.) (GUJ.)41.
Right of victim to appeal – A right accrued to victim to prefer appeal in terms of proviso
to Section 372 is supposed to be exercised against an order passed by Court either acquit-
ting accused or convicting for a lesser offence and none others. Aniket Shahadev Labade Vs.
State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)(F.B.)155(B).
Right to reside in shared household – In view of sub-section (1) of section 17 of DV Act, aggrieved
person had a right to reside in shared household and as such continued to have a subsisting domestic
relationship owning to her marriage and she being daughter in law had a right to reside in
shared household. Rashmi Mehrotra Vs. Manvi Sheth, 2024(1) Bom.C.R.(Cri.) 884.
Sanction to prosecute – Once sanction has been granted, appropriate course for trial Court
would have been to test validity of sanction during trial and not at this stage. Central
Bureau of Investigation Vs. R. Bhuvaneswari C.N. Venkataraman, 2024(1) Bom.C.R.(Cri.) 23(B).
Sanction to prosecute – Granting of sanction is solemn sacrosanct act which affords pro-
tection to Government servants against frivolous prosecutions, there is an obligation on
sanctioning authority to discharge its duty to give or withhold sanction only after having
full knowledge of material facts of case. Prabhat Ram Ambhurkar Vs. State of Maharashtra,
2024(1) Bom.C.R(Cri.) (N.B.)288.
Scheduled offence under PMLA – Conditions precedent for attracting offence under
Section 3 of PMLA are that there must be proceeds of crime in relation to scheduled
offence as defined in Clause (u) of sub-section (1) of Section 3 of PMLA. Sadanand Gangaram
Kadam Vs. Directorate of Enforcement, 2024(1) Bom.C.R.(Cri.) 497(B).
Summoning of accused living beyond jurisdiction – Inquiry contemplated under Section
202(1) Cri.P.C. – In cheque bouncing cases – If Magistrate prefers to hold an inquiry himself,
it shall not be imperative for him to examine witness on oath and in suitable cases, he
may examine documents for satisfying himself, as to sufficiency of grounds for proceeding
under Section 202 of Code. Bansilal S. Kabra Vs. Global Trade Finance Limited, 2024(1)
Bom.C.R.(Cri.) (F.B.)815(A).
Suspension of sentence pending appeal – Power exercisable under Section 389 is different
from that of one either under Section 437 or under Section 439 of Code, pending trial.
Sunil Chhatrapal Kedar Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (N.B.)672.
Transfer of case – Power of High Court to transfer cases and appeals – Section 406 of
Cr.P.C. contemplates that power of transfer is to be used when same is expedient for ends
of justice. Considering availability of transport facilities even for Respondent 1, it is more
convenient to attend Court at Thane than at Junnar, District-Pune. Application is allowed.
Sonika Vishnudas Kadam Vs. Vishnudas Haribhau Kadam, 2024(1) Bom.C.R.(Cri.) 894.
-----
Bom.C.R.(Cri.) JOURNAL SECTION 33
Delay can be condoned if there is no deliberate delay in compliance with Court order
2024(1) Bom.C.R.(Cri.)(J.) 33
(MADRAS HIGH COURT)
Before :
M. Nirmal Kumar, J.
R. David @ Tamilvanan ... Petitioner.
Versus
G. Premalatha & anr. ... Respondents.
Criminal R.C. No. 84 of 2024 & Criminal M.P. No. 683 of 2024, decided on 1-3-2024.
Code of Criminal Procedure, 1973, Sec. 126(2) – Compliance of Court order – Delay in
compliance with Court order – Petitioner met with an accident and took treatment as inpatient, for
that reason only, petitioner could not comply with conditional order – Held, though there was some
delay in compliance with conditional order by petitioner, same is condoned. Petitioner unable to
comply with conditional order due to mistake not by wanton which was not considered by Family
Court. Criminal Revision Case stands allowed. (Paras 10 to 12)
Advocates appeared :
S.L.Venkatesan, for petitioner.
K. Shankar, for respondent.
355.PM/IN/ND/AS/PN
M. NIRMAL KUMAR, J.: – The petitioner filed this criminal revision case to set aside the
Order, dated 28-8-2022 in M.C.No. 685 of 2021 in M.C.No. 526 of 2019 passed by the learned
III Additional Principal Judge, III Additional Principal Family Court at Chennai.
2. The case is that on 12-5-2011, the petitioner between the petitioner and the 1st
respondent was solemnized as per Christian Marriage Act. Thereafter, they were living
as husband and wife in the petitioner’s house. The 1st respondent was unable to with-
stand the ill-treatment given by the petitioner’s mother. Despite the same, the 1st re-
spondent tolerated to protect the matrimonial life. The 1st respondent got conceived and
she went to her parental home for delivery of the child, the 2nd respondent viz., Baby
Tamil Smitha was born to them on 29-1-2012. The petitioner informed that he would find
a new home and would take the respondents, since it was not possible for the respond-
ents to live in a cordial atmosphere with the petitioner's mother. The petitioner filed di-
vorce petition in I.D.O.P. No. 42 of 2014 before the learned Principal District Judge,
Thiruvallur on the ground of cruelty. The 1st respondent denied the allegations and also
sought for reunion. During the month of July 2016, the petitioner informed the 1st respond-
ent that he would withdraw the divorce case and take back the respondents along with him
immediately after identifying a separate home. In the meanwhile, the petitioner was visiting
the respondents occasionally and later, the petitioner failed to visit them and take care of
them. The respondents went to the petitioner’s house where they were prevented by the
petitioner’s mother informing that there is no relationship between them as husband and
wife and an ex parte order in I.D.O.P. No. 42 of 2014 was decreed on 29-1-2016.
3. The 2nd respondent is now studying in M/s. Jessy Moses School, Anna Nagar
and the 1st respondent had to meet out the fee around one lakh apart from uniform,
books and transport charges and others expenses. The 1st respondent having no source
34 JOURNAL SECTION 2024(1)
to support the 2nd respondent, filed a maintenance petition in M.C.No. 526 of 2019. The
petitioner is employed in Southern Railway as Senior AC Technician having monthly
income of Rs. 55,000/- to Rs. 60,000/-. In the said maintenance case, the petitioner was set ex
parte on 3-2-2020. The Family Court awarded the decree against the petitioner directing to pay
maintenance of Rs. 15,000/- per month from 30-8-2019. Thereafter, the respondents filed a
petition seeking attachment of the petitioner’s salary in M.P.No. 380 of 2022. On 14-10-2022,
the attachment was ordered. In the meanwhile, the petitioner filed M.P.No. 685 of 2021 under
section 126(2) Cr.P.C., to set aside the exparte order in M.C.No. 526 of 2019, dated 30-2-2022.
The Family Court passed conditional Order on 23-12-2021 directing the petitioner to pay a
sum of Rs. 2,25,000/- on or before 27-1-2022. But this conditional order was not complied with.
Instead the petitioner filed a petition to set aside the conditional order. Since the conditional
order was not complied, the request of the petitioner was rejected by Order, dated 28-8-2022,
against which, the petitioner filed the above Criminal Revision Case.
4. The learned Counsel for the petitioner submitted that the Family Court not consid-
ered the COVID-19 period and the delay in complying with the order. Added to it, the
petitioner met with an accident on 6-12-2021 and took treatment at Government Hospi-
tal, Poonamallee and thereafter for further treatment at MIOT International Hospital as
inpatient. To substantiate the same, the petitioner produced the copy of the FIR in Crime
No. 967 of 2021 and the medical records of MIOT International Hospital to show that the
petitioner took treatment as inpatient from 6-12-2021 to 22-12-2021 and also continued
treatment as outpatient.
5. The learned Counsel further submitted that the petitioner was not aware about
the exparte order passed in M.C.No. 526 of 2019 and no notice was served to him. On 2-8-
2021, the 1st respondents along with four others trespassed into the house of the petitioner,
threatened the petitioner’s parents and his brother and forced them to settle the house prop-
erty of the petitioner and also demanded Rs. 25,00,000/- immediately leaving the 2nd re-
spondent in the petitioner’s house and lodged a complaint as though the petitioner kidnapped
the minor child. At that time only, the petitioner came to know about the exparte maintenance
order. On 3-8-2021, he lodged a complaint to the Police and CSR assigned. The petitioner and
the respondents called for enquiry and both were advised to approach the Family Court to
seek their remedy. After gaining knowledge about the exparte order in M.C.No. 526 of 2019,
the petitioner filed Crl.M.P. No. 685 of 2021 to set aside the ex parte order and the order came
to be passed on 23-12-2021. In the meanwhile, as stated above, the petitioner met with an
accident and took treatment as inpatient from 6-12-2021 to 22-2-2021. For that reason only,
the petitioner could not comply with the conditional order.
6. He further submitted that on 20-12-2023, the petitioner deposited the cheque
bearing No. 662448, dated 20-12-2023 for a sum of Rs. 1,00,000/- Due to the injury sus-
tained, his routine life is in a disarray, the petitioner was not sure about the balance in his
bank account. When the petitioner received information from the bank, there is no suffi-
cient funds to honour the cheque of Rs. 1,00,000/-. Immediately, on 21-12-2022, the peti-
tioner took a demand draft bearing No. 869457 for Rs. 1,00,000/- and presented the de-
mand draft before the Family Court. The Family Court refused to receive the same since
the cheque of the petitioner earlier got dishonoured and finding, the order of the Family
Court not complied with. The petition of the petitioner dismissed. The petitioner unable
to comply with the conditional order due to mistake not by wanton which was not con-
sidered by the Family Court.
7. He further submitted that the petitioner filed divorce petition in I.D.O.P. No. 42
of 2014 on the ground of cruelty and an exparte Order passed on 29-1-2016. Challenging
the same, the 1st respondent filed CMA with a delay of 1,078 days and this Court, by
judgment, dated 17-7-2019 dismissed the same and the divorce granted attains finality as
on date. The petitioner produced the pay slip showing that his gross pay is around Rs.
73,967/- and recoveries including the Court attachment of Rs. 25,000/- is Rs. 56,380/-.
8. It is further submitted the petitioner is in need of continuous medical treatment
for the head injury suffered due to accident and sustained huge expenditure. Added to it,
the petitioner has to take care of his aged parents and meet their expenditure. He also
availed loan from his salary and after deduction from salary and the expenditures, he is
getting a meager income. If the attachment of his salary continues, the petitioner will receive
meager income and it will be difficult for him to maintain his day to day life. If the ex parte
order is set aside, he can put forth his case and explain the reasons for the respondents' volun-
tarily leaving the matrimonial home. He further submitted that the Family Court passed the
conditional order setting aside the ex parte order in the maintenance case for the reason that
the petitioner to be given a fair chance to defend his case. In view of the above, the petitioner’s
fair chance is denied. Hence, prayed for setting aside the order passed in M.P. No. 685 of 2021
in M.C. No. 526 of 2019, dated 23-12-2021 and 28-8-2022.
9. The learned Counsel for the respondents submitted that the petitioner filed this
criminal revision case with a delay of 146 days. At the stage of admission, the learned
Counsel for the respondents narrated the sequence of events and submitted that the peti-
tioner had been deliberately and wantonly delayed the payment of the maintenance
amount. The petitioner in a deceitful manner obtained exparte order of divorce and tak-
ing advantage of the same, he completely disowned both the respondents. He further
submitted that the 1st respondent filed a petition in M.P. No. 380 of 2022 in M.C.No. 526
of 2019 seeking to attach the petitioner’s salary for non-compliance of the maintenance
order. On 14-10-2022, the Family Court ordered attachment of salary, thereafter only, the
petitioner filed the present petition. The 1st respondent is not averse to set aside the ex
parte order provided petitioner's complies to the conditional order. This Court, by order,
dated 5-1-2024 directed the petitioner to deposit Rs. 1,00,000/- by way of demand draft
and the 1st respondent to withdraw the same. It is reported that the petitioner complied
with the order of this Court, dated 5-1-2024.
10. He further submitted that in view of the further development that the petitioner
met with an accident, sustained head injury and was in medical treatment, the condi-
tional order earlier passed by the Family Court to pay 50% of the arrears amount deduct-
ing the payment of Rs. 1,00,000/- if paid, the petitioner's prayer for setting aside the ex
parte order can be considered.
11. Considering the submissions and on perusal of the materials, it is seen that the
petitioner met with an accident on 6-12-2021 and took treatment as inpatient in MIOT
International Hospital from 6-12-2021 to 22-12-2021 and further visits hospital for con-
tinuous treatment due to serious head injury which needs regular medical care. Though
there was some delay in compliance with the conditional order by the petitioner, in view of
the above, the same is condoned. In this case, the petitioner already deposited Rs. 1,00,000/-.
12. In view of the above, the petitioner is directed to deposit the balance amount of
Rs. 1,25,000/- within a period of two months, from the date of receipt of a copy of this
order. The ex parte order passed in M.C. No. 526 of 2019, dated 3-2-2020 is hereby set aside
and consequential orders passed thereto are also set aside. The petitioner is directed to
pay a sum of Rs. 5,000/- each to the 1st & 2nd respondents in total Rs. 10,000/- towards
interim maintenance every month on or before 5th day of every English calender month
till the final order is passed in M.C. No. 526 of 2019. Of course, after giving opportunity to
both the petitioner and the respondents to put forth their case.
13. In the result, this Criminal Revision Case stands allowed. The learned III Addi-
tional Principal Judge, III Additional Principal Family Court at Chennai is directed to
complete the maintenance case in M.C. No. 526 of 2019 as expeditiously as possible. The
petitioner and the respondents are directed to co-operate for speedy disposal of the main-
tenance case. Consequently, the connected Miscellaneous Petition is closed.
Petition allowed.
-----
Quashing of FIR
2024(1) Bom.C.R.(Cri.)(J.) 36
(ALLAHABAD HIGH COURT)
Before :
Vivek Kumar Birla & Vinod Diwakar, JJ.
Ajay Rai ... Petitioner.
Versus
State of Uttar Pradesh & ors. ... Respondents.
Criminal Misc. Writ Petition No. 17595 of 2023, decided on 11-1-2024.
Code of Criminal Procedure, 1973, Sec. 482 – Quashing of FIR – Serious allegations of
embezzlement amounting to Rs. 16,17,833.00, collected unlawfully from impoverished farmers by
Officiating Secretary of Co-operative Society – Registration of F.I.R. follows a conclusive
determination of embezzlement by a three-member committee – No substantive reasons have been
offered by petitioner’s counsel to dispute findings of this committee, which serves as basis for
impugned F.I.R. – Petitioner neither contends that criminal proceedings against him is tainted
with malice nor suggests any ulterior motives in initiation of prosecution. (Para 20)
Advocates appeared:
Awadhesh Kumar Malviya, for petitioner.
Rajesh Kumar Madhesia, for respondents.
122.PM/IN/SG/AS/PN
Per VIVEK KUMAR BIRLA, J.: – Heard Shri Awadhesh Kumar Malviya, learned Counsel
for the petitioner, Shri Rajesh Kumar Madhesia, learned State Law Officer for the State-
respondents, and perused the record.
2. By way of the instant petition, the petitioner has challenged the legality and
correctness of the impugned F.I.R. registered as Case Crime No. 0182 of 2023, under section
409 IPC at P.S. Dullahpur, District Ghazipur.
3. In brief, the prosecution case is that during an inspection by the Additional District
Co-operative Officer at Sikhadi Samiti, the Officiating Secretary i.e. the petitioner was observed
engaging in certain illegalities. Immediately, the matter was reported to the Chairman of the
Samiti, leading to the petitioner's suspension. Subsequently, vide order dated 23rd November,
2022, by invoking section 66 of the Uttar Pradesh Co-operative Societies Act, 1965, a detailed
inquiry was conducted by a three-member committee. The findings of the inquiry revealed
that the petitioner had misappropriated a sum of Rs. 16,17,833/-.
4. In support of the prayer, learned Counsel for the petitioner has made the following
submissions:
4.1 The petitioner has been falsely implicated by the department with ulterior motives.
4.2 Upon reading the F.I.R., no offence under section 409 IPC is made out at its face.
4.3 The registration of the F.I.R. is in contravention of the Government Order dated
16.8.2000, which stipulates that in such cases, the Regional Deputy Commissioner, Co-
operative, Varanasi, is empowered to register the F.I.R. However, in this instance, the
impugned F.I.R. was registered based on the complaint of the Additional District Co-
operative Officer, Jakhniya, Ghazipur.
4.4 The petitioner asserts that, in accordance with sections 103 and 105 of the Uttar
Pradesh Co-operative Societies Act, 1965, requisite approval from the Registrar, Co-
operative, was not obtained prior to the registration of the impugned F.I.R.
4.5 The petitioner emphasizes that sections 16 and 17 of the Uttar Pradesh Co-operative
Societies Act, 1965, providing for arbitration proceedings have not been invoked as a remedy.
4.6 No inquiry was conducted prior to the registration of the impugned F.I.R. as
required under section 65(2) of the Uttar Pradesh Co-operative Societies Act, 1965.
5. Per contra, learned A.G.A. submits that during on-the-spot inspection by the
Additional District Co-operative Officer at Sikhadi Samiti, illegalities were noted. The
complainant, satisfied with prima-facie evidence of the petitioner's involvement in
embezzlement and illegal recovery of loan amounts from the farmers, constituted a
committee comprising three members. The committee's report, dated 17.10.2022, reveals
findings on five points, indicating the petitioner's engagement in the illegal recovery and
embezzlement of funds. The committee scrutinized the ledgers of 56 account holders,
revealing significant irregularities in the pass-books, with substantial differences in the
amounts disbursed and subsequently recovered. Serious allegations against the petitioner,
evident from the F.I.R. and the inquiry report, establish the ingredients of a cognizable
offense. The investigation is in their preliminary stages, and no intervention in writ
jurisdiction is deemed necessary by this Court at this juncture.
6. For the sake of clarity, sections 65(2), 68, 105 and 106 of the Uttar Pradesh Co-
operative Societies Act, 1965 are reproduced herein below:
"Section 65. (2) An inquiry of the nature referred to in sub-section (1) shall be held by the
Registrar or by a person authorized by him in writing on this behalf on the applica-
tion of- (a) a cooperative society to which the society concerned is affiliated; (b) not
less than one-third of the total members of the society; (c) a majority of the members
of the committee of management of the society.
Section 68. (1) If in the course of an audit, inquiry, inspection or the winding up of a coop-
erative society, it is found that any person who is or was entrusted with the organiza-
tion or management of such society or who is or has at any time been an officer or an
employee of the society, has made or caused to be made any payment contrary to this
Act, the rules or the bye-laws or has caused any deficiency in the assets of the society
by breach of trust or willful negligence or has misappropriated or fraudulently re-
tained any money or other property belonging to such society, the Registrar may of
his motion or on the application of the committee, liquidator or any creditor, inquire
himself or direct any person authorized by him by an order in writing in this behalf to
inquire into the conduct of such person; Provided that no such inquiry shall be com-
menced after the expiry of twelve years from the date of any act or omission referred to in
this sub-section. (2) Where an inquiry is made under sub-section (1), the Registrar may,
after affording the person concerned a reasonable opportunity of being heard, make an
order of surcharge requiring him to restore the property or repay the money or any part
thereof, with interest at such rate, or to pay contribution and costs or compensation to
such an extent as the Registrar may consider just and equitable. (3) Where an order of
surcharge has been passed against any person under sub-section (2) for having caused
any deficiency in the assets of the society by breach of trust or willful negligence, or for
having misappropriated or fraudulently retained any money or other property belong-
ing to such society, such person shall, subject to the result of appeal, if any, filed against
such order, be disqualified from continuing in or being elected or appointed to an office
in any cooperative society for five years from the date of the order of surcharge.
Section 105. (1) No court inferior to that of a stipendiary magistrate of the first class shall try
any offence under this Act. (2) No prosecution shall be instituted under this Act without
the previous sanction of the Registrar, and such sanction shall not be given without af-
fording the person sought to be prosecuted an opportunity to present his case.
Section 106. No person other than a cooperative society shall trade or carry on business under
any name or title of which the word Sahkari or its equivalent in English, cooperative
forms part, Provided that nothing in this section shall apply to the use by any person or
his successor in interest of any name or title under which he carried on business at the
date on which the Cooperative Societies Act, 1912, had come into operation."
7. The First Information Report, stands as an indispensable document in the realm
of criminal justice. It serves as the linchpin, marking the commencement of criminal
proceedings and facilitating the subsequent investigation into alleged offenses. The legal
foundation for registration of F.I.R. is firmly grounded in sections 154 and 155 of the Code
of Criminal Procedure, which delineate the procedure and authority for lodging an F.I.R.
section 154 of the Cr.P.C. lays down the mandate for the registration of an F.I.R. It
underscores the obligation of the police to register an F.I.R. upon receiving information
about the commission of a cognizable offense. This provision encapsulates the immediacy
and compulsoriness with which the F.I.R. must be lodged to set the criminal justice
machinery in motion promptly by the informant. Section 155 provides certain exceptions
in cases where there might be a delay in lodging the F.I.R. due to exceptional circumstances.
Despite this, the general thrust of section 154 emphasizes the expeditious registration of
the F.I.R. to ensure the prompt initiation of the investigative process. The conjoint reading of
sections 154 & 155 of Cr.P.C. explicitly state that anyone possessing knowledge about the
commission of a cognizable offense has the authority to file an F.I.R. This includes not only the
victim or an eyewitness but also any person who becomes cognizant of the offense, extending
even to Police Officers themselves. The universality of the authority to lodge an F.I.R. is a
foundational principle ensuring that the criminal justice system remains accessible to those
with information about potential criminal acts. This inclusivity empowers informants
comprising victims, eyewitnesses, and even law enforcement officers to initiate the process,
fostering a collaborative and comprehensive approach to crime reporting. In essence, the
legal framework governing the registration of F.I.R. is intricately woven into the fabric of
criminal justice. Sections 154 and 155, in conjunction with numerous judgments of the Supreme
Court, establish the foundation upon which the F.I.R. stands as an essential document initiating
the process of criminal justice. The universal authority granted to individuals, including victims,
eyewitnesses, and even Police Officers, underscores the inclusive nature of the F.I.R. registration
process, ensuring the swift and effective administration of justice.
8. In Lalita Kumari Vs. Government of Uttar Pradesh and others, a watershed judgment on
the guiding principle for registration of the F.I.R. makes it clear that the Police Officer is under
the authority of law to register an F.I.R. on receipt of information of a cognizable offence. The
Police Officer cannot avoid his duty of registering the F.I.R. if a cognizable offence is disclosed.
The object sought to be achieved by registering the earliest information as F.I.R. is,
among other things, two-fold: i) that the criminal process is set into motion and is well
documented from the very start, and ii) that the earliest information received in relation
to the commission of cognizable offence is recorded so that there cannot be any
embellishment etc. One way of keeping a check on the authorities with such power is by
documenting every action of theirs. Accordingly, under the Code of Criminal Procedure,
police actions are provided to be written and documentary.
9. It is noteworthy that whenever an F.I.R. is registered, it does not mean that the investigation
is mandatory to be commenced, and there are no inbuilt safeguards with the Code to prevent a
likelihood of misuse. In Dilawar Singh Vs. State of Delhi, 2007(12) S.C.C. 641, it is held that even if an
F.I.R. has been registered and the police have commenced the investigation, the aggrieved person
may approach the Magistrate under section 156(3) Cr.P.C. to seek an order for proper investigation.
In this regard, the reliance is also placed in Abhay Gupta Vs. State of U.P.
10. If there is sufficient evidence to corroborate the complainant's allegations, the
charge-sheet is filed, or else, a final report mentioning that no evidence was found could
be filed in the Court.
11. Shri Malviya's primary contention is that the complainant has no authority to
register the impugned First Information Report, as per the provisions outlined in the
notification dated 16.8.2000 issued by the office of the Registrar, Co-operative Societies,
Uttar Pradesh. According to the said notification, the power to register the F.I.R. in instances
of embezzlement involving Rs. 25000/- or more is exclusively vested in the Regional Deputy
Commissioner, Co-operative. In the instant matter, the F.I.R. has been registered by the
Additional District Cooperative Officer, thus contravening, according to the petitioner,
the stipulations set forth in the aforementioned notification.
12. In this context, it is prudent to assert that an administrative order lacks the
authority to conclusively establish or adjudicate the rights of the parties involved. Rather,
these orders are confined to considerations of policy regulation and expediency- subjective
elements within the discretion of the Administrative Officer. The distinction between
administrative and judicial processes becomes evident as administrative determinations
are usually applied to matters situated within the realm of public policy, a conceptualization
of law seen as inherently inflexible. In contrast, the adjudication of legal rights is explicitly
reserved for the judicial domain, representing a crucial departure from the more adaptable
and policy-oriented nature of administrative decisions. A crucial distinction emerges is that
legal rights fall squarely within the realm of judicial functions. Judicial determinations, in
contrast to administrative orders, are contemplated as mechanisms for definitively deciding
legal rights. Courts are equipped with the authority, procedural frameworks, and legal
principles necessary for resolving disputes and determining the rights and obligations of
parties involved. The administrative decisions are driven by the discretionary powers of the
administrative officer. This subjectivity introduces an element of flexibility that may not align
with the precision and rigidity often associated with the adjudication of legal rights.
13. Learned Additional Government Advocate has drawn our attention to the order dated
23-10-2023 emanating from the office of the Assistant Commissioner-cum-Assistant Registrar, Co-
operative. In this directive, the Assistant Commissioner specifically instructs the Additional District
Co-operative Officer to initiate the process for registration of the First Information Report against
the petitioner in the present case. Essentially, the Assistant Commissioner has delegated his authority
to the Additional District Co-operative Officer for the purpose of registering the F.I.R., therefore, the
petitioner's argument has no legal strength and is thus misplaced.
14. The combined examination of the concept of delegated legislation in
administrative jurisprudence and the guiding principles derived from Lalita Kumari's case
(supra) judgment clarifies that registration of F.I.R. by the Assistant Commissioner or Additional
District Co-operative Officer is inconsequential. The crucial consideration lies in determining
weather the contents of the F.I.R. forms part of the cognizable offence or not.
15. The second noteworthy argument of the petitioner's counsel is non-compliance
of sections 16, 17, 65(2), 68, 103 and 105 of the Uttar Pradesh Co-operative Societies Act,
1965 before registration of the impugned FIR.
16. The legal mandates delineated in the Uttar Pradesh Co-operative Societies Act
of 1976 underscore various procedural aspects and criteria pertinent to Co-operative
Societies. Section 16 specifically prescribes the procedure for the division of assets and
liabilities of these societies, while section 17 delineates eligibility criteria for individuals
seeking membership in Co-operative Societies. Section 65 imposes a mandatory inquiry
by the Registrar into the constitution, functioning, and financial condition of the Co-
operative Society, and section 68 empowers the Registrar to initiate an inquiry, either on
his own motion or in response to an application from the Committee, Liquidator, or any
Creditor. This authority extends to directing an appointed individual, through written
order, to investigate the conduct of the concerned person.
17. Furthermore, section 103 addresses offenses and penalties within the purview of the Co-
operative Societies Act, and section 105 establishes a crucial procedural safeguard, stipulating that
no prosecution under the Act shall be initiated without the prior sanction of the Registrar.
18. These statutory provisions, collectively governing the affairs of Co-operative
Societies registered under the Act, align with the overarching objective of the legislation.
The enactment of the Co-operative Societies Act is rooted in the intent to shield farmers
from exploitation by traditional middlemen, ensuring they receive fair prices for their
produce and safeguarding their economic interests. The Co-operative Department's vision
dovetails with these objectives, aiming to facilitate accessible credit to farmers through
co-operative societies on equitable terms.
19. In light of the stated aims and objectives of the Co-operative Societies Act of
1965, it is reasonably deduced that the registration of the impugned First Information
Report in the present case does not prima facie contravene any provisions of the Act. The
regulatory framework appears to be in consonance with the broader objectives of shielding
the agricultural community from exploitation and promoting their economic well-being
through co-operative initiatives. In the wake of the aims and objective of the Act, it could
be safely concluded that no provisions of the Co-operative Societies Act, 1965 have prima
facie been violated for registration of the impugned F.I.R. in the instant case.
20. Lalita Kumari case (supra) explicitly emphasizes the mandatory nature of First
Information Report registration, as outlined in section 154 of the Code of Criminal Procedure.
The Uttar Pradesh Co-operative Societies Act, 1965 remains silent on the specific procedure
for registering an F.I.R. in cases involving embezzlement of society funds and the illicit recovery
of credit from farmers, therefore, general legal principles in the regards would be applicable.
The petitioner neither contends that the criminal proceedings against him is tainted with
malice nor suggests any ulterior motives in the initiation of the prosecution.
21. Furthermore, the petitioner fails to align their case with any of the seven illustrations
provided in the landmark judgment of State of Haryana and others Vs. Bhajan Lal and others,
which delineates circumstances warranting the quashing of criminal proceedings.
22. Turning to the facts of present case, serious allegations of embezzlement
amounting to Rs. 16,17,833.00, collected unlawfully from impoverished farmers by the
Officiating Secretary of the Samiti, form the crux of the matter. The registration of the
F.I.R. follows a conclusive determination of embezzlement by a three-member committee.
No substantive reasons have been proffered by the petitioner's counsel to dispute the
findings of this committee, which serves as the basis for the impugned F.I.R. In the legal
context, the delegation of the power to register the F.I.R. holds no consequential weight,
both in light of Lalita Kumari case (supra) and on broader legal grounds.
23. As the investigation is in its initial stages, the extraordinary power vested in this
Court under Article 226 of the Constitution of India to quash the F.I.R. is deemed
unwarranted given the current facts-circumstances.
24. The instant petition is devoid of merits, and hence dismissed.
Petition dismissed.
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Showing leniency in serious matters would be really a case of misplaced sympathy
2024(1) Bom.C.R.(Cri.)(J.) 41
(GUJARAT HIGH COURT)
Before :
Divyesh A. Joshi, J.
Sultan Habib Lodhda ... Applicant.
Versus
State of Gujarat ... Respondent.
R/Criminal Misc. Application (For Regular Bail-After Charge-sheet) No. 20310 of 2023,
decided on 1-3-2024.
Narcotics Drugs & Psychotropic Substances Act, 1985, Secs. 8(c ), 21(c), 23(c), 25 & 29 –
Code of Criminal Procedure, 1973, Sec. 439 – Regular bail – Seriousness and gravity of crime to be
considered – Upon searching boat, total 56 small packets in three polythene bags of heroin were found –
Courts cannot lose sight of fact that menace of crime of smuggling of contraband drugs is on increase
and therefore, perpetrators of crime who are destroying society and younger generations rendering them
incapacitated by falling prey to drug abuse must be dealt with iron hands – Held, such types of offences
are to be dealt with severity and with heavy hands. Showing leniency in such matters would be really a
case of misplaced sympathy. Application is rejected. (Paras 18 to 20)
Cases Referred :
1. Tofan Singh Vs. State of Tamil Nadu, 2020 DGLS(SC) 591 : A.I.R. 2020 S.C. 5592.
2. Union of India Vs. Ram Samujh, 1999 DGLS(SC) 908 : 1999(9) S.C.C. 429.
3. Durand Didier Vs. Chief Secy., Union Territory of Goa, 1990(2) Bom.C.R. 31(S.C.) : 1990(1) S.C.C. 95 :
1990 S.C.C.(Cri) 65.
4. Union of India Vs. Shiv Shanker Kesari, 2007 DGLS(SC) 1023 : 2007(7) S.C.C. 798.
5. Union of India Vs. Md. Nawaz Khan, 2021 DGLS(SC) 490 : 2021(10) S.C.C. 100.
6. Radhe Sham Ashok Kumar Vs. UT of Jammu & Kashmir, B.A. No. 331/2022, dt. 17-4-2023.
Advocates appeared:
Nasir Saiyed, (6145), for applicant(s) No. 1.
Mrs. Mumtaz Saiyed, (5187), for applicant(s) No. 1.
Ronak Raval, LD. A.P.P, for respondent(s) No. 1.
353.PM/IN/ND/AS/PN
DIVYESH A. JOSHI, J.: – The present application is filed under section 439 of the Code
of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.
III-02 of 2022 registered with the Anti-Terrorist Squad Police Station, Ahmedabad of the
offence punishable under sections 8(c), 21(c), 23(c), 25 and 29 of the Narcotics Drugs &
Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act").
BRIEF BACKGROUND
2. The complaint was filed on 26-4-2022 through J.M. Patel, Police Inspector, Anti-Ter-
rorist Squad, Ahmedabad stating that on 23-4-2022 Shri Bhavesh P. Rojiya, Deputy Superin-
tendent of Police, received a secret information at 20:00 hours that one Mustufa Aiyub Miyana
of Karachi Pakistan has supplied a huge cache of narcotic substance heroin in a rowboat
called 'Al-Haj' to be delivered to one person named Kali on 24-4-2022 between 22:00 and 24:00
hours in the night at Channel No. 88 of VHF Radio which comes within the coastal territory of
Jakhau Port, India, which narcotic substance would then be delivered to one Avtarsingh and
Raj hailing from Okhla Vihar, South Delhi. The information was reduced into writing and
forwarded to Shri Sunil Joshi, Superintendent of Police, A.T.S., Gujarat.
2.1 Acting upon such tip-off, a combined team of A.T.S. officers and the coastguard
police of Jakhau Port was formed.
2.2 Then, the members of the raiding party, after following due procedure of raid,
decided to conduct a joint operation and reached at the pointed place in the mid-sea in a
rowboat and kept a watch of the hinted boat coming from Pakistan by shutting down the
lights of the boat. While in surveillance, on 25-4-2022 at around 00:15 hours, upon hearing
some conversation in Hindi language on Channel No. 88, the navigation light of the boat
got on and when seen towards the radar area, one boat carrying a Pakistani flag boarded
with about eight to ten persons was found near to the boat of the coastguard in a suspi-
cious condition. Therefore, it was announced on a loudspeaker to the onboard persons in
the Pakistani boat not to move, however, they did not pay any heed to such an announce-
ment and sailed the boat towards the coastal territory of Pakistan in an excessive speed.
They were chased by the members of the A.T.S and though several rounds were fired,
they did not stop. However, due to an excessive speed, the engine of the Pakistani boat
got ablaze and, therefore, all the onboard persons in the Pakistani boat stopped the boat,
raised their hands and surrendered to the police.
2.3 Thereafter, some members of the raiding party went to the Pakistani boat where total nine
Pakistani nationals named in the FIR were found in the boat. A search was conducted in the pres-
ence of a gazetted officer in view of the provisions of section 50 of the NDPS Act but nothing
objectionable was recovered in the course of the personal search. However, upon searching the
boat, total 56 small packets in three polythene bags were found. Thereafter, when the accused
persons were asked about the narcotic substance found from the packets in Hindi language, they
admitted it to be heroin. Then, samples were taken and upon testing with the drug detection kit, the
samples tested positive for heroin. Hence, the present FIR.
2.4 The application for bail moved by the applicant-accused was rejected by the 6th
Additional Sessions Judge & Special Judge (NDPS), Bhuj-Kachchh on 21-7-2023, observing
that a huge commercial quantity of heroin was recovered and that having regard to the seri-
ousness and gravity of the crime, no case for the grant of bail was established. The applicant
is, thus, before this Court.
Submissions on behalf of the applicant-accused:-
3. Learned Advocate Mr. Nasir Saiyed representing the applicant-accused has sub-
mitted that the applicant-accused was arrested on 13-10-2022 and since then he is in jail.
Learned Advocate Mr. Saiyed has also submitted that in the present case, investigation
has already been completed and charge-sheet has also been filed. It is moreso submitted
that initially the first information report came to be lodged against in all total thirteen
persons including four fugitives wherein the name of the present applicant-accused is
not mentioned anywhere. However, subsequently, during the course of investigation, on
the basis of the statement of the co-accused, the present applicant-accused has been im-
plicated in the present offence by filing supplementary charge-sheet. Learned Advocate
Mr. Saiyed has further submitted that the present applicant-accused has been booked in
the present case solely on the ground that earlier somewhere in the Month of November,
2021, he obtained the delivery of 15 kg heroin supplied from Pakistan by the very same
person, namely, Mustufa Aiyub Miyana. It is also submitted that except that, no otehr
specific role has been attributed to the present applicant-accused in the present offence. It
is further submitted that the present applicant-accused was neither found in conscious
possession with the contraband substance nor was caught by the police on the spot. Even
the name of the applicant-accused is not there in the list of fugitive accused persons. It is
moreso submitted that the only allegation against the present applicant-accused is that
earlier in the yeare 2021, he obtained a delivery of 15 kg heroin from same person. Learned
Advocate Mr. Saiyed has further submitted that except the same, no other incriminating ma-
terial is found agaisnt the applicant-accused connecting him with the present offence. The
contraband substance was neither found from the conscious possession of the applicant-ac-
cused nor he was caught red-handed by the police along with the narcotic substance. Lastly,
learned advocate Mr. Saiyed argued that the statement of other co-accused and the accused
recorded under Section 67 of the NDPS Act is inadmissible and cannot be relied upon to
implicate the applicant. To buttress this argument, he placed reliance on the judgement of
(Tofan Singh Vs. State of Tamil Nadu)1, 2020 DGLS(SC) 591 : A.I.R. 2020 S.C. 5592.
4. In such circumstances, referred to above, learned Advocate Mr. Saiyed prays that there
being merit in his application, the same be allowed and the applicant-accused be released on bail.
Submissions on behalf of the Respondent-State:-
5. The learned A.P.P. Mr. Ronak Raval appearing on behalf of the respondent-State
has opposed grant of regular bail looking to the nature and gravity of the offence. Learned
A.P.P. Mr. Raval has submitted that the case on hand is very serious in nature. More than
a huge quantity of heroin is tried to be brought into India via sea route from the neighboring
country. Learned A.P.P. Mr. Raval has also submitted that earlier in the year 2021, similar
kind of offence had been committed by the accused persons where 15 kg of heroin was
supplied by the very same Pakistani dealer to the present applicant-accused which was
successfully collected by the applicant along with the other accused persons from the
mid-sea. At that time, the present applicant along with the other co-accused even went
within the coastal territory of Pakistan. In the earlier transaction, the narcotic substance
was successfully brought into India which was then sold out by the accused in the differ-
ent areas of Ahmedabad city. It is also submitted that in the earlier transaction, the present
applicant-accused had received a huge amount of Rs. 7,00,000/- through one Angadiya
firm which is evident from the statements of witness Asif Abdullah Alimohammed and
the staement of the partner of Ganpati Angaidya firm Shri Ganeshbhai Vinaji as well as
from the statements of certain other witnesses. Learned A.P.P. Mr. Raval has further sub-
mitted that the present applicant-accued is the key accused at whose instance, the entire
conspiracy was hatched by all the accused persons. The presnet applicant- accused is the
kingpin of the entire episode. Learned A.P.P. Mr. Raval submits that the evidence in the
form of Call Data Record further clamped down on the applicant-accused strongly indi-
cating his nexus with the commission of the present offence which reveals the voice con-
versation between the applicant-accused and the Pakistani dealer Mustufa Aiyub Miyana
as well as with the other fellow accused persons.
6. Mr. Raval, the learned A.P.P. lastly submitted that apart from the ratio enunciated
by the Hon'ble Supreme Court in Tofan Singh (supra) as regards the confessional state-
ment of the accused before the police, there are three crucial circumstances which cannot
be lost sight of by the Court while deciding the bail application, namely:
(i) A huge contraband of heroin weighing 56 kg has been recovered by the police and,
therefore, rigors of section 37 of the NDPS Act would also come into play.
(ii) Earlier, in the similar kind of activity, the applicant-
accused was admittedly invovled and went all the way from Jakhau port from India to the
coastal territory of Pakistan along with the other co-accused and collected the nar-
cotic substance;
(iii) The Investigating Officer collected the call data records of the cell phones used by the accused
persons. The applicant-accused persons was found to have been in touch with each other;
7. In such circumstances, referred to above, learned A.P.P. prays that there being no
merit in the present application, the same be rejected.
ANALYSIS
8. Having heard the learned Counsel appearing for the parties and having gone
through the materials available on record, the only question that falls for my considera-
tion is whether discretion should be exercised in favour of the applicant-accused indicted
for the offence under the NDPS Act?
9. My answer to the aforesaid question is in the negative for the following findings;
Object of the Act.
10. Let me first analyze the provisions and objective of the NDPS Act. Section 37 of
the Act reads as under:
"37. Offences to be cognizable and non-bailable. -
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for [offences under section 19 or section 24
or section 27A and also for offences involving commercial quantity] shall be released
on bail or on his own bond unless--
(i) the Public Prosecutor has been given an opportunity to oppose the application for
such release, and
(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there
are reasonable grounds for believing that he is not guilty of such offence and that he
is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in Clause (b) of sub-section (1) are in addi-
tion to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any
other law for the time being in force on granting of bail."
11. In view of the gravity of the consequences of drug trafficking, the offences un-
der the NDPS Act have been made cognizable and non-bailable. The section does not
allow granting bail for offences punishable under section 19 or section 24 or section 27A
and for offences involving commercial quantity unless the two-fold conditions prescribed
under the section have been met. The conditions include:
a) hearing the Public Prosecutor; and
b) Satisfaction of the Court based on reasonable grounds that the accused is not guilty of
the offence and that he is likely to not commit an offence of a similar nature.
12. The fetters on the power to grant bail does not end here, they are over and above
the consideration of relevant factors that must be borne in mind while considering the
question of granting bail. The Court also needs to be satisfied before grant of bail about
the scheme of section 439 of the Code. Thus, it is evident that the present section limits
the discretion of the Court in matters of bail by placing certain additional factors over and
above, what has been prescribed under the Code.
Tenets of law on the subject
13. The contours of section 37 of the Act have been analysed by the Honble Su-
preme Court in the case of (Union of India Vs. Ram Samujh)2, reported in 1999 DGLS(SC)
908 : 1999(9) S.C.C. 429. In this case, the Apex Court evaluated the validity of the order on bail
granted by the High Court in a case registered under the Act. The Hon'ble Court reckoned the
Statement of Objects and Reasons for the introduction of amended section 37 of the Act through
Bill No. 125 of 1988. It is relevant to extract those for the present analysis, which reads as:
"6. The aforesaid section is incorporated to achieve the object as mentioned in the State-
ment of Objects and Reasons for introducing Bill No. 125 of 1988 thus:
"Even though the major offences are non-bailable by virtue of the level of punishments, on technical
grounds, drug offenders were being released on bail. In the light of certain difficulties faced in
the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to
amend the law to further strengthen it, has been felt." (emphasis supplied)
7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and
followed. It should be borne in mind that in a murder case, the accused commits murder of one
or two persons, while those persons who are dealing in narcotic drugs are instrumental in
causing death or in inflicting death-blow to a number of innocent young victims, who are
vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to
the society; even if they are released temporarily, in all probability, they would continue their
nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be
large stake and illegal profit involved. This Court, dealing with the contention with regard to
punishment under the NDPS Act, has succinctly observed about the adverse effect of such
activities in (Durand Didier Vs. Chief Secy. Union Territory of Goa)3, 1990(2) Bom.C.R. 31(S.C.)
: 1990(1) S.C.C. 95 : 1990 S.C.C.(Cri.) 65 as under: (SCC p. 104, para 2 "24. With deep concern,
we may point out that the organised activities of the underworld and the clandestine smug-
gling of narcotic drugs and psychotropic substances into this country and illegal trafficking in
such drugs and substances have led to drug addiction among a sizeable section of the public,
particularly the adolescents and students of both sexes and the menace has assumed serious
and alarming proportions in the recent years.
Therefore, in order to effectively control and eradicate this proliferating and booming devastating
menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in
its wisdom, has made effective provisions by introducing this Act, 81 of 1985 specifying man-
datory minimum imprisonment and fine."
14. Thus, what is evident from the above is that the offences prescribed under the Act are not
only a menace to a particular individual but to the entire society especially, the youth of the country.
Such offences have a cascading effect and are in vogue these days, thus destroying the capabilities
and lives of a substantial chunk of the population and trend has been growing over the years. Thus,
to prevent the devastating impact on the people of the nation, Parliament in its wisdom deemed it
fit to introduce stringent conditions for grant of bail under the Act. The Court must stay mindful of
the legislative intent and mandate of the Act while considering the question bail in such matters.
15. As far as condition under section 37(b)(i) is concerned, there is no ambiguity in its inter-
pretation. It gives effect to the doctrine of audi alteram partem. Since the crime is an act against the
society, the legislature has contemplated that the Public Prosecutor must be given an opportunity to
oppose a bail application under the Act. Additionally, under section 37(b)(ii) of the NDPS Act, the
Court is not required to be merely satisfied about the dual conditions i.e., prima facie opinion of the
innocence of the accused and that the accused will not commit a similar offence while on bail, but
the Court must have "reasonable grounds? for such satisfaction.
16. The term "reasonable grounds” under section 37(b)(ii) has been interpreted by the Honble
Supreme Court in the case of (Union of India Vs. Shiv Shanker Kesari)4, 2007 DGLS(SC) 1023 :
2007(7) S.C.C. 798. It was a case where an appeal was preferred against the order granting bail
under the NDPS Act by the High Court. The prosecution alleged that the raiding party seized
nearly 400 kgs of poppy straw from the possession of the accused therein. The special Court
rejected the bail while the High Court granted the bail on the ground that the recovery was
not from the exclusive possession of the accused, but other family members were also in-
volved. The Supreme Court set aside the order granting bail. In this context, it interpreted
"reasonable grounds” under section 37 of the Act, as under:
"7. The expression used in section 37(1)(b)(ii) is "reasonable grounds". The expression means
something more than prima facie grounds. It connotes substantial probable causes for
believing that the accused is not guilty of the offence charged and this reasonable belief
contemplated in turn points to existence of such facts and circumstances as are sufficient
in themselves to justify recording of satisfaction that the accused is not guilty of the of-
fence charged. The word "reasonable" has in law the prima facie meaning of reasonable in
regard to those circumstances of which the actor, called on to act reasonably, knows or
ought to know. It is difficult to give an exact definition of the word "reasonable".
17. The Hon'ble Supreme Court in a recent past in a decision in the case of (Union of India Vs.
Md. Nawaz Khan)5, 2021 DGLS(SC) 490 : 2021(10) S.C.C. 100, penned by then Justice Dr. Dhananjaya
Y. Chandrachud, now the Chief Justice of India, has reiterated the position of law with respect to
section 37 of the Act. After analysing the previous decisions of the Hon’ble Supreme Court, the
Court prescribed the following test for granting bail under section 37 of the NDPS Act:
"20. Based on the above precedent, the test which the High Court and this Court are required to
apply while granting bail is whether there are reasonable grounds to believe that the
accused has not committed an offence and whether he is likely to commit any offence
while on bail. Given the seriousness of offences punishable under the NDPS Act and in
order to curb the menace of drug-trafficking in the country, stringent parameters for the
grant of bail under the NDPS Act have been prescribed."
18. Thus, the Court must be conscious about the mischief that is sought to be curbed by
the Act and the consequences that might ensue if the person accused of the offence under the
Act is released on bail. The Court ought to be satisfied on the basis of reasonable grounds
discernible from the facts and circumstances that the applicant is not guilty of offences he is
indicted with. Additionally, the Court also needs to be satisfied that the person so released
will not commit the offence while being on bail. Both the conditions are interconnected be-
cause the legislature intends that in cases where there is a likelihood of commission of this
grave offence under the Act, exercising discretion in favour of the applicant-accused would
render the provisions of the Act otiose. It is so because if the person is released, he is most likely
to repeat the felony, thus impacting the society at large. Thus, to not give any leeway to the accused,
the Court has to be satisfied about the dual conditions on reasonable grounds.
Facts on record
19. In the case at hand, the role of the present applicanst-accused in the entire chain of events
is not as simple as has been projected by the learned Advocate for the applicant. He is arrested
mainly on two counts; firstly for the commercial quantity of contraband weighing 56 kg and sec-
ondly he has been implicated for his role as being part of a larger drug syndicate. It is pertinent to
note that the present applicant is charged for commercial quantity or rather it can be said that more
than commercial quantity and, as such, his bail application needs to be decided as per section 37 of
the Act. The present one is a case of huge drug haul. Some of the perpetrators in the present case are
the Pakistani nationals who came all the way from Pakistan to India through sea route with a huge
cache of heroin for being delivered to the accused persons in India. It appears from the record that
previously, very same accused persons from Pakistan sent 15 kg of heroin which was suc-
cessfully collected by the applicant-accused along with the other co-accused persons from
the mid-sea in the boat of the other co-accused. The presenet applicant-accused is the key
person at whose instance the entire plan was designed. The applicant-accused himself
went in the mid-sea for getting the delivery of narcotic substance coming from Pakistan.
For the said purpose, he hired a boat from accused Jakubhai Daudbhai Buchda for which
the applicant-accused paid him Rs. 3,00,000/- whic fact is evident from statement of one
Farid Siddiq Nangiya who was one of the companions in the boat with the applicant and the
other accused when they all went near the coastal region of Pakistan for collecting the parcels
coming from Pakistan to be delivered to the applicant-accused. The said deal was successful
and the heroin was then supplied to the various individuals in the city of Ahmedabad. In the
said deal, the applicant-accused got a huge amount of Rs. 7,00,000/-. In short, the present applicant-
accused is the mastermind behind the entire conspiracy. Apart from that, there are call data records
collected by the Investigating Officer indicating not only the connection of the present applicant-
accused with the fellow accused from India but also establish his connection with the perpetrators
hail from Pakistan. The case on hand and the incident took place in the past seems to be intercon-
nected and indicates the organized criminal networks indulged in illegal drugs trafficking which
has caused immense instability in the country. Thus, I am of the prima facie opinion, that the role of
the present applicant-accused in the commission of the crime is clearly established from the entire
material available on record. Therefore, I am not inclined to entertain the present application.
Conclusion
20. Before concluding, I would like to quote with profit some very important observations on
the subject made by the High Court of Jammu & Kashmir and Ladakh in the case of (Radhe Sham
Ashok Kumar Vs. UT of J & K )6, Bail App No. 331/2022, decided on 17-4-2023, which read thus;
"Courts cannot lose sight of the fact that the menace of the crime of smuggling of contraband drugs
is on increase and therefore, the perpetrators of the crime who are destroying the society and
younger generations rendering them incapacitated by falling prey to drug abuse must be dealt
with iron hands. The crime alleged against petitioner/accused is against the society and by his
criminal activities, he is spoiling the young generation of the country. Such types of offences
are to be dealt with severity and with heavy hands. Showing leniency in such matters would
be really a case of misplaced sympathy. The criminal act of petitioner/accused operating in a
manner as the smuggler of commercial quantity of contraband poppy straw, is destructive,
and is aimed to destroy the social fiber of the country, therefore, curtailment of his liberty is
reasonable. The act of petitioner/accused is not only shocking but outrageous in contours. The
granting of bail to petitioner/accused would lead to the danger of the course of justice being
thwarted. I, therefore, hold that this is a fittest case where, "Jail" and not "Bail", is the appropri-
ate remedy at this stage. The case law relied upon by learned Counsel for petitioner/accused is
distinguishable and inapplicable to the facts of the case in hand. The bail application being
misconceived under law, is disallowed, rejected and dismissed."
21. In view of what has been observed herein above, the present application fails and is
hereby rejected. Rule is discharge.
Application rejected.
-----
Bom.C.R.(Cri.) Vikas B. Itkan v. State of Maharashtra 641
Application for Bail arrested on 17/8/2021. The applicant was
2024(1) Bom.C.R.(Cri.) 641 noticed by the patrolling party carrying a
Before : sack. His movements were found to be
M.S. Karnik, J. suspicious. After necessary procedural
Vikas Babbarsingh Itkan ... Applicant. formalities, the sack of the applicant was
Versus searched. The applicant was found in
State of Maharashtra ... Respondent. possession of the contraband ‘charas’
weighing about 1000 gms. Learned Counsel
Bail Application No. 125 of 2023, decided
for the applicant submitted that the
on 16-10-2023.
applicant was in possession of contraband
Code of Criminal Procedure, 1973, whic h quanti ty was l ess than the
Sec. 437 – Application for bail – Applicant has commercial quantity prescribed by the
been in custody for more than 2 years – Trial is notification under the NDPS Act. According
likely to take a long time to conclude – to him, therefore, the rigours of section 37
Investigation is complete and charge–sheet is
of the NDPS Act for satisfying the twin
filed – There are no criminal antecedents
conditions will not arise in the present case.
reported against applicant for offences under
It is further submitted that the applicant is
provisions of NDPS Act – In chart showing there
in custody for more than 2 years and 2
are as many as 6 offences against applicant
months without any possibility of trial
registered in state of Haryana between 2018 to
concluding any time soon. According to the
2021 – These criminal antecedents are in respect
learned Counsel for the applicant, there are
of Indian Penal Code (IPC) offences – Applicant
no prior offences under the NDPS Act
is from state of Haryana – In such view of matter,
registered against him. Learned Counsel for
case is made for enlargement of applicant on bail.
the applicant relied upon the decision dated
(Para 9)
13/6/2003 of the High Court of Himachal
Cases referred : Pradesh in (Ratto Vs. The State of
1. Ratto Vs. State of Himachal Pradesh, Cr.M.P. (M) Himachal Pradesh)1, Cr.M.P. (M) No. 1101
No. 1101/2002, dt. 13-6-2003.
of 2002 and the decision dated 1/9/2015 in
2. Vakil Vs. State of Haryana, 2015(3) P.L.J.(Cri.) 677.
(Vakil Vs. State of Haryana)2, 2015(3) PLJ
(Criminal) 677 of Punjab and Haryana High
Pranav Pokale a/w. Tanmay Karwa a/w. Aditya
Bagal, for applicant.
Court in support of his submissions.
Ms. Veera Shinde, A.P.P., for State. 3. On the other hand, learned APP
78.PM/IN/SG/RJ/PN vehemently opposed the application. It is
M.S. KARNIK, J.: – This is an application submitted that the quantity found in
for bail in respect of the offence punishable possession of the applicant i.e. 1000 gms of
under sections 8(c), 20(b)(ii) and 29 of the contraband charas will have to be regarded
Narcotic Drugs and Psychotropic Substances as commercial quantity in view of sub-
Act, 1985, (hereafter ‘NDPS Act’ for short) clause (viia) of section 2 of the NDPS Act
registered on 17/8/2021 vide C.R. No. 249 of read with the notification S.O. 1055(E) dated
2021 with Khadaki Police Station, Pune. 19/10/2001, i ssued by the Central
Government. Learned APP further submits
2. The applicant is accused No. 1.
that the procedure of search and seizure is
There are in all 3 accused. The applicant was
fully followed. Learned APP submitted that
41/24(1)
642 Vikas B. Itkan v. State of Maharashtra 2024(1)
if Clause (viia) of secti on 2 and the TABLE
provisions of the notification are properly [See sub-clause (viia) and (xxiiia) of section 2
construed, then it follows that 1 Kg and of the Act]
above of the contraband ‘charas’ has to be --------------------------------------------------------------------
regarded as commercial quantity. SI Name of Other Chemi- Small Comm-
4. Heard learned Counsel. No. Narcotic non- cal Quan- mercial
Drug and propriety Name tity Quanti-
5. I will have to first examine whether Psychot- name (in.gm.) ty (in
the quantity of 1000 gms of contraband ‘charas’ ropic gm./kg)
qualifies as a commercial quantity or whether it Subst-
will have to be regarded as an intermediate stance
quantity. While dealing with this contention, it (Interna-
would be material to refer to the definition of tional
non-pro-
‘commercial quantity’ in sub-clause (viia) of
prietory
section 2 and ‘small quantity’ in sub-clause
name
(xxiiia) of section 2 of the NDPS Act:- (INN)
“(viia) "commercial quantity", in relation to --------------------------------------------------------------------
narcotic drugs and psychotropic substances, 23. Cannabis CHARAS EXTRA- 100 1 kg
means any quantity greater than the quantity and HASHI- CTS and
specified by the Central Government by cannabis SH TINCTU-
notification in the Official Gazette;” RES OF
“(xxiiia) "small quantity", in relation to narcotic CANNABIS
drugs and psychotropic substances, means --------------------------------------------------------------------
any quantity lesser than the quantity 7. I am afraid that the interpretation
specified by the Central Government by placed by the learned APP is in the teeth of
notification in the Official Gazette;” Clause (viia) of section 2 of the NDPS Act.
6. So far as the notification dated 19/10/ Entry 23 of the above table is relevant.
2001 relied upon by learned APP is concerned, Clause (viia) of section 2 defines commercial
the relevant portion in the context of the quantity in relation to narcotic drugs and
present controversy reads thus: psyc hotropic substances, means any
“In exercise of the powers conferred by Clauses quantity greater than the quantity specified
(viia) and (xxiiia) of section 2 of the Narcotic by the Central Government by the
Drugs and Psychotropic Substances Act, notification in the Official Gazette. The
1985 (61 of 1985) and in supersession of
Central Government, therefore, in the
Ministry of Finance, Department of Revenue
Notification S.O. 527(E) dated 16th July, 1996,
exercise of powers conferred by Clause
except as respects things done or omitted to (viia) of section 2 specified the quantity by
be done before such supersession, the way of the notification. If the quantity
Central Government hereby specifies the specified in the notification has to be
quantity mentioned in Columns 5 and 6 of regarded as commercial quantity for the
the Table below, in relation to the narcotic purpose of Clause (viia) of section 2 then
drug or psychotropic substance mentioned the words “any quantity greater than the
in the corresponding entry in Columns 2 to quantity spec ified by the Central
4 of the said Table, as the small quantity and
Government by notification in the Official
commercial quantity respectively for the
Gazette” in Clause (viia) of section 2 will be
purposes of the said Clauses of that section
Bom.C.R.(Cri.) Vikas B. Itkan v. State of Maharashtra 643
rendered meaningless. A definite meaning intermediate quantity less than the
has to be assigned to these words. The commercial quantity. The rigours of section
language employed by Clause (viia) of 37 of the NDPS Act will not apply in the
section 2 is plain and unambiguous. A plain present case. I am in respectful agreement
reading of Clause (viia) of section 2 leaves with the view expressed in Ratto Vs. The
no manner of doubt that what can be State of Himachal Pradesh (supra) and Vakil
specified by the Central Government by Vs. State of Haryana (supra). Paragraph No.
notification in the official gazette is the 4 in Vakil Vs. State of Haryana reads thus:
quantity for the purpose of Clause (viia) of “4. Appreciating the contentions of both sides,
section 2. Merely because the word the very definition of commercial quantity'
‘commercial quantity’ is used in the table of Charas as enunciated in section 2(via) of
of the notification does not by itself mean the Act makes it sufficiently clear that the
that the same has to be regarded as quantity to fall within the ambit of 'commercial
commercial quantity within the meaning of quantity' must be greater than the quantity
specitied by the Central Government by
Clause (viia) of section 2 of the NDPS Act.
Notification in the Official Gazette. The
The notification is issued in exercise of Notification specifying small quantity' and
power conferred by Clause (viia) of section 'commercial quantity' shows 1 kg of Charas
2, in that sense, the notification is a piece of under the commercial' head and in the light
subordinate legislation. The subordinate of definition of 'commercial quantity' to fall
legislation cannot override the main under the same, it should be more than 1 kg.”
provision. The provisions of Clause (viia) 9. The applicant has been in custody for
of section 2 and that of the notification have more than 2 years. The trial is likely to take a
to be harmoniously construed. Just because long time to conclude. The investigation is
the title or expression or nomenclature used complete and the charge-sheet is filed. There
in the table of the notification is ‘commercial are no criminal antecedents reported against
quantity’ that by itself does not mean that the applicant for the offences under the
the same has to be regarded as a commercial provisions of the NDPS Act. Learned APP
quantity within the meaning of Clause (viia) presented a chart showing there are as many
of section 2, which will otherwise virtually as 6 offences against the applicant registered
have the effect of overriding the provisions in the state of Haryana between 2018 to 2021.
of Clause (viia) of section 2 of the NDPS Act. These criminal antecedents are in respect of
8. I, therefore, have no hesitation in Indian Penal Code (IPC) offences. The
holding that the quantity greater than the applicant is from the state of Haryana. In
quantity spec ified by the Central such view of the matter, though a case is
Government by notification in the official made for enlargement of the applicant on
gazette, in the present case, has to be more bail, however, I propose to impose stringent
than 1 Kg for the contraband ‘charas’ to be conditions to ensure that the applicant does
regarded as commercial quantity within the not evade trial. Hence, the following order:-
meaning of Clause (viia) of section 2. The ORDER
applicant was found in possession of 1000 (a) The application is allowed.
gms of contraband ‘charas’. The quantity (b) The applicant- Vikas Babbarsingh Itkan in
found in possession of the applicant will, connection with C.R. No. 249 of 2021
therefore, have to be regarded as registered with Khadki Police Station shall
644 Santosh K. Kharva v. State of Maharashtra 2024(1)
be released on bail on his furnishing P.R. not amounting to murder – Held, to avail benefit
Bond of Rs. 1,00,000/- with one or more of Exception 4 defence is required to probabilise
solvent sureties in the like amount. that offence was committed without
(c) The applicant shall attend the Investigating premeditation in a sudden fight, in heat of
Officer of Khadki Police Station once in a passion upon a sudden quarrel and offender had
month every first Monday of the month
not taken any undue advantage and offender had
between 11.00 a.m. and 1.00 p.m.
not acted in a cruel or unusual manner.
(d) The applicant shall not directly or indirectly
make any inducement, threat or promise to Exception is based upon principle that in absence
any person acquainted with the facts of the of premeditation and on account of total
case so as to dissuade him from disclosing deprivation of self control but on account of heat
the facts to Court or any Police Officer. The of passion, offence was committed which,
applicant shall not tamper with evidence. normally a man of sober urges would not resort
(e) On being released on bail, the applicant to. Time gap between quarrel and fight is an
shall furnish his contact number and important consideration to decide applicability
residential address to the Investigating of incident. If there intervenes a sufficient time
Officer and shall keep him updated, in case for passion to subside, giving accused time to
there is any change.
come to normalcy and fight takes place thereafter,
(f) The applicant shall attend the trial regularly.
The applicant shall co-operate with the trial
killing would be murder but if time gap is not
Court and shall not seek unnecessary sufficient, accused may be held entitled to benefit
adjournments. of this exception. Act committed by appellant
(g) The applicant shall surrender his passport, squarely falls within purview of Exception 4
if any, to the Investigating Officer. Section 300 of I.P.C. and offence committed by
(h) The applicant shall not leave the country him would attract Section 304, Part II of I.P.C.
without prior permission of the trial Court. Appeal is partly allowed. (Paras 11 to 14)
10. The application is disposed of. Cases referred :
Application disposed off. 1. Sukhbir Singh Vs. State of Haryana, 2002
DGLS(S.C.) 218 : (2002)3 S.C.C. 327.
-----
Time gap between quarrel and fight is an
Vaibhav A. Sugdare, for appellant.
important consideration to decide
J.P. Yagnik, A.P.P., for respondent-State.
applicability of incident
154.PM/IN/ND/RR/TC
2024(1) Bom.C.R.(Cri.) 644
(AURANGABAD BENCH) Per A.S. GADKARI, J.: – Appellant, original
accused No. 1 has questioned the correctness
Before :
of Judgment and Order dated 19th December,
A.S. Gadkari & Shyam C. Chandak, JJ.
2014, passed by the learned Special Judge
Santosh Kantilal Kharva ... Appellant. (CBI), Greater Mumbai, in Sessions Case No.
Versus 666 of 2011, convicting him under section 302
State of Maharashtra ... Respondent. read with section 149 and under section 147
Criminal Appeal No. 804 of 2015, decided of the Indian Penal Code (for short, “I.P.C.”)
on 5-1-2024. and is sentenced to suffer imprisonment for
Indian Penal Code, 1860, Secs. 300 life and to pay a total fine of Rs. 2,500/-, in
Exception 4, 304, Part II, 302, 149 & 147 – default of payment of fine to further suffer
Appeal against conviction – Culpable homicide imprisonment of specified period.
Bom.C.R.(Cri.) Santosh K. Kharva v. State of Maharashtra 645
1.1. By the impugned judgment and over smart. Mangesh asked Appellant to
Order, the learned Judge of the trial Court give understanding to the said other boy.
was pleased to acquit original accused Nos. At that relevant time, a third person who
2 to 5 from the same said offences charged was aged about 30 years and was associated
against them. with the appellant gave a slap on the neck
2. Heard Mr. Sugdare, learned of Mangesh. appellant thereafter assaulted
Advocate appointed by the Legal Services Mangesh (deceased) with hands/fists and
Committee to represent and espouse the cause gave one or two blows to him. Upon
of appellant and Mr. Yagnik, learned A.P.P. witnessing the said act the informant (PW-
for respondent-State. Perused entire record. 1) went at the said place and saw that
3. It is the prosecution case that, on Mangesh had caught hold of the collar of
10th June, 2011 after having dinner at about appellant. When the informant tried to
9.15 p.m., the informant (PW-1) left his intervene and pacify the said quarrel, the
house and went towards the open space of two friends of appellant scuffled with him
Shivneri Seva Mandal, Bhatwadi, and pushed him by hands. It is alleged that,
Ghatkopar, Mumbai, which was situated at that time Appellant took out a sharp
near his house where his friends used to edged iron weapon which was concealed
gather and sit at the said place. Mangesh on the backside of his waist and assaulted
Ghadge (deceased) was standing near a Mangesh (deceased) on his stomach. The
Paan (betel leaf) shop and was smoking informant saw Mangesh (deceased) bent
cigarette. The informant took Gutkha and downwards and the appellant along with
at the request of Mangesh accompanied him his associates took Mangesh at a side while
to go downside of the said hillock. They assaulting him. Some of the accomplices of
were proceeding to Bhatwadi Market road appellant took the informant to other side
situated at Barve Nagar, Ghatkopar. They and assaulted him with kick & fists blows
reached in front of the gate of school No. 1. and tiles. Upon hearing the said melee,
At that place 20 to 25 boys were sitting and Munna and Dharma came at the scene of
many of them were consuming liquor. The offence and rescued the informant (PW-1).
boys namely Dharma, Munna, Santosh, After the informant was rescued, he along
Roshan etc. were also standing there. with Dharma and Munna saw Mangesh had
Dharma and Munna were residing in the suffered injuries on his stomach, chest, back
area of informant (PW-1). Appellant and and was lying motionless at the said place.
Roshan were residing in Municipal Colony 3.2. In the meantime, Rakesh Bodekar
at Barve Nagar. (PW-2), Ajay Jankar (PW-12), Vijay Jankar
3.1. At that time, the appellant called and other persons came at the scene of
Mangesh (deceased) towards him and offence and took Mangesh to Rajawadi
asked him ßD;k js gekjs yMds mij vkrs gSA rks cgqr Hospital. Mangesh was admitted to I.C.U..
Vka x vMkrk gS A Þ i.e. why he is causing Mangesh succumbed to injuries while
hindrance/problem to his boys, when they undergoing treatment. The informant was
come up. Upon which one boy who was treated by Dr. Samir Rambhia (PW-13) at
aged about 32 years and was standing Rajawadi Hospital.
beside appellant also asked Mangesh ßD;k js 3.3. The autopsy on the dead body of
cgqr ‘kkuk curk gSAÞ i.e. why he is trying to be Mangesh (deceased) was conducted by Dr.
Amit Chavan (PW-8) on 11th June, 2011 at (xi) Incised wound on right side of abdomen of size
about 6.15 a.m.. Upon external examination, 2 x 1 cm x muscle deep reddish oblique, 13 cm
he found the following injuries. below right nipple, 9 cm from midline.
(i) Contusion on left side of nose 1.5 x 0.5 cm red (xii) Incised wound on right side lower abdomen of
in colour. size 2 x 1 cm x muscle deep reddish. It was 5 cm
from anterior superior iliac spine region and 7
(ii) Incised wound preset over left side of neck 2 cm
cm from umbilicus.
above medial end of clavicle 13 cm below chin,
oblique in shape of size 2.5 x 0.5 cm x muscle (xiii) 4 abrasions present at right side of neck of
deep. On dissection :- internal hemorrhage with size 0.5 x 0.5 cm, 2nd abrasion was 1 x 0.5 cm,
sternocledomatoide muscle fiber cut red in colour. 3rd abrasion was 1.5 x 0.5 cm, 4th abrasion 1.5
x 1 cm, red brown in colour.
(iii) Abrasion on size 0.5 x 0.5 cm red brown in
colour in center of neck 3 cm above injury No.2. (xiv) Abrasion present over right shoulder near
lateral end of right clavical of size 1.5 x 1 cm red
(iv) Abrasion at mide clavicular region of size 1 x
brown in colour.
0.5 cm red brown in colour.
(xv) Abrasion at right knee joint region of size 2.5
(v) Abrasion at left anterior chest wall 3 cm below
x 1.5 cm red brown in colour.
medial end of clavicle [Dr. shows it as the joint
of clavicle bone in front central region below (xvi) Abrasion at right foot just below right ankle
neck] of size 3x0.5 cm red brown in colour. joint of size 0.5 x 0.5 cm red brown in colour.
(vi) Incised wound present at left anterior chestwall (xvii) Abrasion at left grater toe 0.5 x 0.5 cm red
of size 3x1 cm, 6 cm from left nipple and 3 cm brown in colour.
from medline. Horizontal muscle deep reddish (xviii) Abrasion at left leg medially above left ankle
in colour. Upon dissection : internal hemorrhage joint 2.5 x 1.5 cm red brown in colour.
present red in colour. (xix) Abrasion at left knee joint of size 1.5 x 1 cm
(vii) Incise wound present at left side of abdomen 3 red brown in colour.
cm from umbilicus, 9 cm from left anterior (xx) Abrasion at right shoulder posteriorly of size
superior iliac spine of size 1.5 x 0.5 x skin deep 6x3 cm red brown in colour.
reddish in colour. 3.4. Upon internal examination, PW-
(viii) Incise stab wound present at right 8 found the following corresponding
anterolateral chest wall region of size 3x1 cm. It injuries.
is below 8 cm from right nipple, 23 cm from (i) Underscalp contusion present at right perital
shoulder tip. Vertical reddish in colour. On region 5 x 2 cm red in colour bone deep.
dissection : underneath skin subcutaneous tissue
(ii) Underscalp contusion present on left perital
muscle with sharp cut, 9th rib fracture with internal
region 6 x 3 cm red in colour bone deep.
hemorrhage sharp cut incise wound of size 2x0.5
(iii) Under scalp contusion present that left perito
cm. Anterolateral surface of liver present.
occipital region 3 x 2 cm red in colour bone deep.
(ix) Incised stab wound present at right posterior
axillary line of size 2.5 x 1 cm. It is 16 cm from 3.5. Upon internal examination of
midline of back, 15 cm from lower end of Thorax, PW-8 found the following injuries.
scapula reddish in colour. On dissection, (i) Internal contusion present on left posterior chest-
underneath skin, subcutaneous tissue cut with wall of size 5 x 4 cm red in colour.
sharp cut, cut incise wound of size 2x0.5 cm (ii) Internal contusion present at right interior
present at anterolateral surface of liver with chest-wall of size 4 x 3 cm red in colour.
internal hemorrhage. 3.6. PW-8 accordi ngly prepared
(x) Incise wound at right side of the back ‘Postmortem Notes’ (Exh.63). Dr. Chavan
infrascapular region 3cm from medline. It was
(PW-8) has opined that, injury Nos. 8 & 9
below lower end of scapula of size 2x1 cm x
muscle deep reddish in colour. Horizontal.
are enough and sufficient in ordinary
course of nature to cause death. That, injury 4. Mr. Sugdare, learned Advocate for
Nos. 3, 6, 7, 8, 9, 10, 11 & 12 were possible the Appellant submitted that, the Appellant
by sharp weapon like the knife (Article-A). is the sole convict in the present case and
3.7. After receipt of Chemical therefore the application of section 149 of
Analyser ’s Report and completion of I.P.C. read with section 302 of I.P.C., while
investigation, Smt. Mamata D’souza (PW- convicting him is legally not tenable. That,
11) submitted chargesheet in the Court of there is a grave error committed by the
Metropolitan Magistrate, 49th Court, learned trial Court in convicting the appellant
Vikroli, Mumbai for the offences punishable under section 149 read with section 302 of
under sections 302, 323, 324, 504, 143, 146, I.P.C.. He submitted that, a minute perusal
147 & 149 of I.P.C.. The learned Magistrate of evidence on record clearly indicates that,
after complying with the necessary the prelude to the commission of the alleged
provisions of section 207 of Criminal offence was a scuffle which was ensued
Procedure Code committed the said case to between the appellant on one side and the
the Court of Sessions, as the offence deceased Mangesh on the other side due to
punishable under section 302 of I.P.C. is the bickering between them. The deceased
exclusively triable by the Court of Sessions. had also manhandled the appellant, which
3.8. The trial Court framed charge caused infuriation to the appellant leading
below Exh.8. The said charge was read over in committing the said crime. He submitted
and explained to the accused persons in that, the act of the appellant therefore falls
Marathi vernacular or in a language with within the purview of Exception 4 of section
which they were familiar of. The accused 300 of I.P.C. and the benefit of the same be
persons pleaded not guilty to the charges given to the appellant. He therefore prayed
and claimed to be tried. The defence of that, the Appeal may be allowed by quashing
accused persons was of total denial and and setting aside the impugned Judgment
false implication. and Order.
3.9. The prosecution in support of its 5. Per contra Mr. Yagnik, learned A.P.P.
case examined in all 13 witnesses. After for the State vehemently opposed the
recording of the evidence of witnesses, the appeal and submitted that, there is
statements of acc used persons were sufficient evidence available on record to
recorded under section 313 of Cr.P.C. below sustain the conviction of appellant under
Exhibit Nos. 94, 95, 96, 97 & 98 respectively. section 302 of I.P.C.. However, it was very
The accused persons did not examine any difficult for the him to substantiate the
witness in defence of their case. impugned judgment on the point of
3.10. The learned Judge of the trial applicability of section 149 of I.P.C. to the
Court after hearing the learned Advocates sole convict. He submitted that, there are
for the Appellant and other accused three eye-witnesses namely PW-1, PW-4 &
persons was pleased to acquit accused PW-12 to the present crime and after taking
Nos. 2 to 5 from all the charges framed into consideration their evidence, the trial
against them. However, has convicted the Court has rightly convicted the Appellant
Appellant under section 302 read with 149 under section 302 of I.P.C. He therefore
of I.P.C. and under section 147 of I.P.C., submitted that, there are no merits in the
as noted herein above. appeal and it may be dismissed.
6. Perusal of record indicates that, appellant called Mangesh (deceased) and
though the prosecution has examined in all enquired with him as to why the deceased
13 witnesses in support of its case, the was causing hindrance in the way of his
evidence of Arun Sakpal (PW-1), informant, boys when they came up. The another boy
Dharmesh Lavande (PW-4) and Ajay Jankar who was with appellant questi oned
(PW-12), who are the eye witnesses to the Mangesh as to why he was acting over
incident, is most relevant for deciding smart. Mangesh (deceased) requested
present Appeal. Santosh to direct the other boy to keep quite.
6.1. It be noted here that, the learned During the said altercation, one of the boys
Advocate for the appellant has not seriously who was accompanying appellant slapped
disputed the fact of various recoveries i.e. on the neck of Mangesh. Appellant then
recovery of weapon, recovery of blood caught hold of Mangesh and gave two fist
stained clothes at the instance of appellant blows. Mangesh (deceased) had also caught
etc. and therefore to have brevity herein we the collar of appellant and a scuffle ensued.
are not discussing the said aspects. PW-1 tried to intervene to pacify the said
7. Arun Sakpal (PW-1) in his scuffle. During the said scuffle, appellant
testimony has stated that, he was knowing removed one weapon like gupti (sword
deceased Mangesh. He also knew all the stick) and stabbed Mangesh in his stomach,
accused including the appellant. PW-1 and due to which Mangesh bent down. At that
deceased were staying on the hill area time, other accused persons came at the
whereas the accused persons were residing scene of offence and started assaulting
in the colony at the lower level of the said Mangesh with fist, kick blows and stones.
hill i.e. Municipal Colony. They dragged Mangesh to one side. They
also assaulted PW-1 with fist and kick
The incident in question took place on
blows. At that time, the boys from his
10th June 2011. On that day, he took dinner
Mandal came there and rescued them from
and at about 9.15 p.m. he left his house and
the clutches of appellant and other accused
went to the open space belonging to
persons. As the boys from the group of PW-
Shivneri Seva Mandal, which was near his
1 came at the scene of offence, all the
house. He noticed number of boys of his
accused persons ran away. As the PW-1 had
Mandal were sitting there including Rakesh
sustained bleeding injury, he was admitted
Bodekar (PW-2), Sumeet Kadam, Ajit and
to I.C.U.. He subsequently came to know
others. He noticed that, Mangesh
that, Mangesh was no more.
(deceased) was standing near a Pan shop
and was smoking cigarette. PW-1 then went 7.1. The admissions given by the PW-
near the said Paan shop for having Gutkha. 1 in his examination-in-chief are not shaken
At the request of Mangesh, he accompanied in his elaborate cross-examination.
him to go to the lower side of the said hill 8. Dharmesh Lavande (PW-4) has
i.e. towards the market area. When they deposed that, on the day of incident, at
were getting down from the said road, they about 9.30 p.m., he reached to his locality
noticed that 20 to 25 boys were drinking i.e. where he used to reside. At Barve Nagar
liquor in the open space. He noticed the stop, Nitin Kadam met him and while
appellant and other accused were there. talking they reached upto Bhatwadi School
When both of them were getting down, the No. 1. The Appellant was sitting on the
motorcycle and he was talking with him. section 161 of Cr.P.C. and therefore the
At that time, deceased came from the learned A.P.P. declared him hostile and
ground along with his two friends, one of sought permission of the trial Court to cross
which was Raju. Mangesh (deceased) was examine him. In his elaborated cross
having a glass in his hand and he was under examination by the learned A.P.P., nothing
the influence of liquor. He was abusing the beneficial to the prosecution has been brought
Appellant and Appellant also abused him. on record and the material admissions given
There was a gate in between them. by him in his examination-in-chief had gone
Deceased crossed the gate and reached unchallenged. It is to be further noted here
towards Appellant and both of them again that, though the prosecution has declared PW-
started abusing each other. PW-4 along with 4 as a hostile witness, he has supported the
his friends separated them and asked the case of the prosecution to a large extent and
friends of Mangesh (deceased) to take him the relevant depositions extracted from his
to his house. Accordingly, friends of testimony are noted herein above for the
deceased took him towards his house. sake of brevity.
However, PW-4 and his friends remained 9. Ajay Jankar (PW-12) has deposed
there only. After five minutes, Arun Sakpal that, on 10th June 2011, after he had his
(PW-1) came at the said place running and dinner at about 10.30 p.m., he went near the
asked who was the Appellant (Santosh) and ground in front of his house, which is at the
slapped him. On that spot, the number of distance of about two minutes. Within a
other boys were present. PW-1 caught hold short time, he heard noise of quarrel in the
of collar of Appellant and a scuffle took ground. He went there and saw that, the
place between them. During the said scuffle, appellant and other accused persons were
they reached near the tree. Mangesh assaulting Mangesh (deceased). A sharp
(deceased) also arrived at the said place. edged knife was in the hand of appellant
8.1. Hereinafter PW-4 resiled from his and the appellant was assaulting Mangesh
statement recorded under section 161 of with it on his stomach. Thereafter, the
Cr.P.C. and deposed that, he was unable to appellant and other accused persons left the
state as to who beat whom. That, within two place. Mangesh fell down in the pool of
minutes, the mob dispersed and PW-4 blood and thereafter the appellant and other
noticed that, Mangesh (deceased) was lying accused persons left the spot. PW-12, PW-
on the ground. Mangesh had sustained 1, Vijay Jankar and PW-2 took Mangesh to
injury on his neck and blood was oozing Rajawadi Hospital. PW-12 has deposed that,
from it. He noticed only one injury on the he did not see who had assaulted PW-1.
person of deceased. PW-4 along with other 10. The aforenoted extracts from the
persons took deceased to Rajawadi Hospital depositions of the eye witnesses are the
from an auto-rickshaw. The doc tors admitted facts on record and no contrary
declared him dead prior to admission. PW- version to it is deposed by any other
1 also arrived at the hospital subsequently. witness. As noted earlier, these three
As PW-1 was injured, he was also admitted witnesses are the most crucial and star
in the hospital. witnesses of the prosecution.
8.2. It is to be noted here that, the PW- 11. To bring a case within Exception 4
4 resiled from his statement recorded under to section 300 of IPC, all the ingredients
mentioned in it must be found. It is to be noted account of heat of passion, the offence was
that the word ‘fight’ occurring in Exception 4 to committed which, normally a man of sober
section 300 of I.P.C. is not defined in the I.P.C.. It urges would not resort to. Sudden fight,
takes two to make a fight. To invoke Exception 4 though not defined under the Act, implies
to section 300 of I.P.C., four requirements must mutual provocation. It has been held by the
be satisfied viz.:- Courts that a fight is not per se palliating
(I) It was a sudden fight; circumstance and only unpremeditated
(II) There was no premeditation; fight is such. The time gap between quarrel
(III) The act was done in the heat of passion and and the fight is an important consideration
(IV) The assailant had not taken undue to decide the applicability of the incident.
advantage or acted in a cruel or unusual If there intervenes a sufficient time for
manner. passion to subside, giving the accused time
The cause of the quarrel is not to come to normalcy and the fight takes
relevant nor is it relevant as to who offered place thereafter, the killing would be
the provocation or started to assault first, murder but if the time gap is not sufficient,
but what is important is that the occurrence the accused may be held entitled to the
must have been sudden and not benefit of this exception.
premeditated and the offender must not 13. After applying the principles as
have acted in a fit of anger and must not enunciated by the Hon’ble Supreme Court
have taken any undue advantage or acted and noted herein above, the testimony of
in a cruel or unusual manner. When during PW-1 clearly indicates that, there was a
the course of a sudden quarrel, a person in scuffle which ensued after initial altercation
the heat of moment, attacks the other person between the appellant and Mangesh
and causes injury, one of which proves to (deceased) and Mangesh had also caught
be fatal, the accused would be entitled to collar of the appellant during the said
the benefit of this exception. scuffle. It appears to us that, it was the
12. The Hon’ble Supreme Court in the igniting point where the Appellant lost his
case of (Sukhbir Singh Vs. State of control and assaulted deceased in the heat
Haryana)1, reported in 2002 DGLS(S.C.) 218 of passion. PW-4 has also deposed that, the
: (2002)3 S.C.C. 327, while analyzing the deceased under the influence of liquor was
provisions of Exception 4 of Section 300 read abusing the Appellant. That, both of them
with section 304(II) of I.P.C. has held that, were abusi ng each other. Therefore
to avail the benefit of Exception 4 the according to us the act committed by the
defence is required to probabilise that the Appellant squarely falls within the purview
offence was committed without of Exception 4 section 300 of I.P.C. and the
premeditation in a sudden fight, in the heat offence committed by him would attract
of passion upon a sudden quarrel and the section 304 (Part-II) of I.P.C.
offender had not taken any undue 14. After taking into consideration the
advantage and the offender had not acted entire evidence on record, this Court is of
in a cruel or unusual manner. The exception the view that the act committed by the
is based upon the principle that in the appellant falls within the purview of
absence of premeditation and on account Exception 4 of section 300 and therefore
of total deprivation of selfcontrol but on the appellant is guilty of commission of
Bom.C.R.(Cri.) IVY Jewellery Pvt. Ltd. v. Chandresh Sampat 651
offence punishable under section 304 Allegation that cheque issued towards
(Part-II) of the I.P.C.. discharge of liability of debt of other
14.1. Hence, the following Order. persons owned by him to complainant,
(a) Appeal is partly allowed. does not survive in absence of instrument
(b) The impugned Judgment and Order dated of assignment of debt
19th December, 2014 is quashed and set- 2024(1) Bom.C.R.(Cri.) 651
aside and instead the appellant is held guilty Before :
for commission of crime under section 304 R.N. Laddha, J.
(Part-II) of I.P.C. and is sentenced to suffer IVY Jewellery Pvt. Ltd. ... Applicant.
rigorous imprisonment for a period of ten
Versus
years and to pay a fine of Rs. 25,000/, in
default of payment of fine to further Chandresh Sampat & anr. ... Respondents.
undergo rigorous imprisonment for one Criminal Appeal No. 91 of 2012, decided
year. on 8-9/10-11-2023.
(c) Appellant is acquitted from the offences Negotiable Instruments Act, 1881,
punishable under Sections 147 and 149 of Sec. 139 – Cheque dishonour complaint –
I.P.C. Cheque was allegedly issued by accused towards
(d) Record indicates that, the appellant was discharge of liability of debt of other person owed
arrested on 12th June, 2011 and is in jail till by him to complainant – However, complainant
today. Appellant thus has undergone entire failed to show assignment of liability of that other
sentence including in default sentence till
person unto accused and there being no nexus
today and therefore is entitled to be released
between issuance of said cheque and liability of
from jail forthwith, if not required in any
other case. accused to repay outstanding amount to
complainant – Thus, complainant failed to prove
14.2. As per record, the appellant is
that dishonoured cheque was issued by accused
lodged in Nashik road Central Prison,
for discharge of liability. (Para 18)
Nashik and therefore the learned A.P.P. is
directed to communicate the copy of Cases referred :
present judgment to the Superintendent, 1. Jain P. Jose Vs. Santosh, 2022 DGLS(SC) 1746.
2. Maharashtra State Seeds Corpn. Ltd. Vs. Nagorao
Nashik Road Central Prison, Nashik.
Raghunath Jibhkate, 2012(4) Bom.C.R.(Cri.) 51 :
15. All the concerned to act on the 2012 S.C.C. Online Bom. 2115.
basis of an authenticated copy of this 3. Rangappa Vs. Sri Mohan, 2010(4) Bom.C.R.
Judgment. 652(S.C.) : (2010) 11 S.C.C. 441.
4. Hiten Sagar Vs. IMC Ltd., 2001(5) Bom.C.R. 890 :
16. Before parting with the judgment, 2001 S.C.C. OnLine Bom. 432.
we would like to place on record our 5. Nandkishore Mehra Vs. Sudhir Transport Ltd.,
appreciation for the efforts put in by Mr. 2008(2) Bom.C.R.(Cri.) 292 : 2008 S.C.C. OnLine
Vaibhav A. Sugdare, learned Advocate Bom. 1598.
appointed by the High Court Legal Services Advocates appeared :
Committee, Mumbai for espousing the Rishi Ashok i/b. Bekay Legal, for appellant.
cause of appellant, as he was thoroughly Vinay Bhanushali a/w. Sanmit Vaze i/b. J.G.
Bhanushali, for respondent No. 1.
prepared and rendered proper assistance
H.J. Dedhia, A.P.P., for respondent No. 2-State.
to the Court.
83.PM/IN/SG/RJ/PN
Appeal partly allowed. R.N. LADDHA, J.: – The legality, propriety
----- and correctness of the Judgment and order
652 IVY Jewellery Pvt. Ltd. v. Chandresh Sampat 2024(1)
dated 25 August, 2011 passed by the learne notice on 11 December, 2009. On non-
Metropolitan Magi strate, 48 th Court, receipt of any reply from the accused and
Andheri, Mumbai, in Criminal Case No. his failure to pay the cheque amount, the
512/SS/2010, where by respondent No. 1/ complainant was constrained to file a
accused came to be acquitted of the offence complaint bearing No. 512/SS/2010 before
puni shable under section 138 of the the learned Metropolitan Magistrate, 48th
Negotiable Instruments Act, 1881 (for short Court, Andheri, Mumbai, under section 138
‘NI Act’), is assailed in this appeal. of the NI Act.
2. The appellant/complainant is a 5. The learned Magi strate took
private limited company dealing in the cognisance of the offence and summoned
trade of diamonds. M/s. D.B. Diamonds, a the accused. On entering appearance, the
proprietorship of Mr. Dhaval Bhatt, placed particulars of the offence were read over
an order with the complainant for and explained to the accused. The accused
purchasing diamond jewellery for Rs. abjured guilt and claimed trial.
22,74,240/-. The complainant supplied 6. During the course of the trial, the
diamond jewellery to M/s. D.B. Diamonds learned Magistrate recorded the evidence of
and raised nine invoices totalling Rs. Arnab Roy (PW-1), the authorised representative
22,74,240/- out of which Mr Dhaval Bhatt of the complainant, and Kamlesh Singh (PW-2),
paid Rs. 12,71,260/-; and Rs. 10,02,980/- the erstwhile Assistant Manager of the
remained to be paid to the complainant. complainant. Various documents were tendered
3. It is alleged that respondent No. 1/ on behalf of the complainant. The statement of
accused, the brother-in-law of Mr. Dhaval the accused under section 313 of the Code of
Bhatt, took over the liability of Mr. Dhaval Criminal Procedure, 1973 (‘CrPC’) came to be
Bhatt to pay the outstanding amount of Rs. recorded. In his defence, the accused examined
10,02,980/- to the complainant. In pursuance a witness, Habib Zaidi (DW-1), the operation
of this arrangement, the accused issued a Manager of HDFC Bank, Malad Branch,
post-dated cheque bearing No. 015847 (‘said Mumbai.
cheque’) dated 18 November, 2009, drawn 7. After appraisal of the evidence and
on HDFC Bank Ltd., Malad (West) Branch, perusal of the documents tendered, the
Mumbai, for Rs. 10,02,980/-. learned Magistrate acquitted the accused.
4. The complainant deposited the said Being aggrieved thereby, the complainant
cheque with his banker for realisation; filed the present appeal.
however, the same was returned to the 8. I have heard Mr. Rishi Ashok, the
appellant on 18 November, 2009 with the learned Counsel appearing on behalf of the
remark ‘stop payment’. Subsequently, the appellant; Mr. Vinay Bhanushali, the
complainant, thro ugh its Advoc ate, learned Counsel appearing on behalf of
addressed a notice dated 9 December, 2009 respondent No. 1; and Mr. H.J. Dedhia, the
to the accused, calling upon him to pay the learned Counsel appearing on behalf of
cheque amount of Rs. 10,02,980/- within 15 respondent No. 2-State and perused the
days from the receipt of the notice, failing impugned judgment, grounds in the appeal
which proceedings would be initiated memo, evidence and material on record.
under section 138 of the NI Act. The accused 9. Mr. Rishi Ashok, the learned
personally accepted the service of this Counsel for the appellant/complainant,
Bom.C.R.(Cri.) IVY Jewellery Pvt. Ltd. v. Chandresh Sampat 653
submitted that the learned trial Court To bolster this argument and to contend that
committed a manifest error in acquitting the accused had no role to play in the
respondent No. 1/accused. He further transaction between the complainant and
submitted that the learned trial Court failed Mr. Dhaval Bhatt, the learned Counsel
to appreciate that on receiving no response referred to the cross-examination of Mr.
to the legal notic e, the case of the Arnab Roy (PW-1), the authorised
complainant stood unrebutted was proved representative of the complainant, where he
beyond reasonable doubt. His main admitted that it was not the accused but Mr.
contention is that the learned trial Court Dhaval Bhatt who i nformed the
ought to have concluded that the accused complainant that the payment of the
issued the cheque towards the discharge of outstanding amount of Rs. 10,02,980/-
his legal liability as a guarantor for Mr. would be made by the accused and handed
Dhaval Bhatt, as it is proved that said over to the complainant five blank cheques
cheque was dishonoured due to ‘stop signed by the accused, which included the
payment’ instructions of the accused and said cheque. He submitted that the said
the legal notice was duly received by the cheque was lost, and the accused informed
accused, despite which the cheque amount his banker to refuse its encashment. He
remained unpaid. He further submitted further submitted that in the absence of a
that the learned trial Court failed to written agreement amongst Mr. Dhaval
consider the presumption available to the Bhatt, the accused and the complainant to
complainant under section 139 of the NI transfer and assign the liability of Mr.
Act, especially when the accused did not Dhaval Bhatt unto the accused, the trial
examine Mr. Dhaval Bhatt to rebut that Court rightly found that the said cheque
presumption. To buttress his contentions, was not issued by the accused to discharge
he relied upon the following judgments: the liability of Mr. Dhaval Bhatt which was
a. (Jain P. Jose Vs. Santosh & Anr.)1, Decided allegedly assigned to the accused. To
by the Hon’ble Supreme Court in SLP (Cri) buttress his submissions, he relied upon the
No. 5241 of 2016 on 10 November, 2022, judgment of the Hon’ble Supreme Court in
reported in 2022 DGLS(SC) 1746 and
(Rangappa Vs. Sri Mohan) 3 , 2010(4)
b. (Maharashtra State Seeds Corpn. Ltd. Vs.
Bom.C.R. 652(S.C.) : (2010)11 S.C.C. 441.
Nagorao Raghunath Jibhkate)2, 2012(4)
Bom.C.R.(Cri.) 51 : 2012 S.C.C. Online 11. It is not in dispute that the tax
Bom. 2115. invoices (Exh.12 to Exh.20) were issued by
10. Mr. Vinay Bhanushali, the learned the complainant on M/s. D.B. Diamonds for
Counsel for respondent No. 1/accused, the sale of jewellery worth Rs. 22,74,240/-
supported the line of reasoning adopted to Mr. Dhaval Bhatt and that these invoices
by the trial Court to record the finding of do not bear the signature of the accused. It
acquittal. He made various submissions is also not disputed that an amount of Rs.
countering the arguments put forth on 12,71,260/- was paid by Mr Dhaval Bhatt to
behalf of the appellant. He argued that there the c omplainant towards the total
is no evidence on record to show that the consideration of Rs. 22,74,240/- and an
accused took over the liability of his amount of Rs. 10,02,980/- was outstanding.
brother-in-law, Mr. Dhaval Bhatt and that The crux of the dispute between the parties
the trial Court rightly acquitted the accused. is with regard to the assignment of liability
654 IVY Jewellery Pvt. Ltd. v. Chandresh Sampat 2024(1)
of Mr. Dhaval Bhatt unto the accused to pay must be entered into by the person who
the complainant the outstanding amount of owes a legally enforceable debt to another
Rs. 10,02,980/- and whether, in the absence and such person who takes over the liability
of such an assignment, the complainant can of the former to discharge such debt in
avail the benefit of section 139 of the NI Act. favour of the latter. The party to whom such
12. On perusal o f the cross- debt is owed must either be made a party
examination of Mr. Arnab Roy (PW-1), it to such instrument or must be informed of
transpires that the entire transaction of the such assignment/transfer of liability. A mere
jewellery sale took place between the statement that the cheque was issued by a
complainant and Mr. Dhaval Bhatt. Mr. person to discharge the liability of another
Arnab Roy (PW-1) admits that the accused is not sufficient to set the wheels of criminal
had no role to play till the delivery of the prosecution under section 138 of the NI Act
cheques to the complainant, and Mr. Dhaval in motion. A reference in this regard can be
Bhatt handed over blank cheques with the made to the decisions of this Court in (Hiten
signature of the accused to the complainant. Sagar Vs. IMC Ltd.)4, 2001(5) Bom.C.R. 890
It is further admitted that there is no written : 2001 S.C.C. OnLine Bom. 432 and
document to show that the accused had (Nandkishore Mehra Vs. Sudhir Transport
taken over the liability of Mr. Dhaval Bhatt. Ltd.)5 , 2008(2) Bom.C.R.(Cri.) 292 : 2008
He further admits that the contents of the S.C.C. OnLine Bom. 1598. Given the
cheque were filled at the instance of the foregoing, the learned trial Court rightly
complainant. held that the accused did not take over the
13. Further, the cross-examination of liability of Mr. Dhaval Bhatt.
PW-1 reveals that it was Mr. Dhaval Bhatt 15. Coming to the issue of whether
who informed the complainant that the section 139 of the NI Act would aid the
outstanding amount of Rs. 10,02,980/- complainant in the absence of an instrument
would be paid by the accused, pursuant to of assignment of debt, it would be necessary
which Mr. Dhaval Bhatt handed over the to reproduce the said section. The section
cheques (including the cheque in question) reads as follows :
to the complainant. The record does not “139. Presumption in favour of holder.—It shall
reveal that the accused at any point in time be presumed, unless the contrary is proved, that
had informed the complainant that he the holder of a cheque received the cheque of the
would repay the debt of Mr. Dhaval Bhatt nature referred to in section 138 for the discharge,
for the purchase of the jewellery from the in whole or in part, of any debt or other liability.”
complainant. In addition to the deposition 16. The record reveals that the liability
of PW-1, there is no documentary evidence to pay the outstanding dues of the
on record to indicate that the accused took complainant was on Mr. Dhaval Bhatt. He
over the liability of Mr. Dhaval Bhatt and did not assign this liability unto the accused,
issued the cheque for discharging his as evidenced by the non-existence of a
liability towards the trade of jewellery with written instrument between the parties for
the complainant. such assignment or transfer of debt and the
14. It is a settled position in law that testimony of PW-1. Further, PW-1, in his
for the purpose of the prosecution under evidence, admitted that the contents of the
section 138 of the NI Act, an instrument blank cheque handed over by Mr. Dhaval
Bom.C.R.(Cri.) Udhav P. Nawsagre v. State of Maharashtra 655
Bhatt to the complainant were filled not by 19. In such circumstances, in the
the accused but by the complainant. The considered opinion of this Court, the trial
evidence of DW-1 reveals that the accused, Court has rightly acquitted the accused for
using the telebanking services on 4 April, the offence punishable under section 138 of
2009, informed his banker to stop the the NI Act.
payment of the said cheque. Accordingly, 20. As a result, this appeal fails and is
the accused’s banker issued a confirmation hereby dismissed.
certificate dated 6 April, 2009 (Exh.28) and Appeal dismissed.
a letter dated 18 January, 2011 (Ex.29) stating -----
that the payment of the said cheque was
There is direct eye-witness and medical
stopped on the telephonic instructions of
evidence corroborates ocular account,
the accused.
hence conviction sustained
17. The presumption under section
2024(1) Bom.C.R.(Cri.) 655
139 of the NI Act is rebuttable. The benefit
(AURANGABAD BENCH)
under this section cannot be availed if the
Before :
accused raises a plausible defence, which
creates doubts about the existence of a Smt. Vibha Kankanwadi & Abhay S.
legally enforceable debt or liability. To Waghwase, JJ.
create such doubt, the accused can rely on Udhav Punjaram Nawsagre ... Appellant.
the materials submitted by the complainant Versus
in order to raise such a defence, and it is State of Maharashtra … Respondent.
conceivable that in some cases, the accused Criminal Appeal No. 193 of 2019, decided
may not need to adduce evidence of his/her on 7-12-2023.
own. This is highlighted in the decision of Indian Penal Code, 1860, Sec. 302 –
Rangappa (supra). Appeal against conviction – Appreciation of
18. In the present case, the cheque was evidence – Oral dying declaration – Appellant-
not issued by the accused towards the husband of deceased was an agriculturist and
discharge of liability of the debt of Mr. in spite of their marriage to be many years old,
Dhaval Bhatt owed by him to the he suspected her chastity and harassed her – Her
complainant. If the cheque had been issued parents, relatives and neighbours were all aware
by Mr. Dhaval Bhatt for the outstanding of it – Appellant guilty for homicidal death of
amount of Rs. 10,02,980/-, the accused could his wife – Deceased suffered only and only
have availed the benefit of section 139 of homicidal death – There is recovery discovery of
the NI Act. However, in the absence of the weapon at instance of appellant himself – There
assignment of liability of Mr. Dhaval Bhatt are no lapses on investigation part – Guilt of
unto the accused and there being no nexus appellant is cogently proved – Sound reasons
between the issuance of the said cheque and are assigned for accepting prosecution case –
the liability of the accused to repay the There is direct eye-witness – Held, motive is
outstanding amount to the complainant, the clearly established by examining PW1 and PW6.
trial Court rightly concluded that the Medical evidence corroborates ocular account.
complainant failed to prove that the Criminal appeal is dismissed. (Paras 16 to 20)
dishonoured cheque was issued by the Advocates appeared :
accused for discharge of liability. V.S. Bedre, for appellant (Appointed through Legal Aid).
656 Udhav P. Nawsagre v. State of Maharashtra 2024(1)
S.D. Ghayal, A.P.P., for respondent – State. SUM AND SUBSTANCE OF THE
143.PM/IN/ND/RR/TC ARGUMENTS OF APPELLANT AND
Per ABHAY S. WAGHWASE, J.: – RESPONDENT
Judgment and order of conviction passed APPELLANT :-
by learned Additional Sessions Judge-I, 5. Learned Counsel for appellant
Nanded dated 16.5.2018 in Sessions Case would submit that, implication is in absence
No. 100 of 2015, holding appellant Uddhav of cogent and reliable evidence. According
guilty for charge under section 302 of Indian to him, there is no distinct evidence in
Penal Code (IPC) is now taken up by way support of alleged motive. He pointed out
instant appeal, thereby questioning its that, case of prosecution has been accepted
legality, maintainability and sustainability. by learned trial Judge without assigning
FACTUAL MATRIX sound reasons. He pointed out that, there
2. To put it in brief, appellant Uddhav is no independent witness or evidence.
husband of deceased was an agriculturist That, almost all witnesses are related
and in spite of their marriage to be many witness and hence interested witnesses. He
years old, he suspected her chastity and emphasized that, it is doubtful whether
harassed her. Her parents, relatives and informant, who is so called eye witness had
neighbours were all aware of it. really seen the incident, more particularly,
3. On 17.6.2015, while labouring in the in view of answers given by her in the cross.
field, in above backdrop appellant assaulted That, therefo re case was based on
Laxmibai by use of pick-axe, causing her multiple circumstantial evidence, but none of
injuries which turned out to be fatal. PW6 circumstances are firmly and cogently
Chayabai, who was also working in the adjoining proved. He further pointed out that, even
field, heard shouts of deceased and rushed there recovery is at belated stage. There is no
and found Laxmibai lying with bleeding injuries. corroboration from independent corner to
Appellant was present there. PW6 Chayabai the testimony of PW1 Smita and PW6
received oral dying declaration on a query by Chayabai. Lastly, it is submitted that, case
her to the deceased regarding appellant has not been proved beyond reasonable
assaulting her. While undergoing treatment, she doubt, and therefore findings and the
succumbed to the injuries. conclusion drawn by the learned trial Judge
cannot be allowed to be sustained.
FIR of the above occurrence was
registered and appellant was arrested, PROSECUTION :-
interrogated and after completion of 6. Learned APP while canvassing in
investigation, he was duly charge-sheeted. favour of the judgment under challenge
4. Learned Additional Sessions Judge- would submit that, there is direct eye
I, who was seized with the matter, witness. Motive is clearly established by
undertook trial and on appreciating the examining PW1 Smita and PW6 Chayabai.
evidence held appellant guilty for Medical evidence corroborates ocular
homicidal death of his wife, he was let off account. There is recovery at the instance
from charge under section 498-A of IPC for of appellant and therefore cumulative
want of evidence. ef f ec t o f suc h evi denc e w hi c h has
remained intact is rightly made the basis
Instant appeal arises out of above
of conviction by learned trial Judge and
judgment and order.
Bom.C.R.(Cri.) Udhav P. Nawsagre v. State of Maharashtra 657
consequently no fault whatsoever could be Regarding the incident, she narrated
found in the judgment and hence he prays that, around 5:00 to 5:30 p.m. when it was
to dismiss the appeal. dusk, she received phone call from very
7. Being first appellate Court, we have re- brother of accused appellant regrading
analyzed, reappreciated and re-examined the assault by appellant on the head and
entire oral and documentary evidence adduced stomach of deceased by means of pick-axe.
by the prosecution in trial Court. Papers show Therefore, she and her husband visited
that, prosecution adduced as many as 9 rural hospital, Hadgaon and saw deceased
witnesses and also relied on documentary in injured condition. Witness deposed that,
evidence, like FIR, inquest panchanama, recovery on asking deceased told that accused
and discovery panchanama, spot panchanama and assaulted on her head and stomach by pick-
PM report etc. axe after suspecting her character. While
8. On hearing both sides and on undergoing treatment, she died and so this
careful re-examination o f avail able witness lodged report, on the strength of
evidence, we have noticed that out of 9 which FIR was registered vide Exh.25 for the
witnesses, evidence of PW6 Chayabai and above offence.
PW1 Smita unfolds the motive and 11. We have visited the cross faced by
occurrence and therefore, we deem it fit to above witness, she seems to be questioned
first appreciate their testimonies, which are about her education, length of her married
at Exhs. 24 and 51 respectively. life, her relations with deceased, occupation
9. PW1 Smita seems to be the sister- of son of accused, regarding visit to the rural
in-law of deceased, whereas PW6 Chayabai hospital, Hadgaon, number of days for
seems to be the immediate neighbour as her which deceased was conscious, whether
field is adjoining to that of the appellant and police of Vazirabad Police Station visited
deceased. hospi tal, place where funeral was
10. PW1 Smita disclosed her relations conducted and the suggestion is put about
with deceased as deceased to be sister of her false deposition, which has been refuted by
husband. That, appellant and deceased had a her. Consequently, it is clearly emerging
son and a daughter and even daughter Kavita that, there is absolutely no serious cross on
to be married. According to her, appellant the motive or about the news of actual
suspected the character of deceased and occurrence.
subjected her to cruelty. He even beat her and 12. The star witness for prosecution
had asked her to arrange money for marriage is PW6 Chayabai and her evidence is at
of their daughter Kavita. She testified that, Exh.51, wherein she has deposed about land
deceased used to telephone her by making of accused to be adjoining to her land.
use of cellphone of her neighbour and Regarding the occupation, she testified that,
informed about the above conduct of on the day of incident, she herself, her
appellant towards her. Further according to sister-in-law Vandana and her husband had
her, a month prior to the incident, deceased gone to their field for sowing Soyabean. On
had come to her house at Basmat and while that day, accused and deceased were also
weeping, she narrated treatment meted out working in their f ield. That, in the
to her by appellant. afternoon, they both went to their house
42/24(1) and returned back to the field around 3:00
658 Udhav P. Nawsagre v. State of Maharashtra 2024(1)
p.m. and again started working in the field. Exh.44 and he testified regarding receipt of
She further deposed that, at the dusk time, requisition letter, inquest panchanama and
at about 5:00 to 5:15 p.m., she heard shouts thereafter co nducting post-mo rtem
of Laxmibai “save save” and so witness between 3:20 a.m. to 4:20 a.m. He narrated
claims that she, her husband, her sister-in- the injuries noticed by him from paragraphs
law rushed to the field of accused. They 1 and 2 describing the nature of injuries, its
noticed accused holding pickaxe and even size and measurement. He also narrated the
saw Laxmibai lying in the field with injury internal injuries noted by him on autopsy and
to her head. She deposed that, on being then opined regarding cause of death as
asked deceased told about assault by “death due to head injury with perforation
accused with pick-axe, and therefore, they peritonitus” and further deposed that injury
took her to government hospital, Hadgaon Nos. 1 and 3 reflected in column No. 17
in a rickshaw, but Laxmibai succumbed to corresponding to internal injury noted in
the injuries. column Nos. 19 and 21 and are sufficient to
Witness had identified Article 2 i.e. cause death in ordinary course of nature.
pick-axe confronted to in the witness box He also opined regarding potential of article
to be the same. She further deposed that, pick-axe to cause above injuries.
accused is her brother-in-law and she There is very little cross of medico
identified him in the Court also. legal expert, which he has flatly denied,
13. In her cross, she admitted that i.e. injuries to be possible while giving
martial life of deceased and accused was treatment and on account of fall from
good, that in the neighbouring field, the first floor.
other farmers were present, that accused is On analyzing above, evidence of PW6
a religious person. She admitted that, Chayabai and medical evidence, there is no
informant used to visit the house of accused. hesitation to hold that Laxmibai suffered
She denied that there was dispute between only and only homicidal death.
herself and accused on account of common 16. We have already discussed
bandh. She also flatly denied that, on the evidence of PW6 Chayabai. We have also
day of incident, she herself as well as gone through the cross faced by her. Her
deceased and appellant accused were in testimony having remained unshaken and
their respective homes. She also denied it inspires confidence and so deserves to be
suggestion that deceased fell from the tin accepted as direct eye witness account for
roof and suffered injuries and that appellant the simple reason that, she was in the close
took his wife to the hospital. She proximity of the scene of occurrence at the
volunteered that, they took deceased to time of incident. In fact, she had marked
hospital. She denied that deceased did not presence of appellant throughout the day
speak with her. Rest all is denied. working in the field in the company of
14. Learned APP has asserted that, deceased wife. She is very categorical about
death is proved to be homicidal one and that hearing shouts and rushing to the field of
ocular account tallies with medical account, appellant and finding him armed with pick-
apart from recovery of weapon. axe, which she identified in the witness box
15. PW5 Dr. Maroti Dake, who had also and has also deposed about deceased
conducted post-mortem is examined at lying in the field near appellant with bleeding
Bom.C.R.(Cri.) Mahesh V. Patil v. State of Maharashtra 659
injury. Nothing adverse has been brought in in the findings and the conclusion reached
her cross either to disbelieve or doubt her at by the learned trial Judge. Sound reasons
testimony. Therefore, her evidence deserves are assigned for accepting prosecution case.
to be accepted as fruitful one. Hence, we proceed to pass following order:-
17. PW3 Chandrakant, a public ORDER
servant, who has acted as pancha to The criminal appeal is hereby
memorandum of disclosure at Exh.32. In his dismissed.
evidence at Exh.31, he testified about Appeal dismissed.
visiting police station, appellant giving
-----
memorandum of disclosure, it being noted
and appellant taking police and panchas to In absence of any specific penal provision,
village Belgavhan, he making the vehicle person cannot be said that he is liable for
stopped, alighting from it and taking all of any prosecution for offences
them towards his house and from behind 2024(1) Bom.C.R.(Cri.) 659
the house, he taking out pick-axe from the Before :
water outlet and handing it over to police M.S. Karnik, J.
and it to be seized by its panchanama Mahesh Vinayak Patil ... Applicant.
(Exh.33). There is nothing in his cross to Versus
disbelieve above version. Consequently,
State of Maharashtra ... Respondent.
there is recovery discovery of weapon at the
instance of appellant himself. Criminal Revision Application No. 347
of 2023, decided on 3-1-2024.
18. We have further scrutinized the
evidence i.e. of other witnesses examined Immoral Traffic (Prevention) Act,
by prosecution, who are pancha to spot 1956, Secs. 3, 4 & 5 – Code of Criminal
(PW2 Baban) and pancha to memorandum Procedure, 1973, Sec. 227 – Indian Penal
of disclosure (PW3 Chandrakant). An Code, 1860, Sec. 370(3) – Discharge
acquaintance of accused and deceased application – Application for discharge rejected
(PW4 Kashinath) has unfortunately not by Trial Court – Allegation against accused
supported the prosecution. But, that itself for prostitution business – In this case only
would not have any reflection on above incriminating material relied upon by
discussed direct eye witness. Here, even prosecution against him is statement of police
treating doctor (PW7 Dr. Sabura Shirin official that applicant who is a customer, was
Mohd. Yunus) has been examined, who has found in a room with victim – Statement of
narrated about receiving history of assault victim was not recorded – It does not disclose
by husband, being given by none other than existence of ingredients nec essary to
injured. constitute offence – Held, in absence of any
specific penal provision, it cannot be said that
19. Investigating Officers i.e. PW8 PSI
he is liable for any prosecution for above said
Waghmare and PW9 Swami respectively, have
offences. Impugned order is set aside qua
also successfully carried out investigation. There
applicant only. Revision application is allowed.
are no lapses on their part.
(Paras 10 to 13)
20. Therefore, guilt of appellant is
Cases referred :
cogently proved. In appeal no case being
1. Mitan Singh Vs. State of Telangana, Crl.P. 9565/
made out on merits, we refrain to interfere 2022, dt. 31-10-2022.
660 Mahesh V. Patil v. State of Maharashtra 2024(1)
2. Goneka Sajan Kumar Vs. State of A.P., (2014)2 application for discharge is rejected by the
A.L.D.(Cri.) 264. trial Court for the following reasons:-
3. Z. Lourdiah Naidu Vs. State of A.P., (2013)2 LD
(Cri.l) 393. “6. It is settled position of law that while
4. Chandru S. Vs. State by Malleshwaram P.S. deciding application under section 227 of
Bengaluru, Crl.P. 5059/2017, dt. 7/12/2017. the Cr.P.C., the Judge has merely to sift the
evidence in order to find out whether or
not there is sufficient ground to proceed
Yash Dewal, for applicant.
against the accused. In other words, the
Smt. S.D. Shinde, A.P.P., for State.
sufficiency of ground would take within
148.PM/IN/ND/RR/TC its fold, the nature of evidence recorded
M.S. KARNI K, J.: – Heard l earned by police or the documents produced
Counsel for the applicant and learned before the Court which ex-facie disclose
APP for the State. that there are suspicious circumstances
against the applicant-accused so as to frame
2. The order dated 25/8/2023 passed
the charge against him.
by the Additional Sessions Judge, Kalyan,
7. Perused application, say and record. It
District Thane below application Exhibit 9
appears that there are specific allegations
rejecting the application for discharge by the against the applicant-accused about his
present applicant- accused No. 5 is under involvement in the commission of crime.
challenge. The applicant had approached the The c harge-sheet has been filed by
trial Court under section 227 of the Code of Investigating Officer after due investigation
Criminal Procedure, 1973 to discharge him in against the applicant-accused and other co-
connection with Sessions Case No. 24/2015 accused. At this stage, truth and veracity of
arising out of C.R. No. I I 56/2014 registered prosecution evidence, proposes to be
with Manpada Police Station for the offence adduced cannot be meticulously Judged.
The prosecution cannot be deprived of its
punishable under section 370(3) of the
right to prove its case against the applicant-
Indian Penal Code and 3, 4 and 5 of the
accused as charge sheet has been filed by
Immoral Traffic (Prevention) Act, 1956 the Investigating Offic er after due
(hereafter ‘PITA’ for short) investigation against him. It is not safe, at
3. The prosecution case in brief is as this stage to deprive the prosecution, in
under:- proving its case, on basis of, inspite of direct
The First Information Report (FIR) evidenc e. The aspec t of intention of
applicantaccused in committing the alleged
was registered on 29/10/2014. It is alleged
offence can be looked into, at the time of full-
in the FIR that on 28/10/2014, at about 8.15 fledged trial of the case. Under such
p.m., the police raided ‘Ruchi Lodging and circumstances, facts of case law and facts of
Boarding Hotel’ run by co-accused. It is case in hand are different, hence all respect,
alleged that prostitution activities were cited case law is not helpful to applicant-
being carried out in the hotel. At the time accused. Considering the over all aspect of
of raid, the applicant was found in a room the case, this Court is of view that applicant-
with the victim which according to the accused has not made out case to discharge
prosecution constitutes the offence under him from the crime.”
the aforesaid sections. 5. Heard learned Counsel for the
4. The applicant is the accused No. 5. applicant and learned APP for the State.
The applicant is alleged to be the customer 6. As per the case of the prosecution,
who was found with the victim. The the applicant is a customer. Learned APP
submitted that the concerned police officials knowingly allows any other person to use,
of the raiding party have clearly stated that such premises or any part thereof as a
when the raid was conducted, the applicant brothel, or
was found in one of the rooms with a (b) being the owner, lessor or landlord of any
woman who is named in the panchanama. It premises or the agent of such owner,
lessor or landlord, lets the same or any
is submitted that the victim has clearly
part thereof with the knowledge that
stated to the police officials that she is t h e s a m e o r a n y p a r t t h e r e of i s
indulging in activities which constitutes an intended to be used as a brothel, or is
offence under PITA as per the instructions of wilfully a party to th e use of suc h
the co-accused and from the remuneration premises or any part thereof as a brothel,
received, some part of it is retained by the shall be punishable on first conviction
owner of the lodge as a commission. with imprisonment for a term which may
Learned APP submitted that the victim was extend to two years and with fine which
found with cash of Rs. 250/-. may extend to two thousand rupees and
in the event of a second or subsequent
7. The FIR is of the year 2014. On the conviction, with rigorous imprisonment
earlier occasion, this Court had granted for a term which may extend to five years
time to the respondent to find out whether and also with fine.
the statement of the victim was recorded (2A) For the purposes of sub-section (2) it shall
and what are the materials justifying the be presumed until the contrary is proved,
invocation of section 3, 4 and 5 of the PITA. that any person referred to in Clause(a) or
I am informed by learned APP that the Clause(b) of that sub-section, is knowingly
statement of the victim is not recorded. allowing the premises or any part thereof
Only material relied upon by learned APP to be used as a brothel or, as the case maybe,
is the statement of the police officials of the has knowledge that the premises or any part
thereof are being used as a brothel, if, -
raiding party that the applicant was found
(a) a report is published in a newspaper having
in a room along with a woman indulging
circulation in the area in which such person
in activities which is an offence under PITA. resides to the effect that the premises or
Sections 3, 4 and 5 of the PITA reads thus:- any part thereof have been found to be
“3. Punishment for keeping a brothel or used for prostitution as a result of a search
allowing premises to be used as a brothel. made under this Act; or
- (1) Any person who keeps or manages, or (b) a copy of the list of all things found during
acts or assists in the keeping or management the search referred to in Clause (a) is given
of, a brothel shall be punishable on first to such person].
conviction with rigorous imprisonment for (3) Notwithstanding anything contained in any
a term of not less than one year and not more other law for the time being in force, on
than three years and also with fine which conviction of any person referred to in
may extend to two thousand rupees and in Clause (a) or Clause (b) of sub-section (2) of
the event of a sec ond or subsequent any offence under that sub-section in respect
conviction, with rigorous imprisonment for of any premises or any part thereof, any
a term of not less than two years and not lease or agreement under which such
more than five years and also with fine premises have been leased out or are held
which may extend to two thousand rupees. or occupied at the time of the commission
(2) Any person who- of the offence, shall become void and
(a) being the tenant, lessee, occupier or person inoperative with effect from the date of the
in c harge of any premises, uses, or said conviction.
4. Punishment for living on the earnings of years and also with fine which may extend
prostitution. - (1) Any person over the age to two thousand rupees, and if any offence
of eighteen years who knowingly lives, under this sub-section is committed against
wholly or in part, on the earnings of the the will of any person, the punishment of
prostitution of 1(any other person) shall be imprisonment for a term of seven years shall
punishable with imprisonment for a term extend to imprisonment for a term of
which may extend to two years, or with fine fourteen years :
which may extend to one thousand rupees, Provided that if the person of whom an offence
or with both 2(and where such earnings committed under this sub-section,-
relate to the prostitution of a child or a (i) is a child, the punishment provided under
minor, shall be punishable with this sub-section shall extend to rigorous
imprisonment for a term of not less than imprisonment for a term of not less than
seven years and not more than ten years). seven years but may extend to life; and
[(2) Where any person over the age of eighteen (ii) is a minor, the punishment provided
years is proved - under this subsection shall extend to
(a) to be living with, or to be habitually in the rigorous imprisonment for a term of not
company of, a prostitute; or less than seven years and not more than
(b) to have exercised control, direction or fourteen years].
influenc e over the movements of a [***]
prostitute in such a manner as to show that (3) An offence under this section shall be
suc h person is aiding, abetting or triable-
compelling her prostitution; or (a) in the place from which a [person] is
(c) to be acting as a tout or pimp on behalf of a procured, induced to go, taken or caused
prostitute, it shall be presumed, until the to be taken or from which an attempt to
contrary is proved, that such person is procure or take such [person] is made; or
knowingly living on the earnings of (b) in the place to which he may have gone as a
prostitution of another person within the result of the inducement or to which he is
meanings of Sub-section (1).] taken or caused to be taken or an attempt
5. Procuring, including or taking person for the to take him is made.”
sake of prostitution. - (1) Any person who -
8. Section 370 of the IPC which has
(a) procures or attempts to procure a 1[person],
been invoked in the present case against the
whether with or without his consent, for
applicant reads thus:-
the purpose of prostitution; or
(b) includes a [person] to go from any place, 370. Trafficking of person.— (1) Whoever, for
with the intent that he, may for the purpose the purpose of exploitation, (a) recruits, (b)
of prostitution become the inmate of or transports, (c) harbours, (d) transfers, or (e)
frequent, a brothel; or receives, a person or persons, by
(c) takes or attempts to take a [person], or First.using threats, or
causes a [person] to be taken, from one Secondly.using force, or any other form of
place to another with a view to his carrying coercion, or
on or being brought up to c arry on Thirdly.by abduction, or
prostitution; or Fourthly.by practising fraud, or deception, or
(d) causes or induces a 1[person] to carry on Fifthly.by abuse of power, or
prostitution;
Sixthly. by inducement, including the giving
[shall be punishable on conviction with or receiving of payments or benefits, in
rigorous imprisonment for a term of not less order to achieve the consent of any person
than three years and not more than seven having control overthe person recruited,
transported, harboured, transferred or remainder of that person’s natural life, and
rec eived, c ommits the offenc e of shall also be liable to fine.”
trafficking. 9. In my view, sections 3 and 4 of the
Explanation 1.—The expression “exploitation” PITA as well as section 370 of the IPC are
shall include any act of physical exploitation not at all attracted in the present facts as
or any form of sexual exploitation, slavery
the applicant is alleged to be a customer
or practices similar to slavery, servitude, or
the forced removal of organs.
and as the statement of the victim is not
Explanation 2.–The consent of the victim is
recorded. So far as section 5(a) of the PITA
immaterial in determination of the offence is concerned, learned APP vehemently
of trafficking. submitted that the applicant procured the
(2) Whoever commits the offence of trafficking woman for prostitution and therefore, the
shall be punished with rigorous imprison- applicant can be proceeded with for the
ment for a term which shall not be less than offence punishable under section 5 (a) of
seven years, but which may extend to ten the PITA.
years, and shall also be liable to fine. 10. I may refer to few decisions of the
(3) Where the offence involves the trafficking High Courts relied by learned Counsel
of more than one person, it shall be
which dealt with section 3, 4, and 5 of the
punishable with rigorous imprisonment for
PITA. The Telangana High Court in (Mitan
a term which shall not be less than ten years
but which may extend to imprisonment for Singh Vs. The State of Telangana)1, Crl.
life, and shall also be liable to fine. Petition No. 9565/2022, decided on 31/10/
(4) Where the offence involves the trafficking 2022 in paragraphs 5, 6 and 7 has held thus:-
of a minor, it shall be punishable with “5. This Court while dealing with the same
rigorous imprisonment for a term which subjec t-matter, in th e or der, d at ed
shall not be less than ten years, but which 11.7.2022, that is rendered in Criminal
may extend to imprisonment for life, and Petition No. 5999 of 2022 has extensively
shall also be liable to fine. dealt with the issue whether ‘customer ’
(5) Where the offence involves the trafficking would fall within the ambit of sections 3
of more than one minor, it shall be to 5 of the PITA Act and held that the
punishable with rigorous imprisonment for provisions of the PITA Act does not cover
a term which shall not be less than fourteen the alleged c ustomer. Same view was
years, but which may extend to taken by this Court again in the decision
imprisonment for life, and shall also be that is rendered in Criminal Petition Nos.
liable to fine. 6806 and 6807 of 2022, dated 8.8.2022. This
(6) If a person is convicted of the offence of Court at paras 6 and 7 of the said common
trafficking of minor on more than one order held as follows:-
occasion, then such person shall be punished “6. Whether a customer would fall within the
with imprisonment for life, which shall ambit of the provisions of Prevention of
mean imprisonment for the remainder of Im mor al Tr affic Ac t or n ot was
that person’s natural life, and shall also be extensively dealt with by this Court in
liable to fine. the decision that is rendered in Criminal
(7) When a public servant or a Police Officer is Petition No. 5999 of 2022 dated 11.7.2022
involved in the trafficking of any person (by Hon’ble Dr. Justic e Chillakur
then, such public servant or Police Officer Sumalatha). In the said decision, the
shall be punished with imprisonment for observations of the Court, more
life, which shall mean imprisonment for the particularly, at paras 10 to 13, are as under:-
2
“10. Section 3 of the PITA Act, 1956 prescribes Kumar Vs. State of A.P.) , (2014)2
punishment for keeping a brothel or A.L.D.(Cri.) 264 and in the case of (Z.
allowing the premises to be used as Lourdiah Naidu and another Vs. State of
brothel. Section 4 of the Act, 1956, A.P.)3, (2013)2 LD (Cri.) 393.
prescribes punishment for living on the 13. In the case on hand, the acts committed by
earnings of prostitution. Likewise, the petitioner-Accused No.4 as per the
section 5 of the Act, 1956, prescribes contents of charge sheet squarely fall within
punishment for procuring, inducing or the ambit of Section 370-A(ii) IPC.”
t akin g p er s on for t h e s ake of 7. Thus, by the above decision, it is clearly
prostitut ion. Therefore, as rightly indicated that sections 3 to 5 of the
submitted by learned Counsel for the Prevention of Immoral Traffic Act does not
petitioner, those provisions does not attract the customers. However, section
attract to the customer who approaches 370-A IPC attracts. Indicating the same
a br ot hel h ous e or a wom an in view, the Criminal Petitions are disposed
prostitution. Thus, this Court is of the of. The Investigating Officer shall take note
view that continuation of proceedings of the fact that sections 3 to 5 of Prevention
against the petitioner-Accused No. 4, of Immoral Traffic Act does not cover the
even as per the version of prosecution acts of the customers who are found
who is the customer, under the provisions involved in the acts pertaining to which the
of sections 3 to 5 of the Act, 1956 is un- Prevention of Immoral Traffic Act is
desirable. However, section 370-A IPC legislated. However, the customers would
prohibits exploitation of traffic in person. fall within the ambit of section 370-A IPC.
The said provision reads as under: Therefore, in case, convincing material is
“370A. Exploitation of a trafficked person.— found attracting the said provision, the
(1) Whoever, knowingly or having reason Investigating Agency can proceed with the
to believe that a minor has been trafficked, filing of final report on completion of
engages such minor for sexual exploitation investigation in respec t of the said
in any manner, shall be punished with provision or in respect of any other
rigorous imprisonment for a term which provisions, except the provisions covered
shall not be less than five years, but which under Prevention of Immoral Traffic Act.”
may extend to seven years, and shall also be
6. As rightly submitted by the learned Assistant
liable to fine.
Public Prosecutor, on investigation, charge-
(2) Whoever, knowingly by or having reason
sheet would be accordingly laid by quoting
to believe that a person has been trafficked,
the provisions of law which attracts to the
engages such person for sexual exploitation
case facts. However, the apprehension of the
in any manner, shall be punished with
learned Counsel for the petitioner is that in
rigorous imprisonment for a term which
case, in a mec hanic al manner, Police
shall not be less than three years, but which
concerned incorporates sections 3 to 5 of the
may extend to five years, and shall also be
PITA Act, the trial of the case would be
liable to fine.”
conducted by the Sessions Court and the
11. Thus, by the above provisions, it is clear
petitioner would be put to hardship.
that whoever knowingly or having reason
7. Having considered the submission thus
to believe that a minor or a person has
made, this Court considers it desirable to
been trafficked, engages such minor or
dispose of this Criminal Petition indicating
person for sexual exploitation, shall be
the legal position to be followed.”
punished.
12. Similar view has been expressed by this 11. The High Court of Karnataka in
Court in the case of (Goneka Sajan (Chandru S. & another Vs. The State by
Malleshwaram P.S. Bengaluru & another)4, 13. In the present case the only
Crl. Petition No. 5059/2017 decided on 7/12/ incriminating material relied upon by the
2017 in paragraphs 3, 4 5 and 6 observed thus:- prosecution against him is the statement of
“3. In all the above said decisions, this Court the police official that the applicant who is
has considered that the offences under a customer, was found in a room with the
sections 3, 4, 5 and 7 of the ITP Act and victim. The statement of the victim was not
section 370 IPC are not attracted, so far as recorded. In such view of the matter, it can
the c ustomers of a brothel house is hardly be said that there is any material on
c onc erned. In fact, this Court has record even at this stage qua this applicant
consistently come to the conclusion after
to demonstrate that the victim was procured
analyzing the above said provisions in the
above said cases, that the constitution of the or attempt was made to procure the victim
offences are not made-out sofaras the for the prostitution. In this view of the
customers are concerned. matter, in my opinion, on the basis of such
4. This is also evident from the reading of the materials even if taken at its face value does
above said provisions that,- not disclose the existence of the ingredients
Section-3 of the Act is a section which provides necessary to constitute the offence. I rely
punishment for keeping a brothel or upon the decision in (State by Karnataka
allowing premises to be used as brothel. Lakayukta Police Station, Bengaluru Vs.
Section-4 provides for punishment of living on M.R. Hiremath)3, in support o f my
the earnings of the prostitution. conclusion.
Section-5 provides procuring, inducing or
14. The impugned order is set aside
taking person for the sake of prostitution.
qua the applicant only.
Section-7 applies to prostitution and in or in
the vicinity of public place. (Emphasis 15. The revision application is allowed
Supplied) in terms of prayer Clauses (a) and (b).
5. Ther efor e, n one of t he ab ove s aid 16. The revisi on appl icatio n is
provisions are attrac ted so far as the disposed of.
customers are concerned. Though it is felt Application allowed.
by this Court on various occasions that the
customer virtually encourages prosti- -----
tution, but in the absence of any specific Grant of bail to CCL shall not be impeded
penal provision, it cannot be said that he by nature of gravity of offence alleged to
is liable for any prosecution for the above have been committed by him
said offences. 2024(1) Bom.C.R.(Cri.) 665
6. In the above said circumstances, I do not (AURANGABAD BENCH)
find any strong reason to differ from the
above said consistent view taken by this Before :
Court. There is no legal impediment to S.G. Chapalgaonkar, J.
quash the proceeding.” XYZ ... Applicant.
12. No doubt, the decisions relied Versus
upon are of persuasive value. However, in State of Maharashtra ... Respondent.
my opinion, it may not be necessary to rely Criminal Revision Application No. 149
upon the aforesaid decisions and express of 2023, decided on 18/22-12-2023.
any opinion thereon in the light of the view Juvenile Justice (Care and Protection
that I propose to take. of Children) Act, 2015, Secs. 12, 13(2) & 102
666 XYZ v. State of Maharashtra 2024(1)
– Indian Penal Code, 1860, Secs. 302, 109, “CCL”) for his release on bail from the
114 & 34 – Bail to child in conflict with law custody of the Observation Home, Beed, in
(CCL) – Release on bail from custody of connection with Cr.No. 443 of 2021,
Observation Home – Held, Juvenile Justice (Care registered with Police Station Shivajinagar,
and Protection of Children) Act, is under Beed, for the offences punishable under
obligation to release CCL on bail with or without sections 302, 109, 114 read with 34 of the
surety subject to reservations underlined under Indian Penal Code (for short “I.P.C.”) has
proviso. Grant of bail to CCL shall not be been rejected.
impeded by nature of gravity of offence alleged 2. The applicant/CCL has been
to have been committed by him. Order impugned apprehended in pursuance of Crime No.
sans requisite reasons for denial of bail to CCL. 443 of 2021, registered on the information
CCL is languishing in Observation Home since given by Shaikh Saajed Shaikh Sattar, who
15-12-2021. Period of 2 years has been already is the brother of the deceased. It is alleged
lapse. Social investigation report has been called that on 14.12.2021, at about 3.30 p.m., the
from Probation Officer. Father of CCL expressed informant received a telephonic message
his willingness to take him in custody and give that his brother namely Saheed had been
an undertaking that in case of release of CCL on encircled by the accused persons and they
bail, he would be trained for painting work i.e. were beating him. The mother of the
business of father. There is nothing on record to accused Mohansingh was instigating the
indicate that CCL is likely to come in association assailants. Accused Mohansingh raised
with known criminals or get exposed to moral, assault of knife but was dogged by the
physical or sociological danger or his release Shaikh Shaheed. However, the applicant/
would defeat ends of justice. Revision CCL stabbed on his stomach. On such
Application is allowed. (Paras 6 to 9) message the informant reached to the
Cases referred : Government Hospital, where Doctor declared
1.State of Tamil Nadu Vs. Union of India, (2020)14 Shaikh Saheed to be dead. Accordingly, an
S.C.C. 327.
offence came to be registered against the
2. X-Juvenile Vs. State of U.P., (2023)1 High Court
Cases (All.) 78.
applicant/CCL, accused Mohansingh and his
mother. The applicant/CCL has been
apprehended and produced before the
Gandle Mahendra Panditrao, for applicant.
S.B. Narwade, A.P.P., for respondent-State.
Juvenile Justice Board (JJB) on 15.12.2021.
The bail application of the applicant/CCL
146.PM/IN/ND/RR/TC
came to be rejected. The Criminal Appeal
S.G. CHAPALGAONKAR, J.: – This
No. 60 of 2022 that was filed before the
revision application is filed under section
Sessions Court, is also rejected by order
102 of the Juvenile Justice (Care and
dated 16.8.2022, hence this revision.
Protection of Children) Act, 2015 (here-in-
after referred to as “JJ Act” for the brevity). 3. Mr. Gandle, learned Advocate
The child in conflict with law, impugns appearing for the applicant/CCL (for short
order dated 27.4.2022 by Juvenile Justice “CCL”) submits that the CCL was aged
Board as well as the order dated 16.8.2022 about 14 years at the time of incident and
passed by the Sessions Judge, Beed in he has been sent in observation home at
Criminal Appeal No. 60 of 2022, by which a Beed since 15.12.2021. However, for no
prayer of the applicant/CCL (for short good reasons his prayer for release on bail
Bom.C.R.(Cri.) XYZ v. State of Maharashtra 667
has been rejected, dehors object and scope officer-in-charge of the Police Station, such
of the enabling provisions under the officer shall cause the person to be kept only in
Juvenile Justice (Care and Protection of an observation home or a place of safety, as the
Children) Act, 2015. case may be, in such manner as may be prescribed
until the person can be brought before a Board.
4. The learned APP strongly objects
(3) When such person is not released on bail under
the prayer and submits that the evidence
sub-section (1) by the Board, it shall make an
on record clearly depicts that the CCL took order sending him to an observation home or a
knife from the hand of co-accused and place of safety, as the case may be, for such period
inflicted stab injury on the stomach of the during the pendency of the inquiry regarding
deceased. The report of Psychological the person, as may be specified in the order.
Analyst received from the Probation Officer (4) When a child in conflict with law is unable to
along with the medical report of Civil fulfill the conditions of bail order within seven
Hospital, depicts that the CCL to be days of the bail order, such child shall be produced
mentally fit. However, there are criminal before the Board for modification of the
antecedents to his discredit. She would conditions of bail.”
submit that the CCL required Counseling 6. The mandate of the aforesaid
and there is threat to his protection. provisions requires that the CCL alleged to
5. Having considered the submissions have committed a bailable or non bailable
advanced, it is apposite to refer section 12 of offence and apprehended, shall be release
the Juvenile Justice (Care and Protection of on bail with or without surety. The proviso
Children), Act, 2015, which reads as under : to section 12(1) puts an exception, where
“12. Bail to a person who is apparently a child there are reasonable grounds to believe that
alleged to be in conflict with law :- the release of CCL is likely to bring him into
(1) When any person, who is apparently a child and the association with any known criminal or
is alleged to have committed a bailable or non- exposed him to moral, physical or
bailable offence, is apprehended or detained by sociological danger or his release would
the police or appears or brought before a Board, defeat the ends of justice. It is therefore,
such person shall, notwithstanding anything evident that the denial of bail to the CCL
contained in the Code of Criminal Procedure, shall be for specific reasons akin to above
1973 (2 of 1974) or in any other law for the
proviso.
time being in force, be released on bail with or
without surety or placed under the supervision 7. The Hon’ble Supreme Court of
of a probation officer or under the care of any India, in the matter of – Re Exploitation of
fit person : Children in Orphanages in the (State of
Provided that such person shall not be so released if Tamil Nadu Vs. Union of India and others)1,
there appears reasonable grounds for believing (2020)14 S.C.C. 327, dealt with the
that the release is likely to bring that person provisions of section 12 under the Act and
into association with any known criminal or laid down certain guidelines while dealing
expose the said person to moral, physical or
with an application and seeking bail
psychological danger or the person’s release
observed that the rejection of bail can only
would defeat the ends of justice, and the Board
shall record the reasons for denying the bail and be for restricted reasons appearing in
circumstances that led to such a decision. proviso to section 12(1) of the Act. Recently
(2) When such person having been apprehended is the High Court of Allahabad in case of
not released on bail under sub-section (1) by the (2023)1 High Court Cases (All.) 78 (X-
668 Nandkishor E. Kothawade v. State of Maharashtra 2024(1)
Juvenile Vs. State of U.P. and others)2 , 2022 order dated 27.4.2022 passed by the
observed that the use of word “shall” in Juvenile Justice Board, is hereby quashed
section 12 of the Act raises presumption that and set aside.
particular provision is imperative and c) The applicant/CCL be released on PR bond
further observed that the Juvenile Justice of Rs. 25,000/- (Rs. Twenty Five Thousand
Only) with two sureties to be furnished by
(Care and Protection of Children) Act, 2015
his father in the like amount.
is under obligation to release the CCL on
d) The natural guardian/father of the applicant/
bail with or without surety subject to CCL shall furnish an undertaking to take
reservations underlined under the proviso. proper care of the applicant/CCL so that he
It is further observed that the grant of bail would not indulge in any criminal activities,
to the CCL shall not be impeded by nature while on bail and shall be produced before
of gravity of offence alleged to have been the Children’s Court, as and when required.
committed by him. e) The Juvenile Justice Board, Beed shall inform
8. If the aforesaid principle of law about the release of the applicant/CCL on
applied to the facts of the present case, it bail to the Probation Officer or the Child
Welfare Officer as per the provisions of
can be observed that the order impugned
section 13 (2) of the Juvenile Justice (Care
sans requisite reasons for denial of bail to and Protection of Children) Act, 2015.
the CCL. The CCL is languishing in f) The applicant/CCL shall not directly or
Observation Home since 15.12.2021. The indirectly induce, threaten or tamper with
period of 2 years has been already lapse. the prosecution witnesses in any manner.
The social investigation report has been Application allowed.
called from the Probation Officer. The father
-----
of the CCL expressed his willingness to take
him in custody and give an undertaking Order of investigation made under
that in case of release of CCL on bail, he section 202 of Cr.P.C. is not of nature of
would be trained for painting work i.e. further investigation as contemplated
business of the father. under Section 173(8) of Cr.P.C.
9. There is nothing on record to 2024(1) Bom.C.R.(Cri.) 668
indicate that the CCL is likely to come in Before :
association with the known criminals or get A.S. GadkariI & Shyam C. Chandak, JJ.
exposed to moral, physical or sociological Nandkishor Eknath Kothawade ... Applicant.
danger or his release would defeat the ends Versus
of justice. In the wake o f aforesaid State of Maharashtra & anr. ... Respondents.
circumstances the case is made out to allow
Criminal Application No. 463 of 2014,
this Revision Application and to release the
decided on 1-12-2023/8-1-2024.
CCL on bail by setting aside the impugned
order passed by the Sessions Judge, Beed. Code of Criminal Procedure, 1973,
Hence following order : Secs. 202 & 482 – Indian Penal Code, 1860,
Secs. 406 & 420 – Quashment of FIR – Grounds
ORDER
to be considered – When Order of investigation
a) The Revision Application is allowed.
is made under Section 202 of Cr.P.C., such Order
b) The impugned order passed by the is made after taking cognizance of matter and
Additional Sessions Judge, Beed dated
after making such order, Magistrate cannot make
16.8.2022 in Criminal Appeal No. 60 of
order under Section 156(3) of Cr.P.C. – Held,
Bom.C.R.(Cri.) Nandkishor E. Kothawade v. State of Maharashtra 669
Order of investigation made under Section 202 June, 2014. The Rule was issued on 13th
of Cr.P.C. is not of nature of further investigation June, 2016, and the ad-interim relief was
as contemplated under Section 173(8) of Cr.P.C. continued to operate as interim relief.
Without taking note of this cautious method of 2. Heard Ms. Farzana Khan, learned
said learned Magistrate, subsequent learned Advocate for the Applicant and Mr. Ajay
Magistrate passed impugned Order, which Patil, learned APP for respondent No. 1-State.
finally led to registration of impugned F.I.R. This Respondent No. 2 is duly served. However,
is wholly in contrast to scheme of Cr.P.C. which, none appeared for respondent No. 2, when
provides for inquiry/investigation under Section the matter taken up for final hearing.
202 only and not investigation under Section 3. Respondent No. 2 has filed the
156(3) thereof. Impugned order is quashed and R.C.C.No. 1158/2013 (old S.C.C. No. 3680/
set aside. Criminal Application is allowed. 2012 and hereinafter referred to as ‘the
(Paras 7 & 8) complaint’, for short ) wherein it is alleged
Cases referred : that, in February 2011, all the seven Accused
1. Panchabhai Vs. State of Maharashtra, 2010(1) persons named therein induced respondent
Bom.C.R.(Cri.) 1 : 2010(1) Mh.L.J. 421. No. 2 to invest money in the business of the
2. Tula Ram Vs. Kishore Singh, 1977 DGLS(S.C.)
288 : (1977)4 S.C.C. 459.
accused persons namely M/s. Shri Swami
3. R.R. Chari Vs. State of Uttar Pradesh, 1951 Samarth Investment, by giving f alse
DGLS(S.C.) 22 : 1951 S.C.R. 312. assurance that, out of the said investment
4. Mona Panwar Vs. Hon’ble High Court of Judicature he would get huge profit. Respondent No.
at Allahabad through its Registrar, 2011(1) 2 fell prey to that assurance and invested
Bom.C.R.(Cri.) 696(S.C.) : (2011)3 S.C.C. 496.
total Rs. 5,00,000/- in the said business of
5. Vinubhai Haribhai Malaviya Vs. State of Gujarat,
2019 DGLS(S.C.) 1365 : A.I.R. 2019 S.C. 5222.
the Accused. Thereafter, sometime in the
6. Paraji Sheshrao Madan Vs. State of Maharashtra, month of July 2011, respondent No. 2 asked
2021(1) Bom.C.R.(Cri.) 321 : A.I.R. Online 2020 the accused persons to give him his
Bom. 3123. principal amount and the profit earned
Advocates appeared : thereon by them. The accused persons
Ms. Farzana Khan i/b. Harshadd Palwe, for avoided to return his money and his share
applicant. in the profit. However, due to persistent
Ajay Patil, A.P.P., for respondent-State. demands made by respondent No. 2, in
152.PM/IN/ND/RR/TC March 2012, Accused No.1 gave a cheque
Per SHYAM C. CHANDAK, J.: – Present of Rs. 14,40,000/- to respondent No. 2
Application is filed under section 482 of towards the principal amount of Rs.
Code of Criminal Pro cedure, 1973 5,00,000/- and the profit of Rs. 9,40,000/-. The
(“Cr.P.C.”, for short) seeking to quash and said cheque was dishonoured when
set aside the Order dated 12th February, presented for encashment. Respondent No.
2014 passed in R.C.C. No. 1158 of 2013 by 2, therefore, issued a statutory notice to
the learned Judicial Magistrate, First Class, Accused No. 1 but, was in vain. Thereafter,
Court No. 6, at Nashik and F.I.R. being respondent No. 2 demanded his money
C.R.No. 41 of 2014 dated 27th February, from the Accused but they refused to pay.
2014, registered with Ambad Police Station. Thus, the accused persons in furtherance of
1.1. Record of the application reveals their common intention cheated respondent
that, Ad-interim relief was granted on 9th No. 2. Hence, he filed the said complaint.
670 Nandkishor E. Kothawade v. State of Maharashtra 2024(1)
4. After considering the complaint, Submissions :
initially, the then learned Judi cial 5. Learned Advocate for the applicant
Magistrate, First Class did not find it submitted that, undisputedly, the erstwhile
necessary to issue directions to the police learned Magistrate had decided to examine
for investigation and by passing an Order the respondent No. 2 under section 200 of
below Exh.1 dated 29th November 2012, the Cr.P.C. and accordingly, his examination
learned Magistrate directed to “put up (the was subsequently recorded. It is the settled
case) for verification”. Accordingly, position of law that, once the Magistrate has
respondent No. 2 was examined under examined the complainant as above, he is
section 200 of Cr.P.C. on 1st December, 2012. deemed to have taken the cognizance of the
4.1. On 14th October, 2013 the offences stated in the complaint. Thereafter,
subsequent learned Magistrate noted that, there is no scope to refer such complaint for
“the offence charged against the accused are registration of the F.I.R., investigation and
under sections 406, 420 etc. of I.P.C., hence, submission of report, as provided under
A.S. (Asstt. Superintendent) to register the section 156(3) of Cr.P.C., which course is
case as ‘Regular Triable Case’, entry available only at a precognizance stage.
regarding institution register be changed, Therefore the impugned Order and the
accordingly”. On 12th February, 2014, the consequent F.I.R. bearing C.R. No. 41/2014,
learned Magistrate passed the impugned are illegal. Hence, the same are liable to be
Order, which is as under: quashed and set aside.
ORDER BELOW EXH. 1 6. Learned APP for the respondent-
“1. Read the complaint. Perused the documents State fairly submitted that, considering the
placed on record. It appears that, the complaint facts of the case, appropriate Orders may
perta i ns to co mm issio n o f serio us and be passed in the interest of justice.
co gni z a bl e o ff ence. It requi res to be 7. In the case of (Tula Ram Vs. Kishore
investigated by Police as per the guidelines in
Singh)2, 1977 DGLS(S.C.) 288 : (1977)4 S.C.C.
the case o f (Panchabhai Vs. State of
M aharas htra) 1 , r ep or t ed in 2010(1) 459, cited by learned Counsel for the
Bom.C.R.(Cri.) 1 : 2010(1) Mh.L.J. 421. Applicant, the Hon’ble Supreme Court
2. Therefore, P.I. Ambad Police Station is directed observed that, the question as to what is
to register F.I.R. against Accused and carry out meant by taking cognizance is no longer res
the investigation and submit his report as per integra as it has been decided by several
section 156(3) of Cr.P.C. decisions of the Apex Court. Then reference
3. Certified copy of the complaint be sent to was made to the decision in the case of (R.R.
Ambad Police Station for investigation for that Chari Vs. State of Uttar Pradesh)3, 1951
purpose. Complainant is directed to file DGLS(S.C.) 22 : 1951 S.C.R. 312, wherein the
certified copies of complaint and documents Apex Court observed that, “Taking
filed with”. cognizance does not involve any formal
s/d (Eng.) action or indeed action of any kind but
(name) occurs as soon as a Magistrate as such
Judicial Magistrate, First Class, appli es his mind to the suspected
Court No. 6, Nashik. commission of an offence”.
4.2. Hence, the impugned F.I.R. being 7.1. In the case of (Smt. Mona Panwar
C.R. No. 41 of 2014, came to be registered. Vs. The Hon’ble High Court of Judicature
Bom.C.R.(Cri.) Nandkishor E. Kothawade v. State of Maharashtra 671
at Allahabad through its Registrar and intended only to harass such person. Such
others)4, 2011(1) Bom.C.R.(Cri.) 696(S.C.) : examination is provided, therefore, to find out
(2011)3 S.C.C. 496, the Hon’ble Supreme whether there is or not sufficient ground for
Court held that, “……. A Magistrate can proceeding further.
under section 190 of the Code before taking 7.2. Recently, in (Vinubhai Haribhai
cognizance ask for investigation by the police Malaviya Vs. The State of Gujarat)5, 2019
under section 156(3) of the Code. The Magistrate DGLS(S.C.) 1365 : A.I.R. 2019 S.C. 5222, in
can also issue warrant for production, before para 51, the Hon’ble Supreme Court has
taking cognizance. If after cognizance has been held that, “….The direction for investigation
taken and the Magistrate wants any by the Magistrate under Section 202, while
investigation, it will be under section 202 of the dealing with a complaint, though is at a post-
Code. The phrase “taking cognizance of” means cognizance stage, it is in the nature of an inquiry
cognizance of offence and not of the offender. to derive satisfaction as to whether the
Taking cognizance does not involve any formal proceedings initiated ought to be furthered or
action or indeed action of any kind but occurs not . …..”. Considering the decision in the
as soon as a Magistrate applies his mind to the case of Vinubhai (supra), in the case of (Paraji
suspected commission of an offence. Cognizance, Sheshrao Madan Vs. State of
therefore, takes place at a point when a Maharashtra)6, 2021(1) Bom.C.R.(Cri.) 321
Magistrate first takes judicial notice of an : A.I.R. Online 2020 Bom. 3123, this Court
offence. This is the position whether the observed that, “when Order of investigation
Magistrate takes cognizance of an offence on a is made under section 202 of Cr.P.C., such
complaint or on a police report or upon Order is made after taking cognizance of
information of a person other than a police officer. the matter and after making such Order, the
Before the Magistrate can be said to have taken Magistrate cannot make Order under
cognizance of an offence under section 190(1)(b) section 156(3) of Cr.P.C. It is made clear that
of the Code, he must have not only applied his Order of investigation made under section
mind to the contents of the complaint presented 202 of Cr. P.C. is not of the nature of further
before him, but must have done so for the purpose investigation as contemplated under section
of proceeding under section 200 and the 173(8) of Cr.P.C.”
provisions following that section. However, 8. In view of the settled position of
when the Magistrate had applied his mind only law, we have carefully considered the
for ordering an investigation under section subject complaint and Orders passed
156(3) of the Code or issued a warrant for the therein as noted above and we noticed that,
purposes of investigation, he cannot be said to before proceeding against the accused, the
have taken cognizance of an offence. Taking erstwhile learned Magistrate wanted to
cognizance is a different thing from initiation of ascertain as to whether there is substance
the proceedings. One of the objects of in the complaint to proceed further with the
examination of complainant and his witnesses case or not. Therefore, by taking judicial
as mentioned in section 200 of the Code is to notice of the allegations in the complaint i.e.
ascertain whether there is prima facie case taking cognizance of the complaint, the
against the person accused of the offence in the learned Magistrate directed to “put up (the
complaint and to prevent the issue of process on case) for verification” vide Order below
a complaint which is either false or vexatious or Exh.1 dated 29th November, 2012. Then,
672 Sunil C. Kedar v. State of Maharashtra 2024(1)
said learned Magistrate examined the 9.1. The Criminal Application No. 463
respondent No. 2 under section 200 of of 2014 is allowed in the above terms. Rule
Cr.P.C., and by an Order passed below is accordingly made absolute.
Exh.1 on 3rd July, 2013, directed the Rule made absolute.
respondent No. 2 “to take immediate steps -----
to move the matter ahead”. This subsequent
Power exercisable under Section 389 is
Order indicates that, the learned Magistrate
different from that of one either under
wanted the respondent No. 2 to produce
Section 437 or under Section 439 of Code,
some more material to record his
pending trial
satisfaction before proceeding further in the
2024(1) Bom.C.R.(Cri.) 672
case and against the accused. However, it
(NAGPUR BENCH)
indicates that, the respondent No. 2 did not
comply this Order. Hence, in the Order Before :
below Exh.1 dated 3rd September, 2013, the Urmila Joshi-Phalke, J.
learned Magistrate observed that, “In spite Sunil Chhatrapal Kedar ... Appellant.
of Order dated 3rd July, 2013 no steps taken, Versus
keep for Order”. From all this noted above, State of Maharashtra ... Respondent.
it is evident that, since inception the Criminal Application (Appln) No. 1 of
erstwhile learned Magistrate was intending 2024, decided on 9-1-2024.
to proceed with the complaint under Code of Criminal Procedure, 1973,
‘Chapter XV’ and not under ‘Chapter XII’ Sec. 389 – Suspension of sentence pending
of Cr.P.C. This approach of the learned appeal – Application for – Rejection of – Legality
Magistrate looks defensible in the light of – Impugned judgment suggests that
the contents of the complaint. However, transactions are entered by applicant by
without taking note of this cautious method violating norms of RBI and NABARD –
of the said learned Magi strate, the Observation of trial Court purchasing securities
subsequent learned Magistrate passed the by keeping other directors in dark is contrary to
impugned Order, which finally led to evidence which shows that it was brought to
registration of the impugned F.I.R. This is notice of directors as well as share holders –
wholly in contrast to the scheme of the Secondly, observation of trial Court, that no
Cr.P.C. which, in the above circumstances, step are taken to take action, is also contrary
provides for inquiry/investigation under to evidence as applicant has lodged First
section 202 only and not investigation under Information Report prior to registration of
section 156(3) thereof. crime – Specific admission by Investigating
9. In view thereof, the impugned Officer suggesting no evidence came before
Order dated 12th February, 2014 passed in him showing any transactions between
R.C.C. No. 1158/2013, by the learned Judicial applicant and broker, other accused indicates
Magistrate, First Class, Court No. 6, at that observation of trial Court showing his
Nashik and the impugned F.I.R. bearing involvement in conspiracy is contrary to
C.R. No. 41 of 2014 dated 27th February, evidence – Thus, applicant has made out a case
2014, registered with Ambad Police Station for suspension of sentence pointing out that he
are liable to be quashed and accordingly are has arguable points which are not considered by
quashed and set aside. t/rial Court – In such circumstances, denying
Bom.C.R.(Cri.) Sunil C. Kedar v. State of Maharashtra 673
relief and allowing conviction to operate by 3. The applic ant is educated as
executing sentence, would lead to irreparable Bachelor of Science and also an agriculturist
damage and convict cannot be compensated in and also a member of Indian National
any monetary terms or otherwise if he is Congress representing Saoner Assembly
acquitted later on. (Paras 26 & 27) Constituency. He is original accused No. 1
Cases referred : in Crime No. 101/2002 registered with
1. Afjal Ansari Vs. State of U.P., 2023(16) SCALE 775. Ganeshpeth Police Station, Nagpur. He was
2. Bhagwan Rama Shinde Gosai Vs. State of Gujarat, acting Chairman of the Nagpur District
(1999)4 S.C.C. 421. Central Co-operative Bank (NDCC Bank).
3. Suresh Kumar Vs. State (NCT of Delhi), (2001)10
4. As per contentions of the applicant,
S.C.C 338.
4. C. Chenga Reddy Vs. State of Andhra Pradesh,
on 25.4.2002, First Information Report was
A.I.R. 2996 S.C. 3390. registered at his behest against brokers
5. Omprakash Sahni Vs. Jai Shankar Chaudhary, namel y, Home Trade Li mited (HTL);
(2023)6 S.C.C. 123. Century Dealers, Giltage Management;
6. Ravikant Patil Vs. Sarvabhouma S. Bagali, (2007)1 Indramani Merchants, and Syndicate
S.C.C. 673.
Management Services alleging that the NDCC
7. Kashmira Singh Vs. State of Punjab, (1977)4
S.C.C. 291.
Bank had invested amount Rs. 125.60 crores
8. Kiran Kumar Vs. State of M.P., (2001)9 S.C.C. 211. for purchasing the Government securities.
9. Satender Kumar Antil Vs. Central Bureau of The National Bank for Agriculture and Rural
Investigation, 2022 LiveLaw (S.C.) 577. Development (NABARD) asked the NDCC
Advocates appeared : Bank to supply original securities and,
Sunil V. Manohar, Sr.Coul. with D.V. Chauhan, therefore, the bank requested its brokers to
Coul. & N.R. Jadhav, for applicant. deliver original securities. However, they
Raja Thakare with Ajay Misar, S.P.P., for Non- have not delivered the same and supplied
applicant/State. only photocopies and, therefore, the applicant
174.PM/IN/SG/RJ/PN
lodged report alleging that funds of the bank
URMILA JOSHI-PHALKE, J.: – By this have been misappropriated and the bank
application under section 389(2) of the Code is duped by its brokers to the tune of Rs.
of Criminal Procedure, the applicant seeks 125.6 crores. Thereafter, on 29.4.2002,
suspension of sentence and grant of bail. another First Information Report was
2. The applicant has challenged registered at the behest of Shri Bhaurao
judgment and order of sentence and Aswar, the Special Auditor, Co-operative
conviction passed by learned Additional Societies, Nagpur against the applicant and
Chief Judicial Magistrate, Nagpur in RCC six others. As per allegations, the applicant
No. 147/2002 dated 22.12.2023 by preferring in co nspiracy with the co-acc used
Criminal Appeal No. 397/2023 before misappropriated funds of the bank to the
learned Distri ct and Sessions Judge, of Rs. 117.51 crores under the pretext of
Nagpur. The applicant had also preferred investment made by the bank in the
an application for suspension of sentence Government securities through private
which was rejected by learned District brokers namely, HTL, Century Dealers,
Judge-12 and Additional Sessions Judge, Giltage Management, Indramani
Nagpur by Order dated 30.12.2023. Merchants, and Syndicate Management
43/24(1) Services and the brokers in turn have
misappropriated funds of the bank by not 6. The judgment and order of sentence
purchasing the Government securities in and conviction is challenged by the
favour of the bank. As per allegation in the applicant by preferring Criminal appeal No.
complaint, the applicant, without any 397/2023 al ong with appl ication for
approval from the board of the bank for sale suspension of sentence which was rejected.
and purchase of the Government securities, Hence, this application.
invested the amount by transferring the 7. Heard learned Senior Counsel Shri
same to the brokers for purchasing the Sunil V. Manohar for the applicant. He
Government securities, but the brokers submitted that the applicant is charged
have not purchased the same and the bank with the offences punishable under sections
did not have the original securities. Thus, 406, 120-B, 409, 468, and 471 of the Indian
the applicant, who is the Chairman of the Penal Code. The allegations revolve around
bank, having conspiracy with the said two transac tions; (1) as regards the
brokers’ companies and their officials and advancement of loan of Rs. 40.00 crores to
with officials of the bank, misappropriated EDIL, the evidence and observation of the
the funds of the bank and duped the bank judgment show that the said amount is
and acted in breach of trust while carrying repaid by the EDIL and (2) the applicant
out his responsibilities. along with accused Nos. 2 and 11, without
5. After filing of chargesheet, 53 observing guideli nes issued by the
witnesses were examined by the NABARD, invested the amount exceeding
prosecution. After appreciation of evidence, 5%. The period of alleged transactions by
learned Additional Chief Judi cial the applicant and other accused regarding
Magistrate convicted the applicant and purchasing of the Government securities
sentenced to suffer rigorous imprisonment through HTL were during 5.2.2001 to
for five years and to pay fine Rs. 10.00 lacs 12.6.2001 and the similar transactions
of the offence punishable under sections 409 through HTL and four other broker
read with 120-B of the Indian Penal Code. companies were during 25.1.2002 to
The applicant further convicted of the 5.2.2002. The subject and sale and purchase
offence punishable under section 406 read of transactions of physical securities was not
with 120-B of the Indian Penal Code, but discussed in any of meetings of board of
no separate sentence is awarded. He is also directors and its approval was not taken. It
convicted of the offence punishable under is further alleged that original physical
sections 468 read with 120-B of the Indian securities, holding certificates or any other
Penal Code and sentenced to suffer rigorous documents, will show that the securities
imprisonment for five years and to pay fine purchased for the NDCC Bank were not
Rs. 2.00 lacs, in default, to suffer rigorous available in its record. The senior officer of
imprisonment for six months. The applicant the NDCC Bank has not verified and
is also convicted of the offence punishable confirmed as to whether physical securities
under sections 471 read with 120-B of the were really purchased and that too in the
Indian Penal Code and sentenced to suffer name of the NDCC Bank and not filed
rigorous imprisonment for two years and report thereof in the bank. An expert advice
to pay fine Rs. 50,000/-, in default, to suffer was not taken though these transactions
rigorous imprisonment for 3 months. were technical, complicated, and highly
risky. He submitted that thus the nature of that the entire transaction has taken place
allegations against the applicant is that the on the basis of circular resolution. In fact,
applicant and other officials of the bank the resolution passed on 24.8.2001, which
have committed irregularities and is at Exhibit- 1194, sho ws that the
illegalities contravening the circulars and investment of purchasing the Government
guidelines issued by the RBI and NABARD securities is brought to the notice in a
and by violating, the transactions are meeting held on 24.8.2001. Not only this, the
entered into. Thus, the nature of the charge annual report of the bank Exhibit-1315 also
appears to be that the board has delegated shows that the said investment by way of
the powers to the Chairman by resolution purchasing the securities is also published in
to purchase and sale the securities only the said report and brought to the notice of
through MSCB under SGL(II) with the RBI all share holders. Thus, nothing is done in a
and without taking any policy decision, secrecy. At the most, the act of the applicant
transaction are entered through the brokers shows that there is a contravention of
without approving the panel of brokers for violation and irregularities which can at the
the purpose. He submitted that the most be said to be a negligence on his part.
observations of the Court is contrary to the There is no charge that the applicant has
evidence. In fact, Exhibit-1185 is the received any monetary gain by the said
resolution passed by the board of directors, transactions. There is absolutely no evidence
which shows as : that the applicant was the member to the
“in suppression of the previous resolutions No. conspiracy and in view of the said conspiracy,
7 of the Nagpur District Central Cooperative the amount was transferred to the HTL and
Bank Limited, Nagpur dated 21.9.1993 it is other securities.
hereby resolved that any two of following
namely 1. Shri S.C. Kedar, Chairman, 2. Sau. 8. Learned Senior Counsel for the
A.C. Mahajan, Vice Chairman, Shri A.N. appl icant i nvited attention towards
Chaudhary, General Manager, 4. Shri A.G. paragraph Nos. 33 and 34 of the judgment
Gokhale, Chief Accountant, and 5. Shri S.S. and submitted that the trial Court has
Gode, Chief Officer are hereby authorized observed that the resolution Exhibit-1452
jointly to purchase, sale, endorse, negotiate, was passed by keeping the directors in dark.
transfer or other deal with the Government Paragraph No. 35 shows the test applied by
and any securities for and on behalf of the the trial Court is on the basis of inference
Nagpur District Central Cooperative Bank
that the investment was made on the basis
Limited, Nagpur and also to receive the
principle and interests thereon.” of circular resolution. The observation of the
trial Court further shows that amount of
He submitted that in view of the
loan given to the EDIL is already recovered.
above resolution, the powers are assigned
The evidence discussed by the trial Court
to the applicant and there is no reference
itself shows that only evidence is in the
either of SGL(II) or MSCB. The trial Court
nature of non observance of circular issued
held the same without any evidence on
by the RBI and NABARD. It is sheer
record. The inference drawn by the trial
negligence. There has to be some evidence
Court is that the alleged transactions are
entered by keeping the directors in dark and to connect the applicant showing that he
without obtaining any approval by holding conspired with the other accused who are
any meetings. The trial Court has observed officers of the HTL which is a broker
company. In fact, the applicant is the person already returned to the NDCC Bank. His
who, initially, as soon as the fact of non- evidence further shows that the amount is
supplying the securities to the bank is transferred to the HTL in various accounts,
brought to the notice, lodged the First but no connection was found with the
Information Report against the broker applicant. He specifically admitted that
companies, which is not considered by the during investigation it nowhere revealed that
trial Court. Subsequently, First Information there was some monetary transaction
Report is lodged by the NABARD which is between the HTL and the applicant. The
much later. The First Information Report is reports of the RBI and NABARD are also not
lodged by the applicant on 25.4.2002 and proved properly. Thus, there is nothing to link
the second First Information Report is the applicant with the HTL and, therefore, the
lodged on 29.4.2002. He further invited my offence of criminal breach of trust is not made
attention towards paragraph No. 74 of the out against the applicant.
judgment which also shows that the trial Thus, the applicant has many
Court observed which are irregularities and arguable points in the appeal and there are
discrepancies found in the NABARD chances of acquittal in the appeal. In the
inspection and pointed out by its meantime, if the sentence is executed, the
communication. The overall observations of appeal wil l become infructuous and
the trial Court are that when the law irreparable loss will cause to the applicant.
prescribes a particular procedure on 9. In support of his contentions,
particular aspect, it should be done in that learned Senior Counsel for the applicant
manner only. The transactions relating to placed reliance on the following decisions:
investment were being looked after by 1. (Afjal Ansari Vs. State of U.P.)1, reported in
accused No. 1 (the present applicant) and 2023(16) SCALE 775;
accused No. 2 which are against the directives 2. (Bhagwan Rama Shinde Gosai and ors Vs. State
without any policy by the bank and accused of Gujarat)2, reported in (1999)4 S.C.C. 421;
Nos. 1 and 2 or any officer of the NDCC Bank 3. (Suresh Kumar and ors Vs. State (NCT of
had not taken absolutely any step to call for Delhi)3, reported in (2001)10 S.C.C. 338, and
original securities from the concerned 4. (C.Chenga Reddy and ors Vs. State of Andhra
brokers. Thus, he submitted that at the most, Pradesh)4, reported in A.I.R. 2996 S.C. 3390.
the case against the applicant covers to show Thus, he submitted that it is settled
that he was negligent while entering into law that when a convicted person is
the said transactions. sentenced to a fixed period of sentence and
As far as the allegations, regarding when he files an appeal under any statutory
criminal breach of trust by entering into the right, suspension of sentence can be
conspiracy with officials of the broker considered by the Appellate Court liberally,
companies, are concerned, the evidence of unless there are exceptional circumstances.
investigating officer sufficiently shows that 10. Per contra, learned Special Public
there was no material to connect the applicant Prosecutor Shri Raja Thakare for the State
with the said conspiracy. He submitted that submitted that the definition of Criminal
the investigating officer specifically admitted Breach of Trust, in view of section 405 of
that HTL company has used the amount for the Indian Penal Code, shows that when a
their own use and some amounts they have perso n, with whom the property is
entrusted or having any dominion over 11. Learned Special Public Prosecutor
property, dishonestly misappropriates or for the State submitted that the Honourable
converts to his own use that property, or Apex Court, while considering the scope of
dishonestly uses or disposes of that section 389 of the Code of Criminal
property in violation of any direction of law Procedure, in the case of (Omprakash Sahni
prescribing the mode in which such trust is Vs. Jai Shankar Chaudhary and anr.)5 ,
to be discharged, or of any legal contact, reported in (2023)6 S.C.C. 123 held that
express or implied, which he has made Bearing in mind the principles of law, the
touching the discharge of such trust, or endeavour on the part of the Court,
wilfully suffers any other person so to do, therefore, should be to see as to whether
commits “criminal breach of trust”. the case presented by the prosecution and
He submitted that the amount accepted by the trial Court can be said to be
invested is the public money. The NDCC a case in which, ultimately the convict stands
Bank is established for the welfare of poor for fair chances of acquittal. If the answer to
agriculturists and agriculturists are share the above said question is to be in the
holders. The securities are shown to be affirmative, as a necessary corollary, we shall
purchased. In fact, it was never purchased have to say that, if ultimately the convict
and large amount was transferred to the appears to be entitled to have an acquittal at
brokers. The evidence of PW25 Rodridgeus the hands of this Court, he should not be kept
proves various circulars issued by the RBI behind the bars for a pretty long time till the
are contravened. The prosecution has also conclusion of the appeal, which usually take
examined Anita Mangesh Kenkre, who is very long for decision and disposal. However,
the Chief General Manager of SEBI, who while undertaking the exercise to ascertain
also stated that the Giltage Management whether the convict has fair chances of
Services Limited, Bombay; Syndicate acquittal, what is to be looked into is
Management Services, Ahmedabad, something palpable. To put it in other words,
Indramani Merchants Private Limited and something which is very apparent or gross
Century Dealers Private Limited were on the face of the record, on the basis of which,
never registered as brokers or sub brokers the Court can arrive at a prima facie satisfaction
with the SEBI. Thus, it is apparent that the that the conviction may not be sustainable.
transactions are entered into with the The Appell ate Court should not re-
private brokers without following due appreciate the evidence at the stage of
process of law. The contention of the section 389 of the Code of Criminal
applicant that it was only irregularities is Procedure and try to pick up few lacunas
not sufficient. The applicant is law maker or loopholes here or there in the case of the
himself has misappropriated the public prosecution. Such would not be a correct
fund. During the trial also, he was on bail approach.
as the prosecution could not file charge- He submitted that in view of the
sheet within the prescribed period. Thus, principles laid down by the Honourable
he was on default bail. If the applicant is Apex Court, the applicant has no case to
released on bail, wrong signal will go in the release him on bail by suspending the
society and sympathy, if granted to the sentence and the application deserves to be
applicant, would be misplaced sympathy. rejected.
12. Before adverting to the evidence of the provision, that the Appellate Court
to ascertain, whether the applicant has is unambiguously vested with the power to
made out a case for suspension of sentence, suspend implementation of the sentence or
it is necessary to see the legal position. the order of conviction under appeal and
13. Section 389(1) of the Code of grant bail to the incarcerated convict, for
Criminal, enjoins upon the Appellate Court which it is imperative to assign the reasons
the power to issue an order for the suspension in writing. This Court has undertaken a
of the sentence or an order of conviction comprehensive examination of this issue on
during the pendency of an appeal. The said multiple occasions, laying down the broad
section is reproduced below: parameters to be appraised for the
“389. Suspension of sentence pending the suspension of a conviction under section
appeal; release of appellant on bail. - (1) 389(1) of the Code of Criminal Procedure.
Pending any appeal by a convicted person, There is no gainsaying that in order to
the Appellate Court may, for reasons to be suspend the conviction of an individual, the
recorded by it in writing, order that the primary factors that are to be looked into,
execution of the sentence or order appealed woul d be the peculi ar facts and
against be suspended and, also, if he is in circumstances of that specific case, where
confinement, that he be released on bail, or
the failure to stay such a conviction would
on his own bond:
lead to injustice or irreversible
Provided that the Appellate Court shall, before
releasing on bail or on his own bond a
consequences. The very notio n of
convicted person who is convicted of an irreversible consequences is centered on
offenc e punishable with death or factors, including the individual’s criminal
imprisonment for life or imprisonment for antecedents, the gravity of the offence, and
a term of not less than ten years, shall give its wider social impact, while
opportunity to the Public Prosecutor for simultaneously considering the facts and
showing cause in writing against such circumstances of the case.” The Honourable
release; Apex Court, in paragraph No. 15 of the said
Provided further that in cases where a decision, observed that, “this Court has on
convicted person is released on bail it shall several occasions opined that there is no
be open to the Public Prosecutor to file an
reason to interpret section 389(1) of the
application for the cancellation of the bail."
Cr.P.C. in a narrow manner, in the context
14. Thus, the suspension describes of a stay on an order of conviction, when
postponement or temporarily preventing a there are i rreversible co nsequences.
state of affairs from continuing. Thus, when Undo ubtedly, (Ravikant Patil Vs.
we talk about the suspension of sentence, Sarvabhouma S. Bagali) 6 , reported in
the concept is to differ or postpone the (2007)1 S.C.C. 673, holds that an order
execution of sentence. granting a stay of conviction should not be
15. The Honourable Apex Court in the the Rule but an exception and should be
case of Afjal Ansari Vs. State of U.P. supra, as resorted to in rare cases depending upon the
relied by learned Senior Counsel for the facts of a case. However, where conviction,
applicant, while considering the scope of if allowed to operate would lead to
section 389 of the Code of Criminal irreparable damage and where the convict
Procedure, observed that “it becomes cannot be compensated in any monetary
manifestly evident from the plain language terms or otherwise, if he is acquitted later
on, that by itself carves out an exceptional 17. In the case of Bhagwan Rama Shinde
situation.” Gosai and ors. Vs. State of Gujarat supra, the
16. In (Kashmira Singh Vs. The State appellants were convicted by the trial Court
of Punjab)7, reported in (1977)4 S.C.C. 291, against which the appeal was pending
the Honourable Apex Court held that,”it before the High Court. The High Court
would indeed be a travesty of justice to keep successively rejected the prayer for grant of
a person in jail for a period of five or six bail, till the pendency of appeal after
years for an offence which is ultimatey suspending the sentence. Thus, it has been
found not to have been committed by him. held that,“when a convicted person is
Can the Court ever compensate him for his sentenced to fixed period of sentence and
incarceration which is found to unjustified? when he files appeal under any statutory
Would it be just at all for the Court to tell a right, suspension of sentence can be
person: "We have admitted your appeal considered by the Appellate Court liberally
because we think you have a prima facie case, unless there are exceptional circumstances.
but unfortunately we have no time to hear Of course if there is any statutory restriction
your appeal for quite a few years and, against suspension of sentence it is a different
therefore, until we hear your appeal, you matter. Similarly, when the sentence is life
must remain in jail, even though you may imprisonment the consideration for
be innocent?" What confidence would such suspension of sentence could be of a different
administration of justice inspire in the mind approach. But if for any reason the sentence
of the public? It may quite conceivably of limited duration cannot be suspended
happen, and it has in fact happened in a few every endeavour should be made to dispose
cases in this Court, that a person may serve of the appeal on merits more so when motion
out his full term of imprisonment before his for expeditious hearing the appeal is made in
appeal is taken up for hearing. Would a such cases. Otherwise the very valuable right
Judge not be overwhelmed with a feeling of appeal would be an exercise in futility by
of contrition while acquitting such a person efflux of time. When the Appellate Court
after hearing the appeal? Would it not be finds that due to practical reasons such
an affront to his sense of justice ? Of what appeals cannot be disposed of expeditiously
avail would the acquittal be to such a person the Appellate Court must bestow special
who has already served out his term of concern in the matter suspending the
imprisonment or at any rate a major part of sentence, so as to make the appeal right
it? It is, therefore, absolutely essential that meaningful and eff ective. Of co urse
the practice which this Court has been Appellate Courts can impose similar
following in the past must be reconsidered conditions when bail is granted.”
and so long as this Court is not in a position 18. The similar ratio is laid down in
to hear the appeal of an accused within a the cases of (Kiran Kumar Vs State of M.P.)8,
reasonable period of time, the Court should reported in (2001)9 S.C.C. 211, and Suresh
ordinarily, unless there are cogent grounds Kumar and ors Vs. State (NCT of Delhi) supra
for acting otherwise, release the accused on by referring the judgment of Bhagwan Rama
bail in cases where special leave has been Shinde Gosai and ors Vs. State of Gujarat supra
granted to the accused to appeal against his holding that when a person is convicted and
conviction and sentence”. sentenced to a short term imprisonment, the
normal Rule is that when his appeal is the contract notes issued by the HTL and
pending, the sentence should be suspended. four other brokers (4 other broker
companies).
19. In the background of the above
(i) Payments to the broker firms were realized
well settled law and turning to the case in
on settlement dates without getting delivery
hand, it reveals that the applicant is of the securities.
convicted by observing in paragraph No. (j) No fixed internal investment policy and
74 that during the NABARD inspection, the procedures were laid down by the board of
following irregularities and discrepancies directors nor were there half yearly reviews
are found: of the bank’s investment port-folio by the
(a) The Board has delegated powers to the bank’s board of directors. Even though, as
Chairman vide resolution No. 14(6) dated 16/ per part ‘V’ of the RBI RPCD Circular No.
5/1999 (Exh. 1193/3158) for purchase and RF.BC-17/A-4/92-93 dated 4th September,
sale of securities only through MSCB under 1992 such reviews should be conducted and
SGL(II) with the RBI. copies of the review notes to be forwarded
(b) The Board had not taken any policy decision to the NABARD and RBI.
for transacting through the brokers nor had (i) Valuation of the securities to be done on
approved the panel of brokers for the purpose. quarterly basis as per guidelines issued by
(c) Market quotations were not being called for the RBI vide circular RPCD No. 154/07:02:08/
and the rate provided by the broker in the 94-95 dated 23rd May, 1995 was not being
contract were not verified and compared made. The securities were also not valued
with the prices quoted in the market. (at cost or market price whichever was
(d) Though, the bank had maintained SGL(II) lower) as on 31/3/2001.
account through MSCB the transactions (k) As on 31/3/2001 the total premium paid
were routed only through five brokers viz. aggregated Rs. 408.75 lakhs and the same
HTL and 4 other broker companies. has been capitalized as required.
(e) As there was no delivery of securities book (l) The bank has resorted to continuous process
entries at the bank level were passed on the of sale and purchase of securities. As per the
basis of contract notes received through the contract notes, the sales were effected at
brokers. Brokers had only sent photo copies rates higher than the cost price and the
of certificates of securities purchased during difference between sale price and purchase
2000-2001 which were endorsed in the name price was being transferred to P and L
of broker firm. account as income from time to time. These
(f) No agreements entered into between NDCC incomes cannot be considered real as the
Bank and the respective brokers for the bank had not ascertained at any point of time
purpose of trading in securities in the whether the broker had really made any
secondary market. efforts to get unsold securities (i.e. securities
(g) Though on the reverse side of the contract belonging to the bank and lying with the
notes issued by HTL indicate that brokerage brokers) in the name of the bank.
had been charged at rates not exceeding the (m) The bank had been utilizing sale proceeds
official scale of brokerage, respective column of securities for fresh purchase made on the
to show actual amount of brokerage charged same dates. As a result inflow of funds to
were left unfilled in the contract notes. The the bank was very minimum. Most of the
contract notes issued by the other brokers also times the bank was paying additional
did not indicate brokerage, if any, paid to them. amounts to cover cost of fresh purchase
(h) The counter party involved in the purchase switch were mostly at high premiums. As
and sale of securities was not indicated in on 5/2/2002, the date of transaction (till date
of completion of present inspection) amount accused No. 1 (the present applicant) and
of premium paid against outstanding accused No. 2 have violated the directives
securities aggregated Rs. 2901.26 lakhs as issued by the RBI and NABARD from time
against Rs. 408.75 lakhs of premium paid in
to time while investing the Government
securities outstanding as on 31/3/2001. This
securities through HTL and four broker
represents 709.79% increase in premium as
against 120.78% growth in the total value of companies. The further observation of the
outstanding securities of these two dates. trial Court shows that the entire transaction,
(n) The risk involved in security transaction relating to investment, were being looked
was increasing trend since the bank has not after by accused Nos. 1 and 2 and the
adopted system for c lassific ation of acco unts o f those transaction were
sec urities under “held for trading”, maintained by PW7 Shri Wakhare and in
“available for sale” and “held to maturity” his absence PW6 Shri Dani. According to
and the entire securities portfolio under these witnesses, accused No. 2 informed
SGL-II with MSCB and under physical mode them that from 2001 transactions of the
with the aforesaid brokers were to be under
Government securities will be done through
continuous trading.
HTL. The transactions were not done
(n) No well defined account procedure/manual
had been prepared by the NDCC bank to through SGL(II) account. From the
asc ertain profitability of sec urity judgment, it further revealed that the trial
transactions realistically. Court observed that before doing any
(o) Based on average cost-yield analysis of transaction of GOI (physical) securities,
investment portfolio during 2000-2001 accused Nos. 1 and 2 used to discuss with
trading in GOI securities fetched 9.74% as HTL either on phone or otherwise.
compared to other investments like Fixed Learned Senior Counsel for the
Deposits with MSCB fetching average return
applicant submitted that the above
of 12%. If unadjusted interest which was
actually paid on purchase of securities, but observation is not supported by any evidence
shown as receivable in the B/S as on 31/3/ and the evidence of PW6 and PW7 shows that
2001 was taken into account, the average it was accused No. 2 who informed them that
return from the securities’ trading would the transactions will be done through HTL.
come down to 7.18%. As against this, 21. The sum and substance of the
average cost of mobilizing terms deposit observation of the trial Court is that crores
comprising FD, Reinvestment Deposit and
of rupees were transferred to HTL under
deposits and deposits mobilized from Urban
the guise of purchasing GOI (Physical)
Bank etc. works out 12.80%, 13% and 13.83%
respectively. So, the bank had been incurring Securities which were never purchased for
losses in its trading activities. the NDCC Bank and when no such
20. The judgment of the trial Court securities were ever purchased, there is no
further shows that the prosecution question of sale and, therefore, all sale and
examined PW25, who is an officer of the purchase transactions entered by accused
RBI, who proved and confirmed various No. 1 and accused No. 2 between the NDCC
circulars and resolutions issued by the RBI bank and HTL are completely false and
from time to time in respect of the forged. Whereas, in paragraph No. 96, the
investment in the Government securities. trial Court observed that the accused Nos. 1
Existence and issuance of all circulars are and 2 or any other officer of the NDCC Bank
also proved by PW48 Shri Deshmukh and had not taken any steps to call for original
securities from the concerned brokers or to the inspection by NABARD. He further
confirm as to whether any such securities submitted that at one breath the trial Court
were ever purchased by them for the NDCC has observed all sale and purc hase
Bank. Thus, at once, the trial Court held that transactions shown to have been entered by
there was no such transaction at the same the applicant and accused No. 2 between
time it holds that the applicant has not taken the NDCC bank and HTL are completely
steps to call for original securities. false and forged. Whereas, on second
22. Learned Senior Counsel for the breath, it is observed that accused Nos. 1
appl icant has taken me through the and 2 and other officers of the the NDCC
evidence and pointed out that the trial bank has not taken any steps to call for
Court held that the board has delegated the original securities from the concerned
powers to the Chairman vide resolution No. brokers or to confirm as to whether any
14(6) dated 16.5.1999 (Exhibits-1193/3158) such securities were ever purchased by
for purchase and sale of securities only them for the NDCC Bank. By observing this,
through MSCB under SGL(II) with the RBI. the trial Court observed that there was a
Whereas, Exhibit-1185 shows that the conspiracy between the applicant and
applicant and the names mentioned therein officers of the HTL. In fact, the trial Court
were authorized jointly to purchase, sale, ought to have considered that it was the
endorse, negotiate, transfer or other deal appl icant who has lodged the First
with the Government and any securities for Information Report when those facts are
and on behalf of the NDCC Bank, Nagpur brought to his notice. He submitted that the
and also to receive the principle and observation of the trial Court showing the
interests due thereon which is blanket involvement of the applicant in the conspiracy
authority without referring either MSCB or is contrary to the evidence as investigating
SGL(II). This observation is without any officer Shri Kishor Bele, vide Exhibit-3151,
evidence on record. The trial Court has specifically admitted, as follows:
drawn the inference without any material. gkse VªsM fyehVsM ;kauh lnj jDde gh R;kaP;k dk;kZy;hu
He further submitted that the trial Court dkedktkr [kpZ dsyh gksrh o R;krhy dkgh jDde
ukxiwj ftYgk e/;orhZ lgdkjh cWad sd Ms /kukns’ kk}kjs
further observed that the entire transaction
ijr dsyh gksr h- gs Eg.k.ks [kjs vkgs dh gkse VªsM
of purchasing Government securities fyehVsM ;kauh R;kaP;k [kkR;krhy th dkgh jDde ftFks
through HTL is by keeping board of dqBs ikBfoyh R;k jdes’ kh vkjksih dz-1 lquhy dsnkj
directors in dark. Whereas, Exhibit-1194 ;kapk dkgh la ca/k fnlwu vkyk ukgh- gs Eg.k.k [kjs
shows that purchasing on Government vkgs dh riklknjE;ku gkse VªsM fyehVsM o vkjksih dz-
securities through HTL is brought to the 1 lquhy dsnkj ;kaP;ke/;s brj dkgh vkfFkZd O;ogkj
notice of all members by passing resolution. vlY;kps eyk fnlwu vkys ukgh-
It is not only brought to the notice of board The above admission given by the
of directors, but it was also brought to the Investigating officer sufficiently shows that
notice of all share holders by publishing the the applicant has neither invested the
same in annual report. Thus, the inference amount for his personal gain nor evidence
drawn by the trial Court i s without came before the Court to show that any
evidence. The nature of allegation and amount was transferred either to the
evidence shows that the applicant has applicant or he is anyway concerned with
violated the norms and it is observed during the transfer of that amount. He specifically
admitted that during investigation, it does Omprakash Sahni Vs. Jai Shankar Chaudhary
not reveal to him any transaction between and anr. (supra), the applicant has shown he
him and HTL. He submitted that even if the the applicant has shown he has chances of
entire prosecution evidence is taken into acquittal and if sentence is executed, in view
consideration, there is absolutely no of the judgment in the case of Afjal Ansari
material to show the involvement of the Vs. State of U.P. supra, if sentence is allowed
applicant in the conspiracy. He submitted to operate, would lead to irreparable
that as far as observation of the trial Court damage and irreversible consequences and,
is concerned, that the applicant has violated therefore, needs to be suspended.
the circulars of the RBI and NABARD and Moreover, the sentence is for the limited
ignored the certain instructions which are peri od and there are no excepti onal
not sufficient to attract the offence of circumstances for not suspending sentence.
criminal breach of trust. The Honourable 25. Learned Special Public Prosecutor
Apex Court in the case of C. Chenga Reddy pointed out the evidence of PW25 RBI
and ors. Vs. State of Andhra Pradesh supra Officer and PW14 SEBI Officer, which
observed that the appellants ignored certain shows that transaction are carried out with
other instructions on the subject cannot lead private brokers. The applicant was
to an irresistible inference that they did so custodian and entrusted with the property,
with dishonest intention. The Honourable which is public fund and the same was
Apex Court further observed that the misappropriated. If the applicant is released
charge of conspiracy must fail. There have on bail by suspending the sentence, wrong
been some irregularities committed in the message will go in the society.
matter of allotment of work to the appellant 26. Upon careful consideration of the
or breach of codal provisions, circulars and judgment of the trial Court, it appears to
departmental instructions, for preparation me that the impugned judgment suggests
of estimates etc. and those irregularities give that the transactions are entered by the
rise to a strong suspicion in regard to the applicant by violating the norms of the RBI
bona fides of the officials of the department and NABARD. The observation of the trial
and their link with the appellant, but that Court purchasing the securities by keeping
suspicion cannot be a substitute of proof. the other directors in dark is contrary to
23. Learned Senior Counsel for the evidence in view of Exhibits-1194 and 1315
applicant submitted that admittedly, at this which shows that it was brought to the
stage, the appreciation of the evidence is not notice of the directors as well as share
required and the applicant has to only show holders. Secondly, the observation of the
that he has arguable points in the appeal and trial Court, that no step are taken to take
has to show there are chances of acquittal. action, is also contrary to the evidence as
24. In the present case also, it is the applic ant has lodged the First
pointed out by the learned Counsel of the Information Report prior to registration of
applicant that the observation of the trial the crime. The specific admission by the
Court is contrary to the evidence and Investigating Offic er suggesting no
judgment flawed by intrinsic evidence. evidence came before him showing any
Even, in view of the observation of the transactions between the applicant and HTL
Honourable Apex Court, in the case of indicates that the observation of the trial
Court showing his involvement in the aspirations. It would thus be appropriate for
conspiracy is contrary to the evidence. Thus, the courts to balance the interests of
the applicant has made out a case for protecting the integrity of the electoral
suspension of sentence pointing out that he process on one hand, while also ensuring
has arguable points which are not that constituents are not bereft of their right
considered by the trial Court. to be represented, merely consequent to a
27. In such circumstances, denying threshold opinion, which is open to further
relief and allowing the conviction to operate judicial scrutiny. It is therefor imperative to
by executing the sentence, would lead to weigh the competent interests presented by
irreparable damage and the convict cannot both the appellants and the State.
be compensated in any monetary terms or 29. The Honourable Apex Court in the
otherwise if he is acquitted later on. case of (Satender Kumar Antil Vs. Central
9
28. As far as the submission of learned Bureau of Investigation and anr) , reported
Special Public Prosecutor for the State, that in 2022 LiveLaw (S.C.) 577, while
wrong message will go to the society, considering the scope of section 389,
considering the submissi on and the observed that section 389 of the Code
question of relevance of “moral turpitude”, concerns itself with circumstances pending
which is considered by the Honourable appeal leading to the rel ease of the
Apex Court in the case of Afjal Ansari Vs. appellant on bail. The power exercisable
State of U.P. (supra), it is held by the under section 389 is different from that of
Hono urable Apex Court that while the one either under section 437 or under
contemplating to invoke the concept of section 439 of the Code, pending trial. A
‘moral turpitude’ as a decisive factor in suspension of sentence is an act of keeping
granting or withholding the suspension of the sentence in abeyance, pending the final
conviction for an individual, there is a adjudication. Though delay in taking up the
resounding imperative to address the issue main appeal would certainly be a factor and
of depoliticizing criminality. There has been the benefit available under section 436A
increasing glamour to decriminalize polity would also be considered, the courts will
and hold elected representatives have to see the relevant factors including
accountable for their criminal antecedents. the conviction rendered by the trial Court.
It is a hard truth that persons with a criminal When it is so apparent that the appeals are
background are potential threats to the very not likely to be taken up and disposed of,
idea of democracy, since they often resort then the delay would certainly be a factor
to criminal means to succeed in elections in favour of the appellant.
and other ventures. It is further observed 30. Thus, in view of the various issues
having said so, we hasten to hold that pointed out by learned Senior Counsel for
societal interest is an equally important the applicant and in view of the settled
factor whi ch ought to be zealo usly position of law, the prayer for suspension
protected and preserved by the courts. The of sentence deserves to be considered in
literal construction of a provision such as view of the observations of the Honourable
section 389(1) of the Code of Criminal Apex Court liberally, unless there is any
Procedure may be beneficial to a convict but statutory restriction. Even, if the parameters
not at the cost of legiti mate public laid down by the Honourable Apex Court,
Bom.C.R.(Cri.) Raosaheb M. Ahire v. State of Maharashtra 685
Omprakash Sahni Vs. Jai Shankar Chaudhary Criminal Application No. 451 of 2023,
and anr (supra), are taken into consideration, decided on 10-1-2024.
the applicant has made out a case for Code of Criminal Procedure, 1973,
suspension of sentence. The denial of Sec. 482 – Quashing of process – As per contents
suspension of sentence and allowing to of complaint, complainant essentially wanted
operate can lead to irreparable damage. refund of his money – More so, neither any
31. In this view of the matter, the amount is paid to present applicants nor any
application deserves to be allowed. Accordingly, refund is sought from them – Allegation against
I proceed to pass following order: applicants is afterthought to falsely implicate
ORDER them – Submission of applicants that criminal
1. The application for suspension of sentence proceedings are resorted to against applicants
is allowed. for redressing a grievance of a civil in nature is
2. The execution of the substantive jail sentence acceptable – Issuance of process against present
imposed by the trial Court shall stand applicant is thus abuse of process of law – Order
suspended, till disposal of the appeal before of issuance of process, set aside. (Paras 6 to 9)
the first Appellate Court. Advocates appeared :
3. Applicant Sunil Chhatrapal Kedar, be Ketan Arun Dhavle, for applicants.
released on bail on his executing a P.R. Bond Ms. S. D. Shinde, A.P.P., for State.
of Rs. 1,00,000/- (Rs. One Lakh) with one Wasim R. Khan, for respondent No. 2.
solvent surety of the like amount.
173.PM/IN/SG/RJ/PN
4. The applicant shall attend the trial Court on
1st of every month and the trial Court shall M.S. KARNIK , J.: – Heard l earned
record his presence. Co unsel f o r the appl i c ant s who i s
5. The applicant shall furnish his cell phone appointed through legal aid to represent
number(s) along with his address proof and the applicants. I have heard learned A.P.P.
names and addresses of his two relatives for respondent No. 1 and learned Counsel
along with their address proof. for respondent No. 2.
6. The applicant shall not leave the jurisdiction 2. This application challenges an order
of the Appellate Court i.e. District and
passed below Exhibit 2 issuing process by the
Sessions Court, Nagpur without prior
permission of the said Court. Metropolitan Magistrate, 51st Court, Kurla,
7. The applicant shall not apply for exemption, Mumbai dated 23.3.2016 under sections 323,
unless there are exceptional circumstances. 504, 506(ii), 427 read with 34 of the Indian
Application allowed. Penal Code. The order reads thus :-
“This is t he Privat e c om plaint for t he
-----
offence Punishable under section 420,
Quashing of process : Criminal proceedings 323, 504, 506(ii) read with 34 of I.P.C.
are resorted to for redressing grievance of perused the complaint and evidence of
civil nature : Proceedings quashed the complainant. I have called the police
2024(1) Bom.C.R.(Cri.) 685 report. Police has filed the report that it
Before : is the civil dispute between the parties
However; I am not satisfied with the
M.S. Karnik, J.
conclusion drawn by the Inquiry Officer.
Raosaheb Murlidhar Ahire & anr. ... Applicants. The evidence of the complainant clearly
Versus s h o ws t h a t a c c u s ed h a v e wi t h
State of Maharashtra & anr. ... Respondents. committed an offence punishable under
686 Raosaheb M. Ahire v. State of Maharashtra 2024(1)
sections 323, 504, 506(ii), 427 read with with no alternative but to file the complaint
section 34 of I.P.C. There is sufficient under the aforesaid sections against the
ev id en c e t o p r oc e ed again s t t h em . accused before the trial Court.
Hence, issue process for the said offence
on payment of process fee. Returnable
4. I have heard Mr. Dhavle, learned
on 30-6-2016.” Counsel who was appointed through legal
aid to represent the applicants. Mr. Dhavle
3. I have perused the complaint
submitted that the order issuing process is
made by the present respondent No. 2
erroneous as the dispute is more of a civil
against the accused No. 1 and the present
nature. Mr. Dhavle though denied the
applicants who are accused Nos. 2 and 3.
accused having received a sum of Rs.
Briefly stated, it is the case of the
complainant-respondent No. 2 that in the 2,00,000/-, nonetheless submitted that
society of which the accused No. 1 projected allegations are mainly against the accused
himself to be the Chairman, respondent No. No. 1 and not against the present applicants.
2 purchased a garage. The respondent No. It is further submitted that the proceedings
2 required a no-objection certificate for are pending since the year 2016 before the
elec tricity meter connec tion, water trial Court and the complaint initiated is
connection and for completing other nothing but an abuse of the process of the
formalities for transfer of garage in his Court with an attempt made to falsely
name. It is the allegation that sometime on implicate the applicants and harass them. It
20.8.2013 the acc used No s. 1 and 2 is submitted that having regard to the
approached the complainant and both materials on record the trial Court was not
demanded Rs. 10,000/- for giving such no justified in issuing the process.
objection certificate. Later on a demand was 5. Learned A.P.P. as well as learned
made by the accused for sum of Rs. 2,00,000/ Counsel for respondent No. 2 argued in
- for the building repairing fund from the support of the process issued by the trial
complainant and his son. The accused Nos. Court. My attention is invited to the
1 and 2 informed the complainant that the c o mpl ai n t. Learned Co u nsel f o r
no objection certificate will be given to him respondent No. 2 submitted that the
only upon the payment of Rs. 2,00,000/-. accusations in the complaint are specific
Accordingly, on 29.8.2013 the said amount against the accused which satisfy the
was paid by the complainant to the accused ingredients of the alleged offence. It is
Nos. 1 and 2 in cash. The accused failed to submitted that though the society was not
issue the no objection certificate despite registered, the accused Nos. 1 and 2
accepting the payment and therefore the projected themselves to be the committee
complainant started demanding refund of members of the said society and on the
the amount. Instead of returning the pretext of collecting building repairing
amount, acc used threatened the fund, asked the complainant to pay a sum
complainant with dire consequences and of Rs. 2,00,000/- fo r issuanc e of the
often quarreled with him. It is further requisite no objection certificate. It is
submitted that accused No. 3 who is the submitted that the accused threatened the
wife of the accused No. 2 started quarreling complainant when a request was made for
with the complainant and his family the no-objection certificate or in the
members. The complainant was thus left alternative for the refund of the amount.
Bom.C.R.(Cri.) Raosaheb M. Ahire v. State of Maharashtra 687
6. I have heard learned Counsel. I entire grievance is against the accused No.
have perused the materials on record. A 1. In the said notice a demand is made that
reading of the allegations made in the the accused No.1 should keep his promise
complaint reveal that for the purpose of or return back the sum of Rs. 2,00,00/- to
building repairing fund and issuance of the the complainant within 7 days from the date
no objection certificate a sum of Rs. 2,00,000/ of receipt of this notice. Thus there is no
- was paid by the complainant to the reference in the notice to any demand or
accused Nos. 1 and 2. So far as the allegation acceptance for and on behalf of the present
against the accused No. 3 is concerned, it is applicants.
alleged that she raised a quarrel with the 8. Interestingly, in the complaint
family members of the complainant over the filed before the trial Court on 8.1.2014,
issue of refund of the amount of Rs. 2,00,000/ it is alleged that it is the accused Nos. 1
-. There are receipts on record to indicate and 2 who demanded a sum o f Rs.
that a sum of Rs. 1,85,000/- was paid by the 2,00,000/- and acc o rdi ngl y the sai d
accused to the complainant. However, the amount was paid to the accused Nos. 1
signatures on the said receipts are disputed and 2. Accused No. 3 who is the wife of
by the complainant. At this stage it is not the accused No. 2 is implicated on the
possible for me to rely upon such receipts allegation that she was raising a quarrel
and express an opinion. and threatening the family members of
7. It is however necessary to notice t h e c o mp l a i n a n t . T h e a l l e g a t i o n s
some uncontroverted materials, a mention against the applicants therefore appear
of which obviously does not find place in to be an afterthought and there is every
the complaint. It is pertinent to note that possibility of a false implication.
the complainant through his Advocate had 9. Taking an overall view of the
issued a notice dated 18.12.2013 to the matter, in my opinion, issuance of the
accused No. 1. In the said notice it was proc ess against the present
mentioned that the accused No. 1 was applicantsoriginal accused Nos. 2 and 3 is
working as the Chairman of the said society an abuse of the process of the Court which
which is not registered and the legal cannot be permitted. It is further seen from
formalities of the society are not completed the complaint that the c omplai nant
till today. It is further mentioned in the said essentially wanted refund of his money. I
notice that the accused No. 1 being the find substance in the contention of learned
Chairman of the society demanded a sum Counsel for the applicants that the criminal
of Rs. 2,00,000/- from the respondent No. 2 proceedings are resorted to against the
for granting permission to stay and reside applicants for redressing a grievance of a
in the room which he purchased and for civil in nature. The application therefore
proving water tap, electricity and drainage deserves to be allowed and is accordingly
line. It is mentioned in the notice that a sum allowed in terms of prayer Clause (a). It is
of Rs. 2,00,000/- as per the demand of the for the trial Court now to pass consequential
accused No. 1 was handed over by the orders as regard the applicants.
complainant on 25.08.2013 to the accused 10. Criminal Application is disposed of.
No. 1. If the contents of such a notice dated Application disposed off.
18.12.2013 is perused, it is seen that the -----
688 Ramesh P. Gawande v. State of Maharashtra 2024(1)
No sooner deceased spitted, accused got 2. Pop Singh Vs. State of Madhya Pradesh, 2023(16)
annoyed and suddenly while cutting SCALE.
wood diverted to deceased and by same Advocates appeared :
axe gave blows : There was total absence S.V. Manohar, Sr.Adv. a/b. A.A. Choube, for
appellants.
of prearranged plan nor evidence
M.J. Khan, A.P.P., for respondent-State.
suggests so : Case would squarely fall
172.PM/IN/SG/RJ/PN
within Section 299(c), IPC
2024(1) Bom.C.R.(Cri.) 688 Per VINAY JOSHI J.: – Mother and son
(NAGPUR BENCH) were tried for the offence punishable under
section 302 read with section 11134 of the
Before :
Indian Penal Code (‘IPC’) for committing
Vinay Joshi & Mrs. Vrushali V. Joshi, JJ.
murder of another son (Gajanan). Mother
Ramesh @ Shyam Pandharinath was additionally charged for voluntarily
Gawande & anr. ... Appellants. causing hurt by dangerous weapon to
Versus prosecution witnesses Seema, and thereby
State of Maharashtra ... Respondent. committed an offence punishable under
Criminal Appeal No. 542 of 2022, decided section 324 of the IPC.
on 5-1-2024. 2. The trial Court vide impugned
Indian Penal Code, 1860, Secs. 300, judgment and order dated 25.7.2022 in
Exception 4, 299, Cl. (c) – Murder – Sudden Sessions Case No. 17 of 2017 convicted the
quarrel – Accused inflicted fatal axe blows at accused No. 1 Ramesh @ Shyam (son) for
head of deceased real brother – Given facts the offence punishable under section 302 of
nowhere suggest that either accused intended to the IPC, whilst acquitted accused No. 2
cause death or intended to cause such bodily Sugandhabai (mother) from the charge of
injury coupled with knowledge it could likely to murder. However, trial Court has convicted
cause death or even intentionally caused said accused No. 2 Sugandhabai, for the offence
bodily injury which is sufficient in ordinary punishable under section 324 of the IPC.
course of nature to cause death – No sooner The trial Court has sentenced accused No.
deceased spitted, accused got annoyed and 1 Ramesh to undergo imprisonment for life
suddenly while cutting wood diverted to along with fine of Rs. 25,000/- for the offence
deceased and by same axe gave blows – There punishable under section 302 of the IPC.
was total absence of prearranged plan nor Accused No. 2 Sugandhabai was sentenced
evidence suggests so – Thus in heat of passion to suffer rigorous imprisonment for one
upon sudden occurrence, accused reacted in year with fine of Rs. 2,000/-, for the offence
shape of inflicting axe blows – There is total punishable under section 324 of the IPC.
absence of intention on part of accused – Being aggrieved by the aforesaid judgment
However, act of inflicting axe blow at head of and order of conviction, both accused have
deceased in sudden occurrence would definitely appealed in terms of section 374 of the Code
attracts knowledge that his act is likely to cause of Criminal Procedure (‘the Code’).
death and it would squarely fall within Clause 3. The facts of the prosecution case in
(c) to Section 299 of IPC. (Para 28) brief are that, deceased Gajanan was the real
Cases referred : brother of accused No. 1 Ramesh and son
1. Pulicherla Nagaraju Vs. State of A.P., (2006)11 of accused No. 2 Sugandhabai. Both
S.C.C. 444. brothers were residing separately adjacent
Bom.C.R.(Cri.) Ramesh P. Gawande v. State of Maharashtra 689
to each other. Deceased Gajanan was recorded. On completion of investigation,
residing with his wife Seema, minor son final report has been filed. Both accused
Suyog and daughter Vidisha. Both brothers denied the guilt and put the prosecution to
had a property dispute for which deceased the task of establishing levelled charges
Gajanan had filed a Civil Suit. with requisite standard of proof. The
4. On 9.6.2013, aro und 4.00 pm prosecutio n has examined in al l 16
deceased Gajanan was talking with witnesses and also banked upon certain
neighboring person namely Dashrath documents to bring home the guild of the
Pethkar and his wife, in front of his house. accused. The trial Court held that Gajanan
Informant Seema was at her doorstep. At met with a homicidal death. Accused No. 1
relevant time, accused No. 1 Ramesh was Ramesh assaulted Gajanan and thereby
cutting firewood across the road, by means committed the offence of murder. So also,
of axe. Deceased Gajanan had consumed the trial Court held that accused No. 2
Kharra (sort of Tobacco) which he spitted. Sugandhabai caused hurt to the informant
Accused Ramesh got annoyed and started Seema, by means of dangerous weapon. On
to assault Gajanan by means of axe by said finding trial Court has imposed
saying that ‘why you spitted by looking to aforementioned sentence.
me’. He dealt the axe blows at the head of 6. Heard learned Senior Counsel Shri
Gajanan on which the latter fell down. Manohar appearing for the accused, on
Accused Ramesh also gave axe blow at his facts, as well as on law. Learned Senior
left thigh causing bleeding injury. Informant Counsel Shri Manohar has not disputed
Seema rushed at the rescue of her husband the homicidal death of Gajanan, however
Gajanan, ho wever ac cused No. 2 endevo ur ed to c o nvi nc e that the
Sugandhabai caught her hair and by blunt prosecution failed to establish that the
side of axe dealt a blow. Injured Gajanan accused had assaulted to the deceased. In
was shifted to the Hospital where he the alternative he would submit that act
succumbed to the injuries on the following o f ac c us ed No . 1 Ramesh do es no t
day. The informant Seema rushed to the constitute the offence of ‘murder ’ as
Concerned Police, and lodged the report defined under section 300 of the IPC.
regarding occurrence. Essential ingredients to constitute the
5. Initially, crime was registered for offence of murder are missing, at the most,
the offence punishable under section 307 it is a case of culpable homicide not
read with section 34 of the IPC. During the amounting to murder punishable under
course of investigation Panchanama of the section 304 Part II of the IPC.
scene of offence was drawn, clothes of 7. Per contra, learned A.P.P. Shri Khan
deceased as well as accused were seized. firmly supported the decision rendered by
Blood samples were collected. At the the trial Court. He would submit that
instance of the accused Ramesh weapon accused No. 1 Ramesh has assaulted on the
used in the commission of crime was seized. head by dangerous weapon from which the
Postmortem was conducted on the dead very intention to kill can be gathered and
body, inquest panchanama was drawn, thus, it is a case of murder. In the alternative
statement of eye-witnesses have been he would submit that even if it is held that
44/24(1) it was not a pre-planned act of accused
Ramesh, however his intention can be well 3. Chop wound present over posterior aspect of left
gathered and thus, it would fall under thigh of size 13 x 4 cm x muscle deep. The general
section 304 Part I of the IPC. position of the wound is obliquely downward
towards the medial end. Margins contused and
8. The prosecution evidence consist of
clean cut. Hamstring muscle is showing the
Eye-Witnesses, Panch, Medical Officers and
clean cut tear. Middial end of the wound is obtuse
Poli ce Personnel. The line of cross- angle while lateral end is of acute angle.
examination indicates that the accused had 5. I also noted fracture on left side of occipital bone,
denied homicidal death in the trial Court fracture of right parital bone. All these injuries
by claiming to be accidental death. The trial were fresh and anti-mortam.
Court has considered said submission in 6. During internal examination I found following
extenso and held that homicidal death of injuries;
Gajanan has been duly established. Though 1) On opening the scalp, scalp is edematous, and
this point was not canvassed before us, contused. There was collection of blood i.e.
however since the accused is facing a charge subgalial hematon was present over frontal,
of murder, it necessitates us to deal with parietal and occipital region.
said aspect. 2) On opening the vault, there was depressed
9. In order to establish homicidal communated fracture of the right parietal bone
death of Gajanan, prosecution is banking of size 5x2 cm. Was present there. Depressed and
upon the Inquest Panchanama, Postmortem communited fracture was present on the left
occipital bone of size 6x2 cm. Whereas, at the
Repo rt and evidence of the Medical
base of the skull a linear fracture of size 3 cm
Officers. In this regard, the prosecution
was present at right middle cranial fossa.
heavily relied on the evidence of PW11 Dr.
Vishal Surwade, who has conducted 10. As per his opinion, cause of death
was hemorrhage and shock as a result of
autopsy. For the sake of convenience, we
head injury. He further opined that injury
have extracted relevant portion of his
mentioned in postmortem report (Exh. 130)
evidence as below :
is possible by axe Art. No. 10.
4. During external examination I found following
injuries. 11. The Prosecution has also
1. Incise looking lacerated wound over right fronto examined PW12 Dr. Yogita Mahakalkar,
parietal region, about 12 cm above the right who has initially examined Gajanan
mastoid of size 9 cm x 2 cm x cavity deep. Brain (deceased) and found following injuries :
matter was coming out. General position of the (1) On right side of head about right ear the injury
wound is obliquely downward. Beveling margin was upto 8 cm from the right ear, the size of
is present. These margins are clearcut but injury was 6 to 7 cm.
contused. Both angles of wound are accut. (2) Another injury was on backside of head slightly
2. Incise looking lacerated wound, it was present away from the mid-line the size of injury was 6
over left side of the occipito parietal region, it to 7 cm.
was 9 cm. From left mastoid of size 9 cm x 2 cm (3) The injury was on left thigh on backside. The
x cavity deep. Brain matter was coming out. size of injury was 6 to 7 cm.
General position of the wound was horizontal 12. She deposed that all the injuries
above occipital protuberance. Beveling is also were caused due to sharp and hard object.
present over upper margin of the wound. All the injuries were fresh, which might
Margins are contused and cleancut. Both angles have caused within half an hour. All injuries
of the wound are acute. were grievous in nature. After examination,
she referred injured Gajanan to Government occurrence was just 30 to 40 feets away from her
Hospital Wardha. She proved injury doorstep. Nothig has brought on record through
certificate of patient deceased Gajanan at cross-examination to improbabilize her
Exh. 206. She identified axe Article-10 and presence. In these circumstances, presence of
deposed that the injuries caused to patient Seema at the place of occurrence cannot be
Gajanan were possible by said axe. doubted since it was quite natural.
13. Both Medical Officers have been 16. PW6 Seema has specifi cally
cross-examined however they denied the deposed that while deceased Gajanan was
suggestion which could cause sketh to the talking with neighboring person, he has
prosecution case. Medical Officers have spitted Kharra that is why accused No. 1,
specifically opined cause of death as who was cutting firewood got annoyed and
‘hemorrhage and shock as a result of head gave axe blow at the head of Gajanan. Her
injury’. Both have stated that injury was evidence is specific on the point of assault.
possible by seized axe. Looking to the nature She has particularly stated that axe blows
of injury coupled with the evidence of was dealt at the backside of the head and
Medical Officer, we have no hesitation to hold then at thigh. Medical evidence clearly
that Gajanan met with homicidal death. supports the ocular testimony of PW6
14. Though the prosecution has informant Seema.
examined several eyewitnesses, however 17. Learned Senior Counsel Shri
besides the informant Seema (PW6), other Manohar took us through the Postmortem
witnesses have left their loyalty to the notes, to impress that there was only single
prosecution. In umpteen cases, we came injury at the head and second at the
across similar situation where the eye- shoulder. For this purpose he has shown the
witnesses shown their reluctance to give diagram, which is a supplement to Column
evidence for variety of reasons. Rather, the No. 17 of the Postmortem notes. We are
common man does not wish to become a unable to find second head injury in the said
cause, or do not want to attract the wrath of diagram too. We cannot read diagram in
rival, or engulf into the controversy. isolation since postmortem note specifically
Certainly, the tendency of hostility is not refers that second injury was over left
potential to decide the fate of the case, but occipito parietal region. Contexually we
with regard to the said human phenomenon have gone through the evidence of PW11
the available material needs scrutiny. Dr. Vishal Surwade, who equally stated
15. Since the rest turned hostile, the case about second head injury at occipito parietal
is based on the sole testimony of PW6 region. Gajanan was initially examined by
informant Seema. Learned Senior Counsel PW12 Dr. Yogita Mahakalkar. It has come
Shri Manohar would submit that since the case in her evidence that second head injury was
is based on single eyewitness, her evidence must at the backside of the head, slightly away
be worthy of credit and must inspire full from the mid-line. PW6 informant Seema a
confidence of the Court. We are fully in village lady has particularly stated that the
agreement with said submission. In said accused dealt axe blows twice at the head
perspective, we have minutely examined the and then at thigh. Thus, we find no
evidence of PW6 informant Seema. Witness inconsistency in the evidence of sole eye-
Seema is widow of Gajanan. The place of witness vis-a-vis medial report.
18. The Defence Counsel would Moreover, axe with blood stains was seized
submit that as per the evidence of PW6 at the instance of the accused. All these
Seema at relevant time deceased Gajanan Articles were sent for chemical analyzation.
was holding his minor daughter at his arms It was found that the blood of the deceased
and thus, it is difficult for minor to escape was o f A posi tive gro up. Chemical
unhurt. He endevoured to impress that the Analyzers report indicates that blood found
incident as narrated by PW6 informant on the clothes of accused as well as weapon
Seema is quite improbable. True, PW6 seized at his instance was also of group ‘A
Seema admitted in cross-examination that positive’. Certainly this is a clinching piece
at relevant time her daughter was at the of evidence which connects accused with
arms of Gajanan. There are no set the crime. The defence urged to discard said
parameters to infer that whenever a person material on account of want of proper
holds a child, he cannot sustain injuries sealing however we have examined the
without causing harm to a child. Always it evidence of Investigating Officer from
depends upon the variety of factors like, the which we are convinced that the Articles
position of deceased and accused, the part were properly seized and sealed. Learned
of body where blow was given, the direction trial Judge has aptly dealt the said issue. The
of blow and so on. Therefore, we are not evidence of sole eyewitness is well
ready to accede the submission that because supported by scientific evidence. Moreover,
of only the child remained unhurt, the story we are much impressed by the quick
of assault described by PW6 Seema is lodgment of FIR. As per the prosecution
improbable. case, the incident took place on 9.6.2013
19. It is argued that blood stained around 4.00 p.m., whilst FIR has been
clothes of both children have not been lodged within one hour with specific details
seized during the course of investigation. about the act of the accused. Law always
Moreover, the defence has criticized for prefers quick lodgment of FIR which
non-examination of minor son Suyog aged eliminates the chances of concoction.
6 years who was the eye-witness. The Herein though the informant’s husband was
Investigating Agency could have done on death bed, she assiduously rushed to the
those things, however those lapses cannot Police Station and ventilated her grievance.
be stretched to the extent of eclipsing the This circumstance of disclosing the
evidence of the informant, specifically complicity of accused to the Police within
stating the manner of assault. The one hour, strongly supports the evidence
prosecution case is tried to be impeach on of PW6 Seema in all respect. The evidence
some other grounds like FIR does not speak of sole eye-witness is natral credible and
about names of neibhourer or the passerby trustworthy. On re-examination of entire
have not been examined, but to our mind material, we have no doubt in our mind that
these things are of miniscule nature which the prosecution has duly established that
has no impact on the core issue. accused No. 1 Ramesh has assaulted
20. Besides the direct evidence of Gajanan by means of axe, which proved to
(PW6) informant Seema, the prosecution be fatal.
has established that the blood stained 21. This has occasioned us to deal with
clothes of the acc used were sei zed. one more case where the trial Court has not
deal t with the crucial aspect while parameters laid down for the offence of
concluding that the offence of “murder” has murder as defined under section 300 of the
been established. In several cases, the trial IPC. Mere homicidal death is not enough
courts after reaching to the conclusion that to conclude that it is a case of murder. We
the act of accused resulted into causing expect from the trial courts to deal this
death, has not further dealt as to how the aspect with all seriousness.
said act constitutes the offence of murder. 23. Be that as it may, the question
Like mathematical calculations the trial arose whether the act of the accused of
Court has simplified the matter that act plus causing death of Gajanan amounts to
death is equal to the offene of murder. murder or culpable homicide not
Certainly, the said mode is neither expected amounting to murder. On the basis of
nor approvalble under law. Reasons are evidence, the pivotal question of intention
necessary on two counts, firstly the trial is to be decided whether the case falls under
Judge shall satisfy himsel that act of section 302 or 304 Part I or 304 Part II of the
accused amounts to the offence of murder, IPC. Murder is a gravest form of culpable
and secondly the Appellate Court would homi cide, which has its peculiar
be in a position to know the reasons as to characteristic required to be proved before
why the offence of murder. On exemplary a person is to be held guilty for committing
basis, we prefer to quote paragraph 80 of murder as defined under section 300 of the
the decision by which the trial Court IPC. It requires judicial scrutiny of the
c o nc l uded that the pro sec uti o n has prevailing facts. Merely the fact that death
proved the offence of murder. of human being is caused is not enough to
“80. From the above discussion, it is clear that the constitute offence of murder unless one of
prosecution has succeeded to prove that accused the mental status mentioned in ingredient
No. 1 Ramesh assaulted deceased Gajanan by of section 300 is present. It must be proved
means of Axe. It has not brought on record
that there was an intention to inflict the
through substantive evidence that accused No.
particular bodily injury actually found to
2 had played active role in assault on deceaed
Gajanan. Therefore I hold only accused No. 1 be present. The intention of the person
Ramesh guilty for the offence punishable under causing the injury has to be gathered from
section 302 of I.P.C. and accused No. 2 careful examination of the facts and
Sugandhabai is liable to be acquitted from the circumstances of each case. The intention
said charge.” to cause the requisite type of injury is a
22. Precisely, the trial Court has not subjective inquiry and then there would be
dealt with the issue as to how the offence further inquiry whether injury was
of murder defined under section 300 of the sufficient in ordinary course of nature to
IPC has been established. As a matter of fact, cause the death is of objective nature.
when on facts it has been proved that the 24. It is now well understood that in
act of the accused resulted into causing the scheme of the Indian Penal Code
death, further inquiry is to be undertaken "Culpable homicide" is the genesis and
by the courts that in legal parlance what "murder" is the species and generally
offence has been committed. In given facts speaking culpable homicide sans special
and circumstances, it has to be seen whether characteristics of murder is culpable
the act of accused falls within either of the homicide not amounting to murder. The
Indian Penal Code recognizes three degrees penalty for murder by attempting to put forth a
of culpable homicide. The first degree of case that there was no intention to cause death.
culpable homicide is "murder" which is It is for the courts to ensure that the cases of
defi ned by section 300 and made murder punishable under section 302, are not
punishable under section 302 IPC. The converted into offences punishable under section
304 Part I/II, or cases of culpable homicide not
second degree is culpable homicide as
amounting to murder, are treated as murder
defined under section 299 and made
punishable under section 302. The intention to
punishable under section 304 Part I, IPC. cause death can be gathered generally from a
The third degree of culpable homicide is combination of a few or several of the following,
made punishable under section 304 Part II among other, circumstances: (i) nature of the
of the IPC. Whenever the accused causes weapon used; (ii) whether the weapon was
the death of another and had no intention carried by the accused or was picked up from the
to kill, then the offence would be murder spot; (iii) whether the blow is aimed at a vital
only if, (1) the accused knew that the part of the body;(iv) the amount of force employed
intended injury would be likely to cause in causing injury; (v) whether the act was in the
death, or (2) that it would be sufficient in course of sudden quarrel or sudden fight or free
the ordinary course of nature to cause death for all fight; (vi) whether the incident occurs by
or, (3) that the accused knew that the act chance or whether there was any premeditation;
must in all probability would cause death, (vii) whether there was any prior enmity or
whether the deceased was a stranger;(viii)
and if the case cannot be placed as high as
whether there was any grave and sudden
that and the act is only likely to cause death
provocation, and if so, the cause for such
and there is no special knowledge, the provocation; (ix) whether it was in the heat of
offence comes under section 304(II), I.P.C. passion; (x) whether the person inflicting the
25. In order to ascertain the legal injury has taken undue advantage or has acted
impact of the act of accused entire relevant in a cruel and unusual manner; (xi) whether the
material needs scrutiny. In this regard accused dealt a single blow or several blows. The
observations of the Supreme Court in case above list of circumstances is, of course, not
of (Pulicherla Nagaraju Vs. State of A.P.) , 1 exhaustive and there may be several other special
(2006)11 S.C.C. 444 at paragraph 29 are circumstances with reference to individual cases
worthy to note, which reads as below : which may throw light on the question of
“29. Therefore, the Court should proceed to decide intention. Be that as it may.”
the pivotal question of intention, with care and 26. Reverting to the facts, it reveals
caution, as that will decide whether the case falls that there was no deep rooted enmity
under section 302 or 304 Part I or 304 Part II. between two brothers. Though both were
Many petty or insignificant matters - plucking not in cordial terms, however they were
of a fruit, straying of cattle, quarrel of children, residing adjacent to each other. It emerges
utterance of a rude word or even an objectionable from the evidence that at relevant time
glance, may lead to altercations and group
accused Ramesh was cutting firewood
clashes culminating in deaths. Usual motives like
revenge, greed, jealousy or suspicion may be
across the road by an axe. When he saw his
totally absent in such cases. There may be no brother (deceased Gajanan) was spitting
intention. There may be no premeditation. In Kharra, he conceived the impression of
fact, there may not even be criminality. At the teasing and thus, by same axe immediately
other end of the spectrum, there may be cases of gave two axe blows at the head of Gajanan.
murder where the accused attempts to avoid the Evidence of Seema unfolds that while
assaulting, the acused said that ‘ek>kdMs ikgwu mental balance by seeing his brother
Fkaqdrksl dk;?’ which clearly indicates that spitting and while cutting firewood dealt
because of spitting only, the accused got two blows at the backside of the head of
annoyed and reacted in such manner. deceased. Nobody has intervened but after
Apparently it was not a pre-planned attack giving two blows the accused remained
nor it can be said that the accused was there only which also assumes significance.
carrying a dangerous weapon with a 28. The given facts no where suggest
specific intent. The things were quite that either accused Ramesh intended to
normal for the accused Ramesh since as cause death or intended to cause such
usual he was cutting firewood by axe. bodily injury coupled with a knowledge it
Therefore, possession of axe which is coul d likel y to cause death or even
implement generally used in villages for intentionally caused said bodily injury
cutting wood cannot be construed that the which is sufficient in ordinary course of
accused was carrying weapon at relevant nature to cause death. Moreover, it is quite
time. The things indicate that since the apparent that unpredictably everything was
accused saw that the deceased Gajanan happened. No sooner deceased spitted,
spitted, may be under misconception, rather accused got annoyed and suddenly while
due to bitterness found it humiliating and cutting wood diverted to deceased and by
by loosing temper ran and gave two blows same axe gave blows. There was total
by same axe. Certainly, the act was not at absence of prearranged plan nor evidence
all premeditated but by loss of temper on suggests so. Thus in heat of passion upon
momentary things he dealt axe blows. At sudden occurrence, accused reacted in the
the moment whatever was available at his shape of inflicting axe blows. There is total
hand was used to vent the grievance. In absence of intention on the part of the
above context it cannot be said that the accused Ramesh. However, the act of
accused carried a weapon at relevant time inflicting axe blow at the head of deceased
with specific intent. Gajanan in sudden occurrence would
27. Though the accused gave blows definitely attracts the knowledge that his
at the head which is a vital part of the body, act is likely to cause death and it would
however that alone cannot decide the squarely fall within the Clause [c] to section
nature but it is to be appreciated in context 299 of IPC.
with other circumstances. The deceased 29. The above discussion firmly
Gajanan was holding his small child in arms establishes that the act of Ramesh would fall
rather that may have occasioned accused to in the third degree of culpable homicide not
hit at back side to avoid blow on a child. If amounting to murder. Section 222 of Cr.P.C.
the accused intended to cause death he permits Court to convict accused for minor
could have easily dealt repeated blows on offence though he was not charged for the
the defenseless deceased, who was rather same. The Code never specifies as to which
captivated by holding a child. Moreover, the are the minor offences corresponding to
accused has not assaulted indiscriminately major offences. The offence of culpable
which could have caused hurt to the child homicide not amounting to murder of third
too. These circumstances indicate that in degree would be well construed as minor
sudden occurrence the accused lost his offence of section 302 of the Indian Penal
696 Sanjat R. Rajput v. Union of India 2024(1)
Code. Therefore, the act of accused No. 1 32. Having regard to the all above
Ramesh would fall in the category of latter facts, we are of the view that seven years
part of culpable homicide not amounting rigorous imprisonment would be just to
to murder which is punishable under balance the scale. As regards to accused No.
section 304 Part-II of the Indian Penal Code. 2 Sugandhabai, it is informed that she has
30. As regards to the case of accused already undergone 79 days of imprisonment.
No. 2 Sugandhabai, the learned Counsel Having regard to the period of incarceration
appearing for the defence besides claiming and her gender coupled with the act, we are
leniency and reduction in sentence, has not of the view that the said incarceration would
advanced any other submissions. The be sufficient for the offence punishable under
prosecution evidence is sufficient to hold section 324 of the IPC.
that accused No. 2 Sugandhabai caused hurt 33. In view of the above, Criminal
to PW6 Seema by means of dangerous appeal is partly allowed. We hereby modify
weapon, and therefore, the conclusion of the impugned judgment and Order dated
the trial Court to that extent needs no 25.7.2022 passed in Sessions Case No. 17 of
interference. 2017 to the extent of altering conviction of
accused No. 1 Ramesh @ Shayama s/o
31. Coming to the point of sentence,
Pandharinath Gawande from section 302 of
the learned Senior Counsel Shri Manohar
the IPC, to section 304 Part II and sentence
would urge for taking lenient view. It is
him to suffer rigorous imprisonment for
submitted that the accused No. 1 Ramesh
seven years along with fine and default
is behind bars from last four years. He
Clause as imposed by the trial Court.
belongs to the poor strata of the society and
34. We also modify the sentence of
shouldering responsibility of his family. The
accused No. 2 Sugandhabai wd/o
occurrence was unfortunate outcome of loss
Pandharinath Gawande for the offence
of temper. Reliance has been placed on the
punishable under section 324 of the IPC and
decision of the Supreme Court in case of
sentence her for the period which she has
(Pop Singh and ors. Vs. State of Madhya
already undergone, along with fine and
Pradesh)2, 2023(16) SCALE, to contend that
default Clause as imposed by the trial Court.
in similar situation the Supreme Court
35. The appeal stands disposed of in
while altering the punishment into the
the above terms.
offence punishable under section 304 Part II
has imposed sentence for five years of Appeal disposed off.
rigorous imprisonment. We do not see any -----
legal ratio as such in said decision. Though it Prolonged incarceration militates against
is urged that the period already undergone is most precious fundamental right
sufficient, however we are not in agreement guaranteed under Article 21 of
since one person has lost his life for no reason. Constitution of India
While imposing sentence, right balance is to 2024(1) Bom.C.R.(Cri.) 696
be maintained. Concededly, there are no Before :
antecedents nor the accused Ramesh was Prithviraj K. Chavan, J.
having criminal tendency but as of sudden Sanjat Ratan Rajput ... Applicant.
he took such a step by treating the instance Versus
of spitting as a provocation. Union of India & anr. ... Respondents.
Bom.C.R.(Cri.) Sanjat R. Rajput v. Union of India 697
Criminal Bail Application No. 3641 of 3. Pursuant to an information by the
2022, decided on 9/10-1-2024. respondent, a car bearing Registration No.
Narcotic Drugs and Psychotropic MH-05-AX-6577 was intercepted on Nashik
Substances Act, 1985, Secs. 8(c), 20b(ii)C, 29 Phata, Pune around 10.00 hours to 12.00
& 67 – Code of Criminal Procedure, 1973, Sec. hours on 26.7.2018. During search, it was
439 – Constitution of India, Art. 21 – found that the car was l oaded with
Enlargement of bail – Contraband articles seized – approximately 200 kgs of Ganja, which was
Held, prolonged incarceration, generally militates a contraband. After weighing, it was noticed
against most precious fundamental right that the quantity was around 180.320 kgs.
guaranteed under Article 21 of Constitution of Necessary sampling, sealing and labeling
India and in such an eventuality, conditional liberty was carried out by the Investigating Agency
must override statutory embargo created under as also the personal search of the applicant.
Section 37(1)(b)(ii) of NDPS Act. Length of period Statement under section 67 of the NDPS Act
of his custody and fact that charge-sheet has been came to be recorded. There are two accused.
filed and trial has commenced are by themselves After investigation, a charge-sheet is filed
not considerations that can be treated as persuasive in the Special Court.
grounds for granting relief to respondent under 4. First application for bail preferred
Section 37 of NDPS Act. Applicant relased on bail. by the applicant came to be rejected by the
Application is allowed. (Paras 10 to 13) Special Court vide order dated 2.1.2020.
Cases referred : 5. At the outset, learned Counsel for
1. Rabi Prakash Vs. State of Odisha, 2023 the applicant invited my attention to the fact
DGLS(S.C.) 744. that the applicant has been incarcerated for
2. Jitendra Jain Vs. NCB, S.L.A.(Cri.) 8900/2022. more than 5 years, who is the only earning
3. Sajjid Yusuf Electricwalla Vs. State of member of his family and there is no
Maharashtra, B.A. 3076/2021, dt. 31.3.2022.
likelihood of concluding the trial in near
4. Narcotics Control Bureau Vs. Mohit Agarwal,
2022 S.C.C. Online S.C. 891. future. He may be released on bail by
Advocates appeared : imposing the conditions to which he would
Taraq Sayed i/b. Advait Tamhankar, for applicant.
abide by. Learned Counsel has also advanced
M.G. Patil, A.P.P., for respondent – State. few submissions on the merits of the case by
Amit Munde, Spl.P.P., for respondent 1 - Customs. stating that definition of contraband as given
153.PM/IN/ND/RR/TC in the panchanama, does not match to that
PRITHVIRAJ K. CHAVAN, J.: – By this of the definition of Ganja, as envisaged
application, the applicant prays for his release under the NDPS Act. To substantiate his
on bail under section 439 of the Code of contention, he placed reliance on the order
Criminal Procedure since he has been arrested of this Court bench at Aurangabad, dated
and prosecuted for the offences punishable 30.11.2021 (Bail Application No. 1329 of
under section 8(c), read with Section 20b(ii)(C) 2021). It is also submitted that in view of
and section 29 of the Narcotic Drugs and the various pronouncements of this Court
Psychotropic Substances Act, 1985 (for short on identical facts, the applicants have been
“NDPS Act”). enlarged on bail.
2. Shorn of unnecessary details, a few 6. Per contra, learned Special Public
facts germane for disposal of this Prosecutor while strongly objecting the
application can be summarized as under. release of the applicant on bail, contended
698 Sanjat R. Rajput v. Union of India 2024(1)
that looking to the enormity of the offences, Special Leave to Appeal (Cri.) No(s). 4169
in the sense, it being a commercial quantity of 2023, 2023 DGLS(S.C.) 744.
of Ganja seized from the possession of the 10. The learned Counsel for the
applicant and as the trial has already applicant has pressed into service a latest
commenced, the applicant may not be order of the Supreme Court in the case of
released on bail. It is further contended that (Jitendra Jain Vs. NCB & anr.)2, Special
this is essentially an offence against the Leave to Appeal (Cri.) No. 8900 of 2022. It
Society having impact on the health of the was a case under section 8 read with
citizens and, therefore, the applicant may sections 20(b)(ii)B, 27, 27A and 29 of the
not be released. NDPS Act registered with Narcotics Control
7. The l earned Spe c i al Publ i c Bureau, Mumbai Zonal Unit, Mumbai. It is
Prosecutor expressed his apprehension of observed that though it i s a case of
abscondence of the applicant in case of his commercial quantity and allegations
release as well as influencing and coercing levelled against the petitioner are serious
the prosecution witnesses, especially the in nature, but having regard to the fact that
panc has. He al so expre ssed hi s he is in custody for 2 years and conclusion
apprehension of repeating similar offence of the trial will take time, the Supreme Court
by the applicant in case of his release. released the petitioner on bail. The instant
8. Admittedly, the applicant has case is on much higher footing than what
been incarcerated for nearly 5 years. the Supreme Court has observed in the case
Though the trial has already commenced, of Jitendra Jain (supra).
the learned Special Public Prosecutor 11. This Court has also taken a similar
submits that a direction be issued to view while granting bail to the applicant in
expedi te the tri al , whi c h wo ul d be case of (Sajjid Yusuf Electricwalla Vs. The
concluded within a period of one year. State of Maharashtra)3, Bail Application
9. Section 20b(ii)(C) of the NDPS Act No. 3076 of 2021, dated 31.3.2022.
provides minimum imprisonment of 10 12. The Special Public Prosecutor, on
years in case of commercial quantity of the other hand, placed reliance upon a
cannabis, which may extend to 20 years. judgment of the Supreme Court in the
Even if the minimum sentence of 10 years case of (Narcotics Control Bureau Vs.
is taken into consideration, the applicant Mohit Agarwal)4 , 2022 S.C.C. Online S.C.
has already undergone half of the sentence. 891 wherein it has been observed that
At the same time, it cannot be lost sight of parameters of bail available under section
the fact that that prolonged incarceration, 37 of the Act were not satisfied. The
generally militates against the most acc used i n the sai d case was i n the
precious fundamental right guaranteed custody for less than 2 years. In such
under Article 21 of the Constitution of India circumstances, it was observed that the
and in such an eventuality, the conditional length of period of his custody and the
liberty must override the statutory embargo fact that charge-sheet has been filed and
created under Section 37(1)(b)(ii) of the the tri a l has c o mmenc e d are by
NDPS Act. This has been precisely observed themselves not considerations that can be
by the Hon’ble Supreme Court in the case treated a s persuasi ve gro unds f o r
of (Rabi Prakash Vs. The State of Odisha)1, granting relief to the respondent under
Bom.C.R.(Cri.) Sita Soren v. Union of India 699
section 37 of the NDPS Act. The ratio laid (viii) Needless to say that breach of any of the
down in case of Mohit Agarwal (supra) can condition would entitle the prosecution to
be distinguished in view of the order of the pray for cancellation of the bail.
Supreme Court in case of Jitendra Jain (supra) 15. The application is disposed of in
as well as in case of Rabi Prakash (supra). the aforesaid terms.
13. Dehors of the merits of the case and Application is allowed.
in view of various pronouncements referred -----
to hereinabove, I am persuaded to release MPs./MLAs. cannot claim any immunity
the applicant on bail albeit imposing certain from prosecution under Articles 105 and
conditions, which would take care of the 194 of Constitution when they are accused
apprehension expressed by the learned of taking bribes
Special Public Prosecutor. 2024(1) Bom.C.R.(Cri.) 699
14. Consequently, the following order (SUPREME COURT)
is expedient :- Before :
ORDER Dr. Dhananjaya Y. Chandrachud, C.J.I.,
(i) The application is allowed. A.S. Bopanna, M.M. Sundresh,
(ii) The applicant – Sanjay Ratan Rajput be Pamidighantam Sri Narasimha, J.B.
released on executing a PR bond in the sum Pardiwala, Sanjay Kumar & Manoj
of Rs. 50,000/- with two local sureties in the Misra, JJ.
like amount to the satisfaction of the Special Sita Soren … Appellant.
Judge of NDPS Court in Special Case No. 8
Versus
of 2019.
Union of India … Respondent.
(iii) The applicant shall appear before the
respondent – Investigating Officer on every Criminal Appeal No. 451 of 2019, decided
Monday between 9.00 a.m. to 11.00 a.m. till on 4-3-2024.
the conclusion of the trial. (A) Constitution of India, Arts. 105 & 194
(iv) The applicant shall surrender his passport – Prevention of Corruption Act, 1988, Secs.
with the Investigating Officer. In case, he has 7 & 13 – Government of India Act, 1935,
no passport, an affidavit be sworn before the Sec. 28(1) – Bribery is not protected by
Special Court within two weeks from today. parliamentary privilege – Courts and House
(v ) T h e ap p lic an t s h all n ot leave t h e exercise parallel jurisdiction over allegations of
jurisdiction of the Special Court until bribery – High Court declined to quash criminal
conclusion of the trial.
proceedings on ground that appellant had not
(vi) The applic ant shall not direc tly or
cast her vote in favour of alleged bribe giver and
indirectly make any inducement, threat or
thus, is not entitled to protection under Article
promise to any person acquainted with the
facts of case so as to dissuade him from 194(2) of Constitution – Would a legislator who
disclosing the facts to Court or any Police receives a bribe to cast a vote in a certain
Officer. The applicant should not tamper direction or speak about certain issues be
with evidence. protected by parliamentary privilege – Held,
(vii) The applicant shall furnish his cell number bribery is not rendered immune under Article
as well as residential address to the 105(2) of Constitution and corresponding
Investigating Officer and shall also inform provision of Article 194 because a member
if there is any change in the Cell number or engaging in bribery commits a crime which is
the residential address. not essential to casting of vote or ability to decide
700 Sita Soren v. Union of India 2024(1)
on how vote should be cast. Same principle applies 13. Amarinder Singh Vs. Punjab Vidhan Sabha, 2010
to bribery in connection with a speech in House or DGLS(SC) 294 : (2010)6 S.C.C. 113.
a Committee. Corruption and bribery by members 14. Maganlal Chhaganlal (P) Ltd. Vs. Municipal
Corpn. of Greater Bombay, 1974 DGLS(SC) 153 :
of legislatures erode probity in public life. Offence (1974)2 S.C.C. 402.
of bribery is complete at point in time when 15. Bengal Immunity Company Limited Vs. State of Bihar,
legislator accepts bribe. Appeal stands disposed 1955 DGLS(SC) 50 : 1955 S.C.C. OnLine S.C. 2.
of. (Paras 188.7 & 188.8) 16. Sambhu Nath Sarkar Vs. State of W.B., 1973
(B) Constitution of India, Arts. 105 & 194 DGLS(SC) 143 : (1973)1 S.C.C. 856.
– Prevention of Corruption Act, 1988, Secs. 17. Lt. Col. Khajoor Singh Vs. Union of India, 1960
DGLS(SC) 307 : (1961)2 S.C.R. 828.
7 & 13 – Government of India Act, 1935,
18. Union of India Vs. Raghubir Singh, 1989
Sec. 28(1) – Doctrine of stare decisis – Held, DGLS(SC) 325 : (1989)2 S.C.C. 754.
doctrine of stare decisis is not an inflexible rule 19. Pradeep Kumar Biswas Vs. Indian Institute of
of law. Judgment of majority in 1998 DGLS(SC) Chemical Biology, 2002 DGLS(SC) 437 : (2002)5
464, which grants immunity from prosecution S.C.C. 111.
to a member of legislature who has allegedly 20. Supreme Court Advocates-on-Record Assn. Vs.
engaged in bribery for casting a vote or speaking Union of India, 2015 DGLS(SC) 1007 : (2016)5
S.C.C. 1.
has wide ramifications on public interest, probity
21. Ajit Mohan Vs. Legislative Assembly, National
in public life and parliamentary democracy. Capital Territory of Delhi, 2021 DGLS(SC) 307 :
There is a grave danger of this Court allowing (2022)3 S.C.C. 529.
an error to be perpetuated if decision were not 22. Mark Graves Vs. People of State of New York,
reconsidered. (Para 188.1) 306 US 466 (1939).
Cases referred : 23. Rajeev Suri Vs. DDA, 2021 DGLS(SC) 36:
(2022)11 S.C.C. 1.
1. P.V. Narasimha Rao Vs. State (CBI/SPE), 1998
24. Kielly Vs. Carson, (1841-42)4 Moo.PC 63.
DGLS(SC) 464 : (1998)4 S.C.C. 626.
2. Sita Soren Vs. Union of India, 2023 DGLS(SC) 25. Alagaapuram R. Mohanraj Vs. TN Legislative
1067 : 2023 S.C.C. OnLine S.C. 1217. Assembly, 2016 DGLS(SC) 120 : (2016)6 S.C.C. 82.
3. Keshav Mills Co. Ltd Vs. CIT, 1965 DGLS(SC) 23 26. Tej Kiran Jain Vs. N Sanjeeva Reddy, 1970
: A.I.R. 1965 S.C. 1636. DGLS(SC) 277 : (1970)2 S.C.C. 272.
4. Krishena Kumar Vs. Union of India, 1990 27. MSM Sharma Vs. Sri Krishna Sinha, 1958
DGLS(SC) 326 : (1990)4 S.C.C. 207. DGLS(SC) 165 : A.I.R. 1959 S.C. 395.
5. Shanker Raju Vs. Union of India, 2011 DGLS(SC) 28. Special Refence No. 1 of 1964, 1964 S.C.C.
10 : (2011)2 S.C.C. 132, OnLine S.C. 21.
6. Shah Faesal Vs. Union of India (UOI), 2020(3) 29. State of Karnataka Vs. Union of India, 1977
Bom.C.R. 226(S.C.) : (2020)4 S.C.C. 1. DGLS(SC) 314 : (1977)4 S.C.C. 608.
7. Raja Ram Pal Vs. Hon’ble Speaker Lok Sabha, 30. N. Ravi Vs. Speaker, Legislative Assembly
2007 DGLS(SC) 31 : (2007)3 S.C.C. 184. Chennai, 2004 DGLS(SC) 1718.
8. Lokayukta, Justice Ripusudan Dayal Vs. State of 31. State (NCT of Delhi) Vs. Union of India, 2018
M.P., 2014 DGLS(SC) 187 : (2014)4 S.C.C. 473. DGLS(SC) 652 : (2018)8 S.C.C. 501.
9. State of Kerala Vs. K. Ajith, 2021 3) Bom.C.R.(Cri.) 32. Sub-Committee on Judicial Accountability Vs. Union
560(S.C.) : (2021) S.C.C. OnLine 510. of India, 1991 DGLS(SC) 570 : (1991)4 S.C.C. 699.
10. Central Board of Dawoodi Bohra Community
33. Kihoto Hollohan Vs. Zachillhu, 1992 DGLS(SC)
Vs. State of Maharashtra, 2005(3) Bom.C.R.
165 : 1992 Supp. (2) S.C.C. 651.
204(S.C.) : (2005)2 S.C.C. 673.
34. Chaturdas Bhagwandas Patel Vs. State of
11. Kalpana Mehta Vs. Union of India, 2018
Gujarat, 1976 DGLS(SC) 181 : (1976)3 S.C.C. 46.
DGLS(SC) 477 : (2018)7 S.C.C. 1.
12. Kuldip Nayar Vs. Union of India, 2006 35. Neeraj Dutta Vs. State (NCT of Delhi, 2022
DGLS(SC) 676 : (2006)7 S.C.C. 1. DGLS(SC) 1629 : (2023)4 S.C.C. 731.
36. The King Vs. Sir John Elliot, (1629) 3 St. Tr. 294. deliberative democracy in facilitating the
37. Ex Parte Wason, (1969)4 Q.B. 573. functioning of a parliamentary form of
38. R Vs. Greenway, [1998] PL 357. governance. It ensures that legislators in
39. R Vs. Parliamentary Commissioner for whom citizens repose their faith can express
Standards Ex Parte Fayed, [1998]1 WLR 669. their views and opinions on the floor of the
40. Hamilton Vs. Al Fayed, [2001]1 A.C. 395. House without ‘fear or favour’. With the
41. Prebble Vs. Television New Zealand, (1994)3
protection of parliamentary privilege, a
ALL.E.R. 407.
legislator belonging to a political party with
42. Office of Government Commerce Vs.
Information Commissioner (Attorney General a minuscule vote share can fearlessly vote
intervening), [2009]3 WLR 627. on any motion; a legislator from a remote
43. R Vs. Chaytor, [2010]3 WLR 1707. region of the country can raise issues that
44. Makudi Vs. Baron Triesman of Trottenham, impact her constituency without the fear of
[2014] QB 839. being harassed by legal prosecution; and a
45. United States Vs. Thomas F Johnson, 383 US 169 legislator can demand accountability
(1966).
without the apprehension of being accused
46. United States Vs. Brewster, 408 US 501 (1972).
of defamation.
47. Gavel Vs. United States, 408 US 606 (1972).
48. United States Vs. Helstoski, 442 US 477 (1979).
2. Would a legislator who receives a
49. Hutchinson Vs. Proxmire, 439 US 1066 (1979). bribe to cast a vote in a certain direction or
50. R Vs. Bunting et al, [1885] 17 O.R. 524. speak about certain issues be protected by
51. Canada (House of Commons) Vs. Vaid, [2005]1 parliamentary privilege? It is this question
SCR 667. of constitutional interpretation that this
52. Chagnon Vs. Syndicat de la fonction publique Court is called upon to decide.
et parapublique du Québe), (2018)2 S.C.R. 687. A. Reference
53. R Vs. Edward White, 13 SCR (NSW) 332.
3. The Criminal Appeal arises from a
54. R Vs. Boston, (1923)33 CLR 386.
judgment dated 17 February 2014 of the
55. Obeid Vs. Queen, 2017 NSWCCA 221.
High Court of Jharkhand (Writ Petition
56. Pashupati Nath Sukul Vs. Nem Chandra Jain,
1983 DGLS(SC) 366 : (1984)2 S.C.C. 404. (Criminal) No. 128 of 2013). An election was
57. Madhukar Jetly Vs. Union of India, 1997 held on 30 March 2012 to elect two members
DGLS(SC) 7 : (1997)11 S.C.C. 111. of the Rajya Sabha representing the State
58. Kesavananda Bharati Vs. State of Kerala, 1973 of Jharkhand. The appellant, belonging to
DGLS(SC) 425 : (1973)4 S.C.C. 225. the Jharkhand Mukti Morcha, (“JMM”)
59. K.S. Puttaswamy (Aadhaar-5J.) Vs. Union of was a me mber o f the Leg i sl ati ve
India, 2018 S.C.C. OnLine S.C. 1642.
Assembly of Jharkhand. The allegation
Advocates appeared : against the appellant is that she accepted
Raju Ramachandran, Sr.Cou. for appellant. a bribe from an independent candidate for
R.Venkataramani, A.G., Tushar Mehta, S.G., P.S. casting her vote in his favour. However,
Patwalia, Sr.Cou., amicus curiae, Gopal
Sankarnarayanan, Sr.Cou. & Vijay Hansaria,
as borne out from the open balloting for
Sr.Cou., appearing on behalf of intervenors. the Rajya Sabha seat, she did not cast her
350.PM/IN/ND/RR/MG vote in favour of the alleged bribe giver
and instead cast her vote in favour of a
Per Dr. DHANANJAYA Y.
candidate belonging to her own party. The
CHANDRACHUD, C.J.I .: – Parliamentary
ro und o f el ec ti o n i n ques ti o n was
privilege, codified in Articles 105 and 194
annulled and a fresh election was held
of the Constitutio n, is integral to
where the appellant voted in favour of the matter of public importance”, the matter
candidate from her own party again. must be referred to a larger Bench.
4. The appellant moved the High 6. Finally, by an order dated 20
Court to quash the chargesheet and the September 2023, a five-Judge Bench of this
criminal proceedings instituted against her. Court recorded prima facie reasons doubting
The appellant claimed protection under the correctness of the decision in PV
Article 194(2) of the Constitution, relying Narasimha Rao (supra) and referred the
on the judgment of the Constitution Bench matter to a larger Bench of seven Judges.
of this Court in (P.V. Narasimha Rao Vs. The operative part of the order reported as
State (CBI/SPE))1 , 1998 DGLS(SC) 464 : (Sita Soren Vs. Union of India) 2 , 2023
(1998)4 S.C.C. 626. The High Court declined DGLS(SC) 1067 : 2023 S.C.C. OnLine S.C.
to quash the criminal proceedings on the 1217 is extracted below:
ground that the appellant had not cast her “24. We are inclined to agree …that the view
vote in favour of the alleged bribe giver and which has been expressed in the decision of
thus, is not entitled to the protection under the majority in PV Narasimha Rao requires
Article 194(2). The High Court’s reasoning to be reconsidered by a larger Bench. Our
primarily turned on this Court’s decision in reasons prima facie for doing so are
P.V. Narasimha Rao (supra). The controversy formulated below:
in P.V. Narasimha Rao (supra) and the present Firstly, the interpretation of Article 105(2) and
case turns on the interpretation of the the corresponding provisions of Article
194(2) of the Constitution must be guided
provisions of Arti cle 105(2) of the
by the text, context and the object and
Constitution (which deals with the powers,
purpose underlying the provision. The
privileges, and immunities of the members fundamental purpose and object underlying
of Parliament and Parliamentary Article 105(2) of the Constitution is that
committees) and the equivalent provision Members of Parliament, or as the case may
in Article 194(2) of the Constitution which be of the State Legislatures must be free to
confers a similar immunity to the members express their views on the floor of the House
of the State Legislatures. or to cast their votes either in the House or as
5. On 23 September 2014, a Bench of members of the Committees of the House
two Judges of this Court, before which the without fear of consequences. While Article
19(1)(a) of the Constitution recognises the
appeal was placed, was of the view that
individual right to the freedom of speech and
since the issue arising for consideration is
expression, Article 105(2) institutionalises that
“substanti al and of general public right by recognising the importance of the
importance”, it must be placed before a Members of the Legislature having the
larger Bench of three Judges of this Court. freedom to express themselves and to cast
On 7 March 2019, a Bench of three Judges their ballots without fear of reprisal or
which heard the appeal observed that the consequences. In other words, the object of
precise question was dealt with in a Article 105(2) or Article 194(2) does not prima
judgment of a five-Judge Bench in PV facie appear to be to render immunity from
Narasimha Rao (supra). The Bench was of the the launch of criminal proceedings for a
view that “having regard to the wide violation of the criminal law which may arise
ramification of the question that has arisen, independently of the exercise of the rights and
duties as a Member of Parliament or of the
the doubts raised and the issue being a
legislature of a State;
Secondly, in the course of judgment in PV correctness of the view of the majority in PV
Narasimha Rao, Justice S.C. Agarwal noted Narasimha Rao should be reconsidered by a
a serious anomaly if the construction in larger Bench of seven Judges.”
support of the immunity under Article 7. The scope of the present judgment
105(2) for a bribe taker were to be accepted: is limited to the reference made by the order
a member would enjoy immunity from of this Court dated 20 September 2023
prosecution for such a charge if the member
doubting the correctness of PV Narasimha
accepts the bribe for speaking or giving their
Rao (supra). The merits of the appellant’s
vote in Parliament in a particular manner
and in fac t speaks or gives a vote in case and whether she committed the alleged
Parliament in that manner. On the other offence are not being adjudicated by this
hand, no immunity would attach, and the Court at this tage. Nothing contained in this
member of the legislature would be liable judgment may be construed as having a
to be prosecuted on a charge of bribery if bearing on the merits of the trial or any
they accept the bribe for not speaking or other proceedings arising from it.
for not giving their vote on a matter under
B. Overview of the judgment in PV
consideration before the House but they
Narasimha Rao
act to the contrary. This anomaly, Justice
Agarwal observed, would be avoided if 8. The general elections for the Tenth
the words “in respect of” in Article 105(2) Lok Sabha were held in 1991. Congress (I)
are construed to mean ‘arising out of’. In emerged as the single largest party and
other words, in such a case, the immunity formed a minority Government with Mr PV
would be available only if the speech that Narasimha Rao as the Prime Minister. A
has been made or the vote that has been motion of no-confidence was moved in the
given is an essential and integral part for the
Lok Sabha against the Government. The
cause of action for the proceedings giving
rise to the law; and
support of fourteen members was needed
to defeat the no-confidence motion. The
Thirdly, the judgment of Justice SC Agarwal
has specifically dwelt on the question as to motion was defeated with two hundred and
when the offence of bribery would be fifty-one members voting in support and
complete. The judgment notes that the two hundred and sixty-five members voting
offence is complete with the acceptance of against the motion. A group of Members of
the money or on the agreement to accept the Parliament (“MP”) owing allegiance to the
money being c oncluded and is not JMM and the Janata Dal (Ajit Singh) Group
dependent on the performance of the illegal (“JD (AS)”) voted against the no-confidence
promise by the receiver. The receiver of the motion. Notably, one MP belonging to the
bribe would be treated to have committed JD (AS), namely, Ajit Singh, abstained from
the offence even when he fails to perform
voting.
the bargain underlying the tender and
acceptance of the bribe. This aspect bearing 9. A complaint was filed before the
on the constituent elements of the offence Central Bureau of Investigation (“CBI”)
of a bribe finds elaboration in the judgment alleging that a criminal conspiracy was
of Justice Agarwal but is not dealt with in devised by which the above members
the judgment of the majority. belonging to the JMM and the JD (AS)
… entered into an agreement and received
26. For the above reasons, prima facie at this bribes to vote against the no-confidence
stage, we are of the considered view that the motion (“Bribe-takers”). It was alleged that
PV Narasimha Rao and several other MPs Bharucha hel d that f or breac h of
were parties to the criminal conspiracy and parliamentary privileges and its contempt,
passed on “several lakhs of rupees” to the Parliament may proceed against both the
alleged bribe-takers to defeat the no- alleged bribe-takers and bribe-givers.
confidence motion (“Bribe-givers”). Justice Bharucha held:
10. A prosecution was launched 12.1. The provisions of Article 105(1)
against the alleged bribe-givers and bribe- and Article 105(2) suggest that the freedom
takers, and cognizance was taken by the of speech for MPs is independent of the
Special Judge, Delhi. The accused moved freedom of speech and its exceptions
the High Court of Delhi to quash the contained in Article 19. MPs must be free
charges. The High Court dismissed the of all constraints about what they say in
petitions. Appeals were preferred to this Parliament. A vote is treated as an extension
Court and culminated in the PV Narasimha of speech and is given the protection of the
Rao (supra) decision. Two major questions spoken word;
came up for consideration before the 12.2. The expression “in respect of”
Court. First, whether by virtue of Article in Article 105(2) must receive a “broad
105 of the Constitution, an MP can claim meaning” and entails that an MP is
immunity from prosecution on a charge protected from any proceedings in a Court
of bribery in a criminal Court. Second, of law that relate to, concern or have a
whether an MP falls within the purview connection or nexus with anything said or
of the Prevention of Corruption Act, 1988, a vote given by him in Parliament;
and who is designated as the sanctioning 12.3. The alleged bribe-takers are
authority for the prosecution of an MP entitled to immunity under Article 105(2)
under th e PC Ac t. In the present as the alleged conspiracy and acceptance of
judgment, we are concerned solely with the bribe was “in respect of” the vote against
the holding of the Five-Judge Bench on the the no-confidence motion. The stated object
first question, i.e., the scope of the immunity of the alleged conspiracy and agreement
from prosecution under Article 105(2) when was to defeat the no-confidence motion and
an MP is charged with bribery. the alleged bribetakers received the bribe
11. Three opinions were authored in as a “motive or reward for defeating” it. The
the case – by S.C. Agarwal, J. (for himself nexus between the alleged conspiracy, the
and Dr. A.S. Anand, J.), S.P. Bharucha, J. (for bribe and the no-confidence motion was
himself and S Rajendra Babu, J) and an explicit;
opinion by GN Ray, J. 12.4. The object of the protection
12. Justice S.P. Bharucha (as the under Article 105(2) is to enable MPs to
learned Chief Justice then was) held that the speak and vote freely in Parliament, without
alleged bribe-takers who cast their vote the fear of being made answerable on that
against the no-confidence motion enjoyed account in a Court of law. It is not enough
immunity from prosecution in a Court of that MPs should be protected against
law under Article 105(2) of the Constitution. proceedings where the cause of action is
However, Ajit Singh (who abstained from their speech or vote. To enable them to
voting) and the alleged bribe-givers were participate freely in parliamentary debates,
held not to enjoy the same immunity. Justice MPs need the wider protection of immunity
against all civil and criminal proceedings enjoy immunity under Article 105(2) from
that bear a nexus to their speech or vote. It being prosecuted for an offence involving
is not difficult to envisage an MP who has the offer or acceptance of a bribe for
made a speech or cast a vote that is not to speaking or giving his vote in parliament
the “liking of the powers that be” being or any committee. In his opinion, Justice
troubled by legal prosecution alleging that Agarwal held as follows:
he had been paid a bribe to achieve a certain 13.1. The object of the immunity
result in Parliament; under Article 105(2) is to ensure the
12.5. The seriousness of the offence independence of legislators for the healthy
committed by the bribe-takers does not functioning of parliamentary democracy.
warrant a narrow construction of the An interpretation of Article 105(2) which
Constitution. Such a construction runs the enables an MP to claim immunity from
risk of impairing the guarantee of an prosecution for an offence of bribery would
effective parliamentary democracy; place them above the law. This would be
12.6. The immunity under Article repugnant to the healthy functioning of
105(2) is operative only insofar as it pertains parliamentary democracy and subversive of
to what has been said or voted. Therefore, the rule of law;
Ajit Singh, the MP who abstained from 13.2. The expression “in respect of”
voting, was not protected by immunity and precedes the words “anything said or any
the prosecution against him would proceed; vote given” in Article 105(2). The words
12.7. With regard to whether the “anything said or any vote given” can only
bribe-givers enjoy immunity, since the mean speech that has been made or a vote
prosecution against Ajit Singh would that has already been given and does not
proceed, the charge against the bribegivers extend to cases where the speech has not
of conspiracy and agreeing with Ajit Singh been made or the vote has not been cast.
to do an unlawful act would also proceed. Therefore, interpreting the expression “in
Further, Article 105(2) does not provide that respect of ” widely would result in a
what is otherwise an offence is not an paradoxical situation. An MP would be
offence when it is committed by an MP. The liable to be prosecuted for bribery if he
provision merely provides that an MP shall accepted a bribe for not speaking or not
not be answerable in a Court of law for giving his vote on a matter, but he would
something that has a nexus to his speech enjoy immunity if he accepted the bribe for
or vote in Parliament. Those who have speaking or giving his vote in a particular
conspired with the MP in the commission way and actually speaks or gives his vote
of that offence have no such immunity. in that manner. It is unlikely that the
The bri be -gi vers c an, ther ef o re, be framers of the Constitution intended to
prosecuted and do not have the protection make such a distinction;
of Article 105(2). 13.3. The phrase “in respect of” must
13. On the other hand, SC Agarwal, J be interpreted to mean “arising out of”.
held that neither the alleged bribe-takers Immunity under Article 105(2) is available
nor the alleged bribe-givers enjoyed the only to give protection against liability for
protection of Article 105(2). An MP does not an ac t that fo llows or succeeds as a
consequence of making the speech or giving
45/24(1)
of vote by an MP and not for an act that Bharucha, J. has been referred to as majority
precedes the speech or vote and gives rise judgment hereinaf ter.) The opi nion
to liability which arises independently of authored by S.C. Agarwal, J. on the other
the speech or vote; hand, represents the view of the minority.
13.4. The offence of criminal (The opinion authored by S.C. Agarwal, J.
conspiracy is made out on the conclusion has been referred to as minority judgment
of an agreement to commit the offence of hereinafter.)
bribery and the performance of the act C. Submissions
pursuant to the agreement is not of any 15. Over the course of the hearing, we
consequenc e. Simi larly, the ac t of have heard Mr. Raju Ramachandran, Senior
acceptance of a bribe for speaking or giving Counsel appearing on behalf of the
a vo te against the motion arises appellant, Mr. R. Venkataramani, Attorney
independently of the making of the speech General for India, Mr. Tushar Mehta, Solicitor
or giving of the vote by the MP. Hence, General of India, Mr P.S. Patwalia, Senior
liability for the offence cannot be treated as Counsel, amicus curiae, Mr. Gopal
“in respect of anything said or any vote Sankarnarayanan, Senior Counsel, and Mr.
given in Parliament;” and Vijay Hansaria, Senior Counsel, appearing on
13.5. The international trend, behalf of intervenors. This Court being a
including law in the United States, Australia Court of record, the submissions made by the
and Canada, reflects the position that learned Advocates are briefly listed below.
legislators are liable to be prosecuted for bribery 16. Mr. Raju Ramachandran, Senior
in connection with their legislative activities. Counsel appearing on behalf of the
Most of the Commonwealth countries treat appellant submitted that the judgment of
corruption and bribery by members of the the majority in P.V. Narasimha Rao (supra) is
legislature as a criminal offence. In the United squarely applicable to the present case.
Kingdom also there is a move to change the law Further, he argued that the majority
in this regard. There is no reason why judgment is well-reasoned and there are no
legislators in India should not be covered grounds to reconsider the settled position
by laws governing bribery and corruption of law. In this regard, he made the following
when all other public functionaries are submissions:
subject to such laws. 16.1. The overruling of long-settled
14. G.N. Ray, J. in a separate opinion law in P.V. Narasimha Rao (supra) is
concurred with the reasoning of Agarwal, J unwarranted according to the tests laid
that an MP is a public servant under the PC down by this Court on overturning judicial
Act and on the question regarding the precedents; (Keshav Mills Co. Ltd Vs. CIT)3,
sanctioning authority under the PC Act. 1965 DGLS(SC) 23 : A.I.R. 1965 S.C. 1636,
However, on the interpretation of Article para 23; (Krishena Kumar Vs. Union of
105(2), G.N. Ray, J. concurred with the India)4, 1990 DGLS(SC) 326 : (1990)4 S.C.C.
judgment of Bharucha, J. Hence, the opinion 207, para 33; (Shanker Raju Vs. Union of
authored by Bharucha, J. on the India)5, 2011 DGLS(SC) 10 : (2011)2 S.C.C.
interpretation of Article 105(2) represents 132, para 10; (Shah Faesal and Ors. Vs.
the view of the majority of three Judges of Union of India (UOI))6, 2020(3) Bom.C.R.
this Court. (The opinion authored by S.P. 226(S.C.) : (2020)4 S.C.C. 1, para 17;
16.2. The object behind conferring language of Articles 105(2) and 194(2) and
immunity on MPs and MLAs was to shield any attempt to whittl e down their
them from “being oppressed by the power protective scope to adhere to what is
of the cro wn”. The apprehensio n of seemingly “logical”, “fair” or “reasonable”
parliamentarians being arrested shortly would be constitutionally unjustified.
before or after the actual voting or making However, while advancing his oral
of a speech in the Parliament (such vote or submissions in rejoinder, Mr Ramachandran
speech directed against the Executive) was conceded that the view that an abstention
the precise reason for introducing the from voting would not be protected under
concept of privileges and immunities; Article 105(2) was incorrect and abstaining
16.3. The concept of constitutional from voting, in fact, constitutes casting a vote;
privileges and immunities is no t in 16.7. The minority judgment in PV
derogation of the Rule of Law, but it is a Narasimha Rao (supra) has erred in reading
distinct feature of our constitutional “in respect of” as “arising out of”. Such a
structure. The majority judgment preserves reading is not warranted by either the plain
the privilege of MPs and MLAs to protect language or the intent of the provision;
their dignity as legislators and is not 16.8. The fact that the offence of
opposed to the rule of law; bribery in criminal law is complete when
16.4. The majority judgment gave due the bribe is given and is not dependent on
regard and recognition to Parliament’s the performance of the promised favour is
exclusive powers to take appropriate steps of no consequence to the constitutional
against corrupt practices by its members, immunity under Articles 105(2) and 194(2).
just as the Parliament recognizes the limits Once a speech is made or a vote is given,
on discussions in the House, such as the the nexus, i.e., “in respect of”, is fulfilled;
inability to entertain discussions on the 16.9. The overruling of the majority
conduct of Judges of constitutional Courts judgment will have severe unintended
under Article 121 of the Constitution; consequences. In view of political realities,
16.5. The present positio n on if the parliamentary immunity conferred
parliamentary privilege in India and the UK upon MPs/ MLAs is whittled down, it
entails that (a) it is fundamental to a would enhance the possibility of abuse of
democ ratic po lity and Courts have the law by political parties in power; and
exercised judicial restraint; and (b) the 16.10. Voting in the Rajya Sabha
privilege must necessarily relate to the Elections is within the scope of protection f
exercise of “legislative functions”, which in Article 194(2) as it has all the “trappings”
India relates to voting and making of of any other law-making process in the
speeches. While determining whether an legislature.
act is immune from judicial scrutiny, the 17. Mr Venkataramani, the learned
‘necessity test’ is to be applied, i.e., whether Attorney General for India advanced a
there is a nexus between the act in question preliminary submission that the decision in
and the legislative process of voting/making PV Narasimha Rao (supra) is inapplicable to
speeches; the instant case. He submitted that the
16.6. The so-called “anomaly” in the exercise of franchise by an elected member
majority judgment flows from the plain of the legislative assembly in a Rajya Sabha
election does ot fall within the ambit of the expression “in respect of” and granted
Article 194(2), and thus, PV Narasimha Rao immunity to MPs from criminal prosecution
(supra) does not have any application to the when they accept a bribe to cast a vote in
present case. He submits that the objective Parliament. The object of Article 105 is not
of Article 194(2) is to protect speech and to place MPs above the law when the
conduct in relation to the functions of the offence has been committed before the MP
legislature. Therefore, any conduct which enters the House of Parliament;
is not related to legislative functions, such 19.2. The ratio of the judgments of
as the election of members to the Rajya this Court rendered after PV Narasimha
Sabha, will fall outside the ambit of Article Rao (supra) militates against the grant of
194(2). According to the learned Attorney immunity to MPs for taking a bribe for
General, the election of members to the casting votes; (Raja Ram Pal Vs. Hon’ble
Rajya Sabha is akin to any other election Speaker Lok Sabha)7 , 2007 DGLS(SC) 31 :
process and cannot be treated as a matter (2007)3 S.C.C. 184, (Lokayukta, Justice
of business or function of the legislature. Ripusudan Dayal Vs. State of M.P.)8, 2014
18. In response to the learned DGLS(SC) 187 : (2014)4 S.C.C. 473 and (State
Attorney General’s submissions that the of Kerala Vs. K. Ajith) 9 , 2021(3)
polli ng for Rajya Sabha canno t be Bom.C.R.(Cri.) 560(S.C.) : (2021) S.C.C.
considered a proceeding of the House, Mr OnLine 510.
Ramachandran has submitted that the cases 19.3. The minority judgment correctly
relied on by the learned Attorney General notes that the offence of bribery is complete
were not rendered in a context where before the member even enters the House
parliamentary privilege or immunity was and therefore, the offence has no connection
sought to be invoked and the passing or correlation with the vote that she may
reference to the concept of ‘legislative cast in Parliament. The protection under
proceedings’ was in an entirely different Articles 105(2) and 194(2) is not available
context. Further, c ertain legislative when the alleged criminal acts are
processes such as ad-hoc committees, committed outside Parliament;
standing committees, elections of the 19.4. The proposition that MPs are
constitutional offices of the President/Vice immune from prosecution for an offence of
President, and members of the Rajya Sabha, bribery in connection with their votes in
do not necessarily take place on the floor of Parliament is subversive of the rule of law;
the House when it is in session. However,
19.5. The majority judgment results in
they have all the ‘trappings’ of carrying out
an anomalous situation, where an MP who
the ‘legislative process’.
accepts a bribe and does not cast his vote
19. Mr P.S. Patwalia, amicus curiae has can be prosecuted, while a member who
submitted that the majority judgment must casts his vote is given immunity;
be reconsidered, and the view of the
19.6. The position of law in the
minority reflects the correct position of law.
United Kingdom, as developed over the
In this regard, Mr Patwalia made the
years, confirms the proposition that the
following submissions:
claim of privilege cannot be extended to
19.1. The majority judgment has i mmunity f ro m pro sec uti o n fo r the
erroneously given a wide interpretation to offence of bribery; and
19.7. The international trend being established and the distinction
(particularly in the United States, Canada created by the majority is artificial;
and Austral ia) is that parliamentary 20.6. The effect of the majority
privilege does not extend to the offence of judgment is that it creates an illegitimate
bribery. This trend is correctly relied on in class of public servants which is afforded
the minority judgment, while the majority extraordinary protection which would be a
judgment relies on decisions which have violation of Article 14, as also being
been subsequently diluted even in their manifestly arbitrary; and
original jurisdictions. 20.7. Internationally, the legal position
20. Mr. Gopal Sankarnarayan, Senior in the USA, UK, Canada, Australia, South
Counsel appearing on behalf of the Africa and New Zealand supports the
intervenor endorsed the view taken by the minority judgment.
amicus curiae. Additionally, he made the 21. Mr. Tushar Mehta, the learned
following submissions: Solicitor General of India highlighted the
20.1. While the majority judgment has significance of preserving parliamentary
been doubted on multiple occasions, the privileges. He submitted that the issue for
minority judgment has been extensively consideration before this Court is not the
relied on by this Court; contours of parliamentary privileges but
20.2. The word “any” employed in whether the offence of bribery is complete
Articles 105 and 194 of the Constitution outside the legislature. Mr Mehta submitted
ought to be given a narrow interpretation that the offence of bribery under the PC Act,
and should not mechanically be interpreted both before and after the 2018 amendment,
as ‘everything’, especially as it grants an is complete on the acceptance of the bribe
exceptional immunity not available to the and is not linked to the actual performance
common person; or non-performance of the official function
20.3. The expression “in respect of” to which the bribe relates.
must be read narrowly. It must be tied down 22. Mr. Vijay Hansaria, Senior
to ‘legitimate acts’ that are a part of the Advocate appearing on behalf of the
legislative process involving speech or a intervenor, supplemented the arguments
vote in Parliament or before a committee. assailing the majo rity judgment. He
Any other interpretation would violate the submitted that the principl e of
sanctity of the democratic process and the parl iamentary privi lege must be
trust placed in the legislators by the public; interpreted i n the co ntext of the
20.4. Strict interpretation ought to be criminalization of politics and through the
given to laws dealing with corruption prism of constitutional morality. In his
which affects the public interest; written submissions, Mr A Velan, Advocate
20.5. The o ffence o f bribery is for the intervenor supported the submission
complete on receipt of the bribe well before that the majority judgment in PV Narasimha
the vote is given or speech is made in Rao (supra) ought to be reconsidered.
Parliament. The offence under Section 7 D. Reconsidering PV Narasimha Rao does
(and Section 13) of the PC Act does not not violate the principle of stare decisis
require ‘performance’. Therefore, the 23. We begin by addressing the
delivery of results is irrelevant to the offence prel iminary argument of Mr Raju
Ramachandran, that overruling of the long- have been raised by this Court in several
settled law in PV Narasimha Rao (supra) is previous decisions as well. For instance, in
unwarranted by the application of the tests (Kalpana Mehta Vs. Union of India)11, 2018
laid down by this Court on overturning DGLS(SC) 477 : (2018)7 S.C.C. 1 one of us
judicial precedent. The order of reference (D.Y. Chandrachud, J.) observed:
provides reasons for prima facie doubting “221. The view of the minority was that the
the correctness of the decision in PV offence of bribery is made out against a
Narasimha Rao (supra) including its impact bribe-taker either upon taking or agreeing
on the “polity and the preservation of to take money for a promise to act in a
probity in public life.” However, since the certain manner. Following this logic, S.C.
Agrawal, J. held that the criminal liability
learned Senior Counsel has reiterated the
of a Member of Parliament who accepts a
preliminary objection to reconsidering the bribe for speaking or giving a vote in
decision in PV Narasimha Rao (supra) before Parliament arises independent of the
this Bench of seven Judges, the argument making of the speech or the giving of the
has been addressed below. vote and hence is not a liability “in respect
24. A decision delivered by a Bench of anything said or any vote given” in
of larger strength is binding on any Parliament. The correctness of the view in
subsequent Bench of lesser or coequal the judgment of the majority does not fall
for consideration in the present case.
strength. A Bench of lesser strength cannot
Should it become necessary in an
disagree with or dissent from the view of appropriate case in future, a larger Bench
the law taken by the Bench of larger may have to consider the issue.”
strength. However, a Bench of the same (emphasis supplied)
strength can question the correctness of a 27. Similar observations have been
decision rendered by a co-ordinate Bench. made by this Court in Raja Ram Pal Vs.
In such situations, the case is placed before Hon’ble Speaker, Lok Sabha, (2007)3 S.C.C.
a Bench of larger strength. (Central Board 184 The Court has relied on the minority
of Dawoodi Bohra Community Vs. State of judgment in several decisions, notably
Maharashtra)10, 2005(3) Bom.C.R. 204(S.C.) (Kuldip Nayar Vs. Union of India)12, 2006
: (2005)2 S.C.C. 673, para 12) DGLS(SC) 676 : (2006)7 S.C.C. 1 and
25. In the present case, the case was (Amarinder Singh Vs. Punjab Vidhan
first placed before a Bench of two Judges Sabha)13, 2010 DGLS(SC) 294 : (2010)6 S.C.C.
who referred the case to a Bench of three 113 As the correctness of the decision in PV
Judges. T he Benc h o f thre e Judges Narasimha Rao (supra) did not directly arise
referred the case to a Bench of five Judges. in these cases the Court refrained from
In consonance with judicial discipline, the maki ng a ref erence o r conclusive
c o rrec tn ess o f the dec i s i o n i n PV observations about the correctness of this
Narasimha Rao (supra) was only doubted decision. However, the present case turns
by the co-equal Bench of five Judges of almost entirely on the law laid down in PV
thi s Co u rt i n a detai l e d o rder. Narasimha Rao (supra).
Accordingly, the matter has been placed 28. That the correctness of PV
before this Bench of seven Judges. Narasimha Rao (supra) arises squarely in the
26. Doubts about the correctness of facts of this case becomes clear from the
the decision in PV Narasimha Rao (supra) impugned judgment of the High Court. The
High Court formulated the question for power to reconsider its decisions, the
consideration to be “whether Article 194(2) development of constitutional jurisprudence
of the Constitution of India confers any would virtually come to a standstill. In the
immunity on the Members of the past, this Court has not refrained from
Legislative Assembly for being prosecuted reconsidering a prior construction of the
in a criminal Court of an offence involving Constitution if it proves to be unsound,
offer or acceptance of bribe.” This is the unworkable, or contrary to public interest.
precise question that this Court adjudicated This delicate balance was eloquently
on in PV Narasimha Rao (supra) as well, in explained by HR Khanna, J. in (Maganlal
the context of Article 105(2). Chhaganlal (P) Ltd. Vs. Municipal Corpn.
14
29. Further, both the Counsel for the of Greater Bombay) , 1974 DGLS(SC) 153 :
appellant and the Counsel for CBI relied on (1974)2 S.C.C. 402 in the following terms:
the reasoning in PV Narasimha Rao (supra). “22. […] The Court has to keep the balance
The High Court, in its analysis, held that between the need of certainty and continuity
since Article 194(2) is pari materia to Article and the desirability of growth and
105(2), the law laid down in PV Narasimha development of law. It can neither by
judicial pronouncements allow law to
Rao (supra) covers the field. The High Court
petrify into fossilised rigidity nor can it
relied on PV Narasimha Rao (supra) in allow revolutionary iconoclasm to sweep
holding that an MP who has not cast his away established principles. On the one
vote is not covered by the immunity. Since hand the need is to ensure that judicial
the appellant did not vote as agreed, she inventiveness shall not be desiccated or
was held not to be protected from immunity stunted, on the other it is essential to curb
under Article 194(2). the temptation to lay down new and novel
30. The issue which arose before the principles in substitution of well-established
principles in the ordinary un of cases and
High Court turned on the decision in PV
the readiness to canonise the new principles
Narasimha Rao (supra). Therefore, this
too quickly before their saintliness has been
proceeding provides the correct occasion to affirmed by the passage of time. […]”
settle the law once and for all. There is no
32. A Bench of Seven Judges of this
infirmity in the reference to Seven Judges
Court in (Bengal Immunity Company
to reconsider the decision in PV Narasimha
Limited Vs. State of Bihar and Ors.)15, 1955
Rao (supra).
DGLS(SC) 50 : 1955 S.C.C. OnLine S.C. 2
31. Mr Raju Ramachandran, Senior delineated the powers of this Court to
Counsel appearing on behalf of the reconsider its own decisions in view of the
appellant has argued that a position of law doctrine of stare decisis. Both SR Das, CJ and
which has stood undisturbed since 1998 Bhagwati, J, in their separate opinions,
should not be interfered with by the Court. detailed the power of this Court to reconsider
We do not consider it appropriate for this its judgments, particularly when they raise
Court to confine itself to such a rigid issues of constitutional importance. SR Das, J
understanding of the doctrine of stare decisis. explored the judgments delivered in various
The ability of this Court to reconsider its jurisdictions, such as England, Australia, and
decisions is necessary for the organic the United States to conclude that this Court
development of law and the advancement cannot be denuded of its power to depart
of justice. If this Court is denuded of its from its previous decisions, particularly on
questions of interpretation of the opinion of Bhagwati, J. is whether the
Constitution. The Court observed that an previous decision is “manifestly wrong or
erroneous interpretation of the Constitution erroneous” or “public interest” requires it
could result in a situation where the error to be reconsidered.
is not rectified for a long period of time to 33. The doctrine of stare decisis
the detriment of the general public. The test provides that the Court should not lightly
laid down by the Court was rooted in dissent from precedent. However, this
establishing the “baneful effect” of the Court has held in a consistent line of cases,
previous decision on the “general interests (See (Sambhu Nath Sarkar Vs. State of
of the public”. It was observed: W.B.)16, 1973 DGLS(SC) 143 : (1973)1 S.C.C.
“15. […] in a country governed by a Federal 856; (Lt. Col. Khajoor Singh Vs. Union of
Constitution, such as the United States of India)17, 1960 DGLS(SC) 307 : (1961)2 S.C.R.
America and the Union of India are, it is by 828; (Union of India Vs. Raghubir Singh)18,
no means easy to amend the Constitution if
1989 DGLS(SC) 325 : (1989)2 S.C.C. 754;
an erroneous interpretation is put upon it
by this Court. (See Article 368 of our (Pradeep Kumar Biswas Vs. 19Indian
Constitution). An erroneous interpretation Institute of Chemical Biology) , 2002
of the Constitution may quite conceivably DGLS(SC) 437 : (2002)5 S.C.C. 111; (Supreme
be perpetuated or may at any rate remain Court Advocates-on-Record Assn. Vs.
unrectified for a considerable time to the Union of India)20, 2015 DGLS(SC) 1007 :
great detriment to public well being … (2016)5 S.C.C. 1) that the doctrine is not an
There is nothing in our Constitution which inflexible rule of law, and it cannot result
prevents us from departing from a in perpetuating an error to the detriment
previous decision if we are convinced of
of the general welfare of the public. This
its error and its baneful effect on the
general interests of the public. Article 141
Court may review its earlier decisions if it
which lays down that the law declared by believes that there is an error, or the effect
this Court shall be binding on all Courts of the decision would harm the interests of
within the territory of India quite the public or if “it is inconsistent with the
obviously refers to Courts other than this legal philosophy of the Constitution”. In
Court. The corresponding provision of the cases involving the interpretation of the
Government of India Act, 1935 also makes Constitution, this Court would do so more
it clear that the Courts contemplated are readily than in other branches of law
the subordinate Courts.” (emphasis
because not rectifying a manifest error
supplied)
would be harmful to public interest and the
N.H. Bhagwati, J. also emphasized the polity. The period of time over which the
distinction between deviating from a case has held the field is not of primary
decision dealing with the interpretation of consequence. This Court has overruled
statutory provisions and an interpretation decisions which involve the interpretation
of the Constitution, while opining that of the Constitution despite the fact that they
while an incorrect interpretation of a statute
have held the field for long periods of time
may be corrected by the legislature, it is not when they offend the spi rit of the
as easy to amend the Constitution to correct
Constitution.
an unworkable interpretation. Akin to the
34. The judgment of the majority in
expo sition by SR Das, J., the test to
reconsider previous decisions in the PV Narasimha Rao (supra) deals with an
important question of constitutional that it was bound by the decision of a Bench
interpretation which impacts probity in of larger strength adjudicating a similar
public life. The decision has been met with issue and could not reconsider the view
notes of discord by various Benches of this taken in that decision merely because an
Court ever since it was delivered in 1998. alternative view was available.
An occasion has arisen in this case to lay 37. In Shah Faesal (supra), a
down the law and resolve the dissonance. Constitution Bench of this Court was
This is not an instance of this Court lightly adjudicating on the question of whether the
transgressing from precedent. In fact, this petitions were to be referred to a larger
case is an example of the Court giving due Bench of seven Judges on the ground that
deference to the rule of precedent and there were purportedly two contradictory
refraining from reconsidering the decision decisions by Benches of five Judges. The
in PV Narasimha Rao (supra) until it arose Court observed that references to larger
squarely for consideration. Benches cannot be made casually or based
35. The appellant has relied on on minor inconsistencies between two
judgments of this Court in Shanker Raju Vs. judgments. In that context, the Court found
Union of India, (2011)2 S.C.C. 132 Shah that the decisions were not irreconcilable
Faesal Vs. Union of India, (2020)4 S.C.C. 1, with each other nor was one of the decisions
Keshav Mills Co. Ltd. Vs. CIT, (1965)2 per incuriam. While laying down the law on
S.C.R. 908 and Krishena Kumar Vs. Union the doctrine of stare decisis, the Court held
of India, (1990)4 S.C.C. 207. These that in certain cases the Court may
judgments reiterate the proposition that (i) reconsider its decisions, particularly when
the doctrine of stare decisis promotes they prove to be “unworkable” or “contrary
certainty and consistency in law; (ii) the to well-established principles”. The Court
Court should not make references to also adverted to the transition in the
reconsider a prior decision in a cavalier practice of the House of Lords in the UK,
manner; and (iii) a settled position of law from an abso lute prohibitio n on
should not be disturbed merely because an reconsidering previous decisions to the
alternative view is available. However, all present position, which permits overruling
these judgments recognize the power of this of decisions in certain circumstances. The
Court to reconsider its decisions in certain Court also quoted the Canadian position to
circumstances – including considerations of the effect that while precedent should not
“public policy”; “public good” and to routinely be deviated from reconsidering
“remedy continued injustice”. In the facts previous decisions is permissible when it
which arose in those cases, this Court found is necessary in “public interest”.
that there was no compelling reason to 38. The decision in Keshav Mills (supra)
reconsider certain judgments of this Court. interpreted the provisions of the Income Tax
36. In Shanker Raju (supra), this Court Act, 1922 and in the circumstances of that
was dealing with the interpretation of the case, the Court did not find any compelling
Administrative Tribunals (Amendment) reasons to reconsider previous decisions on
Act, 2006 and the appointment of a judicial a similar point of law. The Court recognized
member of the Central Administrative that it is permissible in circumstances where
Tribunal. The Two-Judge Bench observed it is in the “interests of the public” or if there
are any other “valid” or “compulsive” with the question of reviewing and revising
reasons, to reconsider a prior decision. its earlier decisions. It would always depend
Further, the Court noted that it would not upon several relevant considerations: —
be wise to lay down principles to govern What is the nature of the infirmity or error
on which a plea for a review and revision of
the approach of the Court in reviewing its
the earlier view is based? On the earlier
deci sions as it is based on several occasion, did some patent aspects of the
considerations, including, the impact of the question remain unnoticed, or was the
error on the “general administration of law” attention of the Court not drawn to any
or on “public good”. This exposition is, in relevant and material statutory provision, or
fact, contained in the same paragraph that was any previous decision of this Court
the appellant relies on to advance a rigid bearing on the point not noticed? Is the
understanding of stare decisis. The Bench of Court hearing such plea fairly unanimous
seven Judges of this Court (speaking that there is such an error in the earlier view?
through Gajendragadkar, C.J.) observed: What would be the impact of the error on
the general administration of law or on
“23. […] In reviewing and revising its earlier
public good? Has the earlier decision been
decision, this Court should ask itself
followed on subsequent occasions either by
whether in the interests of the public good
this Court or by the High Courts? And,
or for any other valid and compulsive
would the reversal of the earlier decision
reasons, it is necessary that the earlier
lead to public inconvenience, hardship or
decision should be revised. When this mischief? These and other relevant
Court decides questions of law, its decisions considerations must be carefully borne in
are, under Article 141, binding on all Courts mind whenever this Court is called upon to
within the territory of India, and so, it must exercise its jurisdiction to review and revise
be the constant endeavour and concern of its earlier decisions. These considerations
this Court to introduce and maintain an become still more significant when the
element of certainty and continuity in the earlier decision happens to be a unanimous
interpretation of law in the country. decision of a Bench of five learned Judges
Frequent exercise by this Court of its power of this Court.” (emphasis supplied)
to review its earlier decisions on the ground
39. Similarly, Krishena Kumar (supra)
that the view pressed before it later appears
was a case about pension payable to
to the Court to be more reasonable, may
incidentally tend to make law uncertain and
Government employees. There, too,
introduc e c onfusion whic h must be although the Court did not find compelling
consistently avoided. That is not to say that reasons to reconsider its previous decisions
if on a subsequent occasion, the Court is in that factual context, it recognized that the
satisfied that its earlier decision was Court does have the power to do so in order
clearly erroneous, it should hesitate to to “remedy continued injustice” or due to
correct the error; but before a previous “considerations of public policy”.
decision is pronounc ed to be plainly 40. The context in the above cases
erroneous, the Court must be satisfied with cited by the appellant is not comparable
a fair amount of unanimity amongst its with the present case. As set out in the order
members that a revision of the said view is
of reference and in the course of this
fully justified. It is not possible or desirable,
judgment, the decision in PV Narasimha Rao
and in any case, it would be inexpedient to
lay down any principles which should (supra) has wide ramifications on public
govern the approach of the Court in dealing interest, probity in public life and the
functioning of parliamentary democracy. 43. In a separate but concurring
The majority judgment contains several opinion in (Mark Graves Vs. People of the
apparent errors inter alia in its interpretation State of New York)22, 306 US 466 (1939)
of the text of Article 105; its conceptualization while overruling two previous decisions of
of the scope and purpose of parliamentary the United States Supreme Court on a
privilege and its approach to international question of constitutional importance,
jurisprudence all of which have resulted in a Frankfurter, J. pithily observed :
paradoxical outcome. The present case is one “Judic ial exegesis is unavoidable with
where there is an imminent threat of this reference to an act like our Constitution,
Court allowing an error to be perpetuated if drawn in many particulars with purposed
the decision in PV Narasimha Rao (supra) is not vagueness so as to leave room for the
reconsidered. unfolding future. But the ultimate
touchstone of constitutionality is the
41. Finally, the appellant also relies on Constitution itself and not what we have
the judgment of this Court in (Ajit Mohan said about it.” (emphasis supplied)
Vs. Legislative Assembly, National Capital 44. The above formulation holds true
Territory of Delhi)21, 2021 DGLS(SC) 307 : for the Constitution of India as well, which
(2022)3 S.C.C. 529 where this Court is a transformative document that raises
observed that there are “divergent views” delic ate issues of co nstituti onal
amongst constitutional experts on “whether interpretati on. Cognizant of the
full play must be given to the powers, consequences of the majority judgment, we
privileges, and immunities of legislative endeavour to stay true to what the
bodi es, as originally def ined in the “Constitution itself” fathomed as the remit
Constitution, or (whether it) is to be of Articles 105(2) and 194(2) even if it may
restricted.” However, it has been urged, that be at the cost of moving away from “what
this Court refused to express its views on we have said about it” in PV Narasimha Rao
the matter on the ground that such an opinion (supra). We believe that we must not
must be left to the Parliament. The appellant perpetuate a mistaken interpretation of the
submits that similarly, in this case, the Court Constitution, merely because of rigid
must refrain from taking a conclusive view allegiance to a previous opinion of Five
and leave the issue for the determination of Judges of this Court.
Parliament. The argument is misconceived. 45. Havi ng adverted to the
42. This judgment does not seek to background, submissions and preliminary
determine or restrict the “powers, issues, we turn to the subject which arises
privileges, and i mmuniti es” of the for consideration.
legislature as defined in the Constitution. E. History of parliamentary privilege in
Rather, this judgment has a limited remit India
which is to adjudicate on the correct 46. In a deliberative democracy, the
interpretation of Article 105 and Article 194 aspirations of the people are met by
of the Constitution. Therefore, this Court is discourse in democratic institutions. The
adjudicating upon the interpretation of the foremost among these institutions are
Constitution as it stands, and not on the Parliament and the State Legislatures. The
question of whether “full play” should be object of the Constitution to give life and
given to the privileges. meaning to the aspirations of the people is
carried out by its representatives through the Courts post the decision or legislation
legislative business, deliberations, and is one form of participation. Adjudication
dialogue. Parliament is called the “grand by Courts, structured by the legal principles
inquest of the nation.” Not only can the of procedural fairness and deferential power
of judicial review, is not a substitute for
actions and legislative priorities of the
public participation before and at the
Government of the day be scrutinised and decision-making stage. In a republican or
criticised to hold it accountable, but representative democracy, citizens
Parliament also acts as a forum for ventilating delegate the responsibility to make and
the grievances of individuals, civil society, and execute laws to the elected Government,
public stakeholders. When the space for which takes decisions on their behalf. This
deliberation in the legislature shrinks, people is unavoidable and necessary as
resort to conversations and democratic actions deliberation and decision-making is more
outside the legislature. This privilege of the efficient in smaller groups. The process
citizens to scrutinise the proceedings in requires gathering, processing and drawing
inferences from information especially in
Parliament is a concomitant right of a
contentious matters. Vested interests can be
deliberative democracy which is a basic checked. Difficult, yet beneficial decisions
feature of the Consti tution. Our can be implemented. Government officers,
Constitution intended to create institutions skilled, informed and conversant with the
where deliberations, views and issues, and political executive backed by the
counterviews could be expressed freely to election mandate and connected with
facilitate a democratic and peaceful social elec torate, are better equipped and
transformation. positioned to take decisions. This enables
47. Parliament is a quintessential the elected political executive to carry out
their policies and promises into actual
public institution which deliberates on the
practice. Further, citizens approach elected
actualisation of the aspirations of all representatives and through them express
Indians. The fulcrum of parliamentary their views both in favour and against
privileges under a constitutional and proposed legislations and policy measures.
democratic set up is to facilitate the Nevertheless, when required draft
legislators to freely opine on the business legislations are referred to Parliamentary
before the House. Freedom of speech in the Committees for holding elaborate
legislature is hence a privilege essential to consultation with experts and
every legislative body. stakeholders. The process of making
primary legislation by elected
48. A deliberati ve democ racy
representatives is structured by scrutiny,
imagines deliberation as an ethic of good
consultation and deliberation on different
governance and is not restricted to the views and choices infused with an element
parliamentary sphere alone. The opinion of of garnering consensus.
Sanjeev Khanna, J. in (Rajeev Suri Vs. …
DDA)23, 2021 DGLS(SC) 36: (2022)11 S.C.C. 656. However, delegation of the power to
1 elucidates the contours of deliberative legislate and govern to elec ted
democracy as follows: representatives is not meant to deny the
“653. Deliberative democracy accentuates the citizenry’s right to know and be informed.
right of participation in deliberation, in Democracy, by the people, is not a right to
decision-making, and in contestation of periodical referendum; or exercise of the
public decision-making. Contestation before right to vote, and thereby choose elected
representatives, express satisfaction, 49. In the Indian context, deliberative
disappointment, approve or disapprove democracy as well as the essential privilege
projected policies. Citizens’ right to know of freedom of speech in legislatures cannot
and the Government’s duty to inform are be understood without reference to its
embedded in the democratic form of
history and development in the aftermath
governance as well as the fundamental
of the struggle for independence from
right to freedom of speech and expression.
Transparency and receptiveness are two key colonial rule. India provides an example in
propellants as even the most competent and history where representative institutions
honest decision-makers require information have evolved in stages. The privileges of
regarding the needs of the constituency as legislatures in India have been closely
well as feedback on how the extant policies connected with the histo ry of these
and decisions are operating in practice. This institutions. This history can be traced to
requires free flow of information in both the history of parliamentary privileges in
directions. When information is withheld/ the House of Commons in the UK as well
denied suspicion and doubt gain ground as the struggle of the Indian Legislatures to
and the fringe and vested interest groups
claim these privileges under colonial rule.
take advantage. This may result in social
The steps which were initiated under
volatility. [With reference to Olson’s 7th
implication, “7. Distributional coalitions … colo nial rule to bring po litical and
reduce the rate of economic growth…”. ‘The parliamentary governance to India always
Rise and Decline of Nations’ by Mancur Olson fell short of the aspirations of Indians. This
and subsequent studies.]” can primarily be attributed to the fact that
(emphasis supplied) British rule was resistant to the desire of
The freedom of elected legislators to Indians to be independent. Hence, the
discuss and debate matters of the moment Indian legislatures were not acknowledged
on the floor of the House is a key component to have comparable privileges to those of
of a deliberative democracy in a the House of Commons in the UK. In (Kielly
24
Parliamentary form of Government. The Vs. Carson) , (1841-42)4 Moo.PC 63 the
ability of legislators to conduct their functions Privy Council had propounded that the
in an environment which protects their House of Commons in the UK had acquired
freedom to do so without being overawed by privileges by ancient usage and colonial
coercion or fear is constitutionally secured. As legi slatures had no lex et consuetudo
citizens, legislators have a fundamental right parliament or the law and custo m of
to the freedom of speech and expression. Parliament as their rights emanated from a
Going beyond that, the Constitution secures statute. This implied that there were no
the freedom to speak and debate in the inherent rights granted to legislatures
legislatures both of the Union and States. This under colonial rule.
is the protection afforded to individual 50. Under the rule of the East India
legislators. The recognition of that right is Company, law making lay in the exclusive
premised o n the need to secure the domain of the executive till 1833. The
institutional foundation of Parliament and Government of India Act, 1833 redesignated
the State legislatures as key components of the Governor-General of Bengal as the
the dialogue, debate and critique which Governor-General of India with exclusive
sustains democracy. legislative powers. The Governor-General
was to have four members one of whom House of Commons in the UK. The
would be a law member who was not Legislative Council under the Acts of 1833
entitled to act as a member of the Council and 1853 had the power to frame their own
except for legislative purposes. This was an rules of procedure.
introductory measure for legislatures in 52. This power was taken away in the
India because the Council of the Governor- Indian Council Act 1861. However, Section
General would hold distinct meetings to 10 of the 1861 Act introduced between six
transact its executive functions and and twelve non-official members into the
legislative functions. This procedure was Legislative Councils, who could be British
envisaged for convenience in enacting laws or Indians. There was an impl icit
in the vast and diverse social milieu in India recognition of the freedom of speech and
rather than a desire to pro vide vote of these additional members. The
representation as a means for framing better British Parliament had recognised the
laws. However, reflecting the need for existence of the privilege for the members
legislative privileges in carrying out the of the Indian Councils, which was also
duties of the legislators, the first law confirmed by the Secretary of State for
member, Lord Macaulay, made efforts to India. (Legislative Dispatch No. 14 of 9
secure some special facilities in the nature August 1861, para 23) Nevertheless the
of powers by his draft standing orders. provisions of the 1861 Act were sufficiently
These special facilities included providing stringent and did not allow the Council to
complete information on the subject of the have any activity beyond the limited sphere
legislation, the right to be present in all prescribed by the Act. Moreover, there was
meetings of the Council of the Governor- a marked difference between the freedom
General, freedom of speech, and freedom of speech effectively enjoyed by official
of voting. (SK Nag, Evolutio n of members and nominated Indian members.
Parliamentary Privileges in India till 1947, (SK Nag, Evolution of Parliamentary
Sterling Publication, (1978), 317-18) Privileges in India till 1947, Sterling
51. The privileges of attendance and Publication, (1978), 102-103)
voting even in non-legislative business 53. The Government of India Act 1909
were extended by the Charter Act 1853. It marked a significant shift in the evolution
marked a further separation of the executive of India’s political institutions. The Act
and legislative functions. The Legislative allowed more Indians to be a part of
Council was to have additional members to Legislative Councils and enlarged their
help transact the legislative business and functions. Members were allowed to ask
give their independent considerations to the questions and supplementary questions to
laws under scrutiny. These members in the the executive. The Act was a way forward
Legislative Council did not have any for electoral and representative governance
privileges by statute, but the absence of by prescribing the indirect election of
restrictions on their freedom of speech was Indians to the Council. However, even in
construed as conferring inherent rights and these Councils, discussion on certain
privileges on them. The Council therefore subjects was not permitted. Non-official
attempted to assume to itself powers akin members continued to assert the privilege
to a mini Parliament modelled around the of free speech in the Council. Despite being
indirectly elected, the Indian members of of speech in the Governors’ Legislative
legislatures in India diluted the rigidity of Councils. No person shall be liable to any
colonial governance in India. In the absence proceedings in any Court by reason of his
speech or vote in any such Council or by
of official support, privileges grew as a
reason of anything c ontained in any
convention rather than law. The executive
official report of the proceedings of any
felt at liberty to violate the privileges of the such Council.”
Legi slative Counci l and at any rate
A corresponding provision was made
maintained that the Councils in India did
in Section 11(7) of the Act with respect to
not have any privilege akin to the UK House
provincial Legislative Councils. The freedom
of Commons. (SK Nag, Evol ution of
of speech in the Legislative Councils was
Parliamentary Privileges in India till 1947,
subject to the Rules promulgated by the
Sterling Publication, (1978), 139-141, 158).
Governor-General. Theref ore, while
54. The Government of India Act 1919 freedom of speech was extended to the
separated the legislatures from executive Legislative Councils, they were ultimately
control. It intro duced dyarchy, by made subjec t to the pleasure of the
prescribing two classes of administrators – Governor-General and the Secretary of State
the Executive councillors who were not for India for the legislature’s rule making
accountable to the legislature and the power. The Act therefore did not make
ministers who would enjoy the confidence provisions to grant freedom of speech to
of the legislature. The Act extended more Indian legislatures but rather aimed to place
powers to the legislatures than previously restrictions on the freedom of speech in the
enjoyed by them. However, members were House. These restrictions materi ally
restricted on the range of subjects which impeded the ability of the legislatures to
they could discuss, participate in and vote hold discussions on issues of public
upon. Many privileges were not specified importance and introduce legislation. The
in the 1919 Act or rules of the procedure of Act however did grant the legislature
the House. Nevertheless, the legislature power to define its own privilege.
claimed privileges as an inherent right of 55. A committee was set up in 1924
the legislature in the face of an unwilling within a few years of the introduction of the
executive. The reason for the hesitation of Government of India Act, 1919. The
the colonial Government of India was that committee was tasked with enquiring into
a Government run by a foreign power was the difficulties or defects in the 1919 Act and
not willing to extend parliamentary exploring remedies for securing them. The
privileges to Indian legislators as a Reforms Committee of 1924 made reference
recognition of their possessing sovereign to the privileges of Indian legislative bodies
powers. (SK Nag, Evolutio n of and opined that:
Parliamentary Privileges in India till 1947, “…at present such action would be premature.
Sterling Publication, (1978), 322). The 1919 At the same time we feel that the legislatures
Act gave a qualified privilege of freedom and the members thereof have not been
of speech to the Houses of Legislature. given by the Government of India Act all the
Section 24(7) of the 1919 Act read thus: protection that they need. Under the statute
“(7) Subject to the rules and standing orders there is freedom of speech in all the
affecting the Council, there shall be freedom legislatures and immunity from the
jurisdiction of the Courts in respect of
speeches or votes. Under the rules the anything said or any vote given by him in
Presidents have been given considerable the Legislature or any committee thereof,
powers for the maintenance of order, but and no person shall be so liable in respect
there the matter ends.” (Report of the of the publication by or under the authority
Reforms Enquiry Committee (1924), 75). of either Chamber of the Legislature of any
56. Interestingly, the committee report, paper, votes or proceedings.”
suggested that certain additional privileges A corresponding provision was made
be granted to Indian Legislatures. The in Section 71(1) of the 1935 Act with respect
committee f urther recommended to Provincial Legislatures. The House was
intro ducing a penal provision for empowered to make rules for the conduct of
influencing votes within the legislature proceedings. However, they were always to
through inter alia bribery. The report stated: give way to the rules framed by the Governor-
“We are given to understand that there are at General for the House. Parliamentary
present no means, of dealing with the privileges had struck root in India on
corrupt influence of votes within the legislators demanding parity with the UK
legislature. We are unanimously of opinion House of Commons with reasonable
that the influencing of votes of members by adjustments to account for Indian needs.
bribery, intimidation and the like should be This was because legislators in India felt that
legislated against. Here again we do not their discharge of legislative functions would be
recommend that the matter should be dealt
adversely affected in the absence of these
with as a breach of privilege. We Advocate
that these offences should be made penal privileges. Prominent among the demands of
under the ordinary law.” legislators were the power to punish for
57. The Government introduced a contempt of the House, supremacy of the Chair
Legislative Bodies Corrupt Practices Bill in matters of the House, and freedom of
which proposed to penalise (i) the offering speech and freedom from arrest to allow
of bribe to a member of a legislature in members to partake in the proceedings and
connection with his functions; and (ii) the discharge their functions.
receipt on demand by a member of the 59. At no point were these privileges
legislature of a bribe in connection with his demanded as a blanket immunity from
functions. (SK Nag, Evolution of criminal law. Even in the face of colonial
Parliamentary Privileges in India till 1947, reluctance, the demand for parliamentary
Sterling Publication, (1978), 213-214) The Bill privileges in India was always tied to the
ultimately lapsed and was not reintroduced. relationship which it bore to the functions
58. The provisions of the 1919 Act which the Indian legislators sought to
were substantially retained in Section 28(1) discharge.
of the Government of India Act 1935. 60. This background prevailed when
Section 28(1) read thus: the Constituent Assembly was deciding the
“(1) Subject to the provisions of this Act and fate of Articles 85 and 169 of the draft
the rules and standing orders regulating the Constitution which have since become
procedure of the Federal Legislature, there Articles 105 and 194 of the Constitution. Our
shall be freedom of speec h in the founding parents intended the Constitution
Legislature, and no member of the to be a ‘modernizing’ force. Parliamentary
Legislature shall be liable to any form of democracy was the first level of this
proceedings in any Court in respect of modernizing influence envisaged by the
framers of the Constitution. ((Granville “105. Powers, privileges, etc., of the Houses
Austin, The Indian Constitution: of Parliament and of the members and
Cornerstone of a Nation, OUP (1972), ix)) committees thereof. – (1) Subject to the
The Constitution was therefore born in an provisions of this Constitution and to the
rules and standing orders regulating the
environment of idealism and a strength of
procedure of Parliament, there shall be
purpose born of the struggle for freedom of speech in Parliament.
independence. The framers intended to
(2) No member of Parliament shall be liable to
have a Constitution which would light the any proceedings in any Court in respect of
way for a modern India. (Granville Austin, anything said or any vote given by him in
The Indian Constitution: Cornerstone of a Parliament or any committee thereof, and
Nation, OUP (1972), xiii) no person shall be so liable in respect of the
61. When the Constituent Assembly publication by or under the authority of
convened to discuss Article 85 of the draft either House of Parliament of any report,
Constitution, Mr HV Kamath moved an paper, votes or proceedings.
amendment to remove the reference to the (3) In other respects, the powers, privileges and
immunities of each House of Parliament,
House of Commons in the UK and replace
and of the members and the committees of
it with the Dominion Legislature in India
each House, shall be such as may from time
immediately before the commencement of to time be defined by Parliament by law,
the Constitution. Opposing this and, until so defined, shall be those of that
amendment Mr Shibban Lal Saxena said, House and of its members and committees
“So far as I know there are no privileges immediately before the coming into force of
which we enjo y and if he wants the section 15 of the Constitution (Forty-fourth
complete nullification of all our privileges Amendment) Act, 1978.
he is welcome to have his amendment (4) The provisions of clauses (1), (2) and (3)
adopted.” (CAD Vol VIII 19 May, 1949 Draft shall apply in relation to persons who by
Article 85). The members of the Constituent virtue of this Constitution have the right to
Assembly were therefore keenly aware that speak in, and otherwise to take part in the
proceedings of, a House of Parliament or
their privileges under the colonial rule were
any committee thereof as they apply in
not ‘ancient and undoubted’ like the House
relation to members of Parliament.”
of Commons in the UK but a statutory grant
63. Article 105 of the Constitution has
made by successive enactments and
four clauses. Clause (1) declares that there
assertion by legislatures.
shall be freedom of speech in Parliament.
F. Purport of parliamentary privilege in This freedom is subject to the Constitution
India and to the rules and standing orders
I. Functional analysis regulating the procedure in Parliament.
62. Article 105 which is located in Part Therefore, the freedom of speech in
V Chapter II of the Constitution stipulates Parl iament would be subject to the
the powers, privileges, and immunities of provisions that regulate its procedure
Parliament, its members and committees. framed under Article 118. It is also subject
An analogous provision concerning State to Article 121 which restricts Parliament
Legi slatures is in Article 194 of the from discussing the conduct of any Judge
Constitution. Article 105 reads as follows: of the Supreme Court or of a High Court in
46/24(1) the discharge of their duties except upon a
motion for presenting an address to the by a member of Parliament is an extension
President praying for the removal of the of speech. Therefore, the freedom of a
Judge. The freedom of speech guaranteed member of Parliament to cast a vote is also
in Parliament under Article 105(1) is distinct protected by the freedom of speech in
from that guaranteed under Article 19(1)(a). Parliament. In (Tej Kiran Jain Vs. N
In (Alagaapuram R Mohanraj Vs. TN Sanjeeva Reddy)26, 1970 DGLS(SC) 277 :
Legislative Assembly)25, 2016 DGLS(SC) 120 (1970)2 S.C.C. 272 a six-Judge Bench of this
: (2016)6 S.C.C. 82 this Court delineated the Court held that Articles 105(2) confers
differences in these freedoms as follows: immunity in respect of “anything said” so
a. While the fundamental right of speech long as it is “in Parliament.” Therefore, the
guaranteed under Article 19(1)(a) inheres in immunity is qualified by the fact that it must
every citizen, the freedom of speec h be attracted to speech during the conduct of
contemplated under Articles 105 and 194 is business in Parliament. This Court held that
not available to every citizen but only to a
the word “anything” is of the widest import
member of the legislature;
and is equivalent to “everything”. It is only
b. Article 105 is available only during the tenure
limited by the term “in Parliament”.
of the membership of those bodies. On the
other hand, the fundamental right under 65. Clauses (1) and (2) explicitly
Article 19(1)(a) is inalienable; guarantee freedom of speech in Parliament.
c. Article 105 is limited to the premises of the Clause (1) is a positive postulate which
legislative bodies. Article 19(1)(a) has no guarantees freedom of speech whereas
such geographical limitations; and Clause (2) is an extension of the same
d. Article 19(1)(a) is subject to reasonable freedom postulated negatively. It does so
restrictions which are compliant with by protecting the speech, and by extension
Article 19(2). However, the right of free a vote, from proceedings before a Court.
speech available to a legislator under Freedom of speech in the Houses of
Articles 105 or 194 is not subject to such Parliament and their committees is a
limitations. That an express provision is
necessary privilege, essential to the
made for freedom of speech in Parliament
in clause (1) of Article 105 suggests that functioning of the House. As we have noted
t his freedom is ind epen den t of th e above, the privilege of free speech in the
freedom of speech conferred by Article 19 House of Parliament or Legislature can be
and is not restricted by the exceptions trac ed to the struggle of the Indian
contained therein. legislators and was granted in progression
64. Clause (2) of Article 105 has two by the colonial Government. This privilege
limbs. The first prescribes that a member is not only essential to the ability of
of Parliament shall not be liable before any Parliament and its members to carry out
Court in respect of “anything said or any their duties, but it is also at the core of the
vote given” by them in Parliament or any func tion of a demo cratic legislative
committee thereof . The second limb institution. Members of Parliament and
prescribes that no person shall be liable Legislatures represent the will of the people
befo re any Court in respect of the and their aspirations. The Constitution was
publication by or under the authority of adopted to have a modernizing influence.
either House of Parliament of any report, The Constitution is intended to meet the
paper, vote or proceedings. The vote given aspirations of the people, to eschew an
unjust society premised on so cial 66. Notably, unlike the House of
hierarchies and discrimination, and to Commons in the UK, India does not have
facilitate the path towards an egalitarian ‘ancient and undoubted’ rights which were
society. Freedom of speech in Parliament vested after a struggle between Parliament
and the legislatures is an arm of the same and the King. On the contrary, privileges
aspiration so that members may express the were always governed by statute in India.
grievances of their constituents, express The statutory privilege transitioned to a
diverse perspectives and ventilate the constituti onal privilege after the
perspectives of their constituents. Freedom commencement of the Constitution.
of speech in Parliament ensures that the However, while the drafters of the
Government is held accountable by the Constitution expressly envisaged the
House. In Kalpana Mehta (supra) one of us freedom of speech in Parliament, they left
(DY Chandrachud, J) had occasion to the other privileges to be decided by
elucidate the importance of this privilege: Parliament through legislation. Clause (3)
“181. […] Parliament represents collectively, of Article 105 states that in respect of
through the representative character of its privileges not falling under Clauses (1) and
Members, the voice and aspirations of the (2) of Article 105, the powers, privileges and
people. Free speech within Parliament is immunities of each House of Parliament,
crucial for democratic governance. It is and of the members and the committees of
through the fearless expression of their each House, shall be such as may from time
views that Parliamentarians pursue their
to time be defined by Parliament by law.
commitment to those who elect them. The
power of speec h exac ts democ ratic Until Parliament defines these privileges,
accountability from elected Governments. they are to be those which the House and
The free flow of dialogue ensures that in its members and committees enjoyed
framing legislation and overseeing immediately before the coming into force
Government policies, Parliament reflects the of Section 15 of the Constitution (Forty-
diverse views of the electorate which an fourth Amendment) Act, 1978. Section 15
elected institution represents. reads as follows:
182. The Constitution recognises free speech “15. Amendment of article 105.-In article 105
as a fundamental right in Article 19(1)(a). of the Constitution, in Clause (3), for the
A separate articulation of that right in words “shall be those of the House of
Article 105(1) shows how important the Commons of the Parliament of the United
d ebat es an d exp r es sion of v iew in Kingdom, and of its members and
Parliament have been viewed by the committees, at the commencement of this
draftspersons. Article 105(1) is not a Constitution”, the words, figures and
simple reiteration or for that matter, a
brackets “shall be those of that House and
surplusage. It embodies the fundamental
of its members and committees immediately
valu e that the free an d fearles s
before the coming into force of section 15 of
exposition of critique in Parliament is
the Constitution (Forty-fourth Amendment)
th e es s en c e of d emoc rac y. E lec t ed
Act, 1978" shall be substituted.”
Members of Parliament represent the
voices of the citizens. In giving expression 67. The privileges enjoyed by the
to the concerns of citizens, Parliamentary House and its members and committees
speech enhances democracy. […]” immediately before the coming into force
(emphasis supplied) of Section 15 of the Forty-fourth amendment
to the Constitution were those enjoyed by Within this scheme, the Courts have
the House of Commons in the UK at the jurisdiction to determine whether the
commencement of the Constitution of India. privi lege claimed by the House of
This was also the case with Clause (3) of Parliament or Legislature in fact exists and
Article 194 which was amended by Section whether they have been exercised correctly.
26 of the Forty-fourth amendment to the In a steady line of precedent, this Court has
Constitution. The reference to the House of held that in the absence of legislation on
Commons was accepted by the Constituent privileges, the Parliament or Legislature
Assembly for two reasons. First, Indian may only claim such privilege which
legislators did not enjoy any privilege prior belonged to the House of Commons at the
to the commencement of the Constitution time of the commenc ement of the
and therefore a reference to the Dominion Constitution and that the House is not the
Parliament would leave the House with sole Judge to decide its own privilege.
virtually no privileges. Second, it was not 70. When the Parliament or
possible to make an exhaustive list of Legislatures enact a law on privileges, such
privileges at the time nor was it preferable a law would be subject to the scrutiny of
to enlist such a long list as a schedule to the Part III of the Constitution. The interplay
Constitution. (See reply of Sir Alladi between Part III of the Constitution and
Krishnaswami Ayyar and Dr BR Ambedkar Article 105(3) arose in the decision of this
to the Constituent Assembly, CAD Vol VIII Court in (MSM Sharma Vs. Sri Krishna
19 May 1949 Draft Article 85 and Vol X 16 Sinha)27, 1958 DGLS(SC) 165 : A.I.R. 1959
October 1949 Draft Article 85) S.C. 395 where a Constitution Bench
68. Clause (3) allows Parliament to speaking through SR Das, CJ held that the
enact a law on its privileges from time to privileges of the House of Parliament under
time. It may be noted here that the House Clause (3) of Article 105 are those which
of Commons in the UK does not create new belonged to the House of Commons in the
privileges. (It was agreed in 1704 that no UK at the c ommencement of the
House of Parliament shall have power, by Constitution which would prevail over the
any vote or declaration, to create new fundamental rights guaranteed to citizens
privilege that is not warranted by known under Article 19(1)(a) of the Constitution.
laws and customs of Parliament. The However, if the Parliament were to enact a
symbolic petition by the Speaker of the law codifying its privilege then it may not
House of Commons to the crown claiming step over the fundamental rights of citizens
the ‘ancient and undoubted’ privileges of by virtue of Article 13 of the Constitution.
the House of Commons are therefore not K Subba Rao, J (as the learned Chief Justice
to be changed.) Its privileges are those then was) dissented from the majority and
which have been practiced by the House held that the import of privileges held by
and have become ancient and undoubted. the House of Commons in the UK was only
69. Further, unlike the House of a transitory provision till the Parliament or
Commons in the UK, Parliament in India legislatures enact a law codifying their
cannot claim power of its own composition. respective privileges. Therefore, Justice
The extent of privileges in India has to be Subba Rao held in his dissent that the
within the confines of the Constitution. legislature cannot run roughshod over the
fundamental rights of citizens who in …
theory have retained their rights and only 42. In coming to the conclusion that the content
given a part of it to the legislature. of Article 194(3) must ultimately be
71. In (Special Refence No. 1 of 1964) , 28 determined by Courts and not by the
legislatures, we are not unmindful of the
1964 S.C.C. OnLine S.C. 21 a seven-Judge
grandeur and majesty of the task which has
Bench of this Court opined on the privileges been assigned to the legislatures under the
of the State Legislature upon a Presidential Constitution. Speaking broadly, all the
reference. The ref erence was in the legislative chambers in our country today
aftermath of the Speaker of the UP are playing a significant role in the pursuit
Legislative Assembly directing the arrest of the ideal of a Welfare State which has been
and production of two Judges of the High placed by the Constitution before our
Court. The two Judges had interfered with country, and that naturally gives the
a resolution to administer reprimand to a legislative chambers a high place in the
person who had published a pamphlet making of history today. […]”
libelling o ne of the members of the (emphasis supplied)
Assembly. Gajendragadkar, CJ speaking for 72. The opinion in Special Reference No.
the majority did not disagree with the 1 of 1964 (supra) was further affirmed by
decision in MSM Sharma (supra) which held another seven-Judge Bench of this Court in
29
that Article 105(3) and Article 194(3) would (State of Karnataka Vs. Union of India) ,
prevail over Artic le 19(1)(a) of the 1977 DGLS(SC) 314 : (1977)4 S.C.C. 608, para
Constitution. However, the Court held that 63 which held that whenever a question
Article 21 was to prevail over Articles 105(3) arises whether the House has jurisdiction
and 194(3) in a conflict between the two. The over a matter under its privileges, the
Court held that the Parliament or adjudication of such a claim is vested
Legislature is not the sole Judge of its exclusively in the Courts. Relying on Special
privileges and the Courts have the power Reference No. 1 of 1964 (supra) and State of
to enquire if a particular privilege claimed Karnataka (supra) a Constitution Bench of
by the legislature in fact existed or not, by this Court in Raja Ram Pal (supra) held that
consulting the privileges of the Commons. the Court has the authority and jurisdiction
The determination of privileges, the Court to examine if a privilege asserted by the
held, and whether they conform to the House (or even a member by extension) in
parameters of the Constitution is a question fact accrues under the Constitution. Further,
that must be answered by the Courts. This in Amarinder Singh (supra) a Constitution
Court opined that: Bench of this Court held that the Courts are
“37. The next question which faces us arises empowered to scrutinise the exercise of
from the preliminary contention raised by privileges by the House. (2010) 6 S.C.C. 113,
Mr Seervai that by his appearance before us para 54. The interplay between
on behalf of the House, the House should fundamental rights of citizens and the
not be taken to have conceded to the Court privileges of the Houses of Parliament or
the jurisdiction to construe Article 194(3) so Legislature is pending before a Constitution
as to bind it. As we have already indicated, Bench of this Court in (N. Ravi Vs. Speaker,
his stand is that in the matter of privileges,
Legislative Assembly Chennai)30, WP (Crl)
the House is the sole and exclusive Judge at
all stages. […]
No. 206-210/2003 etc. reported in 2004
DGLS(SC) 1718.
73. Clause (4) of Article 105 extends their functions, and which exceed those
the freedoms in the above clauses to all possessed by other bodies or individuals.
persons who by virtue of the Constitution (Erskine May’s Treatise on the Law,
have a right to speak in Parliament. The four Privileges, Proceedings and Usage of
clauses in Articles 105 and 194 form a Parliament, LexisNexis, 25th ed. (2019) 239).
composite whole which lend colour to each The term ‘High Court of Parliament’ dates
other and together form the corpus of the back to the time when all powers of
powers, privileges and immunities of the legislating and dispensing justice vested in
Houses of Parliament or Legislature, as the the Monarch who in turn divested them to
case may be, and of members and a body which would carry out the function
committees. of the legislature as the King sitting in the
74. We have explored the trajectory of High Court of Parliament. To that extent,
parliamentary privileges, especially that of the term is redundant in the Indian context
freedom of speech in the Indian legislatures. where the Constitution is supreme and the
It has been a timeless insistence of the power of the Parliament over its domain
legislators that their freedom of speech to flows from and is defined by the
carry out their essential legislative functions Constitution. However, the definition
be protected and sanctified. Whereas the provides an autho ritative guide to
drafters of our Constitution have expressly understanding the meaning and remit of
guaranteed the freedom of speech in parliamentary privileges. The definition
Parliament and legislature, they left the evidently divides privileges into two
other privileges uncodified. constituent elements. The first is the sum
75. In a consistent line of precedent of ri ghts enjoyed by the House of
this Court has held that – firstly, Parliament Parliament and the second is the rights
or the state legislature is not the sole Judge enjo yed by members of the House
of what privileges it enjoys and secondly, individually. Rights and immunities such
Parliament or legislature may only claim as the power to regulate its own procedure,
privileges which are essential and necessary the power to punish for contempt of the
for the functioning of the House. We have House or to expel a member f or the
explored the first of these limbs above. We remainder of the session of the House,
shall now analyse the jurisprudence on the belong to the first element of privileges held
existence, extent and exercise of privileges by the House as a collective body for its
by the House of Parliament, its members proper functioning, protection of members,
and committees. and vindication of its own authority and
II. Parliamentary privilege as a dignity. The second element of rights
collective right of the House exercised individually by members of the
76. According to Erskine May, House includes freedom of speech and
parliamentary privilege is the sum of freedom from arrest, among others.
certain rights enjoyed by each House 77. The privi lege exercised by
collectively as a constituent part of the members individually is in turn qualified
“High Court o f Parliament” and by by its necessity, in that the privilege must
members of each House individually, be such that “without which they could not
without which they could not discharge discharge thei r functio ns.” We shall
elucidate this limb later in the course of this of the land unless there are good and
judgment. These privileges enjoyed by sufficient reasons in the interest of
members of the House individually are a Parliament itself to do so. The fundamental
means to ensure and facilitate the effective principle is that all citizens including
members of Parliament should be treated
discharge of the collective functions of the
equally before the law. The privileges are
House. (Erskine May’s Treatise on the Law, available to members only when they are
Privileges, Proceedings and Usage of functioning in their capacity as members of
Parliament, LexisNexis, 25th ed. (2019) 239). Parliament and performing their
It must therefore be noted that whereas the parliamentary duties.” (emphasis supplied)
privileges enjoyed by members of the 79. The understanding which
House exceed those possessed by other unequivocally emerges supports the claim
bodies or individuals, they are not absolute that the privileges which accrue to members
or unqualif ied. The privilege o f an of the House individually are not an end in
individual member only extends insofar as themselves. The purpose which privileges
it aids the House to function and without serve is that they are necessary for the
which the House may not be able to carry House and its committees to function.
out its functions collectively. Therefore, we may understand
78. Subhash C Kashyap has explained parliamentary privileges as those rights and
parliamentary privileges as they may be immunities which allow the orderly,
understood in the Indian context. (Subhash democratic, and smooth functioning of
C. Kashyap, Parliamentary Procedure— Parliament and without which the essential
Law, Privileges, Practice and Precedents, functioning of the House would be violated.
3rd ed., Universal Law Publishing Co, 502). 80. The framers of the Constitution
In his book on parliamentary procedure, the intended to establ ish a responsi ble,
author has opined as follows: responsive and representative democracy.
“[…] In Parliamentary parlance the term The value and importance of such a
‘privilege means c ertain rights and democracy weighed heavily on the framers
immunities enjoyed by each House of of the Constitution given the history of an
Parliament and its Committees collectively,
oppressive colonial Government to which
and by the members of eac h House
individually without which they cannot India had been subjected. The history of
discharge their functions efficiently and parliamentary democracy shows that the
effectively. The object of parliamentary colo nial Government deni ed India a
privilege is to safeguard the freedom, the responsible Government where initially
authority and the dignity of the institution Indians were kept out of legislating on laws
of Parliament and its members. They are which would be enforced on its diverse
granted by the Constitution to enable them social tapestry. Even when Indians were
to discharge their functions without any let allowed in legislatures, a responsive
or hindrance. Parliamentary Privileges do Government which could be accountable to
not exempt members from the obligations
the people in a meaningful way was yet a
to the society which apply to other citizens.
Privileges of Parliament do not place a distant reality in the colonial period. The
member of Parliament on a footing ability of the legislature in turn to scrutinise
different from that of an ordinary citizen the actions of the executive was effaced and
in the matter of the applications of the laws despite the statutory guarantee of freedom
of speech for members of the House in the freedoms are necessary to be in furtherance
Government of India Act, 1919, the of fertilizing a deliberative, critical, and
guarantee remained illusory to the extent responsive democracy. In State of Kerala Vs.
that many subjects were restricted from K. Ajith, (2021)17 S.C.C. 318 one of us (DY
being discussed in the legislatures. Chandrachud, J) held that a member of the
81. In that sense, the foundations of a legislature, the opposition included, has a
deli berati ve demo cracy premised on right to protest o n the f loor of the
responsibili ty, responsiveness, and legi slature. However, the said right
representation sought to ensure that the guaranteed under Article 105(1) of the
executive Government of the day is elected Constituti on woul d not exclude the
by and responsible to the Parliament or application of ordinary criminal law against
Legislative Assemblies which comprise of acts not in direct exercise of the duties of
elected representatives. These representatives the individual as a member of the House.
would be able to express their views on behalf This Court held that the Constitution
of the citizens and ensure that the recognises privileges and immunities to
Government lends ear to their aspirations, create an environment in which members
complaints and grievances. This aspect of the of the House can perform their functions
functioning of the House is essential to sustain and discharge their duties freely. These
a meaningful democracy. This necessitates privileges bear a functional relationship to
that members of the House be able to attend the discharge of the functions of a legislator.
the House and thereafter speak their minds They are not a mark of status which makes
without fear of being harassed by the legislators stand on an unequal pedestal.
executive or any other person or body on 83. MN Kaul and SL Shakdher have
the basis of their actions as members of the in their celebrated work on the Practice and
House in the exercise of their duties. In the Procedure of Parliament endorsed this view
absence of this feature Parliament and the by stating that (MN Kaul and SL Shakdher,
state legislatures would lose the essence of Practice and Procedure of Parliament, Lok
thei r representati ve character in a Sabha Secretariat, Metropolitan Book Co.
democratic polity. Pvt. Ltd., 7th ed., 229) “In modern times,
82. The privileges enshrined under parliamentary privilege has to be viewed
Arti cle 105 and Article 194 of the from a different angle than in the earlier
Constitution are of the widest amplitude days of the struggle of Parliament against
but to the extent that they serve the aims the executive authority. Privilege at that
for which they have been granted. The time was regarded as a protection of the
framers of the Constitution would not have members of Parliament against an executive
intended to grant to the legislatures those authority not responsible to Parliament.
rights which may not serve any purpose for The entire background in which privileges
the proper functioning of the House. The of Parliament are now viewed has changed
privileges of the members of the House because the Executive is now responsible
individually bear a functional relationship to Parliament. The foundation upon which
to the ability of the House to collectively they rest is the maintenance of the dignity
fulfil its functioning and vindicate its and independence of the House and of its
authority and dignity. In other words, these members.” (emphasis supplied)
The privileges enjoyed by members may not even apply to all the privileges
of the House are tethered intrinsically to the which accrue to the House of Commons but
functioning of the House collectively. A may not be necessary for the functioning of
House of Parliament or Legislature the House. The learned Chief Justice stated:
functions through the collective will of its “57. It is evident, from the Chapter in which
individual members. These members acting Article 194 occurs as well as the heading and
as constituents of the House may not claim its marginal note that the “powers” meant
any privilege or immunity unconnected to be indicated here are not independent.
with the working of the entire House. They are powers which depend upon and
are necessary for the conduct of the
84. While some cherished freedoms
business of each House. They cannot also
exercised individually by members of the
be expanded into those of the House of
House, including the freedom of speech, Commons in England for all purposes. For
have been undeniably understood to be example, it could not be contended that each
essential to the functioning of the House as House of a State Legislature has the same
a whole, other exercises such as damaging share of legislative power as the House of
public property or committing violence are Commons has, as a constituent part of a
not and cannot be deemed to have completely sovereign legislature. Under our
immunity. The privileges and immunities law it is the Constitution which is sovereign
enshrined in Articles 105 and 194 of the or supreme. The Parliament as well as each
Constitution with respect to Houses of Legislature of a State in India enjoys only
Parliament and the Legislatures, their such legislative powers as the Constitution
members and committees, respectively confers upon it. Similarly, each House of
Parliament or State Legislature has such
belong to the House collectively. The
share in legislative power as is assigned to
exercise of the privileges individually by
it by the Constitution itself. […]”
members must be tested on the anvil of
(emphasis supplied)
whether it is tethered to the healthy and
essential functioning of the House. 86. This Court held that in India the
source of authority is the Constitution
III. Necessity test to claim and
which derives its sovereignty from the
exercise a privilege
people. The powers and privileges claimed
85. Having established that the by a House cannot traverse beyond those
privileges and immunities exercisable by whic h are permissible under the
members of the House individually must Constitution. The Constitution only allows
be tethered to the functioning of the House exercise of those powers, privileges, and
we must now explore which privileges may immunities which are essential to the
be deemed to accrue to the House functioning of the House or a committee
collectively and by extension to individual thereof. MN Kaul and SL Shakdher have
members. In State of Karnataka (supra) a opined that (MN Kaul and SL Shakdher,
seven-Judge Bench of this Court speaking Practice and Procedure of Parliament, Lok
through MH Beg, CJ held that the powers Sabha Secretariat, Metropolitan Book Co.
under Article 194 (as well as Article 105) are Pvt. Ltd., 7th ed., 229)
those which depend upon and are “In interpreting these privileges, therefore,
necessary for the conduct of the business regard must be had to the general principle
of each House. In that sense, these powers that the privileges of Parliament are
granted to members in order that “they “35. The evolution of legislative privileges can
may be able to perform their duties in be traced back to medieval England when
Parliament without let or hindrance”. They there was an ongoing tussle for power
apply to individual members “only insofar between the monarch and Parliament. In
as they are necessary in order that the most cases, privileges were exercised to
House may freely perform its functions. protect the Members of Parliament from
They do not discharge the member from the undue pressure or influence by the monarch
obligations to society which apply to him among others. Conversely, with the gradual
as much and perhaps more closely in that strengthening of Parliament there were also
capacity, as they apply to other subjects”. some excesses in the name of legislative
Privileges of Parliament do not place a privileges. However, the ideas governing
member of Parliament on a footing different the relationship between the executive and
from that of an ordinary citizen in the matter the legislature have undergone a sea
of the application of laws unless there are change since then. In modern
good and sufficient reasons in the interest parliamentary democracies, it is the
of Parliament itself to do so.” legislature which consists of the people’s
(emphasis supplied) representatives who are expected to
87. The evolution of parliamentary monitor executive functions. This is
achieved by embodying the idea of
privileges as well as the jurisprudence of
“collective responsibility” which entails
this Court establish that members of the that those who wield executive power are
House or indeed the House itself cannot accountable to the legislature.
claim privileges which are not essentially 36. However, legislative privileges serve a
related to their functioning. To give any distinct purpose. They are exercised to
privilege unconnected to the functioning of safeguard the integrity of legislative
the Parliament or Legislature by necessity functions against obstructions which could
is to create a class of citizens which enjoys be caused by members of the House as well
unchecked exempti on from ordinary as non-members. Needless to say, it is
application of the law. This was neither the conceivable that in some instances persons
holding executive office could potentially
intention of the Constitution nor the goal
cause obstructions to legislative functions.
of vesting Parliament and Legislature with
Hence, there is a need to stress on the
powers, privileges and immunities. operative principles that can be relied on to
88. In Amarinder Singh (supra) a test the validity of the exercise of legislative
Constitution Bench of this Court held that privileges in the present case. …
the test to scrutinise the exercise of 47. […] the exercise of legislative privileges
privileges is whether they were necessary is not an end in itself. They are supposed
to safeguard the integrity of legislative to be exercised in order to ensure that
functions. KG Balakrishnan, C.J. after legislative functions can be exercised
exploring a wealth of material on the subject effectively, without undue obstructions.
These func tions inc lude the right of
opined that privileges serve the distinct
members to speak and vote on the floor of
purpose of safeguarding the integrity of the the House as well as the proceedings of
House. This Court held that privileges are various Legislative Committees. In this
not an end in themselves but must be respect, privileges can be exercised to
exercised to ensure the effective exercise of protect persons engaged as administrative
legislative functions. The Chief Justice employees as well. The important
observed that: consideration for scrutinising the exercise
of legislative privileges is whether the Establishment is for all public servants
same was necessary to safeguard the (except the Speaker and the Deputy Speaker
integrity of legislative functions. […].” of the Madhya Pradesh Vidhan Sabha for the
(emphasis supplied) purposes of the Lokayukt Act) and no
89. In Lokayukta, Justice Ripusudan privilege is available to the officials and, in
Dayal Vs. State of MP, (2014)4 S.C.C. 473 a any case, they cannot claim any privilege
more than an ordinary citizen to whom the
three-Judge Bench of this Court held that
provisions of the said Acts apply. Privileges
the scope of a privilege enjoyed by a House
do not extend to the activities undertaken
and its members must be tested on the basis outside the House on which the legislative
of the necessity of the privilege to the House provisions would apply without any
for its free functioning. This Court further differentiation.” (emphasis supplied)
held that members of the House cannot 90. The necessity test for ascertaining
claim exemption from the application of parliamentary privileges has struck deep
ordinary criminal law under the garb of roots in the Indian context. We do not need
privileges which accrue to them as to explore the well -establi shed
members of the House under the jurisprudence on the necessity test in other
Constitution. P Sathasivam, CJ opined that jurisdictions beyond the above exposition
“51. The scope of the privileges enjoyed of Indian jurisprudence on the subject at this
depends upon the need for privileges i.e.
juncture. The evolution of parliamentary
why they have been provided for. The basic
premise for the privileges enjoyed by the
privileges in vari ous parliamentary
Members is to allow them to perform their jurisdictions has shown a consistent pattern
functions as Members and no hindrance is that when an issue involving privileges
caused to the functioning of the House. […] arises, the test applied is whether the
52. It is clear that the basic concept is that the privilege claimed is essential and necessary
privileges are those rights without which to the orderly functioning of the House or
the House cannot perform its legislative its committee. We may also note that the
functions. They do not exempt the Members burden of satisfying that a privilege exists
from their obligations under any statute and that it is necessary for the House to
which continue to apply to them like any collectively discharge its function lies with
other law applicable to ordinary citizens.
the person or body claiming the privilege.
Thus, enquiry or investigation into an
allegation of corruption against some
The Houses of Parliament or Legislatures,
officers of the Legislative Assembly cannot and the committees are not islands which
be said to interfere with the legislative act as enclaves shielding those inside from
functions of the Assembly. No one enjoys the application of ordinary laws. The
any privilege against criminal prosecution. lawmakers are subject to the same law that
… the law-making body enacts for the people
76. It is made clear that privileges are it governs and claims to represent.
available only insofar as they are necessary 91. We therefore hold that the
in order that the House may freely perform
assertion of a privilege by an individual
its functions. For the application of laws,
particularly, the provisions of the Lokayukt
member of Parliament or Legislature would
Act and the Prevention of Corruption Act, be governed by a twofold test. First, the
1988, the jurisdiction of the Lokayukt or the privilege claimed has to be tethered to the
Madhya Pradesh Spec ial Polic e collective functioning of the House, and
second, its necessity must bear a functional which the words occur by referring to the
relationship to the discharge of the essential other words of the said provision. This
duties of a legislator. Court held in that case that the meaning of
G. Bribery is not protected by the word “any” can be varied depending
parliamentary privilege on the context in which it appears and that
I. Bribery is not in respect of the words “any matter” was not to be
anything said or any vote given understood as “every matter”.
92. The question remains as to 94. The decision in Tej Kiran Jain
whether these privileges attract immunity (supra) interpreted the word “anything” in
to a member of Parliament or of the Clause (1) of Article 105 to be of the widest
Legislatures who engages in bribery in amplitude and only subject to the words
connection with their speech or vote. The appearing after it which were “in
test of intrinsic relation to the functioning Parliament.” The clause does give wide
of the House and the necessity test evolved freedom of speech in Parliament. The word
by this Court in the context of determining ‘anything’ cannot be interpreted to allow
the remit of privileges under Articles 105(3) interference of the Court in determining if
and 194(3) must weigh while delineating the the speech had relevance to the subject it
privileges under Clauses (1) and (2) of the was dealing with at the time the speech was
provisions as well. When this Court is called made. In Tej Kiran Jain (supra) the followers
upon to answer a question of interpretation of a religious head who had made a speech
of a provision of the Constitution, it must on untouchability filed a suit in the High
interpret the text in a manner that does not Court seeking damages for defamation
do violence to the fabric of the Constitution. alleged to have been committed in the Lok
This Court’s opinion in P.V. Narasimha Rao Sabha during a calling attention motion on
(supra) hinged on two phrases in clause (2) the speech. This Court held that the Court
of Article 105 of the Constitution. These cannot dissect a speech made in Parliament
phrases were “in respect of” and the following and adjudicate if the speech has a direct
word “anything.” Clause (2) of the Article relation to the subject matter before it.
reads as follows Parliament has absolute control over which
“(2) No member of Parliament shall be liable matters it directs its attention towards and
to any proceedings in any Court in respect thereafter the members or persons at liberty
of anything said or any vote given by him to speak may not be subjected to the fear of
in Parliament or any committee thereof, and prosecution against anything that they may
no person shall be so liable in respect of the say in the House.
publication by or under the authority of 95. That context evidently changes in
either House of Parliament of any report, Clause (2) of Article 105 which gives
paper, votes or proceedings.” immunity to members of the House and the
93. In (State (NCT of Delhi) Vs. Union committees thereof in any proceeding in
of India)31 , 2018 DGLS(SC) 652 : (2018)8 any Court in respect of “anything” said or
S.C.C. 501 Dipak Misra, CJ observed that any vote given in the House. MH Beg, CJ in
the Court should interpret a constitutional State of Karnataka (supra) had foreseen a
provision and construe the meaning of situation where a criminal act may be
specific words in the text in the context in committed in the House and had observed
that it could not be protected under the “65. Privileges and immunities are not
Constitution. The Chief Justice opined that: gateways to claim exemptions from the
“63. […] A House of Parliament or State general law of the land, particularly as in
Legislature cannot try anyone or any case this case, the criminal law which governs
directly, as a Court of Justice can, but it can the action of every citizen. To claim an
proceed quasi-judicially in cases of contempts exemption from the application of criminal
of its authority and take up motions law would be to betray the trust which is
c onc erning its “privileges” and impressed on the character of elected
“immunities” because, in doing so, it only representatives as the makers and enactors
seeks removal of obstructions to the due of the law. The entire foundation upon
performance of its legislative functions. But, which the application for withdrawal under
if any question of jurisdiction arises as to Section 321 was moved by the Public
whether a matter falls here or not, it has to Prosecutor is based on a fundamental
be decided by the ordinary Courts in misc onc eption of the c onstitutional
appropriate proceedings. For example, the provisions contained in Article 194. The
jurisdiction to try a criminal offence, such Public Prosecutor seems to have been
as murder, committed even within a House impressed by the existence of privileges and
vests in ordinary criminal Courts and not immunities which would stand in the way
in a House of Parliament or in a State of the prosecution. Such an understanding
Legislature. […]” (emphasis supplied) betrays the constitutional provision and
proceeds on a misconception that elected
96. In K Ajith (supra) a member of the
members of the legislature stand above the
Kerala Legislative Assembly was accused general application of criminal law.”
of climbing over the Speaker’s dais and (emphasis supplied)
causing damage to property during the
98. In Lokayukta, Justice Ripusudan
presentation of the budget by the Finance
Dayal (supra) criminal proceedings were
Minister of the State. The question which
initiated against administrative officers of
arose before this Court was whether the
the Madhya Pradesh Legislative Assembly
member could be prosecuted before a Court
for allegedly engaging in corruption and
of law for his conduct inside the House of
financial irregularity. The Speaker of the
the Legislature. This Court speaking
Assembly initiated proceedings for breach
through one of us (DY Chandrachud, J) after
of privilege against the Lokayukta and
exploring the evolution of law in this regard
vigilance authorities. This Court while
in the UK observed that:
holding that initi ation of criminal
“36. […] it is evid en t th at a p er s on proceedings for corruption may not amount
committing a criminal offence within the
to a breach of privilege had opined that:
precincts of the House does not hold an
absolute privilege. Instead, he would “48. It is clear that in the matter of the
possess a qualified privilege, and would application of laws, particularly, the
receive the immunity only if the action bears provisions of the Lokayukt Act and the
nexus to the effective participation of the Prevention of Corruption Act, 1988, insofar
member in the House.” as the jurisdiction of the Lokayukt or the
Madhya Pradesh Special Establishment is
97. This Court further held that concerned, all public servants except the
privileges accruing inside the legislature are Speaker and the Deputy Speaker of the
not a gateway to claim exemption from the Madhya Pradesh Vidhan Sabha for the
general application of the law: purposes of the Lokayukt Act fall in the
same category and cannot claim any connection with the vote given or speech
privilege more than an ordinary citizen to made. It therefore concluded that a bribe
whom the provisions of the said Acts given to purchase the vote of a member of
apply. s[…]. Parliament was immune from prosecution
49. As rightly submitted by Mr K.K. Venugopal, under Clause (2) of Article 105. By this logic,
in India, there is the rule of law and not of the majority judgment concluded that a bribe-
men and, thus, there is primacy of the laws
accepting member who did not comply with
enacted by the legislature which do not
discriminate between persons to whom the quid pro quo was not immune from
such laws would apply. The laws would prosecution as his actions ceased to have a
apply to all such persons unless the law itself nexus with his vote. As we have noted above,
makes an exception on a valid classification. the interpretation of a phrase which appears
No individual can claim privilege against in a provision cannot be interpreted in a way
the application of laws and for liabilities that does violence to the object of the
fastened on commission of a prohibited act.” provision. The majority in PV Narasimha Rao
(emphasis supplied) (supra) has taken the object of Article 105 to
99. The principle which emerges from be that members of Parliament must have
the above cases is that the privilege of the the widest protection under the law to be
House, its members and the committees is able to perform their function in the House.
neither contingent merely on location nor This understanding of the provision is
are they merely contingent on the act in overbroad and presumptive of enhanced
question. A speech made in Parliament or privileges translating to better functioning
Legislature cannot be subjected to any of members of the House.
proceedings before any Court. However, 101. Privileges are not an end in
other acts such as damaging property or themselves in a Parliamentary form of
crimi nal acts may be subjected to Government as the majority has understood
prosecution despite being within the them to be. A member of Parliament or of
precincts of the House. Clause (2) of Article the Legislature is i mmune in the
105 grants immuni ty “in respec t of performance of their functions in the House
anything” said or any vote given. The extent or a committee thereo f from being
of this immunity must be tested on the anvil prosecuted because the speech given or vote
of the tests laid down above. The ability of cast is functionall y related to their
a member to speak is essentially tethered performance as members of the legislature.
to the collective functioning of the House The claim of a member to this immunity is
and is necessary for the functioning of the its vital connect with the functioning of the
House. A vote, which is an extension of the House or committee. The reason why the
speech, may itself neither be questioned nor freedom of speech and to vote have been
proceeded against in a Court of law. The guaranteed in Parl iament is bec ause
phrase “in respect of” is significant to without that Parliament or the legislature
delineate the ambit of the immunity granted cannot function. Therefore, the extent of
under Clause (2) of Article 105. privi lege exercisable by a member
100. In PV Narasimha Rao (supra) the individually must satisfy the two fold test
majority judgment interprets the phrase “in laid down in Part F of this judgment namely
respect of” as having a broad meaning and its tether to the collective functioning of the
referring to anything that bears a nexus or House and its necessity.
102. The words “in respect of ” in 104. The purpose and object for which
Clause (2) of Article 105 apply to the phrase the Constitution stipulates powers,
“anything said or any vote given,” and in privileges and immunity in Parliament
the latter part to a publication by or with the must be borne in mind. Privileges are
authority of the House. We may not interpret essenti a l l y rel ated to t he Ho use
the words “anything” or “any” without c o l l ec ti vel y and nec essar y f o r i ts
reading the operative word on which it functioning. Hence, the phrase “in respect
applies i.e. “said” and “vote given” of ” must have a meaning consistent with
respectively. The words “anything said” and the purpose of privileges and immunities.
“any vote given” apply to an action which has Articles 105 and 194 of the Constitution
been taken by a person who has the right to seek to create a fearless atmosphere in
speak or vote in the House or a committee which debate, deliberations and exchange
thereof. This means that a member or person of ideas can take place within the Houses
must have exercised their right to speak or of Parliament and the state legislatures.
abstained from speaking inside the House or Fo r thi s exerc i se to be meani ngf ul ,
committee when the occasion arose. members and persons who have a right
Similarly, a person or member must have to speak bef o re the Ho us e o r any
exercised their option of voting in favour, committee must be free from fear or
against, or in abstention to claim immunity favour induced into them by a third party.
under Articles 105(2) and 194(2). Members of the legislature and persons
103. The words “anything” and “any” involved in the work of the Committees of
when read with their respective operative the legislature must be able to exercise their
words mean that a member may claim free will and conscience to enrich the
immunity to say as they feel and vote in a functions of the House. This is exactly what
direction that they desire on any matter is taken away when a member is induced
before the House. These are absolutely to vote in a certain way not because of their
outside the scope of interference by the belief or position on an issue but because
Courts. The wide meaning of “anything” of a bribe taken by the member. Corruption
and “any” read with their companion and bribery of members of the legislature
words connotes actions of speech or voting erode the f oundatio n of Indian
inside the House or committee which are Parliamentary democracy. It is destructive
absolute. The phrase “in respect of” applies of the aspirational and deliberative ideals
to the collective phrase “anything said or of the Constitution and creates a polity
any vote given.” The words “in respect of” which deprives citizens of a responsible,
means arising out of or bearing a clear responsive and representative democracy.
relation to. This may not be overbroad or 105. The minority judgment in PV
be interpreted to mean anything which may Narasimha Rao (supra) held that the words “in
have even a remote connection with the respect of” must be understood as “arising
speech or vote given. We, therefore, cannot out of” and that a bribe taken by a member of
concur with the majority judgment in PV the House cannot be deemed as arising out
Narasimha Rao (supra). of his vote. The minority opined that:
II. The Constitution envisions “46. […] The expression “in respect of” in
Article 105(2) has, therefore, to be construed
probity in public life
keeping in view the object of Article 105(2)
and the setting in which the expression conferred under Article 105(2) would be
appears in that provision. confined to liability that arises out of or is
47. … the object of the immunity conferred attributable to something that has been said
under Article 105(2) is to ensure the or to a vote that has been given by a Member
in dep end en c e of t h e in d ivid ual in Parliament or any committee thereof. The
legis lator s . Suc h in d ep en d en c e is immunity would be available only if the
necessary for healthy functioning of the speech that has been made or the vote that
system of par liam ent ary dem oc rac y has been given is an essential and integral
ad op t ed in th e Con s t it ut ion . part of the c ause of ac tion for the
Parliamentary democracy is a part of the proceedings giving rise to the liability. The
basic structure of the Constitution. An immunity would not be available to give
interpretation of the provisions of Article protection against liability for an act that
105(2) which would enable a Member of precedes the making of the speech or giving
Parliament to claim immunity from of vote by a Member in Parliament even
though it may have a connection with the
prosecution in a criminal Court for an
speech made or the vote given by the
offence of bribery in connection with
Member if such an act gives rise to a liability
anything said by him or a vote given by
which arises independently and does not
him in Parliament or any committee
depend on the making of the speech or the
thereof and thereby place such Members
giving of vote in Parliament by the Member.
ab ove th e law wou ld not on ly b e
Such an independent liability cannot be
repugnant to healthy functioning of regarded as liability in respect of anything
parliamentary democracy but would also said or vote given by the Member in
be subversive of the rule of law which is Parliament. The liability for whic h
als o an ess en tial p art of th e b asic immunity can be claimed under Article
structure of the Constitution. It is settled 105(2) is the liability that has arisen as a
law that in interpreting the constitutional consequence of the speech that has been
provisions the Court should adopt a made or the vote that has been given in
c onst ruc t ion wh ic h st rength en s th e Parliament.”
found ational features an d t he bas ic
107. The offence of bribery is complete
structure of the Constitution.
on the acceptance of the money or on the
(See: (Sub-Committee on Judicial agreement to accept money being
Accountability Vs. Union of India)32, 1991 concluded. The offence is not contingent on
DGLS(SC) 570 : (1991)4 S.C.C. 699 (S.C.C. at the performance of the promise for which
p. 719.) […]” (emphasis supplied) money is given or is agreed to be given. The
106. The minority then points out the minority opinion in PV Narasimha Rao (supra)
paradoxical result which would emerge if based its view on another perspective which
members were given immunity from was not dealt with by the majority. The
prosecution for their speech or vote but minority opinion stated that the act of bribery
would not be protected if the bribe was was the receipt of illegal gratification prior to
received for not speaking or not voting. The the making of the speech or vote inside the
minority goes on to hold that: House. Interpreting the phrase “in respect of”
“47. […] Such an anomalous situation would to mean “arising out of”, the minority
be avoided if the words “in respect of” in concluded that the offence of bribery is not
Article 105(2) are c onstrued to mean contingent on the performance of the illegal
“arising out of”. If the expression “in respect
promise. The minority observed that:
of” is thus construed, the immunity
“50. … the expression “in respect of” in Article provisions of the Tenth Schedule do not
105(2) raises the question: Is the liability to purport to make a Member of a House liable
be prosecuted arising from acceptance of in any ‘Court’ for anything said or any vote
bribe by a Member of Parliament for the given by him in Parliament. It is difficult to
purpose of speaking or giving his vote in conceive how Article 105(2) is a source of
Parliament in a particular manner on a immunity from the c onsequenc es of
matter pending consideration before the unprincipled floor-crossing.
House an independent liability which …
cannot be said to arise out of anything said 43. Parliamentary democracy envisages that
or any vote given by the Member in matters involving implementation of
Parliament? In our opinion, this question policies of the Government should be
must be answered in the affirmative. The discussed by the elected representatives of
offence of bribery is made out against the the people. Debate, disc ussion and
receiver if he takes or agrees to take money persuasion are, therefore, the means and
for promise to act in a certain way. The essence of the democratic process. During
offence is complete with the acceptance of the debates the Members put forward
the money or on the agreement to accept the different points of view. Members belonging
money being c oncluded and is not to the same political party may also have,
dependent on the performance of the illegal and may give expression to, differences of
promise by the receiver. The receiver of the opinion on a matter. Not unoften (sic) the
money will be treated to have committed the views expressed by the Members in the
offence even when he defaults in the illegal House have resulted in substantial
bargain. For proving the offence of bribery modification, and even the withdrawal, of
all that is required to be established is that the proposals under consideration. Debate
the offender has received or agreed to and expression of different points of view,
receive money for a promise to act in a thus, serve an essential and healthy purpose
certain way and it is not necessary to go in the func tioning of Parliamentary
further and prove that he actually acted in democracy. At times such an expression of
that way.” views during the debate in the House may
108. A Constitution Bench of this lead to voting or abstinence from voting in
Court in (Kihoto Hollohan Vs. Zachillhu)33, the House otherwise than on party lines.”
1992 DGLS(SC) 165 : 1992 Supp (2) S.C.C. III. Courts and the House exercise
651 while deciding on the validity of the parallel jurisdiction over allegations of
Constitution (Fifty Second Amendment) bribery
Act, 1985 which introduced the Tenth 109. Mr. Raju Ramachandran, learned
schedule to the Indian Constitution opined Senior Advocate on behalf of the Petitioner,
that the freedom of speech in Parliament has argued that bribery has been treated as
under clause (2) of Article 105 is not a breach of privilege by the House which
viol ated. This Court understood the has used its powers to dispense discipline
provision to necessarily mean that the over bribe-taking members. He argues that
politically sinful act of floor crossing is immunity for a vote, speech or conduct in
neither permissible nor immunized under the House of Parliament does not in any
the Constitution. This Court held that: manner leave culpable members blameless
“40. The freedom of speech of a Member is not or free from sanction. Such members have
an absolute freedom. That apart, the been punished including being expelled by
47/24(1) the House. Mr. Ramachandran cites many
examples of actions taken by the House 111. We therefore disagree with Mr
against its members who were found to Ramachandran that the jurisdiction of the
have received bribes. In our exposition of House excludes that of the criminal Court
the history of parliamentary privileges in for prosecuting an offence under the
India, we have illustrated how bribery was criminal law of the land. We hold this
initially deemed to be a breach of privilege because of our conclusion above that
by the House of Commons in the UK. Based bribery is not immune under Clause (2) of
on the position of law in the UK the British Article 105. A member engaging in bribery
Government was uncertain about the commits a crime which is unrelated to their
position in India but assumed it to be ability to vote or to make a decision on their
governed as a matter of breach of privilege vote. This action may bring indignity to the
in the absence of an express statutory House of Parliament or Legislature and may
enactment. The Report of the Reforms also attract prosecution. What it does not
Enquiry Committee in 1924 had attract is the immunity given to the essential
recommended bribery to be made a penal and necessary functions of a member of
offence so that members may be prosecuted Parliament or Legislature.
for crimes before a Court of law. 112. We may refer to the opinion of
110. The issue of bribery is not one of S.C. Agrawal, J who arrived at the same
exclusivity of jurisdiction by the House over view in which he was in the minority:
its bribe-taking members. The purpose of a “45. It is no doubt true that a Member who is
House acting against a contempt by a found to have accepted bribe in connection
member for receiving a bribe serves a with the business of Parliament can be
purpose distinct fro m a criminal punished by the House for contempt. But
that is not a satisfactory solution. In exercise
prosecution. The purpose of the
of its power to punish for contempt the
proceedings which a House may conduct House of Commons can convict a person to
is to restore its dignity. Such a proceeding custody and may also order expulsion or
may result in the expulsion from the suspension from the service of the House.
membership of the House and other There is no power to impose a fine. The
consequences which the law envisages. power of committal cannot exceed the
Prosecution for an offence operates in a duration of the session and the person, if
distinct area involving a violation of a not sooner discharged by the House, is
criminal statute. The power to punish for immediately released from confinement
on prorogation. (See: May’s Parliamentary
criminal wrongdoing emanates from the
Practice, 21st Edn., pp. 103, 109 and 111.) The
power of the state to prosecute offenders Houses of Parliament in India cannot claim
who violate the criminal law. The latter a higher power. The Salmon Commission
applies uniformly to everyone subject to the has stated that “whilst the theoretical
sanctions of the criminal law of the land. power of the House to commit a person
The purpose, consequences, and effect of into custody undoubtedly exists, nobody
the two jurisdictions are separate. A has been committed to prison for contempt
criminal trial differs from contempt of the of Parliament for a hundred years or so,
House as it is fully dressed with procedural and it is most unlikely that Parliament
would use this power in modern
safeguards, rules of evidence and the
conditions”. (para 306) The Salmon
principles of natural justice. Commission has also expressed the view
that in view of the special expertise that is with the acceptance of the money or on the
necessary for this type of inquiry the agreement to accept the money being
Committee of Privileges do not provide an concluded and is not dependent on the
investigative machinery comparable to performance of the illegal promise by the
that of a police investigation.”
receiver. Agarwal, J observed:
(emphasis supplied)
“50. The construction placed by us on the
113. Therefore, we hold that clause (2) expression “in respect of” in Article 105(2)
of Article 105 does not grant immunity raises the question: Is the liability to be
against bribery to any person as the receipt prosecuted arising from acceptance of bribe
of o r agreement to recei ve ill egal by a Member of Parliament for the purpose
gratification is not “in respect of” the of speaking or giving his vote in Parliament
function of a member to speak or vote in in a particular manner on a matter pending
the House. Prosecution for bribery is not c onsideration before the House an
excluded from the jurisdiction of the independent liability which cannot be said
criminal Court merely because it may also to arise out of anything said or any vote
given by the Member in Parliament? In our
be treated by the House as contempt or a
opinion, this question must be answered in
breach of its privilege. the affirmative. The offence of bribery is
IV. Delivery of results is irrelevant made out against the receiver if he takes
to the offence of bribery or agrees to take money for promise to act
114. Another aspect that arises for in a certain way. The offence is complete
consideration is the stage at which the with the acceptance of the money or on the
offence of bribery crystallizes. It has been agreement to accept the money being
urged by the Solicitor General that the concluded and is not dependent on the
performance of the illegal promise by the
offence is complete outside the legislature
receiver. The receiver of the money will be
and is ‘independent’ of the speech or the
treated to have committed the offence even
vote. Therefore, the question of privilege when he defaults in the illegal bargain. For
does not arise in the first place and the proving the offence of bribery all that is
question is answered by the provisions of required to be established is that the
the Prevention of Corruption Act, 1988. offender has received or agreed to receive
Similarly, Mr Gopal Sankarnarayan, learned money for a promise to act in a certain way
Senior Counsel has submitted that the and it is not necessary to go further and
offence of bribery is complete on receipt of prove that he actually acted in that way.”
the bribe well before the vote is given or (emphasis supplied)
speech made in Parliament. It has been 116. Section 7 of the Prevention of
urged that the performance of the promise Corruption Act, 1988 reads as follows:
is irrelevant to the offence being made out, “7. Offence relating to public servant being
and hence, the distinction made in PV bribed. — Any public servant who, —
Narasimha Rao (supra) is entirely artificial. (a) obtains or accepts or attempts to obtain
from any person, an undue advantage, with
115. Interestingly, the judgment of the
the intention to perform or c ause
majority in PV Narasimha Rao (supra) did not performance of public duty improperly or
consider this question at all. The minority dishonestly or to forbear or c ause
judgment, on the other hand, discusses this forbearance to perform such duty either by
aspect and notes that the offence is complete himself or by another public servant; or
(b) obtains or accepts or attempts to obtain, an complete the offence. It is not necessary that
undue advantage from any person as a the act for which the bribe is given be
reward for the improper or dishonest actually performed. The first explanation to
performanc e of a public duty or for the provision further strengthens such an
forbearing to perform such duty either by
interpretation when it expressly states that
himself or another public servant; or
the “obtaining, accepting, or attempting” to
(c) performs or induces another public servant
to perform improperly or dishonestly a obtain an undue advantage shall itself
public duty or to forbear performance of constitute an offence even if the
suc h duty in antic ipation of or in performance of a public duty by a public
c onsequenc e of ac c epting an undue servant has not been improper. Therefore,
advantage from any person, shall be the offence of a public servant being bribed
punishable with imprisonment for a term is pegged to receiving or agreeing to receive
which shall not be less than three years but the undue advantage and not the actual
which may extend to seven years and shall performance of the act for which the undue
also be liable to fine.
advantage is obtained.
Explanation 1. —For the purpose of this
section, the obtaining, accepting, or the 118. It is trite law that illustrations
attempting to obtain an undue advantage appended to a section are of value and
shall itself constitute an offence even if the relevance in construing the text of a
performance of a public duty by public statutory provision and they should not be
servant, is not or has not been improper. readily rejected as repugnant to the section.
Illustration. —A public servant, ‘S’ asks a (Justice GP Singh, Principles of Statutory
person, ‘P’ to give him an amount of five Interpretation, 15th Ed. (2021), 136). The
thousand rupees to process his routine illustration to the first explanation aids us
ration card application on time. ‘S’ is guilty
in construing the provision to mean that the
of an offence under this section.
offence of bribery crystallizes on the
Explanation 2.—For the purpose of this
section,— (i) the expressions “obtains” or exchange of the bribe and does not require
“accepts” or “attempts to obtain” shall cover the actual performance of the act. It
cases where a person being a public servant, provides a situation where “A public
obtains or “accepts” or attempts to obtain, servant, ‘S’ asks a person, ‘P’ to give him an
any undue advantage for himself or for amount of five thousand rupees to process
another person, by abusing his position as a his routine ration card application on time.
public servant or by using his personal ‘S’ is guilty of an offence under this section.”
influence over another public servant; or by It is clear that regardless of whether S
any other corrupt or illegal means;
actually processes the ration card
(ii) it shall be immaterial whether such person
application on time, the offence of bribery
being a public servant obtains or accepts or
attempts to obtain the undue advantage is made out. Similarly, in the formulation
directly or through a third party.” (emphasis of a legislator accepting a bribe, it does not
supplied) matter whether she votes in the agreed
117. Under Section 7 of the PC Act, direction or votes at all. At the point in time
the mere “obtaining”, “accepting” or when she accepts the bribe, the offence of
“attempting” to obtain an undue advantage bribery is complete.
with the intention to act or forbear from 119. Even prior to the amendment to
acting in a certain way is sufficient to the PC Act in 2017, Section 7 expressly
delinked the offence of bribery from the clear that the person receiving the
actual performance of the act for which the gratification does not need to intend to or
undue advantage is received. The provision be in a position to do or not do the act or
read as follows: omission for which the motive/reward is
“7. Public servant taking gratification other received.
than legal remuneration in respect of an 121. In (Chaturdas Bhagwandas Patel
official act. — Whoever, being, or expecting Vs. State of Gujarat)34, 1976 DGLS(SC) 181
to be a public servant, accepts or obtains or : (1976)3 S.C.C. 46 a two-Judge Bench of this
agrees to accept or attempts to obtain from
Court reiterated that to constitute the offence
any person, for himself or for any other
person, any gratification whatever, other of bribery, a public servant using his official
than legal remuneration, as a motive or position to extract illegal gratification is a
reward for doing or forbearing to do any sufficient condition. It is not necessary in such
official act or for showing or forbearing to a case for the Court to consider whether the
show, in the exercise of his official functions, public servant intended to actually perform
favour or disfavour to any person or for any official act of favour or disfavour. In the
rendering or attempting to render any facts of the case, the public servant induced
service or disservice to any person, with the the complainant to give a bribe to get rid of a
Central Government or any State charge of abduction. It was later revealed that
Government or Parliament or the
no complaint had even been registered
Legislature of any State or with any local
authority, corporation or Government against the complainant for the alleged
company referred to in clause (c) of Section abduction. However, the Court held that the
2, or with any public servant, whether mere demand and acceptance of the illegal
named or otherwise, shall be punishable gratification was sufficient, regardless of
with imprisonment which shall be not less whether the recipient of the bribe
than six months but which may extend to performed the act for which the bribe was
seven years and shall also be liable to fine. received.
Explanations. — 122. Recently, in (Neeraj Dutta Vs.
… State (NCT of Delhi)35, 2022 DGLS(SC) 1629
(d) “A motive or reward for doing”. A person : (2023)4 S.C.C. 731 a Constitution Bench
who receives a gratification as a motive or listed out the constituent elements of the
reward for doing what he does not intend offence of bribery under Section 7 of the PC
or is not in a position to do, or has not done,
Act (as it stood before the amendment in
comes within this expression. …”
2017). Justice BV Nagarathna formulated
(emphasis supplied)
the elements to constitute the offence:
120. The unamended text of Section 7
“5. The following are the ingredients of Section
of the PC Act also indicates that the act of
7 of the Act:
“accepting”, “obtaining”, “agreeing to
(i) the accused must be a public servant or
accept” or “agreeing to obtain” illegal expecting to be a public servant;
gratification is a sufficient condition. The (ii) he should accept or obtain or agrees to
act for which the bribe is given does not accept or attempts to obtain from any
need to be actually performed. This was person;
further clarified by Explanation (d) to the (iii) for himself or for any other person;
provision. In explaining the phrase ‘a (iv) any gratific ation other than legal
motive or reward for doing’, it was made remuneration; and
(v) as a motive or reward for doing or the performance of the act. In fact, in the
forbearing to do any official act or to show impugned judgment as well, the High Court has
any favour or disfavour.” relied on this position to hold that the appellant
Consequently, the actual “doing or is not covered by the immunity as she eventually
forbearing to do” the official act is not a did not vote as agreed on and voted for the
constituent part of the offence. All that is candidate from her party.
required is that the illegal gratification 125. The understanding of the law in
should be obtained as a “motive or reward” the judgment of the majority in PV
for such an action or omission – whether it Narasimha Rao (supra) creates an artificial
is actually carried out or not is irrelevant. distinction between those who receive the
123. During the course of the hearing, illegal gratification and perform their end
a hypothetical question arose in this regard. of the bargain and those who receive the
What happens in a situation when the bribe same illegal gratification but do not carry
is exchanged within the precincts of the out the agreed task. The offence of bribery
legislature? Would the offence now fall is agnostic to the performance of the agreed
withi n the ambit of parliamentary acti on and crystal lizes based on the
privilege? This question appears to be ill- exchange of illegal gratification. The
conceived. When this Court holds that the minority judgment also highlighted the
offence of bribery is complete on the prima facie absurdity in the paradox created
acceptance or attempt to accept undue by the majority judgment. Agarwal, J.
advantage and is not dependent on the observed that:
speech or vote, it automatically pushes the “47. […] If the construction placed by Shri Rao
offence outside the ambit of Articles 105(2) on the expression “in respect of” is adopted,
a Member would be liable to be prosecuted
and 194(2). This is not because he
on a charge of bribery if he accepts bribe for
acceptance of undue advantage happened not speaking or for not giving his vote on a
outside the legislature but because the matter under consideration before the
offence is independent of the “vote or House but he would enjoy immunity from
speech” protected by Articles 105(2) and prosecution for such a charge if he accepts
194(2). The remit of parliamentary privilege bribe for speaking or giving his vote in
is intricately linked to the nexus of the act Parliament in a particular manner and he
to the ‘vote’ or ‘speech’ and the transaction speaks or gives his vote in Parliament in that
of parliamentary business. manner. It is difficult to conceive that the
framers of the Constitution intended to
124. The majority judgment in PV make such a distinction in the matter of
Narasimha Rao (supra) did not delve into grant of immunity between a Member of
when the offence of bribery is complete or Parliament who receives bribe for
the constituent elements of the offence. speaking or giving his vote in Parliament
However, on the facts of the case, the in a particular manner and speaks or gives
majority held that those MPs who voted as his vote in that manner and a Member of
agreed were covered by the immunity, Parliament who receives bribe for not
while those who did not vote at all (Ajit speaking or not giving his vote on a
particular matter coming up before the
Singh) were not covered by the immunity
House and does not speak or give his vote
under Articles 105(2) and 194(2). This as per the agreement so as to confer an
erroneously links the offence of bribery to immunity from prosecution on charge of
bribery on the former but denying such first direct our attention to the position of
immunity to the latter. Such an anomalous law in the United Kingdom followed by the
situation would be avoided if the words “in United States of America, Canada, and
respect of” in Article 105(2) are construed Australia.
to mean “arising out of”
I. United Kingdom
[…]” (emphasis supplied)
128. As we have explored above, the
126. Indeed, to read Articles 105(2)
law on parliamentary privileges in UK was
and 194(2) in the manner proposed in the
developed after a struggle by the House of
majority judgment results in a paradoxical
Commons with the Tudor and Stuart Kings.
outcome. Such an interpretation results in
In (The King Vs. Sir John Elliot)36, (1629) 3
a situation where a legislator is rewarded
St. Tr. 294 at the peak of the confrontation
with immunity when they accept a bribe
between the Commons and the King in
and follow through by voting in the agreed
1629, the King’s Bench prosecuted three
direction. On the other hand, a legislator
who agrees to accept a bribe, but may members of the House of Commons, Sir
eventually decide to vote independently John Elliot, Denzel Hollis and Benjamin
will be prosecuted. Such an interpretation Valentine, for making seditious speech,
belies not only the text of Articles 105 and disturbing public tranquillity, and violently
194 but also the purpose of conferring holding the Speaker in his position to stop
parliamentary privilege on members of the the House from being adjourned. The
legislature. members of Parliament were found guilty,
H. International position on bribery vis- fined and imprisoned. Sir John Elliot was
à-vis privileges sent to be imprisoned in a tower where his
health declined and he ultimately passed
127. The above exposition has sought
away. The report of the trial came to be
to elucidate the law governing the subject
published in 1667 and was noticed by the
of parliamentary privileges in India and its
House of Commons. The House resolved
implications on a member of the legislature
that the judgment was illegal and against
engaging in bribery. It has been the leitmotif
of most judgments on the subject in India the privileges of Parliament. On a writ of
to delve into the law in other jurisdictions error presented by Denzel Hollis, the House
before outlining the position of parliamentary of Lords reversed the judgment of the
privileges in India. The jurisprudence on King’s Bench.
parliamentary privileges in India has since 129. With the glorious revolution of
grown in its own right and we have referred 1688, the last of the Stuart Kings, James, was
to the rich jurisprudence of this Court and the expelled and a new dynasty was instated.
history of parliamentary privileges in India. The bitter struggl e led to a fi rmly
However, since both the majority and the established constitutional monarchy with the
minority judgments in PV Narasimha Rao House of Commons ultimately claiming both
(supra) have relied heavily on jurisprudence sovereignty and certain privileges which
in foreign jurisdictions, it is appropriate to became ancient and undoubted as a result of
lay out, in brief, the evolution and position the persistence of the House and its gradual
of the law on privileges as it relates to the recognition. Erskine May notes that:
issue of a bribe received by a member of “at the commencement of every Parliament it
Parliament in other jurisdictions. We shall has been the custom for the Speaker, in the
name, and on behalf of, the Commons, to stands allows for material from Parliamentary
lay claim by humble petition to their ancient proceedings in the UK to be placed before the
and undoubted rights and privileges; Court provided that it is not used to imply or
particularly to freedom of speech in debate, argue mala fides behind the action. The Courts
freedom from arrest, freedom of access to
in the UK have also interpreted a narrow
Her Majesty whenever occasion shall
scope for the nexus required for non-
require; and that the most favourable
construction should be placed upon all their legislative activities to be immune. This has
proceedings.” (Erskine May’s Treatise on the led to the holding that the jurisdiction of
Law, Privileges, Proceedings and Usage of Parliament to discipline a member for taking
Parliament, LexisNexis, 25th ed. (2019) 242) bribe would not automatically oust the
130. The clause stipulating freedom of jurisdiction of the Courts.
speech in Parliament and immunity from 132. The parliamentary immunity
prosecution flows from the Bill of Rights attracted to speech made in Parliament
1689. The Act was a crucial constitutional came to be applied in the case of (Ex Parte
initiative by Parliament in England to lay Wason)37, (1969)4 Q.B. 573 where a member
claim to its status by grounding it in statute. of Parliament was accused of conspiring to
The statute was to secure Parliament from make a statement which they knew to be
royal interference in or through the Courts. false. A person had furnished a petition to
Article IX of the Bill of Rights stipulates: Earl Russel to present before the House of
“That the freedom of speech and debates or Lords which charged the Lord Chief Baron
proceedings in Parliament ought not to be of deliberately telling a falsehood before a
impeached or questioned in any Court or Parliamentary committee. This would have
place out of Parliament.” led to the removal of the Lord Chief Baron
The clause guarantees freedom of upon an address by bo th Houses of
speech in Parliament and protects it from Parliament for such a removal. Earl Russel,
being “impeached or questioned” in any Lord Chelmsford, and Lord Chief Baron
Court or place out of Parliament. conspired to make speeches in the House
131. Two aspects of Article IX of the of Lords to the effect that the allegations of
Bill of Rights may be outlined at the outset. falsehood were unfounded despite
First, the privilege under Article IX in UK knowing that the allegations were true. The
is not attached to individual members only. magistrate refused to take the applicant’s
It immunizes the freedom of speech and recognizance on the grounds that a speech
debates or proceedings in Parliament and made in Parliament could not disclose any
stipulates that it shall not be ‘impeached or indictable offence. The Queen’s Bench
questioned.’ Secondly, Article IX stipulates affirmed the order.
that the proceedings in Parliament may 133. Cockburn, CJ opined that
only be ‘impeached or questioned’ in speeches made in either House could not
Parliament. This has led to debate as to give rise to civil or criminal proceedings
whether any material from Parliamentary regardless of the injury caused to the
proceedings can be placed before the Courts interests of a third person. Concurring with
and whether the jurisdiction of Parliament the opinion Lush, J held that:
ousts the jurisdiction of the Courts. As we “[…] I am clearly of opinion that we ought not
shall elucidate below, the position as it to allow it to be doubted for a moment that
the motives or intentions of members of mistake. The passage in the Bill of Rights
either House cannot be inquired into by is: “That the Freedom of Speec h and
criminal proc eedings with respec t to Debates or Proceedings in Parliament
anything they may do or say in the House.” ought not to be impeached or questioned
The Queen’s Bench therefore held that in any Court or Place out of Parliament.”
a speech made inside the House cannot be Now this is a charter for freedom of speech
in the House. It is not a charter for
questioned in any proceeding before a
corruption. To my mind, the Bill of Rights,
Court in a civil or criminal action and for which no one has more respect than I
neither can the motives behind the have, has no more to do with the topic
performance of such acts be questioned. wh ic h we are d is c u ss in g th an th e
134. The issue of bribery was only Merchandise Marks Act. The crime of
governed by c ommon law till 1889. corruption is complete when the bribe is
Different common law offences were offered or given or solicited and taken.
attracted based on corruption by different We have recommended that the Statutes
offices and their functions. The Public relating to corruption should all be replaced
Bodies Corrupt Practices Act 1889, which by one comprehensive Statute which will
sweep away the present anomalies. If you
applied only to local Government bodies,
are not an agent—and Members of
created the first statutory offence of
Parliament neither of this House nor of the
corruption. Subsequently, the Prevention of other place are agents—if you are not the
Corruption Act 1906 extended the offence member of a public body (and we are not
of corruption to the private sector. Neither members of public bodies) the Statutes do
of these statutes covered the acceptance of not touch you. At Common Law you cannot
bribe by a member of Parliament. In the be convicted of bribery and corruption
absence of a statute, the question of taking unless you are the holder of an office, and
bribe by a member of Parliament had most of us are not the holders of an office.”
remained a question of breach of privilege (emphasis supplied)
and only the House was empowered to take 136. No action was taken by
action against such corruption. Parliament on this recommendation of the
135. The Royal Commissio n on Salmon Repo rt. However, i n (R Vs.
Standards of Conduct in Public Life, chaired Greenway)38, [1998] PL 357, referred to as R
by Lord Salmon, submitted its report in 1976 v Currie in PV Narasimha Rao (supra) a
which inter alia recommended bringing member of Parliament was accused of
“corruption, bribery and attempted bribery accepting a bribe for helping the interests
of a Member of Parliament acting in his of a company. A case to quash the
Parliamentary capacity within the ambit of the prosecution was filed. The member of
criminal law.” While presenting his report to Parliament asserted that his actions were
the House of Lords, Lord Salmon said: protected by parliamentary privileges.
Rejecting this assertion, Buckley, J. held that:
“To my mind equality before the law is one of
the pillars of freed om . To s ay t h at “That a member of Parliament against whom
immunity from criminal proceedings there is a prime facie case of corruption
against anyon e who tries to brib e a should be immune from prosecution in the
Member of Parliament and any Member Courts of law is to my mind an unacceptable
of Parliament who accepts the bribe, stems proposition at the present time. I do not
from the Bill of Rights is possibly a serious believe it to be the law.”
137. Another commission was Parliament who engage in bribery. The
constituted after allegations of sleaze by allegations which had led to the constitution
many members of Parliament. The Standing of the Nolan committee came before the
Committee on Standards in Public Life Courts in (R Vs. Parliamentary
under the Chairmanship of Lord Nolan Commissioner for Standards Ex Parte
submitted its report in 1994. The report Fayed)39, (1998)1 WLR 669 and in (Hamilton
expressed doubt as to who would have Vs. Al Fayed)40, (2001)1 A.C. 395. In the first
jurisdiction over a bribe taking member of case, a person had accused a member of
Parliament. To resolve the jurisdictional Parliament of taking corruption money
question between the House and the Court from him while the member was serving
the report recommended for clarity from as a minister in the Government. The
Parliament in the form of a statute. The Parliamentary Commissioner of Standards
report recommended that: had cleared a member of Parliament of
“The Salmon Commission in 1976 charges pertaining to taking of bribes.
recommended that such doubt should be The complainant filed for leave to apply
resolved by legislation, but this has not been for judicial review. The Court of Appeal
acted upon. We believe that it would be allowed the application and held that:
unsatisfactory to leave this issue
“It is important on this application to identify
outstanding when other aspects of the law
the specific function of the Parliamentary
of Parliament relating to conduct are being
Commissioner for Standards which is the
clarified. We recommend that the
subject of complaint on this application. It
Government should now take steps to
is that a Member of Parliament received a
clarify the law relating to the bribery of or
corrupt payment. Mr. Pannick rightly says
the receipt of a bribe by a Member of
that parliamentary privilege would not
Parliament. This c ould usefully be
prevent the Courts investigating issues
combined with the consolidation of the
such as whether or not a Member of
statute law on bribery which Salmon also
Parliament has committed a criminal
recommended, which the Government
offence, or whether a Member of
accepted, but which has not been done. This
Parliament has made a statement outside
might be a task which the Law Commission
the House of Parliament which it is alleged
could take forward.” (emphasis supplied)
is defamatory. He submits that, consistent
This recommendation was referred with this, the sort of complaint which the
by the Government to the Law Commission. applicant makes in this case is not in relation
The Law Commission submitted its report to an activity in respect of which the
in 1998 recommending a new law which Member of Parliament would necessarily
makes the offence of corruption applicable have any form of parliamentary immunity.”
to all. This led to a sequence of events which (emphasis supplied)
ultimately culminated in the enactment of 139. In Hamilton Vs. Al Fayed (supra),
the Bribery Act, 2010. The Act covers another case emanating from the same facts
instances where members of Parliament against another member of Parliament, a
engage in corruption. question arose as to whether parliamentary
138. While efforts were being made privileges may be waived. The Court while
by lawmakers, the Courts in UK continued returning specific findings on facts, also
answering questions on the scope of Article held that “Courts are precluded from
IX of the Bill of Rights on members of entertaining in any proceedings (whatever
the issue which may be at stake in those irrelevant before a Court given the nature
proceedings) evidence, questioning or of their work. This holding was influenced
submissions designed to show that a by the words and associated history of Article
witness in parliamentary proceedings IX of the Bill of Rights, which is worded more
deliberately misled Parliament.” In arriving broadly than Clause (2) of Articles 105 and
at such a conclusion the Court relied on the 194 of the Constitution of India. The minority
judgment in (Prebble Vs. Television New opinion in PV Narasimha Rao (supra) throws
ealand)41, (1994)3 ALL.E.R. 407. light on the issue as follows:
140. In the above case, the respondent “41. […] The protection given under clause (2)
had transmitted a programme making of Article 105 is narrower than that
allegations against the Government that a conferred under Article 9 of the Bill of
minister had conspired with a businessman Rights in the sense that the immunity
conferred by that clause is personal in
and public officials to promote and
nature and is available to the Member in
implement state asset sales with the object respect of anything said or in any vote
of allowing the businessman to obtain assets given by him in the House or any
at unduly favourable terms. The minister committee thereof. The said clause does
sued the channel for defamation. The not confer an immunity for challenge in
channel sought to make a defence of truth the Court on the speech or vote given by
and place reliance on things said and acts a Member of Parliament. The protection
done in Parliament. It argued that the given under clause (2) of Article 105 is
protection under Article IX of the Bill of thus similar to protection envisaged
Rights would only protect a member from under the construction placed by Hunt,
being held liable for his speech in either J. in R. Vs. Murphy [(1986)5 NSWLR 18]
House. However, they could be placed on on Article 9 of the Bill of Rights which
has not been accepted by the Privy
record as a defence if it is not being used to
Council in Prebble Vs. Television New
inflict liability upon a speech made in either
Zealand Ltd., [(1994) 3 All ER 407, PC] The
House. The Privy Council held that parties decision in Ex p Wason [(1869) 4 QB 573 :
to a litigation cannot bring into question 38 LJQB 302] which was given in the
anything said or done in the House or context of Article 9 of the Bill of Rights,
impute any motive to those actions. The can, therefore, have no application in the
Court allowed reliance on the official matter of construction of clause (2) of
publication of the House proceedings to the Article 105. […]”
extent that they are not used to suggest that The issue of whether Courts can rely
the words were improperly spoken, or any on observations contained in Parliamentary
statute was passed for improper use. committee reports now stands settled by a
141. The question of reliance on Constitution Bench of this Court in Kalpana
legislative material was further weighed in Mehta (supra).
favour of the legislature in 2009. In (Office 142. The majority judgment in PV
of Government Commerce Vs. Information Narasimha Rao (supra) relied on the earlier
Commissioner (Attorney General cases from the UK which generally interpret
intervening)42, (2009)3 WLR 627 the Queen’s Article IX to protect speech and debate.
Bench Division held that opinions of Relying on these judgments, the majority
parli amentary committees woul d be extrapolated a general principle of not
allowing the production of anything before between a bribe and a speech made in
the Courts which may be casually or Parliament does not oust the jurisdiction of
incidentally related to the acts of a legislator. the Courts. The Court therefore opined that
The Court then grounded this principle by submitting a claim for expenses and taking
interpreting Article 105(2) in an overbroad part in such proceedings has an even more
manner to attach immunity for bribes tenuous link to parliamentary privileges
received in furtherance of legislative and cannot be immune from prosecution.
functions. The Court brushed aside the The Court applied the test of whether the
opinion of Buckley, J. in R Vs. Greenway on action of the member of Parliament which
the ground that it remains to be tested in was being questioned bore on the core or
appeal. The majority therefore failed to essential function of the Parliament. Lord
contextually apply the different clauses Phillip opined that:
governing the freedom of speech in UK and “47. The jurisprudence to which I have referred
India. The cases referred to by the majority, is sparse and does not bear directly on the
while helpful to understand the law facts of these appeals. It supports the
generally, do not aid in immunizing bribes proposition, however, that the principal
matter to which article 9 is directed is
received for influencing of votes. As we
freedom of speech and debate in the Houses
have noted above, one of the reasons behind of Parliament and in parliamentary
the claim of exclusive jurisdiction over committees. This is where the core or
bribery by the Parliament was that members essential business of Parliament takes place.
of Parliament were ot covered by the anti- In considering whether actions outside the
corruption statute. However, a Houses and committees fall within
constitutional interpretation has to answer parliamentary proceedings because of
whether, in the absence of a statute, a their connection to them, it is necessary to
member of Parliament can claim immunity consider the nature of that connection and
whether, if such actions do not enjoy
for taking corruption money and thereby
privilege, this is likely to impact adversely
influence his vote.
on the core or essential business of
143. Since the judgment of this Court Parliament.” (emphasis supplied)
in PV Narasimha Rao (supra) the Courts in 144. Lord Rodger in the course of his
UK have narrowly interpreted the concurring opinion further shed light on the
immunity under Article IX. In (R Vs. issue being amenable to the contempt
Chaytor)43, [2010]3 WLR 1707 members of jurisdiction of the House of Parliament.
Parliament were prosecuted for false Lord Rodger held that this would be an
accounting for having submitted fake overlapping jurisdiction and would not
claims and making financial gains. The UK amount to an ouster of the Court’s
Supreme Court held that the purpose of jurisdiction. In (Makudi Vs. Baron Triesman
Article IX of the Bill of Rights is to protect of Trottenham)44, [2014] QB 839 the Court
the freedom of speech in the House. The of Appeal held that a statement made by a
Court opined that the provision must be witness in public which repeated his
given a narrower view and held that the testimony before a parliamentary
prosecution would not violate the privilege committee would not attract immunity as
of Parliament. The Court relied on the it was an extra-parliamentary speech which
holding in Greenway (supra) that the nexus was too remote to the utterance before the
parliamentary committee. The Court also Session of their respective Houses, and in
opined when the immunity may be going to and returning from the same; and
attracted. The Court held that: for any Speech or Debate in either House,
they shall not be questioned in any other
“25. I accept, however, that there may be
Place.” (emphasis supplied)
instances where the protection of Article 9
indeed extends to extra- Parliamentary Courts in the US have given a broad
speech. No doubt they will vary on the interpretation to the Speech and Debate
facts, but generally I think such cases will clause so far as legislative acts of the members
possess these two characteristics: (1) a of Congress are concerned. Beyond that the
p ublic in t er es t in r ep et it ion of t h e Courts have held that a member of Congress
Parliamentary utterance which the speaker may be liable under a criminal statute of
ought reasonably to serve, and (2) so close a general application. All that is prohibited is
nexus between the occasions of his speaking,
reliance on the official acts of the member to
in and then out of Parliament, that the
prospect of his obligation to speak on the prove the prosecution case.
second occasion (or the expectation or 147. In (United States Vs. Thomas F
promise that he would do so) is reasonably Johnson)45, 383 US 169 (1966) a member of
foreseeable at the time of the first and his Congress was accused of conflict of interest
purpose in speaking on both occasions is the and conspiring to defraud the United States.
same or very closely related. […]” The allegation against Johnson was that he
145. The Courts in the UK have, entered into a conspiracy to exert influence
overtime, advanced a narrower view than and obtain dismissal of pending indictments
the earlier cases governing the field of against a saving and loan company and its
privileges. They have interpreted a narrow officers on mail fraud charge. As part of the
scope for the nexus required for non- conspiracy, Johnson made speeches
legislative activities to be immune. This has favourable to independent savings and loan
led to the holding that the jurisdiction of associations in the House. The accused was
Courts is not ousted by the immunity of found guilty by the trial Court. His conviction
members or the ability of the House to take was set aside by the Court of Appeals for the
contempt action against bribery. Fourth Circuit on the ground that the
II. United States of America allegations were barred under the Speech and
146. Parliamentary privileges in the Debate Clause from being raised in the Court.
United States of America emanate from The US Supreme Court in interpreting the
Section 6 of Article 1 in the Constitution. Speech and Debate Clause held that the
The relevant part of the provision, referred Government may not use the speech made
to as the Speech and Debate Clause, is by a member of Congress or question its
influenced by Article IX of the English Bill motivation in a Court of law. However, the
of Rights 1689. The clause reads as follows: prosecution may make a case without
“The Senators and Representatives shall relying on the speech gi ven by the
receive a Compensation for their Services, Congressman. The Court opined that its
to be ascertained by Law, and paid out of decision does not apply to a prosecution for
the Treasury of the United States. They violating a general criminal law which ‘does
shall in all Cases, except Treason, Felony not draw in question the legislative acts of
and Breach of the Peace, be privileged the defendant member of Congress or his
from Arrest during their Attendance at the motives for performing them.’
148. The US Supreme Court has relied 62. The question is whether it is necessary to
on Johnson (supra) in subsequent cases inquire into how appellee spoke, how he
involving bribery by members of Congress debated, how he voted, or anything he did
to hold that they may be prosecuted so long in the chamber or in committee in order to
make out a violation of this statute. The
as they do not rely on a speech or vote given
illegal conduct is taking or agreeing to take
by the legislator. In (United States Vs. money for a promise to act in a certain way.
Brewster)46, 408 US 501 (1972) a Senator was There is no need for the Government to
accused of accepting a bribe in return for show that appellee fulfilled the alleged
being influenced in his performance of illegal bargain; acceptance of the bribe is the
official acts with respect to postage rate violation of the statute, not performance of
legislation. The trial Court dismissed the the illegal promise.” (emphasis supplied)
charges on the ground that the Senator The US Supreme Court therefore
attracted parliamentary privileges. The opined that the privileges exercised by
US Supreme Court by majority held that members of Congress individually was to
the Speech and Debate Clause prevented preserve the independence of the legislature.
prosecutors from introducing evidence The independence was exactly what would
that the member of Congress actually be compromised if the Speech and Debate
performed some legislative act, such as Clause were to be understood as providing
making a speech or introducing legislation, immunity to acts of bribery by members of
as part of a corrupt plan, but that other Congress. Therefore, immunity under the
evidence might establish that the member Constitution is only attracted to actions which
had violated the anticorruption laws. The are clearly a part of the legislative process.
Court held that: 149. The Court in Brewster (supra) was
“43. The authors of our Constitution were well conscious of the potential misuse of
aware of the history of both the need for the investigating powers by the Executive but
privilege and the abuses that could flow held that a House acting by a majority would
from too sweeping safeguards. In order to
be more detrimental to the rights of the
preserve other values, they wrote the
privilege so that it tolerates and protects accused if it were left to be the final arbiter.
behavior on the part of Members not The Court noted that a member of Congress
tolerated and protected when done by would be deprived of the procedural
other citizens, but the shield does not safeguards that Court affords to accused
extend beyond what is necessary to persons. The Court further held that:
preserve the integrity of the legislative “58. We would be closing our eyes to the
process. […] … realities of the American political system if
60. It is beyond doubt that the Speech or Debate we failed to acknowledge that many non-
Clause protects against inquiry into acts that legislative activities are an established and
occur in the regular course of the legislative accepted part of the role of a Member, and
process and into the motivation for those are indeed ‘related’ to the legislative
acts. So expressed, the privilege is broad process. But if the Executive may prosecute
enough to insure the historic a Member’s attempt, as in Johnson, to
independence of the Legislative Branch, influence another branch of the
essential to our separation of powers, but Government in return for a bribe, its power
narrow enough to guard against the to harass is not greatly enhanced if it can
excesses of those who would corrupt the
prosecute for a promise relating to a
process by corrupting its Members. […] …
legislative act in return for a bribe. We Government need not show any act of
therefore see no substantial increase in the appellee subsequent to the corrupt
power of the Executive and Judic ial promise for payment, for it is taking the
Branc hes over the Legislative Branch bribe, not performance of the illicit
resulting from our holding today. […] compact, that is a criminal act. If, for
59. […] As we noted at the outset, the purpose example, there were undisputed evidence
of the Speech or Debate Clause is to protect that a Member took a bribe in exchange
the individual legislator, not simply for his for an agreement to vote for a given bill
own sake, but to preserve the an d if th er e wer e als o un d is p ut ed
independence and thereby the integrity of evidence that he, in fact, voted against the
the legislative process. But financial bill, can it be thought that this alters the
abuses by way of bribes, perhaps even nature of the bribery or removes it from the
more than Executive power, would gravely area of wrongdoing the Congress sought to
undermine legislative integrity and defeat make a crime? …
the right of the public to honest 67. Mr. Justice BRENNAN suggests that
representation depriving the Executive of inquiry into the alleged bribe is inquiry into
the power to investigate and prosecute and the motivation for a legislative act, and it is
the Judiciary of the power to punish urged that th is ver y in q uir y was
bribery of Members of Congress is condemned as impermissible in Johnson.
unlikely to enhance legislative That argument misconstrues the concept
independence. […] … of motivation for legislative acts. The
63. Taking a bribe is, obviously, no part of the S peech or Debate Clau se d oes not
legislative process or function; it is not a prohibit inquiry into illegal conduct
legislative act. It is not, by any conceivable simply because it has some nexus to
interpretation, an act performed as a part of legislative functions. In Johnson, the Court
or even incidental to the role of a legislator. held that, on remand, Johnson could be
It is not an ‘act resulting from the nature, retried on the conspiracy-todefraud count,
and in the execution, of the office.’ Nor is it so long as evidence concerning his speech
a ‘thing said or done by him, as a on the House floor was not admitted. […].”
representative, in the exercise of the (emphasis supplied)
functions of that office,’ 4 Mass., at 27. Nor The Court therefore rejected the idea
is inquiry into a legislative act or the that anything having a nexus to legislative
motivation for a legislative act necessary to functions would automatically attract
a prosecution under this statute or this
immunity under the Speech and Debate
indictment. When a bribe is taken, it does
not matter whether the promise for which
Clause of the US Constitution.
the bribe was given was for the 150. In (Gavel Vs. United States)47 ,
performance of a legislative act as here or, 408 US 606 (1972) certain secret documents
as in Johnson, for use of a Congressman’s were made part of the record of a sub-
influence with the Executive Branch. And committee hearing in the US Senate by
an inquiry into the purpose of a bribe ‘does Senator Gavel. He then published the entire
not draw in question the legislative acts document in a private publication. An aide
of the defendant member of Congress or to the Senator was subpoenaed by the grand
his motives for performing them.’ 383 U.S.,
jury which was investigating the matter.
at 185, 86 S.Ct., at 758.
The question which arose for consideration
64. Nor does it matter if the Member defaults
on his illegal bargain. To make a prima of the US Supreme Court was whether the
facie case under this indictment, the aide of the Senator enjoyed any immunity
under the Speech and Debate Clause and publication. [The sole constitutional claim
to what extent could he be questioned. The asserted here is based on the Speech or
US Supreme Court held that given the Debate Clause. We need not address issues
expansive nature of legislative work, an that may arise when Congress or either
House, as distinguished from a single
aide to a member of Congress would be
Member, orders the publication and/or
protected under the Speech and Debate public distribution of committee hearings,
Clause but only to the extent that it reports, or other materials. Of course, Art.
pertained to aiding the legislato r in I, § 5, cl. 3, requires that each House ‘keep a
discharge of his legislative functions. The Journal of its Proceedings, and from time to
Court further held that private publication time publish the same, excepting such Parts
of the document was not a necessary part as may in their Judgment require Secrecy . .
of the functions of the Senator and no ..’ This Clause has not been the subject of
immunity would extend in that regard. The extensive judicial examination. See Field Vs.
Court held that: Clark, 143 U.S. 649, 670–671, 12 S.Ct. 495,
496–497, 36 L.Ed. 294 (1892); United States
“26. Legislative acts are not all-encompassing.
Vs. Ballin, 144 U.S. 1, 4, 12 S.Ct. 507, 508, 36
The heart of the Clause is speech or debate
L.Ed. 321 (1892).] We cannot but conclude
in either House. Insofar as the Clause is
that the Senator’s arrangements with Beacon
construed to reach other matters, they must
Press were not part and parcel of the
be an integral part of the deliberative and
legislative process.” (emphasis supplied)
communicative processes by which
Members participate in committee and 151. The Court in Gavel (supra) applied
House proceedings with respect to the the same standard it did in Brewster (supra)
consideration and passage or rejection of to hold that only acts which are essential to
proposed legislation or with respect to the deliberati ons of the House or in
other matters which the Constitution discharge of the functions vested under
places within the jurisdiction of either the Co ns ti tuti o n are i mmune f ro m
House. As the Court of Appeals put it, the prosecution before a Court of law. Other
Courts have extended the privilege to acts which may in some way be related to
matters beyond pure speech or debate in
the speech or vote of a legislator will not
either House, but ‘only when necessary to
prevent indirec t impairment of suc h be protected under the Speech and Debate
deliberations.’ United States Vs. Doe, 455 Clause unless they were essential to the
F.2d, at 760. … legislator’s function. The Court therefore
27. Here, private publication by Senator Gravel held a consistent position that members
through the cooperation of Beacon Press was of Congress would only have immunity
in no way essential to the deliberations of under the Constitution for their ‘sphere of
the Senate; nor does questioning as to legitimate legislative activity.’
private publication threaten the integrity or 152. In (United States Vs. Helstoski)48,
independenc e of the Senate by 442 US 477 (1979) a member of the House
impermissibly exposing its deliberations to
of Representatives was accused of accepting
exec utive influence. The Senator had
conducted his hearings; the record and any
money in return for introducing certain
report that was forthcoming were available private bills to suspend the application of
both to his committee and the Senate. Insofar immigration laws. Relying on its previous
as we are advised, neither Congress nor the rulings in Johnson (supra), Brewster (supra)
full committee ordered or authorized the and Gavel (supra) the US Supreme Court
held that the purpose of the Speech and to “legislative activities” and would not
Debate Clause was to free the legislator protect republishing of defamatory
from executive and judicial oversight that statements. The Court held that:
realistically threatens to control his conduct “Whatever imprecision there may be in the
as a legislator. The Court reaffirmed the term “legislative activities,” it is clear that
position of American law that material from nothing in history or in the explicit
the legislative ac ts of the acc used language of the clause suggests any
Congressman may not be relied on or intention to create an absolute privilege
placed before the grand jury but proof of from liability or suit for defamatory
bribe and promise to commit a future statements made outside the Chamber.
legislative act may be investigated as they …
do not constitute an essential function of the Claims under the clause going beyond what is
needed to protect legislative independence
legislator in discharge of his duties.
are to be closely scrutinized.
153. We may helpfully refer to another …
decision before concluding the analysis of Indeed, the precedents abundantly support the
the position of law in the United States. In conclusion that a Member may be held liable
(Hutchinson Vs. Proxmire)49, 439 US 1066 for republishing defamatory statements
(1979) a Senator would release a publication originally made in either House. We
highlighting what he perceived to be perc eive no reason from that long-
“wasteful Government spending”. The established rule.” (emphasis supplied)
Senator made a speech on the floor of the 155. The principle which emerges
Senate and had it published in the press. from the approach taken with regard to
The complainant, who was funded by privileges in the United States is that a
public institutes for his research, was member of Congress is not immune for
named by the Senator. The press release engaging in bribery to perform legislative
was c ircul ated to over o ne hundred acts in terms of speech or vote. The Speech
thousand people i ncluding agenci es and Debate Clause does not give any
whi c h f u nded the researc h o f the absolute immunity to a legislator with
complainant. The complainant filed a suit respect to all things bearing a nexus with
claiming loss of respect in his profession, legi slative activity. The immunity is
loss of income and the ability to earn attracted only to those functions which are
income in the future. The District Court essential and within the legitimate sphere
granted summary judgment in favour of the of legislative business. The only privilege a
Senator, holding that the publication fell Congressperson may attract in a
under the ‘information f unction’ of prosecution is that the content of the speech,
Congress and would be immune under the vote or legislative acts may not be produced
Speech and Debate Clause. as evidence by the prosecution.
154. The US Supreme Court held that 156. The majority judgment in PV
the intention of the Speech and Debate Narasimha Rao (supra) has interpreted
Clause was not to create an absolute Johnson (supra) and the dissenting opinion
privilege in favour of members of Congress. in Brewster (supra) to arrive at the same
The clause, the Court held, is only attracted conclusion which it did upon a reflection
48/24(1)
of the law in the UK. Here too, the majority
judgment fails on two accounts. Firstly, it jeopardy. The Court (speaking through
fails to account for the fact that the Speech Wilson, CJ) held:
and Debate Clause which is substantially “It is to my mind a proposition very clear that
borrowed from Article IX of the English Bill this Court has jurisdiction over the
of Rights confers immunity to the speech offence of bribery as at the common law
and vote made in parliament. The in a case of this kind, where a member
understanding arrived at in the majority of the Legislative Assembly is concerned
judgment was not inf ormed by the either in the giving or in the offering to
give a bribe, or in the taking of it for or
evolution of law in a line of cases in the
in respect of any of his duties as a
United States. On the contrary, the majority member of that Assembly; and it is
judgment relied solely on the dissenting eq ually clear th at th e Legis lative
opi nion i n Brewster (supra) without Assembly has not the jurisdiction which
adequate substantiation for such reliance. this Court has in a case of the kind; and
Secondly, the majority judgment has it is also quite c lear that the anc ient
extended its interpretation of the Speech definition of bribery is not the proper or
and Debate Clause and pigeon-holed the legal definition of that offence. …
interpretation of Article 105(2) to satisfy this There is nothing more definitely settled than
understanding. that the House of Commons in England,
III. Canada and the different colonial Legislatures,
have not, and never have had, criminal
157. The precise question of whether jurisdiction. …
bribing legislators to vote in a certain
But if these three persons had agreed that the
direction f alls wi thin the ambi t of two members of the House of Lords should
parliamentary privilege was adjudicated make these false statements, or vote in any
upon by the Queen’s Bench in (R Vs. particular manner, in consideration of a
Bunting et al)50, [1885] 17 O.R. 524. In that bribe paid or to be paid to them, that would
case, the def endants had sought the have been a conspiracy to do an act, not
quashing of an indictment for conspiracy necessarily illegal perhaps, but to do the act
to change the Government of the Province by illegal means, bribery being an offence
of Ontario by bribing members of the against the law; and the offenc e of
legislature to vote against the Government. conspiracy would have been complete by
reason of the illegal means by which the act
The Court conclusively held that the offence
was to be effected. That offence could have
of bribery and conspiracy to bribe members been inquired into by the Court, because
of the legislature fell within the jurisdiction the inquiry into all that was done would
of the Court and such an inquiry would not have been of matters outside of the House
encroach on parliamentary privilege. of Lords, and there could therefore be no
Further, it was held that if the defendants violation of, or encroachment in any
were proceeded against by the Court, they respect upon, the lex parliament”.
may also be parallelly inquired against by (emphasis supplied)
the legislature for violation of rights and 158. The decision in Bunting (supra)
privileges. The proceedings are for different was before the Court in PV Narasimha Rao
offences, may be conducted in their own (supra). The Minority expressly relied on the
right and such situations do not constitute deci sion, recognizing that bribi ng a
a case of double punishment or double legislator was treated as a common law
offence under the criminal law in Canada unable to uphold the above contention of
and Australia and a legislator can be Shri Thakur.” (emphasis supplied)
prosecuted in a criminal Court for the The majority judgment, on the other
offence. Agarwal, J. noted: hand, makes a reference to Bunting (supra)
“54. […] In Australia and Canada where but chooses to not rely on the judgment or
bribery of a legislator was treated as an any other judgment by Canadian Courts
offence at common law the Courts in White placed on record in the case.
[13 SCR (NSW) 332], Boston [(1923) 33 CLR 159. Another interesting line of
386] and Bunting [(1884-85)7 Ontario
jurisprudence, expanded by the Supreme
Reports 524] had held that the legislator
Court of Canada after the decision in PV
could be prosecuted in the criminal Court
for the said offence. It cannot, therefore, Narasimha Rao (supra), is relevant to answer
be said that since acceptance of bribe by the question before this Court. While
a Member of the House of Commons was dealing with the remit of parliamentary
treated as a breach of privilege by the privilege, the Supreme Court of Canada has
House of Commons and action could be adopted the test o f ‘necessity’ in a
taken by the House for contempt against formulation similar to the test formulated
the Member, the Members of the House in Part F of this judgment. In this regard,
of Common s , on 26-1-1950, were the landmark decision of the Supreme
enjoying a privilege that in respect of
Court of Canada in (Canada (House of
conduct involving acceptance of bribe in
Commons) Vs. Vaid)51, [2005]1 S.C.R. 667
c onn ec tion with th e bu s in ess of
Parliament, they could only be punished may be noted in some detail.
for breach of privilege of the House and 160. In the above case, the former
they could not be prosecuted in a Court Speaker of the House of Commons was
of law. Clause (3) of Article 105 of the accused of dismissing his chauffeur for
Cons titu tion can n ot, th erefore, b e reasons that allegedly constituted workplace
invoked by the appellants to claim discrimination under the Canadian Human
immunity from prosecution in respect of Rights Act, 1985. This was resisted by the
the charge levelled against them.
House of Commons which contended that
55. […] In the earlier part of the judgment
such an inquiry constituted an encroachment
we have found that for the past more than
100 years legislators in Australia and
on parliamentary privilege and the hiring and
Canada are liable to be prosecuted for firing of House employees are “internal
b rib ery in c on n ec tion with their affairs” which may not be questioned or
legis lative ac tivities an d, wit h t h e reviewed by any tribunal or Court apart from
exception of the United Kingdom, most of the House itself. The Court did not accept
t h e C om mon wealt h c oun t r ies t reat this contention.
corruption and bribery by Members of the 161. The Supreme Court of Canada
legislature as a criminal offence. In the
held that legislative bodies do not constitute
United Kingdom also there is a move to
enclaves shielded from the ordinary law of
change the law in this regard. There
appears to be no reason why legislators the land. The party that seeks to rely on
in India should be beyond the pale of immunity under the broader umbrella of
laws governing bribery and corruption parliamentary privilege has the onus of
when all other public functionaries are establishing its existence. In Canada, the
subject to such laws. We are, therefore, House of Commons in the UK is used as
the Benchmark to determine the existence the offence. Erskine May (23rd ed.) refers to
of parliamentary privilege. Therefore, to an opinion of “the Privileges Committee in
determine whether a privilege does in fact 1815 that the re-arrest of Lord Cochrane (a
exist, the first step is to scrutinize if it is Member of the Commons) in the Chamber
authoritatively established in relation to the (the House not sitting) was not a breach of
privilege. Particular words or acts may be
Canadian Parliament or the House of
entirely unrelated to any business being
Commons. If the existence is not
transacted or ordered to come before the
established, the doctrine of necessity is to House in due course.
be applied to determine if the act is
…
protected by parliamentary privilege. In
All of these sources point in the direction of a
essence, the legislature or the member
similar conclusion. In order to sustain a
seeking immunity must prove that the claim of parliamentary privilege, the
activity for which privilege is claimed is assembly or member seeking its immunity
closely and directly connected with the must show that the sphere of activity for
fulfilment by the legislature of its functions which privilege is claimed is so closely and
and that external interference would impact directly connected with the fulfilment by the
the autonomy required for the assembly to assembly or its members of their functions
carry out its functions with “dignity and as a legislative and eliberative body,
efficiency”. including the assembly’s work in holding
the Government to account, that outside
162. The Supreme Court of Canada
interference would undermine the level of
held as follows:
autonomy required to enable the assembly
“While much latitude is left to each House of and its members to do their work with
Parliament, such a purposive approach to dignity and efficiency.”
the definition of privilege implies important
(emphasis supplied)
limits. There is general recognition, for
example, that privilege attac hes to 163. Similarly, the decision of the
“proceedings in Parliament”. Nevertheless, Supreme Court of Canada in (Chagnon Vs.
as stated in Erskine May (19th ed. 1976), at Syndicat de la fonction publique et
p. 89, not “everything that is said or done parapublique du Québe)52, [2018]2 S.C.R. 687
within the Chamber during the transaction relies on Vaid (supra) and adopts the test of
of business forms part of proceedings in ‘necessity’ in similar terms. In that case,
Parliament. Particular words or acts may be security guards who were employed by the
entirely unrelated to any business which is Nati onal Assembly of Québec were
in course of transaction or is in a more dismissed from service by the President of
general sense before the House as having
the assembly. The dismissal was assailed
been ordered to come before it in due
course.” (This passage was referred to with
before the labour arbitrator. This was
approval in Re Clark.) Thus in R. Vs. Bunting objected to on the ground that the decision
(1885), 7 O.R. 524, for example, the Queen’s to dismiss the guards is not subject to
Bench Division held that a conspiracy to review and is protected by parliamentary
bring about a change in the Government by privilege. The Supreme Court of Canada,
bribing members of the provinc ial in its majority opinion, held that the
legislature was not in any way connected dismissal of the security guards was not
with a proceeding in Parliament and, protected by parliamentary privilege. The
therefore, the Court had jurisdiction to try Court opined that the inherent nature of
parliamentary privilege indicates that its obtained may be an able and conscientious
scope must be anchored to its rationale, i.e. member; but a legislator who suffers his
to protect legislatures in the discharge of vote to be influenced by a bribe does that
their legislative and deliberative functions. which is calculated to sap the utility of
rep resentative in stitutions at th eir
A Court recognizing a parliamentary
foundation. It would be a reproach to the
privilege entails that the Court cannot review c om m on law if the offer to, or the
its exercise. Therefore, a purposive approach acceptance of, a bribe by such a person were
must be adopted to ensure that it is only as not an offence.” (emphasis supplied)
broad as necessary to perform the assembly’s Similarly, Justi ce Hargrave also
constitutional role. In the factual context, the observed as follows:
Court held that the necessity of a
“These numerous modern authorities clearly
parliamentary privilege over the establish that the old c ommon law
management of the security guards could not prohibition against bribery has been long
be established. The management of guards since extended beyond mere judicial officers
could be dealt with under ordinary law acting under oaths of office, to all persons
without impeding the security of the whatever holding offices of public trust and
assembly or its ability to deliberate on issues. confidence; and it seems impossible to
IV. Australia understand why members of our
Legislative Assembly and Legislative
164. The position of law in Australia council, who are entrusted with the public
has been consistent since 1875. The Courts duty of enacting our laws, should not be
have held that an attempt to bribe a member at least equally protected from bribery and
of the legislature to influence their votes corruption as any Judge or constable who
constitutes a criminal offence under common has to carry out the law.”
law. The decision of the Supreme Court of (emphasis supplied)
53
New South Wales in (R Vs. Edward White) , 165. Subsequently, the decision in
13 SCR (NSW) 332 was a landmark in this White (supra) was also followed by the High
regard. Sir James Martin (CJ) observed: Court of Australia in (R Vs. Boston)54 ,
“The point now for the consideration of the (1923)33 CLR 386. This was a case where
Court, whether or not the objection so taken certain private parties entered into an
is a valid one, or in other words, whether agreement to bribe members of the
an attempt to bribe a member of the legislative assembly such that they would
Legislative assembly is a criminal offence. I use their official position to secure the
am clearly of the opinion that such an acquisition of certain estates. The argument
attempt is a misdemeanor at common law.
that was advanced before the Court was
Although no case can be found on an
unique. The appellant did not dispute the
information or indictment against a person
for attempting to bribe a member of the proposition established in White (supra) that
Legislature, there are several cases which an agreement to pay money to a member of
show that such an attempt is an offence. … the assembly to influence their vote would
The injury to the public is more direct and is amount to a criminal offence. However, it
certainly greater in tampering with the was submitted that the bribe in this case was
person actually elected than with the to induce the member of the assembly to
persons who elect him. A person sent into use his position outside and not inside the
the Legislature by means of votes corruptly assembly in favour of the bribe-givers. The
Court rejected the artificial distinction of the person who pays him, instead of a
between illegal gratification to perform acts representative of the people.”
inside the parliament and acts outside the (emphasis supplied)
parliament and held that in both cases, the 166. Courts in Australia have also
act of bribery impairs the capacity of the followed the position of law laid down by
member to exercise a disinterested the Supreme Court of the UK in Chaytor
judgment, thereby, impacting their ability (supra) that the House of Commons does not
to act as a representative of the people. have exclusive jurisdiction to deal with
Knox, CJ held: criminal conduct by members of the House.
“[…] In my opinion, the payment of money to, The only exception to such cases is when the
and the receipt of money by, a member of existence of parliamentary privilege makes it
Parliament to induce him to use his official virtually impossible to determine the issues
position, whether inside or outside or if the proceedings interfere with the ability
Parliament, for the purpose of influencing of the House to conduct its legislative and
or putting pressure on a Minister or other
deliberative business. For instance, in (Obeid
officer of the Crown to enter into or carry 55
out a transaction involving payment of Vs. Queen) , [2017] NSWCCA 221 the
money out of the public funds, are acts appellant was charged with the offence of
tending to the public mischief, and an misconduct in office by using his position
agreement or combination to do such acts to gain a pecuniary advantage for himself.
amounts to a criminal offence. From the One of the grounds argued before the Court
point of view of tendency to public mischief of Criminal Appeal for New South Wales was
I can see no substantial difference between that since Parliament had the power to deal
paying money to a member to induce him with such contraventions by members of the
to use his vote in Parliament in a particular
assembly, the Court should have refrained
direction and paying him money to induce
him to use his position as a member from exercising jurisdiction. The Court
outside Parliament for the purpose of followed Chaytor (supra) to hold that the Court
in fluen c in g or p ut t in g p res s ur e on and Parliament may have concurrent
Ministers. jurisdiction in respect of criminal matters and
… there was no law which prohibited the Court
Payment of money to a member of Parliament from determining matters that do not
to induce him to persuade or influence or constitute “proceedings in parliament”.
put pressure on a Minister to carry out a 167. The decisions in White (supra) and
particular transaction tends to the public
Boston (supra) were placed before the Court
mischief in many ways, irrespective of
whether the pressure is to be exercised by
in PV Narasimha Rao (supra). The minority
conduct inside or outside Parliament. It judgment discussed both judgments in detail
operates as an incentive to the recipient to and relied on them to conclude that giving a
serve the interest of his paymaster regardless bribe to influence a legislator to vote or speak
of the public interest, and to use his right to in Parliament constitutes a criminal offence,
sit and vote in Parliament as a means to bring which is not protected by Articles 105(2) and
about the result which he is paid to achieve. 194(2). The majority judgment, however, does
It impairs his capacity to exercise a not refer to the Australian precedents.
disinterested judgment on the merits of the
I. Elections to the Rajya Sabha are within
transaction from the point of view of the
public interest and makes him a servant the remit of Article 194(2)
168. We may lastly direct our attention 170. Article 80 governs the election of
to an argument raised by Mr Venkataramani, members to the Council of States or the
the learned Attorney General. The Attorney Rajya Sabha. The provision reads as follows:
General submitted that the decision PV “80. Composition of the Council of States. —
Narasimha Rao (supra) is inapplicable to the (1) The Council of States shall consist of—
facts of the present case. The factual situation (a) twelve members to be nominated by the
in PV Narasimha Rao (supra) pertained to a no- President in ac cordanc e with the
confidence motion, while in the present case, provisions of clause (3); and
the appellant voted to fill vacant seats in the (b) not more than two hundred and thirty-eight
Council of States or the Rajya Sabha. In the representatives of the States and of the
counter affidavit filed by the respondent, it Union territories.
was submitted that since polling for the (2) The allocation of seats in the Council
Rajya Sabha Election was held outside the of States to be filled by representatives
of the States and of the Union territories
house in the lobby, it cannot be considered as
s h a ll b e i n a c c o r d an c e wi t h t h e
a proceeding of the House like a no- provisions in that behalf contained in
confidence motion. However, during oral the Fourth Schedule. …
arguments and in his written submissions, the (4) The representatives of each State in the
Attorney General premised the argument that Council of States shall be elected by the
polling to the Rajya Sabha is not protected by elected members of the Legislative
Article 194(2) on the ground that such an Assembly of the State in accordance with
election does not form part of the legislative the system of proportional representation by
proceedings of the House regardless of the means of the single transferable vote. …”
geographical location of the election. To (emphasis supplied)
buttress this argument, the Attorney General 171. Pursuant to Article 80, the Rajya
relied on three judgments of this Court in Sabha consists of twelve members who are
(Pashupati Nath Sukul Vs. Nem Chandra nominated by the President and not more
Jain and Ors.) 56 , 1983 DGLS(SC) 366 : than two hundred and thirty-eight
(1984)2 S.C.C. 404 (Madhukar Jetly Vs. representatives of the States and Union
Union of India) 57 , 1997 DGLS(SC) 7 : Territories. Significantly, under Article
(1997)11 S.C.C. 111 and Kuldip Nayar Vs. 80(4), the representatives of the Rajya Sabha
Union of India, (2006)7 S.C.C. 1. shall be elected by the elected members of
169. Such an argument, although the Legislative Assembly of the States.
attractive at first blush, appears to be Therefore, the power to ‘vote’ for the elected
misconceived. In essence, the question is members of the Rajya Sabha is solely
whether votes cast by elected members of entrusted to the elected members of the
the state legislative assembly in an election Legislative Assemblies of the states. It
to the Rajya Sabha are protected by Article constitutes an integral part of their powers
194(2) of the Constituti on. Before and responsibilities as members of the
addressing the judgments relied on by the legislative assemblies of each of the states.
learned Attorney General, we will analyze 172. The next question that arises,
the provisions of the Constitution that therefore, is whether the text of Article
govern this interesting questio n of 194(2) places any restriction on such a vote
constitutional interpretation. being protected by parliamentary privilege.
As stated above, Article 194(2) of the power and the procedure for amending the
Constitution reads as follows: Con stit ution. No un due importan c e
“194. Powers, privileges, etc., of the Houses should be attached to the marginal note
of Legislatures and of the members and which says “Procedure for amendment of
the Constitution”. Marginal note plays a
committees thereof. —
very little part in the construction of a
…
statutory provision. It should have much
(2) No member of the Legislature of a State less imp ortan c e in c on s tru in g a
shall be liable to any proceedings in any constitutional provision. The language of
Court in respect of anything said or any vote Article 368 to our mind is plain and
given by him in the Legislature or any unambiguous. Hence we need not call into
committee thereof, and no person shall be aid any of the rules of construction about
so liable in respect of the publication by or which there was great deal of debate at the
under the authority of a House of such a hearing. As the power to amend under the
Legislature of any report, paper, votes, or Article as it originally stood was only
proceedings. implied, the marginal note rightly referred
…” to the procedure of amendment. The
173. The marginal note to Article 194 reference to the procedure in the marginal
uses the phrase “powers, privileges, etc. of note does not negative the existence of the
the Houses of Legislatures and of the power implied in the Article.”
members and committees thereof.” It is a (emphasis supplied)
settled position of law that the marginal 174. Distinct from the marginal note,
note to a section in a statute does not control in the text of the provision, there is a
the meaning of the body of the section if conscious use of the term “Legislature”
the language employed is clear. With instead of the “House of Legislature” at
reference to Articles of the Constitution, a appropriate places. It is evident from the
marginal note may be used as a tool to drafting of the provision that the two terms
provide “some clue as to the meaning and have not been used interchangeably. The first
purpose of the Article”. However, the real limb of Article 194(2) pertains to “anything
meaning of the Article is to be derived from said or any vote given by him in the
the bare text of the Article. When the Legislature or any committee thereof”.
language of the Article i s plain and However, in the second limb, the phrase used
ambiguous, undue importance cannot be is “in respect of the publication by or under
placed on the marginal note appended to the authority of a House of such a Legislature
it. (Justice GP Singh, Principles of Statutory of any report, paper, votes, or proceedings.”
Interpretation, 15th Ed. (2021), 188-189; There is a clear departure from the term
Bengal Immunity Company Limited Vs. State ‘Legislature’ which is used in the first limb, to
of Bihar, (1955)2 S.C.R. 603). In use the term “House of such a Legislature”
(Kesavananda Bharati Vs. State of in the second limb of the provision. It is
Kerala)58 , 1973 DGLS(SC) 425 : (1973)4 clear, therefore, that the provision creates a
S.C.C. 225 Hegde, J (speaking for himself distinction between the “Legislature” as a
and A K Mukherjea, J) observed as follows: whole (in the first limb) and the “House”
“620. […] To restate the position, Article 368 of the same legislature (in the second limb).
deals with the amendment of the 175. As correctly submitted by Mr.
Constitution. The Article contains both the Raju Ramachandran, Senior Counsel for the
appellant, the terms “House of Legislature” committees and standing committees which
and “Legislature” have different examine various issues, including matters
connotations. “House of Legislature” refers of policy or Government administration.
to the juridical body, which is summoned by Many of these committees do not deliberate
the Governor pursuant to Article 174.* The on laws or bills tabled in the House or cease
term “Legislature”, on the other hand, refers to function when the ‘House’ is not sitting.
to the wider concept under Article 168,** There appears to be no reason why the
comprising the Governor and the Houses of deliberations that take place in such
the Legislature. It functions indefinitely and committees (“anything said”) would not be
continues to exist even when the Governor protected by parliamentary privilege.
has not summoned the House. 177. The elections to the Rajya Sabha
*174. Sessions of the State Legislature, conducted under Article 80 as referred to
prorogation and dissolution.— (1) The above, may also take place when the House
Governor shall from time to time summon is not in session as seats may fall vacant
the House or each House of the Legislature
when the legislative assembly of the state
of the State to meet at such time and place
as he thinks fit, but six months shall not is not in session. However, the elections
intervene between its last sitting in one remain a part of the functioning of the
session and the date appointed for its first Legislature and take place within the
sitting in the next session. precincts of the Legislative Assembly.
(2) The Governor may from time to time— (a) Similarly, the elections for the President of
prorogue the House or either House; (b) India under Article 54 (The electoral college
dissolve the Legislative Assembly.] consists of elected MPs and MLAs.) and for
**168. Constitution of Legislatures in the Vice President under Article 66 (The
States.—(1) For every State there shall be a electoral college consists of elected MPs.)
Legislature which shall consist of the may also take place when Parliament or the
Governor, and— state legislative assemblies are not in
(a) in the States of Andhra Pradesh], Bihar, session. However, they are an integral part
Madhya Pradesh, Maharashtra, Karnataka, of the powers and responsibilities of elected
Tamil Nadu, Telangana, and Uttar Pradesh,
members of the Parliament and state
two Houses;
legislative assemblies. The vote for such
(b) in other States, one House.
elections is given in the Legislature or
(2) Where there are two Houses of the
Parliament, which is sufficient to invoke the
Legislature of a State, one shall be known
as the Legislative Council and the other as protection of the first limb of Articles 105(2)
the Legislative Assembly, and where there and 194(2). Such processes are significant
is only one House, it shall be known as the to the functioning of the legislature and in
Legislative Assembly. the broader structure of parliamentary
176. The use of the phrase “in the democ racy. There appears to be no
Legislature” instead of “House of restriction either in the text of Article 105(2)
Legislature” is significant. There are several and Article 194(2), which pushes such
parliamentary processes which do not take elections outside of the protection provided
place on the floor of the House, i.e. when it by the provisions. Further, the purpose of
is in session, having been summoned by the parl iamentary pri vilege to pro vide
Governor. For instance, there are ad hoc legislators with the platform to “speak” and
“vote” without fear is equally applicable to House under Article 174 of the Constitution
elections to the Rajya Sabha and elections by the Governor to meet at such time and
for the President and Vice President as well. place as he thinks fit and the holding of the
meeting of the House pursuant to the said
178. We will now address the cases summons or an adjourned meeting. An
relied on by the Attorney General to elected member incurs the penalty for
advance his argument. In Pashupati Nath contravening Article 193 of the Constitution
Sukul (supra), a Bench of three Judges of this only when he sits and votes at such a
Court held that a member of the legislative meeting of the House. Invariably there is an
assembly may propose a candidature for a interval of time between the constitution of
seat in and vote at an election to the Rajya a House after a general election as provided
Sabha even before taking the constitutional by Section 73 of the Act and the summoning
oath required under Article 188 of the of the first meeting of the House. During
that interval an elected member of the
Constitution. The Court observed that an
Assembly whose name appears in the
election to fill seats in the Rajya Sabha does notification issued under Section 73 of the
not form a part o f the l egislative Act is entitled to all the privileges, salaries
proceedings of the House nor do they and allowances of a member of the
constitute a vote given in the House on any Legislative Assembly, one of them being
issue arising before it. Therefore, it is not the right to function as an elector at an
hit by Article 193 of the Constitution which election held for filling a seat in the Rajya
states that a member of the Legislative Sabha. That is the effect of Section 73 of the
Assembly cannot sit and vote in the House Act which says that on the publication of
before subscribing to the oath. Interestingly, the notification under it the House shall be
deemed to have been constituted. The
the Court also noted that in the intervening
election in question does not form a part
period between the name of the elected
of the legislative proceedings of the House
member appearing in the notification and carried on at its meeting. Nor the vote cast
the member taking the constitutional oath, at such an election is a vote given in the
she is entitled to all the privileges, salaries, House on any issue arising before the
and allowances of a member of the House. The Speaker has no control over the
Legislative Assembly. It is clear that the elec tion. The elec tion is held by the
Court recognized that members of the Returning Offic er appointed for the
legi slative assembly are entitled to purpose. As mentioned earlier, under
privileges even when they cannot Section 33 of the Act the nomination paper
has to be presented to the Returning Officer
participate or are not participating in ‘law-
between the hours of eleven o’clock in the
making’. One of these privileges is the
forenoon and three o’clock in the afternoon
parliamentary privilege bestowed on before the last day notified for making
members of the legislative assembly under nominations under Section 30 of the Act.
Article 194. The Court held as follows: Then all further steps such as scrutiny of
“18. […] The rule contained in Article 193 of nominations and withdrawal of
the Constitution, as stated earlier, is that a nominations take place before the Returning
member elected to a Legislative Assembly Officer. Rule 69 of the Conduct of Elections
cannot sit and vote in the House before Rules, 1961 provides that at an election by
making oath or affirmation. The words Assembly members where a poll becomes
“sitting and voting” in Article 193 of the necessary, the Returning Officer for such
Constitution imply the summoning of the election shall, as soon as may be after the
last date for the withdrawal of candidatures, 181. Finally, the learned Attorney
send to each elector a notice informing him General placed reliance on Kuldip Nayar
of the date, time and place fixed for polling. (supra). In this case, a Constitution Bench
Part VI of the Conduct of Elections Rules, of this Court was adjudicating the validity
1961 which contains Rule 69 and Part VII of an amendment to the Representation of
thereof deal with the procedure to be
the People Act, 1951 by which (a) the
followed at an elec tion by Assembly
requirement that a candidate for elections
members. Rule 85 of the Conduc t of
Elections Rules, 1961 provides that as soon to the Rajya Sabha be an elector from a
as may be after a candidate has been constituency in the state was removed; and
declared to be elected, the Returning Officer (b) an open ballot was introduced in the
shall grant to such candidate a certificate of elections to the Rajya Sabha.
election in Form 24 and obtain from the 182. One of the submissions before the
candidate an acknowledgment of its receipt Court to assail the use of open ballots in
duly signed by him and immediately send elections to the Rajya Sabha was that the
the acknowledgment by registered post to votes are protected by Article 194(2). It was
the Secretary of the Council of States or as contended that the right to freedom of
the case may be, the Secretary of the
speech guaranteed to MLAs under Articles
Legislative Council. All the steps taken in
194(1) and (2) is different from the right to
the course of the election thus fall outside
the proceedings that take place at a meeting free speech and expression under Article
of the House.” (emphasis supplied) 19(1)(a), which is subject to reasonable
restrictions. It was urged that the absolute
179. In Madhukar Jetley (supra), the
freedom to vote under Article 194(2) of the
Court relied on Pashupati Nath Sukul (supra)
Constitution was being diluted through a
and reiterated that an election to the Rajya
statutory amendment to the Representation
Sabha does not form part of the legislative
of the People Act, 1951 permitting open
proceedings of the House and the vote cast
ballots. While addressing this argument, the
at such an election does not constitute a vote
Court held that elections to fill seats in the
given at a sitting of the House. Pertinently,
Rajya Sabha are not proceedings of the
both Pashupati Nath Sukul (supra) and
legislature but a mere exercise of franchise,
Madhukar Jetley (supra) did not relate to any
which falls outside the net of Article 194.
question bearing on the interpretation and
The Court (speaking through YK
scope of Article 194(2) or any claim for
Sabharwal, CJ) held as follows:
parliamentary privilege.
“Arguments based on Legislative Privileges
180. As stated above, there is no
and the Tenth Schedule …
dispute with the proposition that elections
372. It is the contention of the learned Counsel
to the Rajya Sabha are not part of the law-
that the same should be the interpretation
making functions and do not take place as to the scope and tenor of the provision
during a sitting of the House. However, the contained in Article 194(2) concerning the
text of Article 194 consciously uses the term privileges of the Members of the Legislative
‘Legislature’ instead of ‘House’ to include Assemblies of the States who constitute
parliamentary processes which do not Statewise electoral colleges for electing
necessarily take place on the floor of the representatives of each State in the Council
House or involve ‘lawmaking’ in its of States under the provisions of Article
pedantic sense. 80(4). The Counsel argue that the freedom
of expression wit hout fear of legal carried out by a voice vote, members of the
consequences as flowing from Article legislature can seek what is referred to as a
194(2) should inure to the Members of the “division vote.” In such a case the division
Legislative Assemblies while discharging of votes, i.e. which member voted in favour
their function as electoral college under or against the motion is visible to the entire
Article 80(4).
House and the general public. It cannot be
373. This argument, though attractive, does not gainsaid that the purpose of parliamentary
deserve any credence in the context at hand.
privilege under Article 194(2) is not to provide
The proceedings concerning election
the legislature with anonymity in their votes
under Article 80 are not proceedings of
the “House of the Legislature of the or speeches in Parliament but to protect them
State” within the meaning of Article 194. from legal proceedings pertaining to votes
It is the elec ted Memb ers of th e which they cast or speeches which they
Legislative Assembly who constitute, make. That the content of the votes and
under Article 80 the electoral college for speeches of their elected representatives be
electing the representative of the State accessible to citizens is an essential part of
to fill the seat allocated to that State in parliamentary democracy.
the Council of States. It is noteworthy 184. Mr Raju Ramachandran, Senior
that it is not the entire Legislative
Counsel on behalf of the appellant has
Assembly that becomes the electoral
argued that the observations in Kuldip Nayar
college, but only the specified category
of members th ereof. Wh en su c h (supra) do not constitute the ratio decidendi
members assemble at a place, they do so of the judgment and are obiter. It is trite law
not to discharge functions assigned that this Court is only bound by the ratio of
under the Constitution to the Legislative the previous decision. There may be some
Assembly. Their participation in the merit to this contention. However, in any
election is only on account of their ex- event, this being a combination of seven
officio capacity of voters for the election. Judges of this Court, it is clarified that
Thus, the act of casting votes by each of voting for elections to the Rajya Sabha falls
them, which also need not occur with all within the ambit of Article 194(2). On all
of them present together or at the same
other counts, the dec ision of the
time, is merely exercise of franchise and
Constitution Bench in Kuldip Nayar (supra)
not proceedings of the legislature.”
(emphasis supplied) remains good law.
183. The protection under Article 105 185. Interestingly, Kuldip Nayar (supra)
and Article 194 guarantees that the vote of is yet another case where the Court relied
an elected member of Parliament or the on the minority judgment in PV Narasimha
state legislature, as the case may be, cannot Rao (supra) to strengthen the proposition
be the subject of proceedings in Court. It that while interpreting the Constitution, the
does not guarantee a “secret ballot”. In fact, Court should adopt a construction which
even when elected members of Parliament strengthens the foundational features and
or of the state legislature vote on Bills the basic structure of the Constitution.
during a sitting of the House, which Applying this proposition of law to the
undisputedly falls within the ambit of question of whether voting to the Rajya
Articles 105 and 194, they are not assured Sabha is covered within the ambit of Article
of a secret ballot. While voting is ordinarily 194(2) also brings us to a similar conclusion.
186. One of us (D.Y. Chandrachud, J.) Sabha were eventually carried out. The
in (K.S. Puttaswamy (Aadhaar-5J.) Vs. Dowry Prohibition Bill is an example of a
59
Union of India) , 2018 S.C.C. OnLine S.C. legislation in which the Rajya Sabha’s
1642 had oc casion to ref lect on the insistence on amendments led to the
significanc e of the Rajya Sabha and convening of a joint sitting of the two
Houses and in that sitting, one of the
bicameralism on the “foundations of our
amendments suggested by the Rajya Sabha
democracy”. It was observed that:
was adopted without a division. The Rajya
“1106. The institutional structure of the Rajya Sabha has a vital responsibility in nation
Sabha has been developed to reflect the building, as the dialogue between the two
pluralism of the nation and its diversity of Houses of Parliament helps to address
language, culture, perception and interest. disputes from divergent perspectives. The
The Rajya Sabha was envisaged by the
bicameral nature of Indian Parliament is
Makers of the Constitution to ensure a wider
integral to the working of the federal
scrutiny of legislative proposals. As a
Constitution. It lays down the foundations
second chamber of Parliament, it acts as a
of our democracy. That it forms a part of the
check on hasty and ill-conceived
basic structure of the Constitution, is hence
legislation, providing an opportunity for
based on constitutional principle. The
scrutiny of legislative business. The role
of the Rajya Sabha is intrinsic to ensuring decision of the Speaker on whether a Bill is
executive accountability and to preserving a Money Bill is not a matter of procedure. It
a balance of power. The Upper Chamber directly impacts on the role of the Rajya
complements the working of the Lower Sabha and, therefore, on the working of the
Chamber in many ways. The Rajya Sabha federal polity.” (emphasis supplied)
acts as an institution of balance in relation 187. The Rajya Sabha or the Council
to the Lok Sabha and represents the federal of States performs an integral function in
structure of India. Both the existence and the working of our democracy and the role
the role of the Rajya Sabha constitute a part played by the Rajya Sabha constitutes a part
of the basic structure of the Constitution. of the basic structure of the Constitution.
The arc hitec ture of our Constitution Therefore, the role played by elected
envisions the Rajya Sabha as an institution
members of the state legislative assemblies
of federal bicameralism and not just as a part
of a simple bicameral legislature. Its in electing members of the Rajya Sabha
nomenclature as the “Council of States” under Article 80 is significant and requires
rather than the “Senate” appropriately utmost protection to ensure that the vote is
justifies its federal importance. … exercised freely and without fear of legal
1108. […] As a revising c hamber, the persecution. The free and fearless exercise
Constitution-Makers envisioned that it will of franchise by elected members of the
protect the values of the Constitution, even legi slative assembly whi le elec ting
if it is against the popular will. The Rajya members of the Rajya Sabha is undoubtedly
Sabha is a symbol against majoritarianism. necessary for the dignity and efficient
… functioning of the state legislative assembly.
1110. Participatory governance is the essence Any other interpretation belies the text of
of democracy. It ensures responsiveness and
Artic le 194(2) and the purpose of
transparency. An analysis of the Bills revised
by the Rajya Sabha reveals that in a number
parl iamentary privilege. Indeed, the
of cases, the changes recommended by the protection under Articles 105 and 194 has
Rajya Sabha in the Bills passed by the Lok been colloquially called a “parliamentary
privilege” and not “legislative privilege” for reluctant colonial Government. The statutory
a reason. It cannot be restricted to only law- privilege transitioned to a constitutional
making on the floor of the House but privilege after the commencement of the
extends to other powers and responsibilities Constitution;
of elected members, which take place in the 188.3. Whether a claim to privilege in a
Legislature or Parliament, even when the particular case conforms to the parameters of the
House is not sitting. Constitution is amenable to judicial review;
J. Conclusion 188.4. An individual member of the
188. In the course of this judgment, legislature cannot assert a claim of privilege
while analysing the reasoning of the to seek immunity under Articles 105 and
majority and minority in PV Narasimha Rao 194 from prosecution on a charge of bribery
(supra) we have independently adjudicated in connection with a vote or speech in the
on all the aspects of the controversy namely, legislature. Such a claim to immunity fails
whether by virtue of Articles 105 and 194 to fulfil the twofold test that the claim is
of the Constitution a Member of Parliament tethered to the collective functioning of the
or the Legislative Assembly, as the case may House and that it is necessary to the
be, can claim immunity from prosecution discharge of the essential duties of a
on a charge of bribery in a criminal Court. legislator;
We di sagree with and overrule the 188.5. Articles 105 and 194 of the
judgment of the majority on this aspect. Our Constitution seek to sustain an environment
conclusions are thus: in which debate and deliberation can take
188.1. The doctrine of stare decisis is place within the legislature. This purpose
not an inflexible rule of law. A larger Bench is destroyed when a member is induced to
of this Court may reconsider a previous vote or speak in a certain manner because
decision in appropriate cases, bearing in of an act of bribery;
mind the tests which have been formulated 188.6. The expressions “anything”
in the precedents of this Court. The and “any” must be read in the context of
judgment of the majority in PV Narasimha the accompanying expressions in Articles
Rao (supra), which grants immunity from 105(2) and 194(2). The words “in respect
prosecution to a member of the legislature of ” means ‘arising out of ’ or ‘bearing a
who has allegedly engaged in bribery for c l ear re l ati o n to ’ and c anno t be
casting a vote or speaking has wide interpreted to mean anything which may
ramifications on public interest, probity in have even a remote connection with the
public life and parliamentary democracy. speech or vote given;
There is a grave danger of this Court 188.7. Bribery is not rendered immune
allowing an error to be perpetuated if the under Article 105(2) and the corresponding
decision were not reconsidered; provision of Article 194 because a member
188.2. Unlike the House of Commons engaging in bribery commits a crime which
in the UK, India does not have ‘ancient and is not essential to the casting of the vote or
undoubted’ privileges which were vested the ability to decide on how the vote should
after a struggle between Parliament and the be cast. The same principle applies to
King. Privileges in pre-independence India bribery in connection with a speech in the
were governed by statute in the face of a House or a Committee;
Bom.C.R.(Cri.) Rajaram B. Kulkarni v. State of Maharashtra 767
188.8. Corruption and bribery by 189. The reference is answered in the
members of the legislatures erode probity above terms. Having answered the question
in public life; of law raised by the Impugned Judgement
188.9. The jurisdiction which is of the High Court in this reference, the
exercised by a competent Court to prosecute Criminal Appeal stands disposed of in the
a criminal offence and the authority of the above terms.
House to take action for a breach of 190. Pending applications, if any,
discipline in relation to the acceptance of a stand disposed of.
bribe by a member of the legislature exist Applications disposed off.
in distinct spheres. The scope, purpose and -----
consequences of the Court exercising
Legality of investigation
jurisdiction in relation to a criminal offence
2024(1) Bom.C.R.(Cri.) 767
and the authority of the House to discipline
its members are different; Before :
M.S. Karnik, J.
188.10. The potenti al of mi suse
against individual members of the Rajaram Banderao Kulkarni ... Appellant.
legi slature is nei ther enhanced nor Versus
diminished by recognizing the jurisdiction State of Maharashtra ... Respondent.
of the Court to prosecute a member of the Criminal Appeal No. 475 of 1998, decided
legislature who is alleged to have indulged on 18-1-2024.
in an act of bribery; Prevention of Corruption Act, 1988,
188.11. The offence of bribery is Sec. 17 – Offence of bribery – Legality of
agnostic to the performance of the agreed investigation – Competency of Investigating
action and crystallizes on the exchange of Officer to carry out investigation was specific
illegal gratification. It does not matter case of appellant before Trial Court – Appellant
whether the vote is cast in the agreed had during course of cross-examination of
direction or if the vote is cast at all. The Investigating Officer clearly elicited admission
offence of bribery is complete at the point from Investigation Officer that he did not obtain
in time when the legislator accepts the any permission from Deputy Superintendent of
bribe; and Police to arrange a trap nor was any permission
188.12. ‘ The interpretation which has was obtained from Magistrate to arrange trap –
been placed on the issue in question in the Investigation is illegal as it was carried by an
judgment of the majority in PV Narasimha officer not authorised to investigate offence –
Rao (supra) results in a paradoxical outcome Thus, conviction of appellant is liable to be set
where a legislator is conferred with aside. (Paras 3, 4 & 8)
immunity when they accept a bribe and Cases referred :
follow through by voting in the agreed 1. State Inspector of Police, Vishakhapatnam Vs.
direction. On the other hand, a legislator Surya Sankaram Karri, 2007(1) Bom.C.R.(Cri.)
942(S.C.) : (2006)7 S.C.C. 172.
who agrees to accept a bribe, but eventually 2. Vishnu Kondaji Jadhav Vs. State of Maharashtra,
decides to vote independently will be 1995 Supp. (4) S.C.C. 408.
prosecuted. Such an interpretation is 3. Manikrao Abaji Thonge Vs. State of Maharashtra,
contrary to the text and purpose of Articles 1994(4) Bom.C.R. 164 : 1993 Cri.L.J. 3796.
105 and 194. 4. Din Dayal Sharma Vs. State, A.I.R. 1959 S.C. 831.
768 Rajaram B. Kulkarni v. State of Maharashtra 2024(1)
5. State of U.P. Vs. Bhagwant Kishore Joshi, A.I.R. 3. Learned Counsel for the appellant
1964 S.C. 221. Ms. Aditi Rajput submitted that the appeal
6. State of A.P. Vs. P.V. Narayana, A.I.R. 1971 S.C. 811.
must succeed only on the ground that the
Advocate appeared : investigation was carried out by PW-5, an
Aditi Rajput a/w, Sanjeev Kadam a/w, Pratik officer not empowered to carry out such
Deshmukh a/w, Prashant Raut, for appellant.
investigation which does not accord with
Ms. S.D. Shinde, A.P.P., for State.
the mandatory condition enumerated in
171.PM/IN/SG/RJ/PN
section 17 of the PC Act. In support of her
M.S. KARNIK, J.: – This appeal challenges submissions, learned Counsel for the
the judgment and order of conviction in appellant relied on the decision of the
respect of case No. 16 of 1994 dated Supreme Court in (State Inspector of Police,
15.4.1998 arising out of C.R. No. 251 of 1994 Vishakhapatnam Vs. Surya Sankaram Karri)1,
registered with Barshi Police Station passed 2007(1) Bom.C.R.(Cri.) 942(S.C.) : (2006)7 S.C.C.
by the Special Judge Solapur for the offences 172. Reliance is also placed on the decision in
punishable under sections 7 and 13(2) read (Vishnu Kondaji Jadhav Vs. State of
with section 13(1)(d) of the Prevention of Maharashtra)2, 1995 Supp. (4) S.C.C. 408.
Corruption Act, 1988 (hereafter referred as
4. Learned A.P.P. in response invited
“PC Act” for short). The appellant by the
my attention to the letter addressed from
impugned judgment and order has been
the office of the Deputy Superintendent of
sentenced to suffer rigorous imprisonment
Police, ACB, Solapur which is at Exhibit 17
for 1½ years and to pay the fine in the sum
to urge that the conditions requisite for
of Rs. 1000/-. The appellant was further
carrying out the investigation in terms of
convicted for the offences punishable under
section 17 are sufficiently complied with.
section 7 of the PC Act and sentenced to
In support of her submissions, learned
suffer rigorous imprisonment for 9 months
A.P.P. relied upon the decision of this Court
and to pay the fine in the sum of Rs. 500/-.
in (Manikrao Abaji Thonge Vs. The State
2. The appellant at the relevant time
of Maharashtra)3, 1994(4) Bom.C.R. 164 :
was working as a Revenue Circle Officer,
1993 Cri.L.J. 3796 to submit that this issue
Division Pangari, Taluka Barshi, District
was never raised before the trial Court at
Solapur. On 24.5.1994, an application was
an early stage and hence it is not open for
submitted by the complainant - PW-4 for
the appellant to agitate this issue for the first
effecting a mutation entry to the appellant. It
time in this appeal.
is the case of the prosecution that the appellant
demanded a bribe amount of Rs. 500/- for 5. I have heard learned Counsel for
effecting such mutation entry. Accordingly, a the parties. I have perused the paperbook,
trap was laid. The complainant visited the notes of evidence and the materials on
residence of the appellant on 29.5.1994 and record. I have gone through the judgment
paid the bribe amount which had been and order of the trial Court.
smeared with Anthracene powder. The 6. In the present case, the
investigation was carried out by PW-5 who investigation was carried out by the P.I. -
at the relevant time was working as a Police PW-5. The question is whether the PW-5 is
Inspector (hereafter referred to as “P.I.” for authorised to investigate the offence in view
short) of the Anti-Corruption Bureau of the mandate of section 17 of the PC Act.
(hereafter referred to as “ACB” for short). In the examination in chief of PW-5, it is
stated that he was working as P.I., ACB from “91. Added to this, objection as regards
September 1989 to August 1996. The breach of mandatory provisions in the
complaint recorded by him is at Exhibit 48. matter of investigation and resultant
There is no dispute that the investigation prejudice to the accused must be taken at
the earliest possible opportunity. It has
was carried out by PW-5. On 28/5/1994, a
been held by the Supreme Court in (Din
request letter was sent by PW-5 to S.P. Dayal Sharma Vs. State)4, A.I.R. 1959 S.C.
(Rural), Solapur, to depute one lady 831 that where the investigation was made
constable to the PW-5 office on the same day by an officer below the rank of Deputy
at 5.30 p.m. This letter though from the Superintendent of Police in contravention
office of Superintendent of Police, was of the provisions of section 5A (Old Act)
addressed by the PW-5 and not by the the objection should have been taken at a
Superintendent of Police. In cross- sufficiently early stage. Reverting to the
examination, PW-5 deposed that at the time present case, charge was framed against
the accused at Exh. 2 on 26 th June, 1996.
of joining ACB, his rank was in the cadre of
That time the accused did not raise any
Police Sub-Inspector (PSI). He deposed that objection by filing any application or by
the rank had not c hanged. In cross- making any oral statement. The accused
examination, PW-5 specifically stated that submitted to the charge and pleaded not
duri ng the relevant peri od, Deputy guilty. He then submitted to the trial. Then
Superintendent of Police, Shri Chavan was the trial proceeded. It was only after the
his superior. PW-5 admitted that he did not entire evidence was recorded and trial was
obtain any permission from the Deputy over, the accused has raised this objection.
Superintendent of Police or Magistrate to Had the objection being taken at earliest
possible opportunity the Court would
arrange the trap. Though the learned Counsel
have directed re-investigation or any other
for the appellant urged that PW-5 at the suitable order. This conduct of the accused
relevant time was discharging duties as PSI, also needs to be considered while testing
in any case, even accepting the contentions of the objection as regards competency of PI
the learned A.P.P. one thing is very clear that Shaikh to investigate the matter. In this
PW-5 was not above the rank of P.I. background and for the aforesaid reasons
7. Let me proceed on the footing that I tur n d own t he ob j ec t ion t h at t h e
the PW-5 at the relevant time was in ves t igat ion was c on duc t ed b y
incompetent Police Officer and trial is
discharging his duties as P.I. It is the
vitiated.” (emphasis supplied)
contention of the learned A.P.P. that the
It is thus seen that the trial Court was
objection as regards the competency of the
of the opinion that it was only after the
PW-5 to investigate the case was never
entire evidence was recorded and the trial
raised before the trial Court. From the
was over, the accused raised this objection.
deposition of PW-5, it clearly reveals that
the competency of the PW-5 to carry out the 9. In my view, the observations of the
investigation was the specific case of the trial Court are in the teeth of section 17 PC
appellant before the trial Court. Act. The appellant had during the course
of cross-examination of PW-5 clearly
8. The trial Court in paragraph No. 91
elicited the admission from the PW-5 that
of the impugned judgment and order
he did not obtain any permission from the
observed thus:-
Deputy Superintendent of Police to arrange
49/24(1) a trap nor was any permission was obtained
from the Magistrate to arrange the trap. Magistrate of the first class, as the case may
Moreover, in the synopsis of the argument be, or make any arrest therefor without a
on behalf of the appellant (Exhibit 73), the warrant:
point whether the investigation is legal, Provided that if a Police Officer not below the
valid and proper on the ground that rank of an Inspector of Police is authorised
mandatory conditions of section 17 are not by the State Government in this behalf by
general or special order, he may also
complied with, is specifically raised. Thus
investigate any such offence without the
from the evidence of PW-5, it is observed
order of a Metropolitan Magistrate or a
that he was not authorised to investigate the
Magistrate of the first class, as the case may
offence. One thing is clear that the be, or make arrest therefor without a
investigation was done by the person not warrant:
authorised to conduct the investigation in Provided further that an offence referred to in
terms of section 17 of the PC Act. The Clause (b) of sub-section (1) of section 13
observations of the trial Court that the shall not be investigated without the order
objection was raised by the appellant only of a Police Officer not below the rank of a
after the entire evidence was recorded is not Superintendent of Police.”
sustainable. The Investigating Officer was 11. The Supreme Court had an
examined as PW-5. It is during the course occasion to consider a somewhat similar
of his examination that the appellant cross- question that arose in Vishnu Kondaji Jadhav
examined him in a manner such that it (supra). Their Lordships were dealing with
clearly revealed that he was not the person section 5-A of the Prevention of Corruption
authorised to investigate the offence. In any Act, 1947. So far as the persons authorised
case, I will discuss on the resultant prejudice to investigate an offence are concerned,
which has a direct impact on the fairness of section 5-A is similarly worded as section
the investigation in the present facts. 17 of the PC Act. In paragraph Nos. 5 and 6
10. It is important to refer to section Their Lordships held thus:-
17 of the PC Act, which reads thus:- “5. It is clear from the provisions of the section
“Section 17- Persons authorised to investigate. that for investigation into every offence
Notwithstanding anything contained in the under the Act, it was necessary for the
Code of Criminal Procedure, 1973 (2 of Inspector of Police who was admittedly not
1974), no police officer below the rank,-- authorised by the State Government either
(a) in the case of the Delhi Special Police by general or special order, to take the prior
Establishment, of an Inspector of Police; permission of the Magistrate. The High
(b) in the metropolitan areas of Bombay, Court has rejected this contention on the
Calcutta, Madras and Ahmedabad and in ground that the permission was taken by the
any other metropolitan area notified as Inspector of Police on earlier two occasions
such under sub-section (1) of section 8 of and the second permission taken on 20-6-
the Code of Criminal Procedure, 1973 (2 1975 ac c rued for the benefit of the
of 1974), of an Assistant Commissioner of investigation into the demand for bribe
Police; made by the appellant on 6-7-1975. For the
purpose, the High Court relied upon a
(c) elsewhere, of a Deputy Superintendent of
decision of this Court in (State of U.P. Vs.
Police or a Police Officer of equivalent
Bhagwant Kishore Joshi)5, A.I.R. 1964 S.C.
rank, shall investigate any offenc e
221. We are afraid that the High Court has
punishable under this Act without the
misled itself by relying upon the said
order of a Metropolitan Magistrate or a
decision. In that case, the accused had 12. It is also important to note that the
committed a criminal breach of trust in second proviso of section 17 came up for
respect of a certain sum of money and he consideration before the Supreme Court in
was booked for the said breach of trust and the case o f State Inspector of Police,
the investigation was made in respect of the
Vishakhapatnam Vs. Surya Sankaram Karri
same offence although the permission to
investigate under the present Act was taken (supra). In paragraph No. 13, the Hon’ble
at a later stage. It is on these facts that the Supreme Court observed thus:-
Court held that the investigation being “13. Provisions of the 1988 Act, no doubt, like
indivisible as it was related to the very same the 1947 Act seek to protect public servant
act of the breach of trust, the permission from a vexatious prosecution. Section 17
taken onc e ac c rued for the entire provides for investigation by a person
investigation, whatever the stages in the authorised in this behalf. The said provision
investigation. contains a non obstante Clause. It makes
6. In the present case, admittedly, on three investigation only by Police Officers of the
different occasions, the demand for money ranks specified therein to be imperative in
was made. The first was on 13-5-1975, the character. The second proviso appended to
second on 20-6-1975 and the third on 5-7- section 17 of the Act provides that an offence
1975. Each demand constituted an offence referred to in Clause (e) of sub-section (1)
by itself to investigate which permission for of section 13, shall not be investigated
investigation was necessary under section without the order of a police officer not
5-A of the Act. Each investigation in the below the rank of a Superintendent of Police.
circumstances constituted an independent Authorisation by a Superintendent of Police
investigation into an independent offence. in favour of an officer so as to enable him to
Hence, for investigating the offence for the carry out investigation in terms of section
demand of bribe made on the third occasion, 17 of the Act is a statutory one. The power
i.e. on 5-7-1975, it was necessary to take a to grant such sanction has been conferred
separate and independent permission from upon the authorities not below the rank of a
the Magistrate which was admittedly not Superintendent of Police. The proviso uses
done. Since the provisions of section 5-A a negative expression. It also uses the
relating to the obtaining of the permission expression "shall". Ex facie it is mandatory
from the Magistrate are mandatory before in character. When the authority of a person
investigation is launched into the offence, to carry out investigation is questioned on
the appellant is entitled to succeed.” the ground that he did not fulfil the statutory
Thus, Vishnu Kondaji Jadhav (supra) was requirements laid down therefor in terms
of the sec ond proviso, the burden,
a case where on three different occasions the
undoubtedly, was on the prosecution to
demand for money was made. Their Lordships prove the same. It has not been disputed
held that each demand constituted an offence before us that the Investigating Officer, PW
by itself to investigate which permission for 41, did not produce any record to show that
investigation was necessary under section 5-A he had been so authorised. Shri K. Biswal,
of the Act. It was held that each investigation in the Investigating Officer, while examining
the circumstances constituted an independent himself as PW 41, admitted that he had not
investigation into an independent offence. Their filed any authorisation letter stating: "I have
Lordships held that section 5-A relating to received the specific authorisation from SP,
obtaining permission from the Magistrate is CBI, to register a case but I have not filed
the said authorisation letter."
mandatory before the investigation is
(emphasis supplied)
launched into the offence.
It i s also necessary to refer to miscarriage of justice as the investigation
paragraph Nos. 19, 20 and 21 where Their made by PW 41 was not fair.”
Lordships have observed thus:- (emphasis mine)
“19. Illegality apart, the manner in which the 13. I have no hesitation in holding that
investigation was conducted, is condemnable. the investigation is illegal as it was carried by
The least that a Court of law would expect an officer not authorised to investigate the
from the prosecution is that the investigation offence. There is no authorisation in favour of
would be a fair one. It would not only be
PW-5 by a general or special order by the State
carried out from the stand of the prosecution,
but also the defence, particularly, in view of Government. Neither has the PW-5 obtained
the fact that the onus of proof may shift to the permission from the Judicial Magistrate First
accused at a later stage. The evidence of PW Class to investigate into the offence.
41 raises doubts about his bona fides. Why he 14. Now let me examine the prejudice
did not examine important witnesses and as of the appellant-accused. In the cross-
to why he had not taken into consideration examination, PW-5 deposed that he had one
the relevant documentary evidence has not
brother - Abdul Latif Saheblal Shaikh. His
been explained. He did not even care to
ascertain the correctness or otherwise of the
father had three real sisters by the name
status of both the respondent and his wife Daulatbai, Habibbi and Aminabi. PW-5
before the Income Tax Department. Above all, admitted that Aminabi is the wife of the
he did not produce before the Court the brother of the compl ainant. PW-5
statements made by the respondent, his wife voluntarily says that he was not knowing
and those of his sons, although they were this fact till 28.6.1994. PW-5 denies the
relevant. Had the statements of DW 3 and DW suggestion that his voluntary statement is
4 been produced before, the learned Special false. It is material to note that PW-5 admits
Judge might not have opined that the sons of that subsequent to the trap he had written
the respondent, other than DW 2, did not make
a letter to Tahasildar Barshi to do the work
any contribution to their parents at all. If such
statements were made by the said witnesses of the complainant and send a report. It is
before the investigating officer, omission on also pertinent to note on being questioned by
the part of DW 1, the wife of the respondent, the Court during the cross-examination as
to state the same before the Special Judge regards with what object the communication
might have taken a back seat and the was sent to the Tahasildar Barshi to do the work
statements of other sons of the respondent, of the complainant, PW-5 said that despite the
namely, DW 3 and DW 4 might not have been reminder, the work of the complainant was
ignored by the learned Special Judge. not done. PW-5 deposed that form No. 9 was
20. The courts are obliged to go into the attached to the papers and a copy of the same
question of prejudice of the accused when
was sent to the Tahasildar so that the
the main investigation is concluded without
a valid sanction.
complainant's work was not withheld for the
want of form No. 9. According to me, it is
See (State of A.P. Vs P.V. Narayana.)6, A.I.R.
1971 S.C. 811. highly improbable that PW-5, a P.I., would be
21. It is true that only on the basis of the illegal
blissfully unaware that he is so closely related
investigation a proceeding may not be to the complainant. The question is whether,
quashed unless miscarriage of justice is the task of getting the complainant’s work
shown, but, in this case, as we have noticed done from the Tahasildar, is a part of the
hereinbefore, the respondent had suffered investigation and if not, why would PW-5
Bom.C.R.(Cri.) Munja J. Bhange v. State of Maharashtra 773
oblige the complainant in this manner by Criminal Appeal No. 1250 of 2019,
going out of his way. It is obvious that this decided on 10/16-1-2024.
indulgence was because PW-5 is a close relative Indian Penal Code, 1860, Sec. 376 –
of the complainant. It is evident that PW-5 is not Rape – When alleged forceful sexual act was
truthful when he deposes that he was not committed on prosecutrix has not come on record
knowing that he was related to the complainant till – She has accompanied accused to another
28.6.1994. This clearly indicates that PW-5 was district without resisting or raising alarm – Her
interested in the success of the investigation being a testimony about she being lifted and taken is
close relative of the complainant. The manner in unbelievable – There is material omission about
which PW-5 deposed and has gone all out of his alleged occurrence taking place at place alleged
way to get the complainant’s work done which was by her – Therefore, it is unsafe to rely on her
not part of his duty as anInvestigating Officercreates sole testimony – Medical evidence is also not
a serious doubt on the fairness of the investigation. full proof regarding commission of offence –
The appellant has thereby suffered a serious Conviction for offence of rape under Section 376,
miscarriage of justice as the investigation made by and for charges like 363, 366A and 506 IPC is
PW-5, an officer not authorised to carry out set aside. (Paras 11 to 15)
the investigation, cannot be regarded as fair. Cases referred :
15. For the reasons above-mentioned, I am 1. State of H.P. Vs. Suresh Kumar @ Chhotu, A.I.R
of the opinion that the impugned judgment and 2009 S.C. 1109.
order of conviction in respect of case No. 16 of 2. State of Maharashtra Vs. Lingabai Maroti Sahane,
2018(2) A.B.R.(Cri.) 187.
1994 needs to be quashed and set aside.
3. Anurag Soni Vs. State of Chhattisgarh, (2019)13
16. The appeal is, therefore, allowed. S.C.C. 1.
The appellant stands acquitted. The fine Advocates appeared :
amount be refunded to the appellant. Rahul O. Awasarmol, for appellant.
17. The appeal is disposed of accordingly. N.D. Batule, A.P.P., for respondent-State.
Appeal disposed off.. 170.PM/IN/SG/RJ/PN
----- ABHAY S. WAGHWASE, J.: – Convict for
Rape : Conduct of victim of accompanying offence punishable under section 376 of the
accused without raising alarm and further Indian Penal Code [IPC] is hereby assailing
accompanying him to another district and the judgment and order passed by learned
staying there for a few days without Additional Sessions Judge dated 13.11.2019
resisting or raising alarm or attempting to in Session trial No. 161 of 2011 wherein
make her escape good : Gives rise to appellant is sentenced to suffer seven years
inference that she was consenting party : rigorous imprisonment and to pay fine.
Conviction set aside 2. Bori Police Station filed challan
2024(1) Bom.C.R.(Cri.) 773 against the present appellant for offence
(AURANGABAD BENCH) punishable under sections 363, 366-A, 376,
Before : 506 of IPC alleging that, when victim PW2
Abhay S. Waghwase, J. was proceeding towards village at around
6.00 a.m. on 9.8.2011, accused appellant
Munja Jijabhau Bhange ... Appellant.
approached her, offered to marry her and
Versus
further suggested that they should run
State of Maharashtra ... Respondent. away and perform marriage. Around 10.00
774 Munja J. Bhange v. State of Maharashtra 2024(1)
a.m., her parents went to work in the field any water tank. He would point out that in
and her other siblings went to Jintur and fact she had stayed with accused at Nashik
school respectively and around 7.00 p.m. for three days and there was no resistance
that day, when she was alone in the house, or complaint to anyone. Medical evidence
she left the house and accompanied is also not supporting prosecution but
accused, who took her towards a mal near learned trial Court, though acquitted
water tank and on promise of marriage, he accused from charge under sections 363,
had forcible intercourse with her and 366-A and 506 of IPC, has unfortunately
thereafter he threatened to finish her if she held him guilty for offence under section
reports the incident to anyone. Accused 376 of IPC. He submits that, there is
then took her to Sailu and then to Nashik improper appreciation to that extent and
and kept her in the house of his relative for therefore, he seeks indulgence of this Court
two days. Subsequently, he also refused to for setting aside the impugned judgment.
marry her. Therefore she came back to He also pointed out that very Investigating
Parbhani on 12.8.2011, narrated the incident Officer has not been examined. He seeks
to her family members and approached Bori reliance on the rulings of the Hon’ble Apex
Police Station on 13.8.2011 and on her Court in (State of H.P. Vs Suresh Kumar @
report, crime No. 96/2011 was registered Chhotu)1, A.I.R 2009 S.C. 1109 and (State of
which was investigated and after gathering Maharashtra Vs Lingabai Maroti Sahane)2,
sufficient evidence, chargesheet against the 2018(2) A.B.R.(Cri.) 187.
appellant was submitted before learned 4. In answer to above, learned A.P.P.
Sessions Court. would submit that though there is no
On assignment of case to the learned conclusive evidence regarding age of
Additional Sessions Judge-3, Parbhani, trial prosecutri x, there is cogent, reliable
was conducted, during which prosecution evidence suggesting offence of rape.
examined in all six witnesses and on Medical evidence confirms rape. There is
appreciating the evidence, learned trial Judge promise of marriage and there is sexual
reached to a finding that prosecution has intercourse at mal near water tank. Victim
established the charges but only for offence herself has deposed to that extent.
punishable under section 376 of IPC and there Therefore, learned trial Court has correctly
being no cogent, reliable evidence for appreciated the evidence of victim and
commission of offence under sections 363, medical expert and guilt so recorded cannot
366-A and 560 of IPC, accused stood acquitted be faulted at and hence he seeks to dismiss
for the same. Said judgment is now taken the appeal. Learned A.P.P. is relying on the
exception to by filing instant appeal. rul ing of (Anurag Soni Vs State of
3
3. Learned Counsel would submit that Chhattisgarh) , (2019)13 S.C.C. 1.
apparently implication is false. That, there 5. Being first Appellate Court, while
is delay of almost 5 days in reporting the exercising powers under section 374 of the
occurrence. That victim is above 18 years Code of Criminal Procedure [Cr.P.C.], this
of age. That, her own evidence suggested Court has re-examined, re-analyzed and re-
that she left the house on her own. There is appreciated the entire evidence adduced by
no cogent, reliable evidence regarding prosecution in the trial Court. Record shows
accused calling her or taking her towards that following are the witnesses whose
testimonies are relied by prosecution in the perform marriage and then informed her
trial Court: that they have to return back to the village.
PW1 is PSO Manik Kadam, who Then, according to her, they came to
noted the FIR; PW2 is the victim; PW3 Dr. Parbhani. Acc used did not perform
Pawar is the medical officer who examined marriage with her and therefore she
accused; PW4 Sanjay is the pancha to spot reported the occurrence to her parents and
panchanama but he has not supported thereafter they all approached the police.
prosecution; PW5 Shaikh Yunus is pancha In her cross, she has answered that
to seizure panchanama Exhibit 67 however her marriage was performed 10 years back
he too has turned hostile and was crossed and she had four issues. She admitted that
examined by the A.P.P; PW6 Dr. Bharati two days after the incident which took place
Patod is the Medical Officer who examined near the water tank, she had lodged report.
the victim. She admitted that surrounding the scene of
6. On hearing the submissions of both occurrence, there are fields and aakhadas
sides and on appreciating the evidence, where people render agricultural work. She
taking into consideration the nature of answered that the incident at mal lasted for
charge, evidence of victim and the doctor five to six hours. She stated that she shouted
who examined her assumes importance. but no one was present there. She candidly
Even otherwise PW1 is the PSO who merely admitted that she did not tell anyone about
registered crime, PW3 is the doctor who the incident but her mother told the incident
examined accused and PW4 and PW5 are to the Sarpanch. She stated that she only
pancha witnesses who have not supported. suff ered abrasions and no injuries.
Therefore only evidence which remains for Omission is brought that while she was
re-appreciation and re-analysis is of victim returning from the flour mill, accused
PW2 and doctor PW6. pressed her mouth and took her to the mal.
7. On carefully going through the She admitted that she did not inform police
evidence of PW2 victim, she is found to be about knowing accused for the last two
deposing that she knew accused who was years. She is also unable to state how
residing in the same village. According to portion marked “A”, i.e. regarding her
her, accused used to ask her to run away acquaintance with accused since two years,
and perform marriage. She deposed that is appearing in her statement. She admitted
once when she went to bring flour, finding that while she was at Nashik, her parents
her alone accused took her to mal near a did not lodge report and she also did not
water tank, threatened her, made her fall lodge report at Nashik. Omission is again
down, disrobed her, undressed himself and brought to the extent of informing police
perf ormed interco urse wi th her and about she being taken to Janla. Rest is all
thereafter threatened to kill her. She further denial.
deposed that he took her to Nashik from 8. On visiting testimony of PW6 Dr.
Jalna. In chief again she rectified herself and Patod at Exhibit 68, she is found to be
stated that she cannot tell the place from deposing that she examined victim on
where she went to Nashik. Further, 14.8.2011 and she found hymen to be
according to her she stayed at Nashik for ruptured, but there were no injuries on
two days. There also accused told her to other parts of her body. According to her,
776 Munja J. Bhange v. State of Maharashtra 2024(1)
she sought radiologist’s and Dentist’s 12. On carefully analyzing the above
opinion regarding age of prosecutrix and evidence of victim, it is found that she
as per their opinion, her age was 16 to 17 reported about sexual intercourse while she
years and 15 years respectively. Her was returning with flour from a four mill.
personal opinion was that age of prosecutrix There are no details of day, date and time,
was 14 to 15 years. She identified the where she met accused exactly and by what
medical report Exhibit 72 issued by her. mode he took her towards the water tank
While under cross, doctor denied and at what distance was it located. She
issuing wrong opinion but further admitted speaks about he initially insisting to
that actual age of the victim was more than perform marriage. Therefore, such material
19 years. clearly suggests previous acquaintance of
9. Here, it is pertinent to note that victim and accused. In fact the alleged
parents of victim are not examined so as to episode which took place while she was
establish the exact age of victim. Though returning from flour mill, is apparently an
victim herself claims to be married 10 years improvement and omission as such
back, exactly at what age she came in contact material is not fi nding place in her
with appellant is not getting clear from the statement. Her answer in cross about she
evidence of prosecution. However, medical being picked up and carried up to railway
expert speaks about radiological age to be station, is unworthy of reliance. Resultantly,
around 16 to 17 years and in cross, doctor has her evidence does not inspire confidence.
admitted that age of victim could be 19 years. 13. As discussed above, already
Therefore, in absence of conclusive evidence prosecution seems to have utterly failed to
about age and taking into consideration the show that victim is a minor. Admittedly
above age narrated by doctor, it is unsafe to report is lodged only on returning from
hold that victim was a minor or below 18 Parbhani after spending couple of days at
years of age at the time of incident. Nashik. Details of stay at Nashik are also
10. Admittedly appellant is only held not coming in her evidence. Though
gui l ty f o r c o mmi ssi o n o f o f f enc e victim is medically examined and though
punishable under section 376 of IPC. doctor has reached to a finding about
Therefore it is to be seen whether such hymen ruptured, doctor’s opinion is not
offence is at all made out. categorical as to since when the hymen
11. On carefully going through the could be torn. There is no clear opinion
evidence of victim, it is revealed from her about forceful sexual intercourse as alleged.
testimony that, she has quoted one incident Evidence of doctor is also silent about any
of she being taken towards mal near a water history of forceful sexual assault or on
tank, he undressing her, getting himself promise of marriage. As stated above,
undressed and having sexual intercourse details of alleged episode which took place
with her. Thereafter, she claims that she was at water tank are not stated by her. She is
taken to Nashik for a couple of days and directly examined on 14.8.2011 by doctor
then brought back to Parbhani and when PW6 and this doctor has stated that there
he refused to perform marriage, she seems were no injuries on the parts of body.
to have reported the occurrence to the Theref o re, medic al evi denc e i s al so
parents. ambiguous and not conclusive.
In the totality of such circumstances assure to perform marriage but finally
and when prosecution could not establish resiled and therefore Apex Court held that
very age of the victim and moreover, she she consented for sexual intercourse under
herself having left the house and had misconception of fact and hence conviction
accompanied accused to a couple of districts of accused therein for offence under section
and reported the occurrence late i.e. almost 376 of IPC was upheld. Here it is not so. For
after five days, her version about forceful above discussed reasons, when alleged
sexual intercourse or intercourse on promise forceful sexual act was committed on her,
of marriage cannot be readily accepted. has not come on record. As stated above,
14. On going through the judgments she has accompanied accused to another
relied by learned Counsel for the appellant, district without resisting or raising alarm.
in the case of State of Maharashtra Vs. Her testimony about she being lifted and
Lingabai Maroti Sahane and Another, (supra), taken is unbelievable. There is material
the facts seem to be identical. There also omission about alleged occurrence taking
victim was acquainted with accused and on place at mal. Therefore, it is unsafe to rely
his mere asking to perform marriage, she on her sole testimony. In the light of her
had accompanied him. Even in that case, evidence, this Court is of the opinion that
radiological age was reported to be around there ought to have been further
17 years. Hear, in this case also, considering corroboration to her testimony but there is
the conduct of victim of accompanying none. Even facts in the case in hand being
accused towards water tank without raising distinct to the citation relied by learned
alarm and further accompanying him to A.P.P, the same cannot be taken aid of.
another district and staying there for a few 15. Learned trial Court in para 22 of
days without resisting or raising alarm or the judgment has straightway accepted the
attempting to make her escape good, version of prosecutrix without assigning
inference that can be drawn is that she was proper reasons. Therefore, apparently, as
a consenting party. Likewise, the case in pointed out by learned Counsel for the
State of H.P. Vs. Suresh Kumar @ Chhotu appellant, there is no proper appreciation
(supra) is also on identical circumstances. of the evidence of victim. Medical evidence
The prosecutrix therein having found to be is also not full proof regarding commission
a consenting party to the sexual acts, of offence under section 376 of IPC. Hence,
acquittal of accused was upheld. Thus, both in the considered opinion of this Court, as
above citations come to the rescue of the like charges under sections 363, 366-A and
appellant. 506 of IPC, even there is no reliable, firm
Whereas, on goi ng through the and conclusion evidence about commission
judgment relied by learned APP i.e. Anurag of offence under section 376 of IPC on the
Soni Vs. State of Chhattisgarh (supra), it is pretext of marriage. Hence, interference is
emerging that on analysis, the Hon’ble called fo r and I proceed to pass the
Apex Court observed that on promise of following order:
marriage, accused therein developed ORDER
physical contact with prosecutrix three I. The Criminal appeal stands allowed.
times on 29.4.2013 and 30.4.2013. On each II. The conviction awarded to the appellant
of the occasion it seems that he would Munja s/o Jijabhau Bhange by learned
778 Edunetwork Pvt. Ltd. v. Regional Provident Fund 2024(1)
Additional Sessions Judge-3, Parbhani in way in which Respondent held inspection, it
Sessions trial No. 161 of 2011 under section would discourage Start-ups and thus, cause an
376 of IPC on 13.11.2019 stands quashed and adverse effect on employment to be generated
set aside. and economy of India – Proceedings against
III. The appellant stands acquitted of the petitioner start-up quashed. (Paras 13 & 14)
offence punishable under section 376 of IPC.
IV. The appellant be set at liberty, if not required
Casese referred :
in any other case. 1. Niranjan Lakhumal Hiranandani Vs. Central
Bureau of Investigation, MANU/MH/1341/2018.
V. Fine amount deposited, if any, be refunded
to the appellant after the statutory period. Advocate appeared :
VI. It is clarified that there is no change as Ms. Deepa Chavan a/w. M.S. Reshmarani Nathani,
regards the order regarding disposal of Shubro Roy for Petitioners.
muddemal. Ms. Mahalakshmi Ganpathy A.P.P., for respondent-State.
Appeal allowed. 169.PM/IN/SG/RJ/PN
---- Per SHYAM C. CHANDAK, J.: – Present

Petition is preferred under Articles 226 and
Quashing of criminal proceeding :
227 of the Constitution of India read with
Petition for : Allowed
section 482 of the Criminal Procedure Code,
2024(1) Bom.C.R.(Cri.) 778
seeking to quash F.I.R. dated 28th June, 2018
Before :
bearing C.R. No. 333 of 2018, registered with
A.S. Gadkari & Shyam C. Chandak, JJ. Powai Police Station, Mumbai for the
Edunetwork Private Limited & ors. offences punishable under sections 406, 409
... Petitioners. read with 34 of the Indian Penal Code, 1860
Versus and section 14 of the Employees’ Provident
Regional Provident Fund & ors. ... Respondents. Funds & Miscellaneous Provisions Act, 1952
Criminal Writ Petition No. 4679 of 2018, (‘the Act’, for short).
decided on 5-12-2023/17-1-2024. 2. Heard Ms. Deepa Chavan, learned
Code of Criminal Procedure, 1973, Counsel for the petitioners and Ms.
Sec. 482 – Indian Penal Code, 1860, Secs. Mahalakshmi Ganpathy, learned A.P.P. for
406 & 409 – Employees’ Provident Funds the respondent-State. Perused the record.
& Miscellaneous Provisions Act, 1952, Sec. 3. Record reveals that, by an Order
14 – Quashing of proceeding – Violation of dated 2 nd November, 2018, this Court
provisions of EPF Act – Petitioner is start-up – directed that, till next date the petitioners
For first year of setting up of Start-Ups such as well as the respondent No. 3 should not
establishments may not be inspected under any be arrested in the crime. By an Order
of 6 Labour laws including EPF Act – dated 16th January, 2019, the respondent
Respondents could not point out from record police was directed not to file the charge-
that, there was very credible and verifiable sheet. Then the respondent No. 1 filed his
written complaint of violation of relevant Affidavit-in-Reply. The Rule was issued on
provisions of EPF Act by Petitioners and hence, 19th October, 2022 and the interim relief was
with approval of an officer, who is one level senior co nti nued till the Petition is fi nal ly
to inspecting officer, inspection was held in this disposed of.
case – D.O. letter, appears to be issued to 4. The facts giving rise to this Petition
encourage and promote Start-Ups – However, are as under:
Bom.C.R.(Cri.) Edunetwork Pvt. Ltd. v. Regional Provident Fund 779
4.1 Petitioner No. 1 is a Private members of the designations of “Head–
Limited company. The petitioner Nos. 2 and Accounts and Payments”, “Manager-
3 are respectively the Founder & Director Accounts and Payments” and “Senior
and Co-Founder & Director of the petitioner Executive-Accounts” exited the services of
No. 1. The respondent No. 3 is a Nominee petitioner No. 1, leaving no responsible or
Director of the petitioner No. 1. competent finance team member(s) to
4.2 The petitioner No. 1 company has oversee the dues payable by the petitioner
been registered under the Employees’ No. 1 and also due to the change in
Provident Fund and Miscellaneous management structure, the aforesaid dues
Provisions Act, 1952 (‘the Act’ for short). were inadvertently left unpaid due to
Therefore, the petitioners are responsible to oversight. However, immediately after the
deposit the EPF dues of its employees and inspection by respondent No.1, the petitioners
the EPF dues of the petitioner No. 1 in the realized that said amount has not been
relevant EPF account. On 6th March, 2018, deposited in the concerned EPF account.
th th
the respondent No. 1 visited the office of Therefore, on 12 March, 2018 and 20 March,
petitioner No. 1 and inspected its relevant 2018, the petitioners deposited the said EPF
record. It revealed that, from September, dues totalling to Rs. 73,50,586/- in the
2017 to February, 2018, the petitioner No. 1 concerned EPF account (vide bank Challans
deducted total Rs. 37,23,451/- as the EPF at Exhibit B-1 to B-6). On 11th September,
subscriptio n from the salaries of its 2018, the petitioner No. 1 paid an amount
employees. The said subscription amount, of Rs. 3,37,998/- towards the interest and
however, was not deposited in the relevant penalty for the unpaid dues. There is no
EPF account maintained with the State Bank much delay in payment of said dues.
of India. Therefore, the respondent No. 1 5.1 Learned Counsel for the
gave a letter to deposit the said amount at petitioners submitted that, the petitioner
the earliest. Thereafter, on 28th June, 2018, No. 1 company was registered in the year
the respondent No. 1 lodged a report with 2012. Vide D.O. Letter No. Z-13025/39/2015-
Powai Police Station alleging that, the LR Cell, issued on 6th April, 2017, by the
petitioners converted for their own use the Department of Ministry of Labour &
said amount and thus, misappropriation the Employment, Government of India, the
same. In turn, Powai Pol ice Station Central Government intends to promote
registered the impugned F.I.R. ‘Starts-Up”. The learned Counsel submitted
5. Learned Counsel for the petitioners that, the petitioner No. 1’s annual turnover
submitted that, during the period of is not exceeding Rs. 25 crores. Hence, the
September, 2017 to April , 2018, the petitioner No. 1 is a ‘Start-Up’ company.
executive role of finance team of petitioner Therefore, as provided in the above letter,
No. 1 was shifted from its base in Mumbai petitioner No. 1 may be taken up for the
to Bangalore. Therefore, all executive and inspection only when very credible and
operational decisi ons regarding the verifiable complaint of violation is filed in
finances of the petitioner No. 1 were to be writing and the approval has been obtained
taken from the Bangalore Offic e of from at least one level senior to the
petitioner No. 1. From the period of March, inspecting officer or from the Central
2017 to April, 2018, key finance team Analysis and Intelligence Unit (CAIU), as
the case may be. Such was not the situation inquiry, has been vested with the same
when the respondent No. 1 held the powers as are vested in a Court under the
inspection at petitioner No. 1’s office. Civil Procedure Code, 1908, for trying a Suit
5.2 Learned Counsel for the in respect of following matters namely:- (a)
petitioners submitted that, unless the enforcing the attendance of any person or
mandatory inquiry is held under section 7A examining him on oath; (b) requiring the
of the Act to determine the moneys due discovery and production of documents; (c)
from the employer, direct lodging of the receiving evidence on affidavit; and (d)
impugned F.I.R. is not permissible in law. issuing commissions for the examination of
To buttress the submission, the learned witnesses. The said enquiry is also deemed
Counsel has relied upon the decision in the to be a judicial proceeding within the
case of (Niranjan Lakhumal Hiranandani meaning of sections 193 and 228 and for the
Vs. Central Bureau of Investigation and purpose of section 196 of the I.P.C. Section
Ors.)1, MANU/MH/1341/2018. 7(3) provides that, no order shall be made
6. Per contra, learned A.P.P. for the under sub-section (1), unless the employer
respondents-State submitted that, the conc erned is given a reasonable
petitioners have admitted that, even though opportunity of representing his case. The
they deducted the EPF subscription from order passed under section 7A is appealable
the salaries of the employees for the period before the Tribunal and the order passed
of September, 2017 to February, 2018, they by the Tribunal attains finality under section
have not deposited it in time in the 7N. The order passed under section 7A can
concerned bank account. Instead, the also be reviewed under section 7B or re-
petitioners converted that huge amount for determined under section 7C. For non
their use and thus, misappropriated the payment of the said amount, the employer
same. As such, prima facie the offences under can be prosecuted and penalty can be
sections 406, 409 read with 34 of the I.P.C imposed under section 14 and recovery can
and section 14 of the EPF Act are made out be made as per procedure laid down under
against the petitioners. As a result, the section 8.
Petition be dismissed. 8.1 Sub-Section (1) of section 14 of the
7. In view of the rival submissions and Act provides that, “Whoever, for the
considering the observations in the case of purpose of avoiding any payment to be
Niranjan Hiranandani (supra), before made by himself under this Act, the
adverting to the question of quashing the Scheme, the Pension Scheme or the
F.I.R impugned in this petition, first; it Insurance Scheme or of enabling any other
would be appropriate to consider the person to avoid such payment, knowingly
relevant provisions of the Act. makes or causes to be made any false
8. Section 7(1)(2) of the Act provides statement or false representation shall be
that, the Central Provident Fund punishable with imprisonment for a term
Commissioner (C.P.F.C.), Addl. C.P.F.C., which may extend to one year, or with fine
Deputy P.F.C., Regional P.F.C. or any of five thousand rupees, or with both”.
Assistant P.F.C., as the case may be, who is 8.2 Section 14A of the Act provides for
conducting the inquiry under section 7A of offences by companies and sub-section (1)
the Act, for the purpose of conducting such and (2) there of provides as under :-
“(1) If the person committing an offence un- section 7A of the Act is mandatory to
der this Act, the Scheme or the Pension ascertain the EPF dues without which the
Scheme or the Insurance Scheme is a com- dues could not be ascertained. Therefore,
pany, every person who at the time the of-
in para 23, it is observed that, “When the Act
fence was committed was in charge of, and
itself has provided for a mechanism and elaborate
was responsible to, the company for the con-
duct of the business of the company, as well procedure for determining the amount due from
as the company, shall be deemed to be guilty any employer by the Authorities under the said
of the offence and shall be liable to be pro- Act, it would run counter to the provisions of the
ceeded against and punished accordingly: Act if any other authority not empowered under
Provided that nothing contained in this sub- the Act determines the amount due from any
section shall render any such person liable employer or arrives at a finding where there is any
to any punishment, if he proves that the of- default in the compliance of the provisions of the
fence was committed without his knowl-
said Act. It is only after the dispute regarding the
edge or that he exercised all due diligence
to prevent the commission of such offence.
applicability of the Act to an establishment is
(2) Notwithstanding anything contained in decided and upon determination of the amount due
sub-section (1), where an offence under this from any employer if upon the finding recorded
Act, the Scheme or the Pension Scheme or that there has been any omission or failure on the
the Insurance Scheme has been committed part of the employer to make any document or
by a company and it is proved that the of- report available or to disclose fully and truly all
fence has been committed with the consent material facts necessary for determining the correct
or connivance of, or is attributable to, any amount due from employer that the question of
neglect on the part of, any Director or Man-
invoking the penal provisions will arise. The
ager, Secretary or other officer of the com-
pany, such Director, Manager, Secretary or matters for determination of dues from the
other officer shall be deemed to be guilty of employer or his liability to pay the contribution
that offence and shall be liable to be pro- under the Act of the scheme is to be determined
ceeded against and punished accordingly”. in the course of the enquiry to be conducted
8.3 Section 14AB of the Act provides under the said Act”.
that an offence relating to default in 10. The case of Niranjan Hiranandani
payment of contribution by the employer (supra) was basically related to evasion of
puni shable under this Ac t shal l be payment of Employees Provident Fund
cognizable. Section 14AC provided for dues of persons who were employed by the
cognizance and trial of offences and upon contractor of the petitioner therein. Said
sanction of the Central Provident Fund evasion revealed from the report of the
Commissioner or such other officer as may surprise inspection conducted on 4th March,
be authorized by the Central Government. 2006. As noted in para 26 of the said
Section 14B provides for power to recover decision, said petitioner was not being held
damages in case where an employer makes liable to pay the PF dues of his employees
default in the payment of any contribution but the PF dues of employees of his
to the Fund or charges payable under any contractors. As such, the petitioner was
other provision of this Act or any scheme. liable to pay the dues only if his contractors
9. In view of the above provisions, in failed to pay the dues of the workers. No
the case of Niranjan Hiranandani (supra), in inquiry was held under section 7A of the
para 16, it is observed that, an inquiry under Act to determine the dues. However,
pursuant to the inspection report, the F.I.R. payment of PF dues, therefore, in para 27,
was filed which ultimately resulted in filing this Court held that no F.I.R could have
of charge-sheet by the CBI, for the offences been registered against the petitioner
punishable under sections 420, read with which F.I.R. essentially related to evasion
511, 467, 468, 471 of the I.P.C. and the o f payment o f PF dues. Henc e, the
conspiracy to do the said acts. prosecution was quashed holding it as
10.1 In this bac kground and abuse of the process of Court.
considering the procedure of the inquiry 11. In the case in hand, the respondent
stated in section 7A of the Act, this Court in No. 1 has not claimed that, before its officer
para 25 observed that, the Act covers all held the inspection of the EPF dues payable
possible contingencies for recovery of the by the petitioners, there was any complaint
Provident Fund dues in cases where the against the petitioners that even though the
employer makes a willful default in making petitioners deducted the EPF subscription
of the payments under the Act or the of its employees, it was not credited to the
Scheme framed thereunder. The employer concerned bank amount and instead they
can raise dispute regarding the applicability misappropriate it. Secondly, it is not the case
of the Act or that he is not liable to pay the of the respondents that, before filing of the
contribution under the Act towards the F.I.R., the respondent No. 2 or any other
Provident Fund. The liability can be officer authorised in this behalf, by order,
determined only after an inquiry under held the inquiry as provided under section
section 7A of the Act is conducted. The dues 7A(1)(2) of the EPF Act to determine the
can be recovered only after an order is moneys due from the petitioners. Thirdly,
passed under section 7A after following the which is most important to note, before
procedure laid down therein and after filing the impugned F.I.R., the respondent
giving opportunity to the employer. The Act No. 1 has not recorded a finding that the
is a complete Code in itself. It is Special Act petitioners in order to avoid the payment
to deal with Provident Fund dues and of the EPF dues under the said Act,
hence, it will prevail over the General Act. knowingly made or caused to be made a
The Act contemplates that an opportunity false statement or false representation.
be given to the employer to answer after Lastl y, i t i s no t the c ase that, the
notice is issued to him. However, no notice petitioners failed to make any document
was issued to the petitioner. The procedure or report available or to disclose fully and
under section 7A of the Act was not truly all material facts necessary for
followed i.e. the inquiry under section 7A determining the correct amount due from
was not conducted. As a result, the The petitioner No. 1.
petitioner was not given an opportunity of 11.1 Undisputedly, the petitioner No.
representing his case as visualized under 1 is company. Hence, as stated in the proviso
section 7A(3) and in consonance with the to sub-section (1) of section 14A of the Act,
principles of natural justice. Therefore, in the petitioner Nos. 2, 3 and the respondent
para 26, i t was o bserved that, the No. 3 being the directors of petitioner No.
prosecution without holding an enquiry 1, they shoul d have been given an
under section 7A cannot say that the opportunity to prove that, the offence was
petitioner has evaded or tried to evade committed without their knowledge or that
they exercised all due diligence to prevent offer any comment in its Affidavit-in-reply.
the commission of said offence. Giving such Thus, the said fact remained unchallenged.
an opportunity was possible only if the As directed in the D.O. letter (supra), the
inquiry provided under section 7A of the Government of India has launched a ‘Start-
Act was held, which also allows to receive Up India Action Plan’ for promoting the
evidence on affidavit under section 7(2)(c) Start-Up ecosystem in the country to
of the Act. incentivize the entrepreneurs in setting up
12. As against this, only inspection new start-up ventures and thus catalyze the
was held on 6th March, 2018, at the office of creation of employment opportunities
petitioner No. 1 by respondent No. 1 and through them. In this connection, various
on the same day itself she prepared the incentives and ease in regulatory compliance
Inspection Report based on the documents provisions have been conceptualized. Start-
viz; (i) Copy of Challan for August, 2017, (ii) up are defined by Department of Industrial
Salary Statement of the established for the Policy & Promotion (DIPP), as an entity,
months of September, 2017 to February, incorporated or registered in India not prior
2018 and (iii) List of Directors of the to five years with annual turnover not
Establishment alongwith their details i.e. exceeding Rs. 25 crores in any preceding
address, PAC Card etc. and concluded that financial year, working towards innovation,
the petitioners have not paid the EPF dues development, deployment or
of Rs. 37,23,451/-. Thereafter, within two commercial ization of new products,
weeks, the petitioners deposited the dues processes or services driven by technology
which are double to the above amount. or intellectual property.
Nevertheless, there is no clarification in this 12.3 For the first year of setting up of
regard. Thereafter, the respondent No.1 the Start-Ups such establishments may not
filed the impugned F.I.R. on 28th June, 2018, be inspected under any of the 6 Labour laws
alleging that, the petitioners converted for (viz. BoCW Act, ISMW Act, Payment of
their own use the said amount and thus, Gratuity Act, Contract Labour Act, EPF Act
misappropriated the same. Yet, the F.I.R. and ESI Act). These start-ups may be asked
and the affidavit-in-reply does not show as to submit an online self declaration instead.
to how the petitioners converted for their 13. Start-ups may be allowed to
own use the moneys due and thus, submit self-certified returns (as is being
misappropriated the same. done under Shram Suvidha Portal under
12.1 In the backdrop, and considering these Acts for the Central sphere) under
the aforesaid observations in the case of aforesaid Acts. From the second year
Niranjan Hiranandani (supra), according to onwards, upto five year from the setting up
us, the penal provisions of section 14(1) and of the unit such Start-ups may be taken up
section 14A(1), (2) of the EPF Act and for inspection only when very credible and
sections 406 and 409 of the I.P.C. cannot be verifiable complaint of violation is filed in
applied or invoked against the petitioners. writing and the approval has been obtained
12.2 The petitioners have clearly from at least one level senior to the
averred that, the petitioner No. 1 was inspecting officer or from the Central
registered in the year 2012. Against this Analysis and Intelligence Unit (CAIU), as
averment, the respondent No. 1 did not the case may be.
784 Harischandra D. Baldhye v. State of Maharashtra 2024(1)
14. In the case in hand, the his 11 years old daughter and strangulated her
respondents could not point out from the to death – Father of accuse set law into motion
record that, there was very credible and but he turned hostile – However, 7 years old son
verifiable written complaint of violation of of accused who witnessed incident supported
the relevant provisions of the EPF Act by prosecution case – His evidence is found
the petitioners and hence, with the approval creditworthy and reliable – Conviction of
of an officer, who is one level senior to accused proper. (Paras 9 to 14)
Seema Das respondent No. 1, the inspection (B) Evidence Act, 1872, Sec. 118 – Child
was held in this case. Looking at the D.O. witness – A mere answer of child that he is
letter, it can be easily gathered that, the said deposing as per say of prosecution itself would
letter has been issued to encourage and not be a ground to doubt his testimony – There
promote the Start-Ups. However, the way is nothing unusual in prosecutor appraising
in which the respondent No. 1 held the witness p rior to his evide nce, more
inspection in this matter, it would particularly, when witness is of tender age of
discourage the Start-ups and thus, cause an 7 years. (Para 13)
adverse effect on the employment to be Cases referred :
generated and the economy of the India. 1. Bhagwan Singh Vs. State of Haryana, (1976)1
15. In view of the above discussion, S.C.C. 389.
continuation of the impugned F.I.R. would 2. Rabindra Kumar Dey Vs. State of Orissa, (1976)4
be an abuse of process of law. As a result, S.C.C. 233.
3. Syad Akbar Vs. State of Karnataka, (1980)1 S.C.C. 30.
said F.I.R. is liable to be quashed and is
4. Khujji Vs. State of M.P., (1991)3 S.C.C. 627.
accordingly, quashed and set aside. 5. C. Muniappan Vs. State of Tamilnadu, (2010)9
16. Criminal Writ Petition is allowed in S.C.C. 567.
the aforesaid terms. Rule is made absolute. 6. Mangoo Vs. State of Madhya Pradesh, A.I.R. 1995
S.C. 959.
Petition allowed.
7. Dattu Ramrao Sakhare Vs. State of Maharashtra,
----- 1998 Bom.C.R.(Cri.) 138(S.C.) : 1997(5) S.C.C. 341.
There is nothing unusual in prosecutor 8. Ratansinh Dalsukhabhai Nayak Vs. State of
appraising witness prior to his evidence, Gujarat, 2004(1) Bom.C.R.(Cri.) 882(S.C.) : (2004)1
S.C.C. 64.
more particularly, when witness is of
9. Gagan Kanojia Vs. State of Punjab, (2006)13
tender age of 7 years S.C.C. 516.
2024(1) Bom.C.R.(Cri.) 784 10. Nivrutti Pandurang Kokate Vs. State of
(AURANGABAD BENCH) Maharashtra, 2008(2) Bom.C.R.(Cri.) 518(S.C.) :
A.I.R. 2008 S.C. 1460.
Before :
11. Hari Om Vs. State of U.P., (2021)4 S.C.C. 345.
Smt. Vibha Kankanwadi & Abhay S.
Waghwase, JJ.
S.A. Gaikwad, (Appointed Through Legal Aid), for
Harischandra Damu Baldhye ... Appellant. appellant.
Versus S.D. Ghayal, A.P.P., for respondent – State.
State of Maharashtra ... Respondent. 1400.PM/IN/SG/RR/PN
Criminal Appeal No. 296 of 2017, decided Per ABHAY S. WAGHWASE, J.: – Feeling
on 21-8-2023. aggrieved by the judgment and order of
(A) Indian Penal Code, 1860, Sec. 302 – conviction dated 2.11.2016 passed by
Murder – Felicide – Accused allegedly sat on learned Additional Sessi ons Judge,
Bom.C.R.(Cri.) Harischandra D. Baldhye v. State of Maharashtra 785
Ambajogai, Dist Beed in Sessions Case No. prosecution has examined in all 9 witnesses
72 of 2015, thereby holding appellant guilty and relied on documentary evidence.
for offence under section 302 of Indian After hearing both sides, learned trial
Penal Code (IPC), accused has filed instant Court appreciated the oral and
appeal by invoking section 374(2) of the documentary evidence and reached to a
Code of Criminal Procedure (Cr.P.C.). conclusion that prosecution has established
PROSECUTION CASE IN TRIAL the charges and accordingly awarded life
COURT imprisonment, which is now questioned
2. Appellant son of PW3-Damu had before us by virtue of present appeal.
three daughters, namely Nikita, Nakula, SUBMISSIONS
Sangita and a son, namely Sunil. He did not 5. According to learned Counsel for
work for his living and was rather addicted appellant, implication and conviction is in
to liquor. As a result, there used to be absence of cogent and reliable evidence.
quarrels between him and his wife and she According to him, there is no independent
resultantly left the children and went to stay evidence in support of accusations. That,
with her parents with daughters, namely nobody had seen accused in the house so
Nakula and Sangita, whereas deceased as to invoke section 106 of Evidence Act. He
Nikita and son Sunil were put up with PW3 pointed out that entire case of prosecution
Damu – grandfather. is based on child testimony, but it being
3. According to prosecution, on tutored, ought not to have been relied. He
10.7.2015, accused went to fetch his wife submitted that, at the outset, prosecution
back, but she did not return. As a result of has failed to establish motive. Learned
which, accused was frustrated and Counsel pointed out that prosecution
anno yed. On 10.7.2015, after di nner witnesses have en-bloc turned hostile.
appellant went to PW3 Damu and declared Therefore, when there was no evidence, he
that he would finish one by one. He questioned as to how conclusion of guilt of
thereafter took Sunil and Nikita to his accused has been reached at by learned trial
house. According to prosecution, in night Judge. He would submit that, apparently
in his room he sat on the chest of his there is non application of mind and apart
daughter Nikita and manually strangulated from non appreciation of evidence in its
her to death. proper perspective, there is failure on the
4. PW3 Damu approached police, part of learned trial Judge in applying the
who arrived at the house of accused and settled law. Resultantly, according to him,
shifted Nikita to hospital. However, on such judgment of conviction in absence of
examination she was declared dead. On the sound reasons deserves to be set aside, by
basis of report lodged by PW3-Damu, allowing the appeal.
Ambajogai (City) Police Station registered 6. Whil e refuti ng the above
crime bearing No. 123 of 2015. submissions, learned APP would submit
On completion of investigation, that though most of the witnesses including
appellant was charge-sheeted and charge info rmant have not supported the
(Exh.4) was explained. On denial of charge prosecution case, he would point out that,
trial was undertaken, during which so much part of their testimonies which
50/24(1)
corroborates and supports the case of
prosecution can definitely be relied. He be a case of ‘felicide’ i.e. killing of a child
pointed out that such witnesses have partly by parent.
supported prosecution, and therefore, it is At the outset, there being charge
open for the prosecution to take recourse under section 302 of IPC, it is to be seen
to the same. whether prosecution has established the
He next submitted that, testimony of death of Nikita is homicidal one. On going
child witness is intact and is worthy of through the inquest panchanama and on
credence. It is not shown to be tutored. going through the testimony of PW9 Dr.
Therefore, on the strength of child witness Pawar, we are convinced that deceased
account, who was very much present at the Nikita aged 11 years, has died due to
time of alleged incident, the only conclusion manual strangulation. PW9 Dr. Pawar has
was that accused is responsible for the noted external injuries as well as impact of
homicidal death and is thereby rightly internal injuries on autopsy. Though doctor
convicted and he prays for dismissal of the is cross examined, there does not seem to
appeal. be serious challenge to the manner of death.
7. In the light of above submissions, There is virtually no effective cross to
we have examined the evidence on record. disbelieve opinion of doctor. Autopsy
It is seen that in support of its case, doctor is very categorical about the manner
prosecution has examined as many as 9 of death to be homicidal. Coupled with the
witnesses and thei r role and status evidence of PW1 Vimal on the point of
summarized as under :- inquest and autopsy findings, there is no
PW1 Vimal is the pancha to inquest hesitation to hold that death of Nikita is
panchanama. PW2 Shivaji is the pancha to shown to be due to strangulation.
the spot panchanama (Exh.14). 9. Now, it is to be seen whether
PW3 Damu is the informant – father appellant is responsible for the
of accused and grandfather of deceased. He strangulation.
was declared hostile and cross-examined by PW3 Damu, father of appellant and
learned APP. grandfather of deceased, who has set law
PW4 Rama Baladhye is the wife of into motion, after informing about his
accused also did not support the family, deposed about occurrence to have
prosecution. taken place 9 to 10 months back. According
to him, at such time, wife of appellant was
PW5 Sunil is the child witness.
residing with two daughters, whereas son
PW6 Ramchandra and PW7 Kalubai Suni l and Nikita were staying with
are the brother and sister of accused, appellant. However, this witness after
respectively. stating so much, has not suppo rted
PW8 PSI Khanderao is the prosecution and was therefore required to
Investigating Officer. be declared hostile and is subjected to cross.
PW9 Dr. Vishwajeet Pawar is the But, in para 2 of the cross, he is found to be
autopsy doctor. stating that, three days prior to the
ANALYSIS incidence, appellant had gone to bring his
8. On carefully re-appreciating the wife, but she had not returned. According
available evidence on record, it seems to to him, in the evening, he along with his
wife, son and daughter of appellant were of Karnataka)3, (1980)1 S.C.C. 30; (Khujji
taking meals at around 9:30 p.m. Thereafter, Vs. State of M.P.)4, (1991)3 S.C.C. 627, finally
he has denied about appellant approaching in the case of (C. Muniappan Vs. State of
him and declaring that he would kill them Tamilnadu) 5 , (2010)9 S.C.C. 567, after
one by one, about appellant latching the discussing the earlier decisions, summarized
door of his house from outside, but he stated and recapitulated the law applicable to the
that, after sometime, he heard cries of Nikita case of hostile witnesses as under :-
and Sunil from the house of Harischandra. “83. …. the evident of a hostile witness cannot be
He again denied PW5 Sunil coming to discarded as a whole, and relevant parts thereof
inform himabout neck of Nikita being which are admissible in law, can be used by the
pressed by father, but witness stated that prosecution or the defence.”
he himself went towards the house of Similarly, though evidence of PW4
appellant and saw Nikita lying on the bed Rama is partly beyond consideration, that
in dead condition. He denied having stated much part which supports prosecution can
portion mark ‘A’ in his statement to police, taken into consideration. Even, in the
but further admitted that on 11.7.2015 police evidence of PW4 Rama wife of accused, she
had been to his house for drawing has admitted that at the time of incident
panchanama and he had shown the same. He deceased Nikita was staying with appellant.
fairly answered that he did not want his son PW4 Rama has also not supported the
to be convicted. prosecution.
Therefore, PW3 Damu is the flip-flop 11. It seems that star witness for
witness. At one point he supports the prosecution is PW5 Sunil, who is admittedly
prosecution and in the next moment he does a child of 6-7 years of age and hence a child
not support prosecution. Therefore, though witness. His evidence at Exh.22 shows that
this witness is declared hostile for not his testimony is recorded by putting
supporting prosecution, that much part of questions. Therefo re, we propose to
his evidence which lends support to the reproduce the answers given by him in toto.
prosecution can definitely be taken into During question – answers, he gave his
account. name as Sunil and about currently residing
10. Law in that regard has been with his mother and he gave names of his
reiterated in numerous pronouncements sisters that Nikita, Nandini and Anjali. He
and settled proposition is that evidence of also gave the nick name of his deceased
prosecution witness cannot be rejected in sister. To a question where they were
toto, merely because the prosecution choses staying previously, he has answered that
in treating him hostile. The evidence of such they were residing at Phule Nagar,
witnesses cannot be treated as effaced Ambajogai. To a question who were
altogether, rather it can be accepted to the residing with him, he has answered that he
extent that their version is found to be was residing with Baidy (i.e. Nikita). Then
dependable. Such law is spelt out and on a question whether sister Baidy is alive,
reiterating in the cases of (Bhagwan Singh he answered ‘No’. Then he is questioned
Vs. State of Haryana)1, (1976)1 S.C.C. 389; how and in what way Baidy died, he has
(Rabindra Kumar Dey Vs. State of Orissa)2, answered that “Pappa has came, sat on
(1976)4 S.C.C. 233; (Syad Akbar Vs. State chest and pressed the neck”. He is again
asked on whose chest Pappa was sitting and established deceased was in the custody of
whose neck was being pressed, he appellant at relevant time. PW5 Sunil, who
answered that Pappa sat on chest of Baidy is a sheet anchor, though a child, was very
and pressed her neck. Then he is asked much in the company of his father-
what happened to her sister due to said act, appellant as well as his deceased sister. No
he has answered that froth was coming out doubt, he is a child witness. However,
from her mouth. He is asked whether he merely on such count, his evidence cannot
was present when Pappa sat on the chest of be doubted. Law is fairly settled that if his
Baidy and pressed her mouth, he answered testimony is shown to be truthful, inspiring
that he ran towards ‘Anna’, i.e. grandfather confidence and is not tutored one, the same
(PW3 Damu). He is questioned whether his can be not only accepted, but even relied to
statement was recorded before Court and record the guilt of accused.
he answered in affirmative. Then a question There are umpteen judgments on
is posed to him whether, information given the credibility and evidentiary value of
before the Court is as per the say of police child witness, which we propose to state
and he has answered in negative and stated as under:-
that he himself has given the information. In (Mangoo and another Vs. State of
He is asked whether he is deposing as has Madhya Pradesh)6, A.I.R. 1995 S.C. 959, the
been asked to depose by APP, he has Hon’ble Apex Court while dealing with the
answered in affirmative. At such point of evidence of a child witness observed that;
time, it seems that learned APP has sought “There was always scope to tutor the child, however,
permission to cross examine the witness, it cannot alone be a ground to come to the
but learned trial Judge has refused such conclusion that the child witness must have been
permission. tutored. The Court must determine as to whether
12. PW6 Ramchandra, though brother the child has been tutored or not. It can be
resided somewhere else and on receipt of ascertained by examining the evidence and from
information has reached there. He has the contents thereof as to whether there are any
traces of tutoring.”
confirmed about seeing niece having
suffered marks on the neck. He claims about In the case of (Dattu Ramrao Sakhare
7
hearing from his own father i.e. PW3 Damu Vs. State of Maharashtra) , 1998
about threats issued by accused to his own Bom.C.R.(Cri.) 138(S.C.) : 1997(5) S.C.C. 341,
children and further taking them along with Hon’ble Apex Court held that;
him in his room for sleeping and also father “A child witness if found competent to depose to
informing him about hearing cries of his the facts and reliable on such evidence could be
the basis of conviction. In other words even in
daughter. So much of the part can definitely
the absence of oath the evidence of a child witness
be taken aid of by prosecution.
can be considered under section 118 of the
PW7 Kalubai is the sister of accused Evidence Act provided that such witness is able
has not supported the prosecution, but has to understand the answers thereof. The evidence
admitted about appellant and daughter of a child witness and credibility thereof would
were residing in the same house. depend upon the circumstances of each case. The
From evidence of informant PW3 only precaution which the Court should bear in
mind while assessing the evidence of a child
Damu, PW4 Rama and PW6 Ramchandra,
witness is that the witness must be a reliable one
it can safely be held that prosecution has and his/her demeanour must be like any other
competent witness and there is no likelihood of In a celebrated case of (Hari Om Vs.
being tutored.” State of U.P.)11 , (2021)4 S.C.C. 345, very
In (Ratansinh Dalsukhabhai Nayak recently the Hon’ble Apex Court, in para
Vs. State of Gujarat) 8 , 2004(1) 22 of this judgment, has spelt out legal
Bom.C.R.(Cri.) 882(S.C.) : (2004)1 S.C.C. 64, principles, summarized the evidentiary
the Hon’ble Apex Court held that; value of c hild witness, effects of its
“Child witness – evidence of – conviction on the discrepancies, and duty of Court and
basis of – held, permissible if such witness is corroboration when to be insisted upon,
found to be competent to testify and the Court which we borrow and quote here:
after careful scrutiny of its evidence is convinced “22. The evidence of the child witness cannot be
about the quality and reliability of the same.” rejected per se, but the Court, as a rule of
The Hon’ble Apex Court in the case of prudence, is require to consider such evidence
(Gagan Kanojia and another Vs. State of with close scrutiny and only on being convinced
Punjab)9, (2006)13 S.C.C. 516 has ruled that, about the quality of the statements and its
“Part of statement of child witness, even if tutored, reliability, base conviction by accepting the
can be relied upon, if the tutored part can be statement of the child witness. If the child
separated from the untutored part, in case such witness is shown to have stood the test of cross-
remaining untutored part inspires confidence.” examination and there is no infirmity in her
evidence, the prosecution can rightly claim a
In (Nivrutti Pandurang Kokate and
conviction based upon her testimony alone.
ors. Vs. State of Maharashtra)10 , 2008(2) Corroboration of the testimony of a child
Bom.C.R.(Cri.) 518(S.C.) : A.I.R. 2008 S.C. witness is not a rule but a measure of caution
1460, the Hon’ble Court dealing with the and prudence. Some discrepancies in the
child witness has observed as under; statement of a child witness cannot be made
“The decision on the question whether the child the basi s fo r discarding the testi mony.
witness has sufficient intelligence primarily rests Discrepancies in the deposition, if not in
with the trial Judge who notices his manners, material particulars, would lend credence to
his apparent possession or lack of intelligence, the testimony of a child witness who, under
a nd the sa i d Judge m a y reso rt to a ny the normal circumstances, would like to mix
examination which will tend to disclose his up what the witness saw with what he or she
capacity and intelligence as well as his is likely to imagine to have seen. While
understanding of the obligation of an oath. The appreciating the evidence of the child witness,
decision of the trial Court may, however, be the courts are required to rule out the possibility
disturbed by the higher Court if from what is of the child being tutored. In the absence of any
preserved in the records, it is clear that his allegation regarding tutoring or using the child
conclusion was erroneous. This precaution is witness for ulterior purposes of the prosecution,
necessary because child witnesses are amenable the courts have no option but to rely upon the
to tutoring and often live in a world of make- confidence inspiring testimony of such witness
believe. Though it is an established principle for the purposes of holding the accused guilty or
that child witnesses are dangerous witnesses not. The evidence of the child witness must be
as they are pliable and liable to be influenced evaluated more carefully and with greater
easily, shaped and moulded, but it is also an circumspection because a child is susceptible to
accepted norm that if after careful scrutiny of be swayed by what others tell him and thus an
their evidence the Court comes to the conclusion easy prey to tutoring. The evidence of the child
that there is an impress of truth in it, there is no witness must find adequate corroboration before
obstacle in the way of accepting the evidence of it is relied upon, as the rule of corroboration is of
a child witness.” practical wisdom than of law.”
790 Sanil Sreekumar K. v. Union of India 2024(1)
13. Bearing above legal position in Court has c orrectl y appreciated the
mind, if we scrutinize the evidence of PW5 available evidence, more particularly, that
Sunil, in our opinion, though he is a child of the child witness. Settled law on the
of 6 - 7 years old, the manner of answers evidentiary value of child witness and
clearly suggests that he understood the manner of appreciation has been taken due
purport of the questions. He has very care while reaching to the finding of guilt.
categorically answered about seeing his No perversity has been pointed out in the
father sitting on the chest of his sister Nikita judgment and the reasons arrived at. No
and pressing her neck. He has stated that case being made out on merits, we proceed
he ran to inform his grandfather PW3 to pass following order :-
Damu. Nothing damaging is elicited in spite ORDER
of being cross examination. A mere answer The criminal appeal stands dismissed.
of the child that he is deposing as per the Appeal dismissed.
say of prosecution itself would not be a
-----
ground to doubt his testimony. There is
Rights of parents are irrelevant when a
nothing unusual in prosecutor appraising
Court decides custody of child issue
the witness prior to his evidence, more
particularly, when the witness is of such 2024(1) Bom.C.R.(Cri.) 790
tender age. We have carefully gone through Before :
the nature of questions posed to him and Revati Mohite Dere & Gauri Godse, JJ.
the manner of answers given by him. His Sanil Sreekumar K. ... Petitioner.
evidence and answers do inspire Versus
confidence. He has stood steadfast on the Union of India & ors. ... Respondents.
aspect of father sitting on the chest of his Criminal Writ Petition No. 2259 of 2023,
sister and strangulating her. His presence decided on 9-11/22-12-2023.
has not been doubted or brought under the (A) Hindu Minority and Guardianship
cloud. Even dead body was found in the Act, 1956, Sec. 6 – Custody of minor child –
very room occupied by the accused. His Welfare of child is paramount – Petition is filed,
father has confirmed his presence that night seeking a writ of Habeas Corpus directing
in the house along with both children Respondents 1, 2 and 3 to produce his minor
including deceased Nikita. daughter aged about 4 and ½ years, now 5 years
14. Consequently, evidence of PW5 old, before this Court and direct respondents to
Sunil deserves to be accepted without a facilitate safe return of minor daughter to USA
hitch. His evidence has hit the final nail in – Respondent 6 is petitioner’s wife and mother
the coffin and fate of the case has been sealed of minor daughter – All apprehensions expressed
by registering the guilt. There is no reason to by Respondent 6 are taken care of by petitioner
discard the evidence of PW3 Damu-informant and he has agreed to provide all required care
in toto for above said reasons. Therefore, and protection to daughter – Respondent 6’s
evidence of informant coupled with evidence decision not to return to USA is not justified –
of child witness, is sufficient to tie down the Proceedings for divorce and custody of daughter
accused for charge. initiated by Respondent 6 is a valid ground for
15. We have gone through the not granting reliefs prayed in this petition –
judgment under challenge. Learned trial Held, welfare and best interest of daughter lies
Bom.C.R.(Cri.) Sanil Sreekumar K. v. Union of India 791
in her living in USA and that there is no valid 12. Vasudha Sethi Vs. Kiran V. Bhaskar, 2022(3)
ground to detain her in India. To ensure Bom.C.R.(Cri.) 486(S.C.) : (2022) S.C.C. Online
S.C. 43.
fulfilment of daughter’s basic rights and needs,
identity, social well-being and physical, Advocates appeared :
Janay Jain a/w. Udayan Mukherjee i/b. Ms. Kavita
emotional and intellectual development, it is
Singh, for petitioner.
necessary for her to go back to USA. Writ
Ansh Karnavat i/b. Jay Bhatia a/w. Siddhant Rai,
petition is allowed. (Paras 60 to 64) for respondent 6.
(B) Hindu Minority and Guardianship Nirman Sharma i/b. Jay Bhatia a/w. Vijay Pandey,
Act, 1956, Sec. 6 – Custody of minor child – for respondents 7 & 8.
Respondents 7 and 8 are parents of Respondent Ms. P.P. Shinde, A.P.P., for State.
6 – Daughter is also entitled to have company 142.PM/IN/ND/RR/MG
of both parents – It is her basic human right to Per GAURI GODSE, J.: – Rule. Rule made
have care and protection of both parents – returnable forthwith.
Respondent 6 is not justified in unreasonably 2. Mr. Karnavat waives service on
depriving daughter of company of her father – behalf of respondent No. 6, Mr. Sharma
Respondent 6 cannot deprive daughter of her waives service on behalf of respondent Nos.
basic human rights only because she has decided 7 and 8 and learned APP waives service on
that she does not want to go back to USA, where behalf of the State of Maharashtra-
parties are permanently settled – Held, rights respondent No. 9. Since the dispute in the
of parents are irrelevant when a Court decides Writ Petition is between the petitioner and
custody issue. (Para 59) respondent No. 6, it is not necessary to hear
Cases referred : respondent nos. 1 to 5.
1. Abhay Sanjay Mogal Vs. Neha Joshi, 2023(4) 3. The petition is filed, seeking a writ
Bom.C.R.(Cri.) 481 : 2023 S.C.C. Online Bom. 1943.
of Habeas Corpus directing respondent nos.
2. Yashita Sahu Vs. State of Rajasthan, 2020
DGLS(SC) 51 : (2020)3 S.C.C. 67. 1, 2 and 3 to produce his minor daughter
3. Abhinav Gyan Gangeshwar Prasad Vs. State of ‘Ananya’ aged about 4 and ½ years, now 5
Maharashtra, 2022 DGLS(Bom.) 3038 : 2022 S.C.C. years old, before this Court and direct
Online Bom. 2958. respondents to facilitate the safe return of
4. Arathi Bandi Vs. Bandi Jagadrakshaka Rao, 2013 the minor daughter to the USA. Respondent
DGLS(SC) 552 : (2013)15 S.C.C. 790.
No. 6 is the petitioner’s wife and mother of
5. Rajeswari Chandrasekar Ganesh Vs. State of
Tamil Nadu, 2022 DGLS(SC) 884. the minor daughter. Respondent nos. 7 and
6. H. (Infants), In re, (1966)1 WLR 381 : (1966)1 8 are the parents of respondent No. 6.
AIl.E.R. 886. Petitioner’s case in brief :
7. Joshayet Kapuar Vs. Gunjan Bakshi, 2021 S.C.C.
Online Bom. 3012.
4. Petitioner is an Indian Citizen by
8. Jose Antonio Zalba Diez Del Corral alias Jose birth and presently residing in the United
Antonio Zalba Vs. State of West Bengal, (2021) States of America (‘USA’) and is a green card
S.C.C. Online S.C. 3434. holder and permanent resident of the USA.
9. Kanika Goel Vs. State of Delhi through Station The petitioner is working as a Principal
House Officer, 2018(3) Bom.C.R.(Cri.) 599(S.C.) :
Scientist at Boehringer Ingel heim
(2018)9 S.C.C. 578.
10. Nithya Anand Raghavan Vs. State (NCT of
Pharmaceuticals. Petitioner and respondent
Delhi), 2017 DGLS(SC) 643 : (2017)8 S.C.C. 454. No. 6 got married in India at Kerala on 25th
11. Lahari Sakhamuri Vs. Sobhan Kodali, 2019 October 2014. The daughter of petitioner
DGLS(SC) 440 : (2019)7 S.C.C. 311. and respondent No. 6 was born on 14th
December 2018 in the USA and is thus a daughter. However, initially, he was even
citizen of the USA. On 31st January 2023, denied access to his daughter. However,
respondent No. 6 visited her family in after several requests, the petitioner was
Mumbai along with the daughter; though allowed to meet his daughter for a very
respondent No. 6 was scheduled to return short time. On 17th May 2023, when the
to the USA along with the daughter on 30th peti tioner visited the residenc e of
April 2023, respondent No. 6 continued to respondent No. 6 to meet his daughter, he
reside with her parents along with the was faced with severe humiliation and was
daughter. Initially, respondent No. 6 driven out of the house as he refused to
remained in contact with the petitioner, but concede to the oblique demands of
due to the demand of a substantial sum of respondent Nos. 6 to 8. As respondent No.
money made by respondent No. 6 with the 6 refused to return to the USA along with
petitioner and as the petitioner was unable the daughter, the petitioner was constrained
to concede her demand, respondent No. 6 to return to the USA alone as he was
suspended all forms of contacts of the required to attend to his professional
petitioner and the minor daughter. According commitments. Since then, the petitioner has
to the petitioner, there is a possibility of been making several efforts to mediate with
respondent No. 6 being brainwashed or respondent No. 6 by requesting her to
coerced by respondent Nos. 7 and 8 to return to the USA with the daughter.
extend her stay in India and illegally detain However, respondent No. 6 refused to
the daughter, who is an American citizen. cooperate with the petitioner in any
It is the petitioner’s case that for no cogent manner. Hence, the petitioner sent an email
reasons, respondent No. 6 has refused to on 9th June 2023 addressed to the Ministry
take the daughter to the USA. of External Affairs- respondent No. 1 and
5. According to the petitioner, the the Assistant Commissioner of Police,
daughter was due to be enrolled for Oshiwara Division, Mumbai, informing
preschool on 1st May 2023, and she was them regarding the petitioner’s plight and
required to attend an interview in mid-May requesting assistance to investigate and take
for admission to the kindergarten. his minor daughter to the USA who is illegal
However, respondent No. 6 refused to take detained in India. Since there was no
back the daughter to the USA. On 11th May response to his e-mail, the petitioner filed
2023, the petitioner received a message on this petition on 26th June 2023.
WhatsApp pertaining to a purported Status of the petition:
divorce proceeding along with a child 6. Respondent Nos. 6 to 7 appeared
custody petition having been filed by in the petition through their Counsel. Since
respondent No. 6 before the Family Court parties were ready to explore the possibility
at Bandra. However, the petitioner was of an amicable settlement, the petition was
never served with any copy of such petition. adjourned for hearing and in the meantime,
Thus, on 15th May 2023, the petitioner respondent No. 6 was directed to permit the
travelled to India in an attempt to reconcile petitioner to make WhatsApp video calls to
the differences and misunderstandings, if interact with the daughter. A mediator was
any, with respondent No. 6 and requested also appointed to explore the possibility of
her to return to the USA along with their an amicable settlement. The petitioner
resides in the USA; hence, he was permitted refused to bring the daughter to the USA
to appear before the mediator through on flimsy grounds that the daughter was
video conferencing. Both parties attended being raised in the Indian culture and she
the mediation proceedings. However, this likes to dress up culturally for festivals and
Court was informed on 5th October 2023 on special occasions in India, and she is
that the mediation had failed. The parties adept in reciting shlokas and has a preference
continued with the interim arrangement of for home-cooked vegetarian meals in India.
the petitioner interacting with the daughter Another reason given by respondent No. 6 in
through WhatsApp video calls. In the her affidavit in reply was that the daughter
meantime, respective affidavits were filed shared a close relationship with her maternal
on behalf of the parties. Since an amicable grandparents, i.e. respondent nos. 7 and 8.
settlement did not arrive between the Respondent No. 6 contended that she and the
parties, the petition was taken up for final daughter were vulnerable to the cold climate
disposal. and that the child had a proclivity for the
Submissions on behalf of the petitioner: warmer climate. Lastly, the contention raised
7. It is submitted on behalf of the by respondent No. 6 was that their daughter
petitioner that the minor daughter is a would not get well-rounded family in the
citizen of the USA and has been illegally USA as the petitio ner had a lac k of
detained in India by respondent No. 6. The inclination to socialise with others.
refusal on the part of respondent No. 6 to 8. In response to the reasons given by
return to the USA is unjustified and respondent No. 6, it was submitted on
amounts to illegally detaining the minor behalf of the petitioner that the daughter
daughter in India. The petitioner is a can always continue with the activity she
permanent resident of the USA and a green likes in the USA. The daughter can speak
card holder. The petitioner is a Postdoctoral Malayalam and celebrate all the Indian
Fellow at the University of Berkeley and is festivals in the USA, and can also recite all
a permanent employee of Boehringer the shlokas and eat vegetarian food in the
Ingelheim Pharmaceuticals, which is one of USA. With respect to the daughter sharing
the biggest pharmaceutical companies in a cl ose relationship with maternal
the world. Respondent No. 6 is also a green grandparents is concerned, it was
card holder and holds a post-graduation submitted that respondent nos. 7 and 8 hold
qualification in Nutrition and Sports a visa to travel to the USA, and they are
Science. She has also completed a one-year always free to visit their grandchild as they
course in personal training from California. have already visited on many occasions in
After the marriage, the parties have been the past. It was submitted that even during
residing in the USA. Their minor daughter the time of delivery of their daughter, the
was born in the USA and is a citizen of the parents of respondent No. 6 were residing
USA. Respondent No. 6 visited her parents along with them in the USA. The petitioner
in India along with the daughter with a and respondent No. 6 were permanently
scheduled program to return to the USA. settled in the USA and also started a family
However, upon reaching India, respondent there, and their child was born in the USA,
No. 6 cancelled her return ticket for herself making her a US citizen by birth. The
and the daughter without any reason. She reasons given with respect to the cold
climate in the USA are not justified, as the i) (Abhay Sanjay Mogal Vs. Neha Joshi)1,
parties were always aware of the cold 2023(4) Bom.C.R.(Cri.) 481 : 2023 S.C.C.
climate in the USA. Moreover, the daughter Online Bom. 1943.
never had any serious health problems in ii) (Yashita Sahu Vs. State of Rajasthan and
the USA. With respect to the allegations that Ors.)2, 2020 DGLS(SC) 51 : (2020)3 S.C.C. 67.
the petitioner is an introvert and does not iii) (Mr. Abhinav Gyan S/o. Gangeshwar
socialize, it is submitted that the said Prasad Vs. State of Maharashtra and
Another)3, 2022 DGLS(Bom.) 3038 : 2022
submission is baseless. It is submitted that
S.C.C. Online Bom. 2958.
the parties lived happily in the USA after
iv) (Arathi Bandi Vs. Bandi Jagadrakshaka
their marriage, and their daughter was born Rao and Ors.) 4 , 2013 DGLS(SC) 552 :
after 4 years of their marriage. Hence, such (2013)15 S.C.C. 790.
reasons given by respondent No. 6 are an
By relying upon the aforesaid
afterthought and have no basis.
decisions, the learned Counsel for the
9. It was submitted on behalf of the petitioner submitted that in the similarly
petitioner that even during the pendency situated facts, this Court, in the case of
of the petition, the petitioner was always Abhay Mogal, allowed the petition filed by
open to sorting out personal differences the father of the minor son and directed his
between the parties so that they could repatriation to the USA. Learned Counsel
cohabit as a family in the best interest of particularly relied upon paragraph 48 of the
the daughter. Petitioner, in his additional said judgment, which reads as under:
affidavits, has stated that he was and is “48. ……. We have already held that there is
always willing to continue his marriage substance in the submission of the petitioner that
with respondent No. 6, and if required, it will be more beneficial for Aaryan to live in
he i s wi l l i ng to engage i n f ami l y the US, in as much as he being a US citizen is
Counselling sessions and is even ready to entitled to all the educational, social and medical
bear exp enses f o r the s ame. The benefits available there. We find that the stay of
petitioner, in his affidavits, has also Aaryan in India for last two and half years is
undertaken not to take any legal recourse too short a period to facilitate his integration into
which is prejudicial to respondent No. 6. the social, physical, physiological, cultural and
The petitioner always acted in the best academic environment of India. Hence, if
repatriated to the US, he will not be subjected to
interest of respondent No. 6 and the
an entirely foreign education system. By
daughter, and he has secured health applying the principles laid down by the Hon’ble
insuranc e fo r bo th o f them and has Supreme Court in the decision of Vasudha Sethi,
purchased new residence which would we find in the facts of the present case that
allow their daughter to access to the best Aaryan, being a citizen of the US, will have better
schooling facilities in the USA. future prospects on return to the US…...”
10. It was submitted on behalf of the 11. With respect to the nationality of
petitioner that one parent cannot act in an the daughter, learned Counsel for the
unjustified manner and illegally detain the petitioner relied upon paragraph 28 of the
child by ignoring the welfare of the child. decision in the case of Yashita Sahu which
In support of his submission, learned reads as under:
Counsel for the petitioner has relied upon “28. Nationality of the child.– The child is a
the following decisions: citizen of the USA by birth .... The child was
born in a hospital in the USA and the mother Guardianship Act, 1956, would not be a
did not come back to India for delivery which ground to be considered for refusing
indicates that at that time the parents wanted repatriation of the daughter. In support of
the child to be a citizen of the USA. Since the his submission, learned Counsel for the
child is a citizen of the USA by birth and holds a
petitioner relied upon the observation of
passport of that country, while deciding the issue
of custody we have to take this factor into this Court in the case of Abhinav Gyan,
consideration.” which reads thus:-
12. Similarly, in the present case, “42. We are of the opinion that the stipulation in
Section 6(a) of the Act of 1956, no doubt
respondent No. 6 had an option to return
indicates that ordinarily the custody of the
to India for delivery. However, she opted
minor child, less than five years of age, has to
to give birth to her child in the USA so that be with the mother, but, an enquiry into what
the child would be a citizen of the USA. would be in the best interests and welfare of
Moreover, even her parents i.e, respondent the child ought not to stop at that point. In
No. 7 and 8 had flown to the USA to support such cases where one parent takes the child
respondent No. 6 at the time of her delivery. away from the other and the parent taking
13. Learned Counsel for the petitioner away the child is the mother, only because the
also relied upon paragraph 49 of the minor child happens to be less than five years,
decision of the Abhay Mogal’s case in ought not to prevent the Courts from
support of his contention that the age of the examining the facts of the case to reach a
conclusion as to what would in the best
daughter would not be the only factor to be
interests of the child.…….
taken into consideration for not permitting
“43.....…….The Hon’ble Supreme Court in the
her repatriation to the USA. Paragraph 49
said judgment in the case of (Rajeswari
of the decision in the case of Abhay Mogal
Chandrasekar Ganesh Vs. State of
relied upon by the learned Counsel for the Tamil Nadu) 5 , 2022 DGLS(SC) 884
petitioner, reads thus:- (supra), in the context of writ of habeas
“49. Except for the tender age of XXX, where he corpus, has held as follows:
needs the care and protection of a mother, we do “91. Thus, it is well established that in issuing the
not see any factor in favour of the respondent. writ of Habeas Corpus in the case of minors,
At the same time, we believe that at this tender
the jurisdiction which the Court exercises is
age, XXX is entitled to have the company of both
an inherent jurisdiction as distinct from a
his parents. Rather, it is his basic human right
statutory jurisdiction conferred by any
to have the care and protection of both parents.
particular provision in any special statute. In
Thus, the respondent is not justified in
other words, the employment of the writ of
unreasonably depriving XXX of the company of
Habeas Corpus in child custody cases is not
his father. The respondent cannot deprive XXX
of his basic human rights only because she has pursuant to, but independent of any
suddenly decided that she does not want to go statute……...”
back to the US, where the parties were 15. Learned Counsel for the petitioner
permanently settled.” further submitted that the conduct of
14. Learned Counsel for the petitioner respondent No. 6 in admitting their minor
further submitted that the contention of daughter to the school in Mumbai shows
respondent No. 6 on her being entitled to the mala fide intention of respondent No. 6
the custody of the minor daughter, in view to deprive the daughter of the company of
of the provisions of the Hindu Minority and her father and further deprive her of better
educational facilities in the USA to which of filing of the petition, the daughter had
she is entitled to being US citizen. He hardly resided in India for a period of five
submitted that the conduct of respondent months, and thus, it cannot be said that she
No. 6 in admitting the daughter to a has developed roots in India in a short span.
school in Mumbai could not be a ground 17. Learned Counsel submitted that
f o r ref usi ng the repatri ati o n of the this Court, in the case of Abhay Mogal, has
daughter. Learned Counsel submitted that considered a similar aspect where the minor
a similar argument raised in the case of child had stayed in India for a period of 2 ½
Abhinav Gyan was rejected by this Court by years. In support of his submission that the
observing as under: daughter’s stay cannot be said to have
“69. ….. Even today, the child is only 4 ½ years developed roots in India, he relied upon the
old and it cannot be said that the schooling, observations made in the case of Abhay
which he has been introduced to, at Nagpur in Mogal in paragraph 42.
India, would be disturbed in such a manner that
18. Learned Counsel for the petitioner
it would be against his interests to be taken to
the USA. On the contrary, the child returning submitted that in view of the differences
back to the USA with appropriate directions to between the petitioner and respondent No.
ensure that both his parents are available to him, 6, the daughter cannot be deprived of the
would be in the best interest and welfare of the company of the other parent. Learned
minor child, in the facts and circumstances of Counsel submitted that only because of the
the present case.” unreasonable and unilateral decision of
16. Learned Counsel for the petitioner respondent No. 6 the daughter is deprived
submitted that the contention raised on of the company of her father to which she
behalf of respondent No. 6 that the daughter is entitled. In support of the said
has developed roots in India is equally submission, learned Counsel relied upon
baseless. He submitted that respondent No. the observations of this Court in paragraph
6 had visited India along with the daughter 63 in the case of Abhinav Gyan, which reads
in January 2023 with a scheduled program as under:
to return on 30th April 2023. However, “63 ..….. We are of the opinion that only because
respondent No. 6, unilaterally cancelled the there happened to be differences and discord
return tickets and refused to return to the between the respondent No. 2 and the petitioner,
USA along with the daughter without any having brought the child to India, the respondent
reason. Learned Counsel thus submitted No. 2 ought not to have acted in such a manner
that by illegally detaining the daughter in that the petitioner lost complete contact with the
minor child. The material on record does not
India, respondent No. 6 cannot contend that
indicate that any harm would have been caused
in view of the short stay of the daughter in to the minor child at the hands of the petitioner
India, which was continued in view of the and that this was the reason for the respondent
unilateral decision of respondent No. 6, the No. 2 to have completely blocked the petitioner
daughter has developed roots in India. from contact with the minor child. The essential
Learned Co unsel f or the petiti oner reason for the same appears to be the differences
submitted that the petitioner has acted in of opinion and the discord in the matrimonial
alacrity and taken immediate steps to life of the parties.”
repatriate the daughter. Learned Counsel 19. The learned Counsel in support of
for the petitioner submitted that on the date the said submission that one party cannot
unilaterally decide to detain a child from result of a long-standing dispute. Learned
returning to the country of origin relied Counsel relied upon the relevant dates and
upon the decision of the Hon’ble Supreme events in support of his submission that the
Court in the case of Arathi Bandi, he relied dispute between the parties was a
upon paragraph 40 of the said decision longstanding dispute. Learned Counsel for
which reads as under: respondent No. 6 submitted that though the
“40. The Courts have taken cognizance of growing visit of respondent No. 6 along with the
practice of children being removed from one daughter in January 2023 to India was fixed
country to another just to put pressure/influence with a scheduled program to return to the
the legal proceedings that are usually pending USA on 30th April 2023, he highlighted
in these cases in relation to the irretrievable certain events occurred prior to November
breakdown of marriage. In (H. (Infants), In re
2022, to justify the decision of respondent
)6, (1966)1 WLR 381 : (1966)1 AIl.E.R. 886
(CA)], Willmer, L.J., as long back as 1961, No. 6 of not returning to the USA.
observed as follows: (WLR p. 389B) 22. It was submitted that from 14th
…... The sudden and unauthorised removal of December 2018 to 2nd May 2019,
children from one country to another is far too respondent nos. 7 and 8 resided in the USA
frequent nowadays, and, as it seems to me, it is to help respondent No. 6 to raise the
the duty of all Courts in all countries to do all daughter. Thereafter, again, from 8th July
they can to ensure that the wrongdoer does not 2019 to 19th November 2019, respondent
gain an advantage by his wrongdoing.” No. 8 (mother of respondent No. 6) visited
20. The learned Counsel thus the USA and stayed with the parties for 4
submitted that respondent No. 6 cannot months to help them raise the daughter.
take advantage of her own unilateral Thereafter, from 29th November 2019 to
decision not to return to the USA along with 18th December 2019, the daughter stayed
the daughter. Learned Counsel submitted along with the petitioner and respondent
that the conduct of respondent No. 6 has No. 6 and also with respondent No. 7 and 8
deprived the daughter of the company of at Mumbai and thereafter in Kerala.
both parents and has deprived her of all Thereafter, on 24th February 2021, the
entitlements, including better education daughter visited India as the grandmother
available to her in the USA, as she is a US of respondent No. 6 was on her deathbed.
citizen. Based on the aforesaid submissions, It is submitted that during that time, several
the learned Counsel for the petitioner issues had arisen between the petitioner
requested to issue a writ of habeas corpus and respondent No. 6. The petitioner had
for producing the daughter before this blocked all the finances of respondent No.
Court and issue directions to facilitate her 6 and was threatening her to return to the
safe return to the native country i.e. USA. USA though her grandmother was on
Submission on behalf of respondent deathbed. It is further submitted that after
No. 6: several attempts were made to resolve the
21. Learned Counsel for respondent dispute and on the interventio n of
No. 6 relied upon the affidavit in reply and respondent No. 7 (father of respondent No.
sur-rejoinder filed on behalf of respondent 6), the petitioner agreed to give respondent
No. 6. He submitted that the dispute and No. 6 a sum of USD150 towards her
differences between the parties are the monthly expenses.
23. It is submitted that the petitioner of the daughter. Learned Counsel submitted
conti nued the harassment and thus that in the conversation through WhatsApp
respondent No. 6 was constrained to petitioner is also seen asking respondent
approach ‘The Centre’, which is a Bilingual No. 6 not to return to the USA.
Bicultural Counselor Advocate in the USA, 24. It is thus submitted on behalf of
where respondent No. 6 was required to respondent No. 6 that considering the
seek shelter and protection in view of the aforesaid facts and circ umstances,
violent behaviour of the petitioner. In respondent No. 6 was constrained to file a
support of this submission, learned Counsel divorce petition in the Family Court at
for respondent No. 6 relied upon the Mumbai and also seek permanent custody
document on page 127 annexed to the reply. of the daughter. Thus, it was submitted that
The learned Counsel for respondent No. 6 though the return tickets were booked,
further submitted that on 23rd January respondent No. 6 was unable to go to the
2022, there was an altercation between the USA as scheduled. Learned Counsel further
petitioner and respondent No. 6, which led submitted that after the divorce and custody
to a situation where she was required to lock petition was filed, the petitioner visited
herself in a room; however, petitioner respondent No. 6 and the daughter in India
opened the door by breaking open the lock and that petitioner was given access to the
by using a drill machine and threatened daughter during his stay in India. However,
respo ndent No . 6. Learned Counsel the petitioner visited the daughter only for
submitted that such conduct of the three days during his stay. It was, thus,
petitioner shows that he has anger issues submitted that in the last 9 months,
and thus the respondent No. 6 was petitioner had access to the minor daughter
concerned for the daughter’s safety and for only a period of three days. Learned
hence has refused to return to the USA. It Counsel further submitted that as directed
is not disputed that respondent No. 6 and by this Court petitioner was regularly given
the daughter came to India on 31st January video access to the child.
2023 with the return tickets booked for 30th 25. The learned Counsel submitted a
April 2023. However, it was submitted that comparative chart to show that the child
on 12th March 2023, the petitioner cut off would be better raised in India than in the
the credit card, which was the only access USA and that it was in the interest and
to funds of respondent No. 6 and the welfare of the daughter to live in India with
daughter while in India. Learned Counsel respo ndent No . 6. Learned Counsel
submitted that this was intentionally done submitted that respondent No. 6, being the
by the petitioner in the exercise of leverage mother, is the primary care giver of the
in order to punish respondent No. 6 for a daughter and has also looked after her food
conversation where he felt offended for and nutrition, medical requirements, school
being told that Rs. 10,000/- a month was not pick-ups and drops, homework, school
enough for respondent No. 6 and the projects, extra-curricular and cocurricular
daughter to sustain themselves in Mumbai. activities, for example, swimming class,
It was submitted that since then, the outings and social exposure, interacting
petitioner had not sent any money to with families and friends. Thus, the
respondent No. 6 or towards the expense daughter feels secure and comfortable in
the company of respondent No. 6 and being the necessary knowledge or skills to raise
a girl child of 4 ½ years, it is important that the daughter alone. Learned Counsel
she resides with her mother during her further submitted that the daughter resides
formative years. As against this, the with her mother (respondent No. 6) and
petitioner works long hours, i.e. 13 hours a maternal grandparents (respondent nos. 7
day, and travels abroad for work from time and 8). The maternal grandparents have
to time for a long duration despite not spent over 2 years with the daughter during
having such compulsions. The petitioner, in their stay in the USA as well as during the
support of his case in the affidavit in daughter’s visit to India, and thus, the
rejoinder, offered to overcome this by daughter is attached to them as they have
appointing a Nanny and reducing his visits always been part of raising of the daughter.
abroad. Learned Counsel submitted that for Learned Counsel submitted that relatives
the upbringing of the daughter, appointing and friends of respondent No. 6 live close
a Nanny is a poor substitute for a mother’s by. Thus, the daughter will always have the
care. Learned Counsel submitted that the support of her family in these formative
petitioner has also expressed his financial years, which will always give her security
constraints; hence, it is difficult to believe and social exposure. Learned Counsel
that the petitioner would afford to appoint further submitted that the petitioner
a Nanny. Learned Counsel further admittedly has no relatives in the USA. The
submitted that the daughter is aged 4 ½ petitioner has admitted that he would be
years and would complete 5 years in required to hire a Nanny to raise the
December 2023. He submits that laws in daughter. Hence, it was submitted that the
India recognize that at this age, a child daughter would be better raised in India by
should ordinarily be in the care of the respondent No. 6, and also would be
mother as per section 6 of the Hindu surrounded by maternal grandparents,
Minority and Guardianship Act. It was thus close relatives and friends.
submitted that respondent No. 6 is best 27. With respect to the educational
suited to sensitise the daughter about facilities for the daughter, the learned
women-centric aspects. Counsel for respondent No. 6 submits that
26. The learned Counsel submitted the daughter is al ready admitted in
that the petitioner primarily studied in a Gundecha Education Academy, Mumbai,
boarding school, and as evidenced by which is rated as the 6th best school in
WhatsApp chats, he had certain issues with Maharashtra and the 11th best in the
respect to his own upbringing. Learned Country. He submitted that the record of
Counsel submitted that even the petitioner the daughter’s school indicates that she is
admits that his relationship with his father doing very well in the present school, and
is estranged. It was further submitted that it would not be in her interest to unsettle at
the petitioner requires more time at work, this stage. Learned Counsel further
while respondent No. 6 was primarily submitted that the reports about the school
responsible for raising the child during their in the USA indicate that the school is a
stay in the USA. The petitioner was never below-average school and children there do
confident like respondent No. 6, in bringing not meet the standards for reading abilities.
up the daughter. Hence, the petitioner lacks The learned Counsel for respondent No. 6
relied upon pages 333 to 337 of the affidavit 29. Learned Counsel submitted that
dated 6th No vember 2023 filed by prior to the year 2023, respondent No. 6 has
respondent No. 6, in support of the often sought the intervention of family and
contention that the school in the USA is professionals to resolve issues between the
underrated. Learned Counsel for parties. Learned Counsel relied upon page
respondent No. 6 thus submitted that the 309-312 of the sur-rejoinder filed by
report about the said school in the USA respondent No. 6, to contend that the
belies the petitioner’s stand that he shifted petitioner’s brother has stated that the
to a bigger residence in an area to enable petitioner is trying to exploit the weakness
the daughter to access better facilities. of respondent No. 6 that he will get wild if
28. Learned Counsel for respondent anyone from his family mediates and that
No. 6 submitted that the daughter is rooted matters will get worse between the parties
in Indian culture and ethos and that she is if respondent No. 6 goes to the USA without
conversant with Malyalam and Hindi finding a solution. He further submitted
language. He submitted that the daughter that respondent No. 6 had to adopt other
recites hymns such as gayatri mantra, laxmi measures to safeguard the marriage, such
shloka, etc. He submitted that the child as attempting Counselling. Respondent
prefers Indian homecooked meals over the No. 6 also sought employment and she
unhealthier alternative of the western food even undertook freelancing as a yoga
and that it is always better for the daughter’s teacher. He submitted that despite threats
health to have Indian home-cooked meals. and cruelty inflicted by the petitioner,
Learned Co unsel submitted that the respondent No. 6 returned to the USA in
rejoinder filed on behalf of the petitioner the year 2021 o n assuranc es o f the
shows that he admits that the daughter is petitioner. However, again in November
rooted in Indian culture and tradition and 2021, the petitioner created compelling
has never been disassociated from Indian circumstances for respondent No. 6 to
roots. Learned Counsel for respondent No. seek shelter and protection from welfare
6 thus submitted that the daughter was too organisation. Hence, respondent No. 6
young while she was in the USA to be instituted divorce and custody proceedings
cognizant of her surroundings or to settle in India in the month of April 2023.
in the American lifestyle. Hence, it is clear 30. Learned Counsel for the
that the environment of India is familiar to respondent No. 6, submitted that the
the daughter, and she is well-settled in conduct of the petitioner lacks alacrity in
Indian culture. Learned Counsel submitted fili ng the present proceedings. He
that respondent No. 6 and the daughter are submitted that the petition was instituted
prone to illness due to the climate in the in the month of July 2023, i.e., after the delay
USA. While in the USA, respondent No. 6, of more than 60 days from the date of
on many occasions, had pointed out that the cancellation of return tickets of respondent
daughter, on account of the cold climate in No. 6 and the daughter. He submitted that
the USA, also suffered from cyanosis in the the petiti oner has not o ffered any
past. Thus, even with respect to the better explanation for this delay. Learned Counsel
health of the daughter, India would be a submitted that the writ petition is filed only
better place for the daughter to be raised. by way of a counterblast to the petition for
divo rce and custody instituted by daughter would be completely helpless and
respondent No. 6. He further submitted that insecure in the USA. Learned Counsel
the petitioner had cut off respondent No. 6 submitted that only the Courts in India
and the daughter’s finances and at one stage would have competent jurisdiction to
even told the respondent No. 6 not to return decide the disputes between the parties.
to USA. Learned Counsel submitted that the More so, the petitioner has not initiated any
petition is filed through the power of proceedings for the custody of the daughter.
atto rney hol der. Learned Counsel 32. Learned Counsel, thus, submitted
submitted that the petitioner’s conduct that the custody of the daughter is with her
shows that he spends extensively on as a biological mother who is entitled to her
himself and claims to have limited funds custody, considering the interest of the
for the family’s basic necessities. Thus, the daughter. Thus, the custody of the daughter
peti tioner ’s refusal to spend would with respondent No. 6 cannot be considered
adversely affect the child’s welfare. Though illegal. He submitted that respondent No.
the petitioner is served with divorce and 6 was constrained to make a decision not to
custody proceedings, he has refused to return to the USA, in view of the conduct
appear in the proceedings in India. Learned of the petitioner, and hence, it cannot be said
Counsel thus submitted that respondent that respondent No. 6 has illegally detained
No. 6 has justifiable reasons for refusing to the daughter in India. Learned Counsel
return to the USA. submitted that the facts and circumstances
31. Learned Counsel for respondent of the case, as narrated above would show
No. 6 submitted that the facts and that the daughter is in good care of her
circumstances of the case would show that biol ogical mother and maternal
the welfare of a child lies in India and that grandparents. He submitted that if the
it is not safe for respondent No. 6 and the daughter is repatriated to the USA, she
daughter to return to the USA. learned would be left with the mercy of external
Counsel further submitted that the help in the event that the service of the
petitioner ’s financial restraints upon Nanny is hired or the daughter would be
respondent No. 6 and the daughter often required to stay in the child care centre.
come at the cost of the daughter’s comfort, Thus, under no circumstances is it in the
which is clear from the petitioner’s conduct. welfare of the daughter to live in the USA.
Learned Counsel submitted that all the In support of his submissions, the learned
attempts made to resolve the disputes Counsel for respondent No. 6 has relied
between the parties have failed. He upon the following decisions:
submitted that the past conduct of the i) (Joshayet Kapuar and Another Vs. Gunjan
peti tioner makes it impo ssible for Bakshi and Others)7, 2021 S.C.C. Online
Bom 3012.
respondent No. 6 to trust the petitioner and
ii) (Jose Antonio Zalba Diez Del Corral alias
that in the USA respondent No. 6 would
Jose Antonio Zalba Vs. State of West Bengal
have no means to enforce directions of the and Others)8, (2021) S.C.C. Online S.C. 3434.
Court in India and the petitioner stands in iii) (Kanika Goel Vs. State of Delhi through
much stronger financial and social position Station House Officer and Another) 9 ,
in the USA. Respondent No. 6 and the 2018(3) Bom.C.R.(Cri.) 599(S.C.) : (2018)9
51/24(1) S.C.C. 578.
iv) (Nithya Anand Raghavan Vs. State (NCT willing to return to the USA, the petitioner
of Delhi) and Another)10, 2017 DGLS(SC) 643 has undertaken to bear the air travel expenses
: (2017)8 S.C.C. 454. for respondent No. 6’s visit to the USA every
Submissions in rejoinder on behalf of the year and also provide a sum of 1500 USD per
petitioner: month for two months for her stay in the USA.
33. Learned Counsel for the petitioner He has further undertaken to facilitate the
submitted that he came to India on 15th daughter’s travel to India during her summer
May 2023 as he received a divorce notice breaks and on other occasions, depending
on WhatsApp. When he visited the upon the daughter’s school schedule, so that
residence of respondent No. 6 to meet her the daughter is able to spend an
and their daughter, he faced humiliating uninterrupted stay with respondent No. 6 and
treatment; hence, he was constrained to file her parents in India. He further submitted that
a complaint at Oshiwara police station. It the petitioner has pleaded in detail on how
was submitted that immediately after he will be able to take care of the daughter by
respondent No. 6 refused to return to the adjusting his working hours and by taking the
USA, he came to India to meet respondent help of a Nanny.
No. 6 and their daughter to make an attempt 35. Learned Counsel for the petitioner
to resolve the differences and take both of submitted that the petitioner was never
them back to the USA. However, his served with any verified copy of the divorce
attempts failed and thus, within a month and custody petition filed by respondent
of his visit to India, he filed this petition and No. 6, and he was only intimated about the
acted with alacrity. He submitted that same through a WhatsApp message. He
respondent No. 6’s unilateral decision of not submitted that the allegations made by
returning to the USA is not justified and is respondent No. 6 are baseless and without
not in the daughter’s interest. He relied any proof. He submitted that the
upon the decision of this Court, in the case submissions made on behalf of respondent
of Abhay Mo gal, to support his No. 6 on the troubled childhood of the
submissions. The learned Counsel for the petitioner were unwarranted and that it
petitioner submitted that the principles of would amount to saying that no parent with
law laid down by the Hon’ble Supreme a troubled childhood will get custody of his/
Court in the case of Yashita Sahu are squarely her child. He submitted that discord
applicable to the present case. between the parties cannot be a ground to
34. He submitted that the petitioner deprive the child of the company of both
has filed an undertaking that he will parents. He, therefore, submitted that the
provide for all the personal needs of daughter should not be deprived of all the
respondent No. 6 in addition to the day-to- facilities in the USA available to her being
day expenses and all the expenses of the a citizen of the USA, and it is in the best
daughter. He has also undertaken to interest of the daughter that she returns to
undergo family Counselling sessions to the USA being her native country.
enable the parties to sort out all the CONSIDERATION OF SUBMISSIONS
differences and provide a healthy and safe AND FINDINGS:
upbringing for the daughter. He submitted 36. We have considered the
that in the event respondent No. 6 is not submissions made on behalf of both parties.
It is unfortunate that due to the discord that the expression “best interest of the
between the parties on their personal issues, child”, which is always kept to be of
their minor daughter is suffering the most, paramount consideration, is indeed wide in
and the daughter is not only deprived of its connotation, and it cannot remain only
having the company of both parents but is the love and care of the primary caregiver,
also deprived of her entitlement to the i.e. the mother in case of the infant or the
rights and privileges in the USA being a child who is only a few years old and the
citizen of that country. It is a well-settled basis for any decision taken regarding the
principle of law that in such cases, the role child, is to ensure fulfilment of his/her basic
of the Court becomes crucial, and the Court rights and needs, identity, social well-being
is required to exercise parent patriae and physical, emotional and intellectual
jurisdiction and compel the parties to do development. However, while deciding the
something that is in the best interest of the welfare of the child, it is not the view of one
child. Hence, in such a peculiar situation, it spouse alone which has to be taken into
is the Court’s responsibility to enter into the consideration. The Courts should decide the
role of a guardian for the child. Hence, we issue of custody only on the basis of what
have considered the submissions made by is in the best interest of the child. Thus, in
both parties by keeping in mind the well- the present case, keeping in mind the well-
established principles of law in deciding the settled principles of law, the questions to
welfare and best interest of a minor child. be decided are as under:
37. It is well established that the A) whether the refusal on the part of
summary jurisdiction is to be exercised respondent No. 6 to return to the USA with
the daughter, as scheduled, is justified and
when the Court is moved promptly and
whether such refusal will amount to illegally
quickly. In all the circumstances, the
detaining the child in India.
overriding consideration must be the
B) whether the petitioner-father is justified
interests and welfare of the child. The in seeking repatriation of the daughter to
doctrines of comity of Courts, intimate the USA.
connect, orders passed by foreign Courts
39. In the present case, it is not
having jurisdiction in the matter regarding disputed that the parties, after their
custody of the minor child, citizenship of marriage, always resided in the USA. The
the parents and the child, etc., cannot petitioner is a Green Card holder and a
override the consideration of the best permanent resident of the USA.
interest and the welfare of the child and that Respondent No. 6 had also acquired a Green
the direction to return the child to the Card and was residing in the USA along
foreign jurisdiction must not result in any with the petitioner after their marriage was
physical, mental, psychological, or other solemnized on 25th October 2014. Their
harm to the child. daughter is a citizen of the USA by birth.
38. In the case of Abhay Mogal, this The petitioner is highly qualified and has a
Court, after taking into consideration all the secured job in the USA, and the parties have
decisions of the Hon’ble Supreme Court a permanent house in the USA. It is not
and this Court in the petitions filed seeking disputed that respondent No. 6’s parents
a writ of habeas corpus dealing with the issue resided with them in the USA intermittently
of repatriation of minor children has held to help and support the parties during the
days of pre-delivery and post-delivery of the required to return to the USA due to his
daughter. It is also not disputed that work commitments. The petitioner, on 9th
respondent No. 6 and the daughter visited June 2023, filed a complaint with the
India on pre-booked return tickets to the USA. Ministry of External Affairs in India
40. The contention of respondent No. complaining about respondent No. 6’s
6 is that the petitioner has anger issues and refusal to return to the USA and also not
is reluctant to provide the necessary finance allowing the daughter to go back to the
for her and the daughter’s needs. It is not USA, though she is a citizen of the USA.
disputed that respondent No. 6 and the Thereafter, the petitioner filed the present
daughter came to India on 31st January 2023 petition on 26th June 2023.
and were scheduled to return to the USA 42. Respondent No. 6 has made
on 30th April 2023. However, according to allegations against the petitioner that he has
respondent No. 6, the petitioner stopped anger issues, and she is concerned about her
sending any money since March 2023, even and the daughter ’s safety in the USA.
for the daughter’s expenses. Thereafter, Perusal of the pleadings and documents on
respondent No. 6 filed a divorce and child record shows that there are neither any
custody petition in the Family Court in serious allegations against the petitioner
Mumbai on 26th April 2023 and decided not nor any complaint is anytime filed against
to return to the USA as scheduled on 30th the petitioner in the USA or India. To
April 2023. So basically, the main reason substantiate the allegati on that the
pleaded by respondent No. 6 for not petitioner has anger issues, respondent No.
returning to the USA as scheduled is that 6 has relied on a report of a Counselor
the petitioner stopped providing any funds Advocate in the USA, where according to
for the expenses of respondent No. 6 and respondent No. 6 she was required to seek
the daughter. shelter and protection in view of the violent
41. The petitioner has disputed behaviour of the petitioner. The document
receipt of any physical copy of a verified on page 127 of the reply is an undated report
petition filed by respondent No. 6; however, of some Counselor in the USA. The learned
he admits to receiving an intimation letter Counsel for respondent No. 6 was unable
and print of the case status of the family to point out how the said report can be
Court case from respondent No. 6’s accepted to support the contention of
Advocate through WhatsApp on 11th May respondent No. 6 that there was some
2023. Thereafter, the petitioner visited India violent conduct on the part of the petitioner,
on 15th May 2023. It is the petitioner’s case which was unsafe for the daughter. The said
that he visited India to make an attempt to report does not mention any concern about
reconcile any differences or misunder- the safety of the daughter. The said report
standings with respondent No. 6 and take states that on 18th November 2021,
her and the daughter back to the USA. He respondent No. 6 had approached the
was allowed to meet the daughter for a Centre for Counselling and emotional
short while. The petitioner has explained support, being in an emotionally, financially
that as respondent No. 6 refused to return abusive and toxic marriage, and that
to the USA, and as the petitioner faced respondent No. 6 was attending
humi liation at her residence he was Counselling sessions. However, on the basis
of the said report, respondent No. 6 was indicates that the petitioner is willing to sort
unable to substantiate the allegation of any out the differences between the parties.
violent conduct of the petitioner, which can 43. The petitioner has denied the
be a matter of concern for the daughter’s allegations regarding anger issues by filing
safety. The learned Counsel for respondent an affidavit. He contended that in an attempt
No. 6 further submitted that on 23rd to wreak vengeance against the petitioner,
January 2022, there was an altercation respondent No. 6 had approached the child
between the petitioner and respondent No. service authorities in January 2022. However,
6, which led to a situation where she was respondent No. 6 was under the review of the
required to lock herself in a room; however, child services authorities for a period of 3 to 4
petitioner opened the door by breaking weeks, and the petitioner was interviewed
open the lock by using a drill machine and only once. Petitioner has relied upon an email
threatened respondent No. 6. Learned dated 8th February 2022 from the child
Counsel submitted that such conduct of the services authority in the USA suggesting
petitioner shows that he has anger issues and that the parties should engage in family
thus the respondent No. 6 was concerned for Counselling sessions. Thus, it does not
her and the child’s safety and hence has appear that the parties were in any abusive
refused to return to the USA. In support of relationship. We find substance in the
the said allegation, the learned Counsel for submissions made by the petitioner that
respondent No. 6 has also relied upon various respondent No. 6 has raised the said
WhatsApp chats between the parties and contentions with the intention of creating
photographs of the petitioner holding a drill prejudice against the petitioner.
machine in his hand. However, there are no 44. On minutely examining the rival
serious allegations against the petitioner contentions of the parties, it appears that
indicating any unsafe atmosphere for the respondent No. 6 has disproportionately
daughter. A perusal of the WhatsApp chats blown the petty differences between the
between the parties shows that they are parties in an attempt to justify her unilateral
arguing over petty i ssues mainly decision of not returning to the USA as
concerning the finances of the parties. The scheduled and also not allowing the
entire conversation between the parties daughter to return to the USA. It is pertinent
revolves around the differences between to note that immediately after respondent
the parties concerning their finances. We do No. 6 refused to return to the USA and also
not find it necessary to examine in detail did not allow the daughter to return to the
the dispute and differences between the USA, the petitioner acted with alacrity and
parti es regarding their finances. took steps to take the daughter back to the
Nevertheless, the petitioner has shown USA. On perusal of the pleadings of the
willingness to take care of the issues parties and the WhatsApp conversations
between the parties, including fulfilling the relied upon by respondent No. 6, it is seen
financial requirements of respondent No. 6 that there are disputes and differences
and the daughter. In the WhatsApp between the parties; however, the petitioner
conversations, the petitioner is seen being has been apologetic and made attempts to
apologetic towards respondent No. 6 and reconcile the differences. The petitioner has
her parents on certain issues, which also shown willingness to attend family
Counselling sessions with the intention of home cooked Indian vegetarian food is no
resolving disputes and differences so that the ground to refuse to return to the USA. The
daughter gets a healthy and safe lifestyle. petitioner, in response to the said contention,
45. It is, therefore, necessary to has rightly stated that even in the USA, the
examine whether the disputes and daughter was used to these habits, and even
differences between the parties are serious the petitioner is a vegetarian and likes home-
to the extent of exposing the daughter to cooked food and also is able to cook. Thus,
any insecurity. A perusal of the pleadings the said grounds raised by respondent No.
and documents on record shows that the 6 do not justify respondent No. 6’s decision
dispute between the parties mainly of not returning to the USA.
concerns financial issues. There are no 48. The daughter has been residing in
serious allegations made by the parties India since January 2023 and has continued
against each other, which would indicate to stay here only because of the unilateral
that the daughter would be exposed to any decision of respondent No. 6 not to return
insecurity in the USA. The discord between on 30th April 2023. Hence, the extended stay
the parties does not appear to be a justifiable of the daughter in India cannot be a good
reason on the part of respondent No. 6 to ground to contend that the daughter has
refuse to return to the USA and detain the bonded well with the family members of
daughter in India. Any personal discord respondent No. 6, or has developed roots
between the parties cannot be a reason for in India and so she will be in a better
depriving the daughter of the company of environment in India.
both parents. We find that respondent No. 49. The contention of respondent No.
6’s decision to not return to the USA and 6 that the petitioner has long working hours,
not allow the daughter to return to the USA had a disturbed childhood, is an introverted
amounts to depriving the daughter of person, and has an estranged relationship
having the company of both parents and with his father cannot be good grounds to
depriving her of the entitlement to the contend that the daughter will not get a
rights and privileges available to her being better environment in the USA. All these
a citizen of the USA and thus would amount contentions will not make the petitioner, a
to illegally detaining the daughter in India. bad father. In our view, such contentions
46. Respondent No. 6 could not show raised by respondent No. 6 smacks of
that any better educational facilities are vengenance and is an attempt to choose her
available to the daughter in India. The personal discord with the petitioner as a
report about the school in the USA shown ground to contend that it is not in the
by respondent No. 6 is no conclusive or interest of the daughter to return to the
authentic document to hold that the school USA. As against these contentions of
to which the daughter was to be enrolled is respondent No. 6, the petitioner has
of any low standard. submitted that the parties share a healthy
47. The contention of respondent No. bond with respondent No. 6’s brother, who
6 that the daughter is adept in reciting resi des in the USA and has further
shlokas and is familiar with religious Hindu submitted that respondent No. 6’s parents
texts etc., and is learning the same from her had always intermittently resided with
maternal grandmother and that she likes them in the USA and even in the future he
will always welcome them to visit the along with the daughter as scheduled is
parties and their daughter in the USA. not justified. We find that the decision of
50. The parties have resided in the respondent No. 6 has not only deprived
USA since the year 2014. Their daughter the daughter of having the company of
was born on 14th December 2018, 4 years both parents but has also deprived her of
of their marriage, and since then, is residing better educational, health and social
in the USA. The daughter is 5 years old now privileges available in the USA being a
and has been residing in India for last citizen of the USA and has also lost
around one year, out of which her stay in important months of the academic year due
India for the last 8 months is only due to to her extended stay in India.
the unilateral decision of respondent No. 6 53. Thus, for the reasons recorded
not to return to the USA. Thus, we also do abo ve, we f i nd that to en sure the
not find any merit in the contention of fulfilment of the daughter’s basic rights
respondent No. 6 that she and the daughter and needs, identity, social well-being and
are vulnerable to the winter conditions in physi cal , emotional and i ntellectual
the USA. No cogent material is shown to development, it is necessary for the
us in support of the said contention. daughter to go back to the USA.
51. The conduct of the petitioner in 54. Once we hold that it is in the
making attempts to resolve the differences, welfare and best interest of the daughter to
by (i) being apologetic if his conduct has go back to the USA, it is necessary to
hurt respondent No. 6 or her parents, (ii) examine the requirements of the daughter
not initiating any unnecessary proceedings who is of a tender age of five years. There
in the USA against respondent No. 6 or is no manner of doubt that at such a tender
seeking custody of the daughter, (iii) age a girl child needs the love and affection
immediately visiting India after receiving of her mother. However, irrespective of
intimation of the proceedings initiated by gender, every child is entitled to the love
respondent No. 6 and making an attempt to and affection of both parents. The
resolve the differences and requesting submission made by the learned Counsel
respondent No. 6 to return to the USA along for respondent No. 6 that the laws in India
with the daughter and (iv) seeking recognize that till the age of 5 years, a child
repatriation of the daughter by filing this should ordinarily be in the care of the
petition with alacrity shows that the actions mother as per section 6 of the Hindu
of the petitioner are well-intended. He has Minority and Guardianship Act is of no
made genuine efforts to reconcile with assistance to respondent No. 6 in view of
respondent No. 6 and provide a healthy and the reasons recorded above and even
safe family to the daughter in the USA where otherwise the daughter is now 5 years old.
she will have the company of both parents In the present case, we have held that
and utilise all the rights and privileges respondent No. 6 - mother, is not justified
available to her being a citizen of the USA. in refusing to return to the USA as
52. Thus, after minutely examining scheduled and the unilateral decision of
the pleadings and documents on record, we respondent No. 6 has resulted in depriving
find that the unil ateral decisio n of the daughter of her right to return to the
respondent No. 6 not to return to the USA country of her origin, where she is entitled
to the privileged rights of education, health to facilitate her visit to the USA every year
and other social benefits. We are in an era for two months and also facilitate the
of gender equality. We are in an era where daughter’s visits to India so that she gets
both parents are equally responsible for the unfettered time with respondent No. 6 as
upbringing o f a chil d by equally well her parents and other family members
contributing towards all the needs of a and friends.
child, which includes financial, emotional, 55. The Hon’ble Supreme Court, in
social and other gender related care and the case of (Lahari Sakhamuri Vs. Sobhan
protection. Just like a mother can be held Kodali) 11 , 2019 DGLS(SC) 440 : (2019)7
capable of providing all the care and S.C.C. 311 considered its earlier decisions
protection to a child irrespective of the in the cases of Nithya Raghavan and Kanika
child’s gender; similarly, even a father needs Goel and held as under:
to be capable of providing all the care and “41. The essence of the judgment in Nithya Anand
protection to a child irrespective of the Raghavan case [Nithya Anand Raghavan v.
child’s gender. It would be unfair to hold State (NCT of Delhi), 2017 DGLS(SC) 643 :
that the petitioner is not capabl e of (2017)8 S.C.C. 454 : (2017)4 S.C.C.(Civ) 104]
providing all the care and protection to the is that the doctrines of comity of Courts, intimate
daughter only on the ground of her gender. connect, orders passed by foreign Courts having
In the present case, there is no sufficient jurisdiction in the matter regarding custody of
material on record to ho ld that the the minor child, citizenship of the parents and
the child, etc. cannot override the consideration
petitioner is not capable of providing all the
of the best interest and the welfare of the child
care and protection to the daughter. The
and that the direction to return the child to the
petitioner has filed additional affidavits and foreign jurisdiction must not result in any
undertaken to adjust his working hours to physical, mental, psychological, or other harm
enable him to give the required time to the to the child.
daughter. He has also undertaken to hire 43. The expression “best interest of child”
services of a Nanny to fulfill all the which is always kept to be of paramount
daughter’s needs. In the event respondent consideration is indeed wide in its
No. 6 is willing to return to the USA, the connotation and it cannot remain the love
petitioner has also undertaken to provide and care of the primary care giver i.e. the
the facility of exclusive separate access in mother in case of the infant or the child who
the present house to respondent No. 6 if she is only a few years old. The definition of
is not willing to stay with the petitioner. “best interest of the child” is envisaged in
Thus, the petitioner has shown willingness Section 2(9) of the Juvenile Justice (Care &
Protection) Act, 2015, as to mean “the basis
to adopt all possible methods to provide a
for any decision taken regarding the child,
healthy and safe upbringing to the child
to ensure fulfilment of his basic rights and
that will not deprive her of having the needs, identity, social well-being and
company of both parents and also get all physical, emotional and intellectual
the privileges available to the daughter development”. (Emphasis applied)
being a citizen of the USA. It is also 56. In the case of Yashita Sahu, the
impo rtant to note that i n the event parties were Indian citizens and were
respondent No. 6 is not willing to return to married in India. The husband was already
the USA, the petitioner has also undertaken working in the US, and the wife
accompanied the husband to the US. A The Courts should decide the issue of
daughter was born to the couple in the US custody only on the basis of what is in the
and acquired US citi zenship. The best interest of the child.”
relationship between the husband and wife 21. The child is the victim in custody battles. In
got strained, and the wif e initi ated this fight of egos and increasing acrimonious
proceedings in the US Court. Joint, legal battles and litigations between two spouses, our
experience shows that more often than not, the
custody and shared physical custody of the
parents who otherwise love their child, present a
child was given to the parents. The wife,
picture as if the other spouse is a villain and he
along with the child, left the US and came or she alone is entitled to the custody of the child.
to India; hence the husband filed a motion The Court must therefore be very wary of what
for an emergency brief before the US Court is said by each of the spouses.
and an ex parte order was passed granting 22. A child, especially a child of tender years
sole legal and physical custody of the child requires the love, affection, company,
to the husband and the wife was directed protection of both parents. This is not only
to return to the US along with child. A the requirement of the child but is his/her
warrant was also issued against the wife for basic human right. Just because the parents
violating the order of the US Court. The are at war with each other, does not mean
husband filed a Petition to issue a Writ of that the child should be denied the care,
Habeas Corpus before the Rajasthan High affection, love or protection of any one of
Court for producing the minor child and the two parents. A child is not an inanimate
object which can be tossed from one parent
repatriation to the US. The High Court
to the other. Every separation, every reunion
directed the wife to return to the US along may have a traumatic and psychosomatic
with the minor daughter to enable the impact on the child. Therefore, it is to be
Jurisdictional Court in the US to pass ensured that the Court weighs each and
further orders. Aggrieved by the said every circumstance very carefully before
Judgment, the wife filed an Appeal to the deciding how and in what manner the
Hon’ble Supreme Court. The Hon’ble custody of the child should be shared
Supreme Court discussed in detail the law between both the parents…..
laid down by its various decisions and held 28. The child is a citizen of the USA by birth. Her
that a Writ of Habeas Corpus is maintainable father was already working in the USA when he
if the child is in the custody of another got married. We are told that the mother had
parent and that now it is a settled position visited the US once before marriage and when
that the Court can invoke its extraordinary she got married it was done with the knowledge
that she may have to settle down there. The child
writ jurisdiction for the best interest of the
was born in a hospital in the US and the mother
child. Therefore, the Hon’ble Supreme did not come back to India for delivery which
Court held as under:— indicates that at that time the parents wanted
“20. It is well settled law by a catena of judgments the child to be a citizen of USA. Since the child
that while deciding matters of custody of a child, is a citizen of USA by birth and holds a
primary and paramount consideration is welfare passport of that country, while deciding the
of the child. If welfare of the child so demands issue of custody we have to take this factor
then technical objections cannot come in the way. into consideration.
However, while deciding the welfare of the 35. In view of the above discussion, we are clearly
child, it is not the view of one spouse alone of the view that it is in the best interest of the
which has to be taken into consideration. child to have parental care of both the parents, if
not joint then at least separate. We are clearly of USA, in as much as she, being a US citizen,
the view that if the wife is willing to go back to is entitled to all the educational, social and
the USA then all orders with regard to custody, medical benefits available there. We find
maintenance, etc., must be looked into by the that the stay of the daughter in India for the
jurisdictional Court in the USA. A writ Court
last around a year is too short a period to
in India cannot, in proceedings like this direct
facilitate her integration into the social,
that an adult spouse should go to America. We
are, therefore, issuing directions in two parts. physical, physiological, cultural and
The first part will apply if the appellant wife is academic environment of India. Hence, if
willing to go to the USA on terms and conditions repatriated to the USA, she will not be
offered by the husband in his affidavit. The second subjected to an enti rely foreign
part would apply if she is not willing to go to environment. Rather a maximum period of
the USA, how should the husband be granted her life the daughter has lived in the USA.
custody of the child.” (Emphasis applied) 59. By applying the principles laid
57. Thus, the principles of law laid down by the Hon’ble Supreme Court in the
down in the case of Yashita Sahu are squarely decision of (Vasudha Sethi Vs. Kiran V.
applicable to the present case. Thus, taking Bhaskar)12, 2022(3) Bom.C.R.(Cri.) 486(S.C.)
note of the position thus settled in the : (2022) S.C.C. Online S.C. 43 we find in the
aforesaid decisions, we considered the facts of the present case that the daughter,
questions raised in the present case. We being a citizen of the US, will have better
have already held that respondent No. 6 is future prospects on return to the USA. We
not justified in refusing to return to the USA find that considering the tender age of the
along with the daughter as scheduled. Thus, daughter, the natural process of grooming in
we have to now consider the grant of relief the environment of the native country is
in this petition by giving predominant indispensable for her comprehensive
importance to the welfare of the daughter. development. In these facts and
58. We find in the facts of the present circumstances, we do not see any reasonable
case that it is not necessary to hold any ground to believe that the daughter should
elaborate inquiry, but a summary inquiry not be repatriated to the USA. Except for the
is required to be adopted considering the tender age of the daughter, where the care
emergent situation of repatriation of the five and protection of a mother is important, we
years old daughter who is a citizen of the do not see any factor in favour of respondent
USA who came to India in January 2023 on No. 6. At the same time, it cannot be ignored
a return ticket and has stayed back in India that the daughter is also entitled to have the
since May 2023 only due to a unilateral company of both parents. It is her basic
decision of the respondent No. 6 of not human right to have the care and protection
returning to the USA as per the scheduled of both parents. Thus, respondent No. 6 is
plan. We do not see anything adverse not justified in unreasonably depriving the
material on record to hold that it would be daughter of the company of her father.
prejudicial or harmful to send the daughter Respondent No. 6 cannot deprive the
to her native country or that the petitioner daughter of her basic human rights only
is incapable of taking care of the daughter. because she has decided that she does not
We are satisfied that it will be more want to go back to the USA, where the
beneficial for the daughter to live in the parties are permanently settled.
60. The submissions on behalf of present house with access to a separate
respondent No. 6 are on her rights and kitchen, laundry and entry-exit door so that
discomforts rather than the welfare and the daughter will get company of both
rights of the daughter. Just bec ause parents. Petitioner has also stated that he
respondent No. 6 has taken a unilateral has no objection if either of her parents
decision to stay back in India, she cannot resides along with respondent No. 6.
deprive the daughter of her rights. In these Peti tioner has also agreed to
facts, accepting the submissions on behalf unconditionally provide to respondent No.
of respondent No. 6 would amount to 6 all the fundamental needs such as food,
making a departure from the well-known medical insurance, additional medical
concept that the welfare of the minor is the requirements and all other basic necessities,
paramount considerati on. The said including a separate car for her own use.
submissions are contrary to the law laid The petitioner has also agreed to attend
down by the Hon’ble Supreme Court in the family Counselling sessions at his cost.
cases of Kanika Goel and Nithya Raghavan. Petitioner has also agreed to adopt all
Based on the wellestablished principles of measures for renewal of respondent No. 6’s
law governing the custody of minor Green Card and also assist her in securing
children, and more particularly as held by gainful employment.
the Hon’ble Supreme Court in the decision 62. The petiti oner has filed an
of Vasudha Sethi, it is clear that the rights of additional affidavit dated 9th November
the parents are irrelevant when a Court 2023 and stated that in the event respondent
decides the custody issue. In the facts of the No. 6 is unwilling to return to the USA
present case the principles of law laid down permanently, the petitioner has agreed to
by the Hon’ble Supreme Court in the bear the air travel expenses for her visit to
decisions of Lahari Sakhamuri, Yashita Sahu the USA and also additionally provide a
and Vasudha Sethi, by taking into monthly sum of 1500 USD for two months
consideration the earlier decisions are in lieu of the expenses during her stay in
squarely applicable to the facts of the the USA. The petitioner has also undertaken
present case. Considering the grounds to cooperate in every conceivable manner
raised by respondent No. 6 on the personal to facilitate maximum time for respondent
discord between the parties, the principles No. 6 to spend with the daughter and abide
of law laid down by this Court in the by any conditions imposed by this Court.
decision of Abhinav Gyan is also applicable The petitioner has also undertaken to make
to the present case. arrangements at his cost to facilitate the
61. In the present case, the petitioner daughter ’s travel to India during her
has filed an undertaking dated 3rd summer breaks from school as well as on
November 2023 and stated that he is willing other occasions subject to her school
to put all the personal differences behind schedule so that she gets unfettered,
and cohabit with respondent No. 6 in the unrestricted and uninterrupted stay not
interest of their daughter. However, if only with her mother but also with her
respondent No. 6 is unwilling to cohabit maternal grandparents.
with the petitioner, he is ready to provide 63. The reliance placed by the learned
unfettered liberty to her to reside at the Counsel for respondent No. 6 on the
decisions in the cases of Joshayet Kapuar and 66. Thus, for the aforesaid reasons,
Antonio Zalba is misplaced. The learned writ petition is allowed by passing the
Counsel for respondent No. 6 was unable following order:
to point out the reason for relying upon the i) The respondent No. 6 shall return the minor
said decisions. So far as the other two daughter Ananya Z. Menon to the petitioner
decisions of the Hon’ble Supreme Court within a period of fifteen days from today
relied upon by the learned Counsel for by handing over her physical custody to the
respondent No. 6 are concerned, we have petitioner.
already discussed the principles of law laid ii) In the event respondent No. 6 is willing to
return to the USA along with the daughter,
down by those decisions. Considering the
she will intimate her willingness through
facts of the present case, and the aforesaid her Advocate to the Advocate for the
reasons recorded by us we find that the petitioner within a period of one week
principles of law laid down in those from today.
decisions supports the contentions of the iii) In the event respondent No. 6 intimates her
petitioner. willingness as directed in clause (ii) above,
64. We do not find any merit in the the petitioner shall, within a period of two
contentions raised by respondent No.6. All weeks thereafter, book the air tickets for
respondent No. 6 and the daughter and
the apprehensions express ed by
inform the respondent No. 6 accordingly
respondent No. 6 are taken care of by the through her Advocate. In such eventuality,
petitioner and he has agreed to provide the petitioner shall unconditionally abide
all the required care and protection to the by all his undertakings given in the
daughter. We have hel d that the additional affidavits dated 3rd November
respondent No. 6’s decision not to return 2023 and 9th November 2023, including
to the USA is not justified. We do not find the following direction :
that the proceedings for divorce and (a) The petitioner shall unconditionally bear all the
custody of the daughter initiated by expenses for respondent No. 6 and the daughter
respondent No. 6 is a valid ground for not and, in addition, shall unconditionally pay a
minimum of 500 US dollars per month to
granting the reliefs prayed in this petition.
respondent No. 6 for her exclusive personal use
For the reasons recorded above, we are by online bank transfer to the account of
satisfied that the welfare and best interest respondent No. 6.
of the daughter lies in her living in the iv) In the event respondent No. 6 is not willing
USA and that there is no valid ground to to cohabit with the petitioner, in such
detain her in India. We, thus, find that to eventuality, the petitioner shall
ensure the fulfilment of the daughter ’s unc onditionally abide by all his
basic rights and needs, identity, social undertakings given in the additional
well-being and physical, emotional and affidavits dated 3rd November 2023 and 9th
intellectual development, it is necessary for November 2023, including the following
direction :
her to go back to the USA.
(a) On respondent No. 6 and the daughter reaching
65. We make it cl ear that our the USA, the petitioner shall forthwith make
observations in this judgment are for the arrangements for the separate residence for
limited purpose of undertaking a summary respondent No. 6 in the present house by
inquiry to consider the reliefs sought in this providing a separate entry-exit door, kitchen,
petition seeking a writ of habeas corpus. bedroom, laundry and provide all the facilities
Bom.C.R.(Cri.) State of Maharashtra v. Sachin D. Kulkarni 813
for food, grocery, medicine, separate car, d) During the period when the daughter is in the
medical insurance for respondent No. 6 and the custody of the petitioner in the USA,
daughter, all at the cost of the petitioner. respondent No. 6 shall be entitled to talk to the
v) In both the eventualities as stated in clauses daughter through video calls.
(iii) or (iv) above, the petitioner shall vii) Respondent No. 6 shall continue to provide
unc onditionally abide by all his video access to the petitioner till the handing
undertakings given in the additional over of physical custody of the daughter to
affidavits dated 3rd November 2023 and 9th the petitioner as directed in the above
November 2023, including the following clauses.
directions : viii) It is always be open for the parties to
a) Petitioner shall make arrangements for family mutually adopt a plan for joint parenting
Counselling sessions at his cost. on mutually agreed terms or by filing
b) Petitioner shall not take any legal recourse or any appropriate applic ation before the
other coercive action against respondent No. 6. appropriate jurisdictional Court.
c) Petitioner shall assist respondent No. 6 to renew ix) The observations, findings and directions
her green card and also secure employment. in this judgment and order are limited to
the prayers in this petition and shall not be
vi) In the event respondent No. 6 is not willing
construed as any final adjudication of the
to return to the USA, the petitioner shall
rights and contentions of the parties to be
abide by all his undertakings given in the
agitated before the jurisdictional Court.
additional affidavits dated 3rd November
x) Rule is made absolute in the aforesaid terms.
2023 and 9th November 2023, including the
xi) All parties to act on authenticated copy of
following directions :
this judgment and order.
a) Petitioner shall bear the air travel expenses for
xii) After this judgment and order was
respondent No. 6’s visit to the USA once every
pronounced, the learned Counsel for
year and pay a monthly sum of 1500 USD for
respondent No. 6 seeks stay of this judgment
two months in lieu of her expenses during the
and order. Ac c ordingly, we stay the
stay at the USA.
execution and implementation of this
b) Petitioner shall facilitate to enable respondent judgment and order for a period of four
No. 6 to get temporary physical custody of the weeks from today.
daughter during the said two months by
Order accordingly.
providing separate residence for respondent No.
6 in the present house by providing separate -----
entry-exit door, kitchen, bedroom, laundry and Application for police custody remand :
provide all the facilities for food, grocery, Rejection of
medicine, separate car, and medical insurance 2024(1) Bom.C.R.(Cri.) 813
for respondent No. 6 all at the cost of the Before :
petitioner. However, during the said period, the
Revati Mohite Dere & Gauri Godse, JJ.
petitioner will be entitled to meet the daughter
at the timings convenient to the daughter. State of Maharashtra ... Appellant.
c) Petitioner shall, at his cost, make arrangements Versus
for the daughter’s visit to India every year Sachin Dhananjay Kulkarni
during her summer breaks to enable her to @ Chingya & ors. ... Respondents.
spend time with respondent No. 6 and her Criminal Appeal Nos. 418 of 2023,
parents, family members and friends. However,
decided on 19-10-2023.
during the daughter’s visit to India, the
petitioner shall be entitled to talk to the Code of Criminal Procedure, 1973,
daughter daily through video calls. Sec. 167(1) – Application for police custody
814 State of Maharashtra v. Sachin D. Kulkarni 2024(1)
remand – Rejection of – No explanation is given Shreedhar Bhovar being C.R. No. 558/2021,
in application filed by State, seeking police with the Bhandup Police Station, as against
custody remand of respondents-accused, the respondents-accused for the alleged
belatedly – Prosecution has failed to explain offences punishable under sections 302, 326,
delay of 55 days, in filing application, as 342, 506, 120B, 143, 144, 148, 149 read with
mandated by Section 21(7) of MCOC Act – 34 of the Indian Penal Code; under sections
Rejection of application, proper. (Para 6) 4, 25 of the Arms Act and under sections
Advocates appeared : 37(1), 135 of the MCOC Act. It appears that
Ms. P. P. Shinde, A.P.P., for appellant-State. pursuant to the registration of the said FIR,
Raja Thakare, Sr. Adv. a/w. Mahesh Mule, Akash the respondents were arrested in the said
Kavade, Siddharth Jagushte, Ms. Nidhi Narwekar, C.R. It appears that out of 10 accused, 1
Ankit Takle, Ms. Aishwarya Sharma, for accused was a juvenile in conflict with law
respondents.
and hence, he was produced before the
81.PM/IN/SG/RJ/TC
Juvenile Justice Board, Dongri, Mumbai. It
Per REVATI MOHITE DERE, J.: – Heard appears that the investi gation was
learned Counsel for the parties. thereafter transferred from Bhandup Police
2. By the aforesaid appeal, the Station to DCB, CID, Unit-VII, Crime
appellant-State of Maharashtra has impugned Branch, Ghatkopar (West), Mumbai. After
the order dated 3rd December, 2022 passed by investigation, charge-sheet was filed in the
the learned Additional Sessions Judge and said case on 1 st January, 2022 as against
Special Judge under Maharashtra Control of respondent Nos. 1 to 8 in the Court of the
Organised Crime Act (‘MCOC Act’), Greater 37 th Esplanade Court, Mumbai; on 4 th
Mumbai, by which the learned Judge was January, 2022, before the Juvenile Justice
pleased to reject the appellant’s application Board, Dongri, Mumbai, as against the
being Misc. Application (SC) No. 567/2022, juvenile in conflict with law, and, on 23rd
seeking police custody remand of the February, 2022, supplementary charge-
respondents accused. Learned A.P.P submits sheet as against respondent No. 9 in the
that the impugned order rejecting the State’s Court of Additional Chief Metropolitan
application seeking police custody remand of Magistrate, 37th Esplanade Court, Mumbai.
the respondents-accused is untenable in law. It appears that on 21st February, 2022, the
3. Mr. Thakare, learned Senior DCB CID, Uni t-VII, Crime Branch,
Counsel appearing for the respondents- Ghatkopar (West), Mumbai, forwarded a
accused opposed the appeal. He submits proposal along with a report and all
that no interference is warranted in the relevant doc uments to the Joint
impugned order dated 3rd December, 2022, Commissioner of Police (Crime), Mumbai,
inasmuch as, there is non-compliance of the seeking prior approval for invoking the
mandate of section 21(7) of the MCOC Act. provisions of the MCOC Act. Pursuant
He submits that in the application filed by thereto, the Joint Commissioner of Police
the State, there is no explanation (Crime), Mumbai, accorded prior approval
whatsoever for the delay in seeking police vide order dated 23rd September, 2022.
custody remand. Pursuant to the approval granted, the
4. Perused the papers. It appears that appellant-State filed an application being
an FIR was lodged at the behest of Misc. Application (SC) No. 567/2022 in
Bom.C.R.(Cri.) Bansilal S. Kabra v. Global Trade Finance Ltd. 815
Sessions Case No. 645/2022 before the 8. Considering the aforesaid, the
th
learned Special Judge on 16 November, appeal stands dismissed.
2022 and sought police custody remand of Appeal dismissed.
the respondents-accused under section 21(7) -----
of the MCOC Act. The grounds on which
Summoning of accused living beyond
police custody remand was sought, have been
jurisdiction
reproduced by the learned Special Judge in
para 8 of his order dated 3rd December, 2022. 2024(1) Bom.C.R.(Cri.) 815
After going through the reasons on which, (FULL BENCH)
police custody remand was sought, the Before :
learned Judge rejected the said application Devendra Kumar Upadhyaya, C.J.,
seeking police custody remand of the Bharati Dangre & Arif S. Doctor, JJ.
respondents-accused Nos. 1 to 9, as the Bansilal S. Kabra ... Applicant.
appellant-State had failed to explain the Versus
delay and as no affidavit was filed. Global Trade Finance Limited & anr.
5. We have perused the impugned ... Respondents.
order as well as section 21(7) of the MCOC Criminal Application No. 1344 of 2010,
Act. Admittedly, the proposal was sent by decided on 16-1-2024.
the police on 21st February, 2022 and approval
(A) Code of Criminal Procedure, 1973,
was granted by the Joint Commissioner of Sec. 202(1) – Summoning of accused living be-
Police (Crime), Mumbai, on 23rd September,
yond jurisdiction – Inquiry contemplated un-
2022; and the police filed an application seeking
der Section 202(1) Cri.P.C. – In cheque bounc-
police custody remand before the learned
ing cases – If Magistrate prefers to hold an in-
Judge on 16th November 2022. The grounds on
quiry himself, it shall not be imperative for him
which police custody remand was sought, is
to examine witness on oath and in suitable cases,
completely silent with respect to delay in filing
he may examine documents for satisfying him-
the said application, belatedly. No explanation
self, as to sufficiency of grounds for proceeding
has also been accorded by the appellant-State,
under Section 202 of Code. (Paras 6 & 7)
in the grounds on which, police custody
remand was sought, as mandated under (B) Code of Criminal Procedure, 1973, Sec.
section 21(7) of the MCOC Act. 202(1) – Summoning of accused living beyond
jurisdiction – Inquiry Contemplated under Sec-
6. Learned A.P.P also does not dispute
tion 202(1) Cri.P.C. – Is restricted to, ascertaining
the fact that no explanation is given in the
element of truth or falsehood of allegations in
application filed by the State, seeking police
complaint, based on material placed by com-
custody remand of the respondents-accused,
plainant before Court, and inquiry is limited
belatedly. The prosecution has failed to explain
only to this extent i.e. to find out, if there is any
delay of 55 days, in filing the application, as
matter which calls for investigation. (Para 7)
mandated by section 21(7) of the MCOC Act.
Cases referred :
7. Having perused the order, no
1. In Re: EXPEDITIOUS TRIAL OF CASES UNDER
infirmity can be found in the impugned
SECTION 138 OF THE N.I. Act, 1881, 2021(2)
order dated 3rd December, 2022, rejecting the Bom.C.R.(Cri.) 667.
State’s application seeking police custody 2. K.S. Joseph Vs. Philips Carbon Black Ltd.,
remand of the respondents-accused. (2016)11 S.C.C. 105.
816 Bansilal S. Kabra v. Global Trade Finance Ltd. 2024(1)
3. Vijay Dhanuka Vs. Najima Mamtaj Etc., 2014 Venegaonkar, Public Prosecutor for the State
B.C.I. (soft) 58(S.C.).
and Mr. Yashpal Thakur with Advocate
4. Abhijit Pawar Vs. Hemant Madhukar Nimbalkar,
Mukund Pandya for the respondent No. 1.
2017(3) S.C.C. 528.
5. Birla Corporation Vs. Adventz Investments and We have also perused the distinct or-
Holdings Limited, 2020(2) S.C.C.(Cri.) 828. ders passed by the respective Single Judge
Advocates appeared : of this Court, resulting into this reference.
Arun Mehta with Aniket Srivastav i/b. Akshar With the passage of the time, since the
Laws, for applicant. reference was made, there is further evolu-
Yashpal Thakur with Mukund Pandya, for respond- tion of law on the aspect involved and
ent No. 1.
though there are decisions from this Court
H.S. Venegaonkar, P.P., for State – respondent No. 2.
as well as the higher Court, which have cat-
335.PM/IN/SG/PN/MG egorically held that the provision is man-
JUDGMENT : – In light of the cleavage of datory in nature, in our opinion, the conun-
opinion on the aspect whether the amend- drum has been put to rest by the Constitu-
ment in section 202, sub-clause(1) of the Code tion Bench of the Apex Court in suo motu
of Criminal Procedure, contemplating an in- Writ Petition (CRL) No. 2 of 2020 (In Re:
quiry before issuance of process by the Mag- EXPEDITIOUS TRIAL OF CASES UNDER
istrate, where the accused is residing outside SECTION 138 OF THE N.I. Act, 1881)1, re-
the jurisdiction of the Court, is discretionary ported in 2021(2) Bom.C.R.(Cri.) 667 headed
or mandatory, a larger Bench was constituted by the then Hon’ble The Chief Justice of
by the then, Hon’ble The Chief Justice. India on 16/4/2021.
Justice V.M. Kanade, (as His Lordship While touching the significant aspects
then was), in his Order dated 9/7/2010 revolving around section 138 of the Nego-
passed in Criminal Application No. 1344 of tiable Instruments Act, 1881 (“the Act”) and
2010, expressed his view that the amend- on being concerned with large number of
ment is directory and not mandatory, whilst pending cases, the cause was taken up, for
he expressed disagreement with Justice S.C. examining the reasons for the delay in dis-
Dharmadhikari (as his Lordship then was), posal of these cases and one of the facet
who in his order passed in Criminal Applica- which Their Lordships deemed appropri-
tion No. 2640/2009 was of the view, that the ate to focus upon, was in regard to “Inquiry
amended provision is mandatory in nature. under section 202 of the Code in relation to
2. Reference made to the larger Bench section 145 of the Act”.
was required to be deferred in the wake of Referring to the amendment in sec-
the scenario, that the Appeal (Criminal tion 202 of Code enforced with effect from
Appeal No. 276/2013) preferred against the 23/6/2006 vide Act No. 25 of 2005, which
impugned order was pending before the made it mandatory for the Magistrate to
Apex Court and subsequently, in light of conduct an inquiry before issuance of the
the Appeal being decided on 23/9/2021, the process, in a case where the accused resided
matter is once again placed before the larger beyond the area of the jurisdiction of the
Bench, which is reconstituted on 31/10/2023. Court, the diversion of opinion among the
3. We have heard learned Advocate High Courts relating to the applicability of
Shri Arun Mehta along with Advocate the said provisions to the complaints filed
Aniket Srivastav for the applicant, Mr. H.S. under section 138 of the Act, was noted.
Bom.C.R.(Cri.) Bansilal S. Kabra v. Global Trade Finance Ltd. 817
The amicus curiae advanced his submis- istrate prefers to hold an inquiry himself, it
sions reflecting upon the imperative nature shall not be imperative for him to examine
of the amendment and what is recorded in the witness on oath and in suitable cases,
paragraph No. 11, of the Constitution Bench he may examine the documents for satisfy-
decision, deserves a reproduction :- ing himself, as to the sufficiency of the
“11 The learned Amici Curiae referred to a judg- grounds for proceeding under section 202
ment of this Court in (K.S. Joseph Vs. Philips of the Code.
Carbon Black Ltd. & Anr.)2, (2016)11 S.C.C. 5. Though the above conclusions
105 where there was a discussion about the re- drawn in the suo motu writ petition, are
quirement of inquiry under section 202 of the
touching the cases under section 138 of the
Code in relation to complaints filed under sec-
tion 138 but the question of law was left open. Negotiable Instruments Act, 1881, at a sub-
In view of the judgments of this Court in (Vijay sequent point of time and to be precise on
Dhanuka Vs. Najima Mamtaj Etc.)3, 2014 23/9/2021, the Criminal Appeal filed in the
B.C.I. (soft) 58(S.C.) (supra), (Abhijit Pawar present proceedings, was heard along with
Vs. Hemant Madhukar Nimbalkar and an- the group of appeals and the question in-
other)4, 2017(3) S.C.C. 528 (supra) and (Birla volved in the matters, namely, whether an
Corporation Vs. Adventz Investments and inquiry under section 202 of the Cr.P.C, is
Holdings Limited and Others)5, 2020(2) mandatory or directory in nature, came to be
S.C.C.(Cri.) 828 (supra), the inquiry to be held answered by specifically reproducing, para-
by the Magistrate before issuance of summons
graphs 10 to 12 of the Constitution Bench
to the accused residing outside the jurisdiction
of the Court cannot be dispensed with. The Judgment, in suo motu Writ Petition No. 2 of
learned Amici Curiae recommended that the 2020 (A.I.R. 2021, Supreme Court 1957), and
Magistrate should come to a conclusion after since the issue raised in this regard, was al-
holding an inquiry that there are sufficient ready settled, each individual matter was left
grounds to proceed against the accused. We are open to the discretion of the concerned
in agreement with the learned Amici.” Magistrate(s) to decide, as to what type of
4. Another aspect, in order to curtail procedure they need to adopt in the com-
the delays in conclusion of the trials under plaints, pending adjudication before them,
the Act of 1881, which was adverted to, is where the accused persons are located out-
in relation to interpretation of section 202(2) side their territorial jurisdiction, and the
of the Code, which expected the Magistrate Criminal Appeals were disposed off.
to record evidence of the witness on oath, 6. In order to have implementation of
in an inquiry to be conducted under sec- the orders issued by the Constitution Bench
tion 202(1), before issuance of the process, in suo motu Writ Petition dated 16/4/2021, the
and though in the present reference, we are Registrar General of the Bombay High Court
not concerned with the said issue, we must has also issued a circular on 27/1/2022, clearly
note that, on this aspect, the Apex Court has issuing the following directions:-
held, that in the wake of section 145 of the “2 On receipt of any complaint under section 138
Act, the evidence of witness on behalf of of N.I. Act, wherever it is found that any accused
the complainant, shall be permitted on af- is resident of the area beyond the territorial juris-
fidavit and there is no reason for insisting diction of the Magistrate concerned, an inquiry
on the evidence on oath. Thus, if the Mag- shall be conducted by the Magistrate to arrive at
sufficient grounds to proceed against the accused
52/24(1) as prescribed under section 202 of Cr.P.C.
818 Bansilal S. Kabra v. Global Trade Finance Ltd. 2024(1)
3 While conducting any such inquiry under sec- ments in the complaint, as it may many a
tion 202 of Cr.P.C, the evidence of witnesses times, contain unfounded allegations which
on behalf of the complainant shall be permit- require ascertaining of its veracity, before
ted to be taken on affidavit. In suitable cases, the process is issued, so as to separate the
the magistrate may restrict the inquiry to ex-
chaff from the grain.
amination of documents without insisting for
examination of witnesses for satisfaction as to Before the Magistrate acts on the com-
the sufficiency of grounds for proceeding un- plaint, by issuing process against the per-
der the said provision”. son named as an accused therein, he shall
7. In our considered view, the ques- satisfy himself about the existence of suffi-
tion, referred to the larger Bench, is already cient ground(s), for proceeding against him,
answered by the Constitution Bench of the particularly when he is residing outside his
Apex Court as above, and therefore, we do jurisdiction. The amended provision is
not deem it necessary to answer the reference. aimed to prevent innocent persons resid-
However, we would like to only add, ing at far places, from harassment by un-
by taking note, that Chapter XV of the Code, scrupulous persons, filing unfounded and
which contemplates complaints to the Mag- false complaints.
istrate, which includes section 202, intended This would necessarily involve re-
to achieve twin objects; one being to enable cording of statement of the complainant on
the Magistrate to carefully scrutinize the oath, in form of verification statement or
allegations made in the complaint with a recording evidence of any witnesses pro-
view to prevent a person named therein, as duced by the complainant, in support of
accused from being called upon to face un- the allegations in the complaint, to find out
necessary, frivolous or meritless complaint; whether a prima facie case for issuance of
and the other, to find out whether there is process has been made out.
any material in existence, to support the We must, however, clarify that this
allegations in the complaint. The Magistrate inquiry is restricted to, ascertaining the el-
is therefore, duty bound to elicit all facts, ement of truth or falsehood of the allega-
having regard to the interest of the com- tions in the complaint, based on the mate-
plainant, in absence of the accused, before rial placed by the complainant before the
he brings to book him for the accusations Court, and the inquiry is limited only to this
in the complaint. For forming an opinion extent i.e. to find out, if there is any matter
to that effect, the Magistrate may himself which calls for investigation.
hold an inquiry under section 202 of the 8. Summoning of an accused in a
Code, or direct investigation to be made by criminal case, is a serious matter and it cer-
a police officer. tainly cannot be a perfunctory exercise. The
We may also add that in a contin- amendment introduced in the Code there-
gency, when he decides to conduct an in- fore, contemplates that a Magistrate shall
quiry, specifically against the persons resid- examine the nature of allegations in the
ing outside his territorial jurisdiction, the complaint and take into account the evi-
inquiry must be aimed at ascertaining the dence, both oral and documentary, to find
truth or otherwise in the allegations made out if it is sufficient for the complainant to
in the complaint. It is expected that the succeed in establishing the charge against
Magistrate shall not only rely upon the aver- the accused, and justify the issuance of proc-
Bom.C.R.(Cri.) Dhanubai Y. Netlekar v. State of Maharashtra 819
ess against him. It is nonetheless the duty Subjective satisfaction – Petitioner has been held
of the Magistrate to prima facie find out, if to be indulging in illegally selling liquor – Held,
the case is made out by the complainant if detaining authority is of opinion that it is nec-
against the accused before the process is essary to detain a person under Act to prevent
issued, so as to avoid any frivolous or vexa- him from indulging in sale of goods dangerous
tious claims being taken forward by the for human consumption same should be based
Magistrate. Only on being satisfied that the on some material and copies of such material
offence is made out against the person(s) should be given to detenu. Subjective satisfac-
named in the complaint, the process would tion of detaining authority is not only doubtful
be issued and at this stage, all the relevant but perverse. Material on record is not adequate
facts and circumstances shall be taken into to take recourse to drastic provision of action
consideration before issuing process, lest it under Act. Criminal antecedent and statements
would be an instrument in the hands of a of two witnesses are not sufficient to show in-
private complainant, as vendetta to harass volvement of petitioner to criminal overtact
the named accused. Vindication of majesty under Penal Code or other Criminal Law.
of justice and maintenance of law and or- Grounds of detention which are basis for pass-
der in the Society, being the primary object ing impugned order are unsustainable. Order
of criminal justice, would not bring within of detention is quashed. Writ petition is allowed.
its sweep, a personal vengeance. Hence, we (Paras 32 to 35)
answer the reference accordingly. Cases referred :
Reference answered accordingly. 1. Devidas Lalji Ade Vs. State of Maharashtra, 2022
DGLS(Bom.) 4197(A.B.) : 2023 All.M.R.(Cri.)
----- 130(A.B.).
Detention order should be based on some 2. Prakash Chandrakant Kanjar Vs. State of
material and copies of such material Maharashtra, Cri.W.P. No. 1285/2023.
should be given to detenu 3. Sandeep Govind Pawar Vs. State of Maharashtra,
2023(2) Bom.C.R.(Cri.) 457(A.B) : 2023
2024(1) Bom.C.R.(Cri.) 819 All.M.R.(Cri.) 698.
(AURANGABAD BENCH) 4. A.ST. Arunachalam Pillai Vs. Southern Roadways
Before : Ltd., A.I.R. 1960 S.C. 1191.
Mangesh S. Patil & Shailesh P. Brahme, JJ. 5. Pesala Nookaraju Vs. Government of Andhra
Pradesh, Cri.A.No. 2304/2023.
Dhanubai @ Dhanno Yashvant Netlekar
6. Ambhika Magasvargiya Mastyavaivasaik
... Petitioner. Sahakari Sanstha Maryadit Vs. State of
Versus Maharashtra, 2022 DGLS(Bom.) 569.
State of Maharashtra & ors. ... Respondents. 7. Ramesh Balu Chavan Vs. Commissioner of Po-
lice Solapur, 2017 DGLS(Bom.) 2114 : 2017
Criminal Writ Petition No. 1527 of 2023,
All.M.R.(Cri.) 3683.
decided on 12-1/8-2-2024. 8. Satyavan Shakha Rathod Vs. Commissioner of
Maharashtra Prevention of Danger- Police, Cri.W.P. Stamp No. 15879/2023, dt. 25-10-
ous Activities of Slumlords Bootleggers, 2023.
Drug-Offenders, Dangerous Persons and 9. District Collector, Ananthapur Vs. V. Laxmanna,
(2005)3 S.C.C. 633.
Video Pirates Act, 1981, Sec. 3(2) –
10. Mallada K. Sri Ram Vs. State of Telangana, 2022
Maharashtra Prohibition Act, 1949, Secs.
S.C.C. OnLine S.C. 424.
65(e) & 93 – Code of Criminal Procedure, 11. Arnesh Kumar Vs. State of Bihar, 2014(3)
1973, Secs. 41A(1) & 258 – Detention order – Bom.C.R.(Cri.) 362(S.C.) : (2014)8 S.C.C. 273.
820 Dhanubai Y. Netlekar v. State of Maharashtra 2024(1)
Advocates appeared : would disturb public tranquility, law and
Vivek Punjabi h/f. Pratik P. Kothari, for petitioner. order and general public peace.
M.M. Nerlikar, A.P.P., for respondent/State. 6. The petitioner has been held to be
345.PM/IN/ND/TC/PN indulging in illegally selling liquor. It is fur-
Per SHAILESH P. BRAHME, J.: – Rule. ther recorded that the reports of the chemi-
2. Rule is made returnable forthwith cal analysis collected during the course of
with the consent of the parties. Heard the investigation of various offences registered
learned Counsel for the litigating sides finally. against her, show percentage of the alcohol
3. The petitioner has questioned an found in the water to the tune of 24%, 20%,
Order dated 31.8.2023 passed by the re- 8%, 23%, 14%, 9%, 18%. It is held to be haz-
spondent No. 2 detaining the petitioner by ardous for consumption of general public
branding him as a ‘bootlegger’ under sec- and it is harmful for human life which is
tion 3(2) of the Maharashtra Prevention of likely to cause jaundice, accumulation of
Dangerous Activities of Slumlords Boot- water in stomach, cancer. It is likely to de-
leggers, Drug-Offenders, Dangerous Per- plete blood level in the body, giving rise to
sons and Video Pirates Act, 1981 (herein- the risk of death.
after referred to as the MPDA Act for the 7. Learned Counsel for the petitioner
sake of brevity and convenience). The submits that the petitioner was acquitted in
impugned order is approved by the re- ten criminal cases registered under section
spondent No. 1 under section 3(3) of the 65 of Maharashtra Prohibition Act from
MPDA Act, on 11.9.2023. The Advisory time to time. In two cases, the proceedings
Board confirmed the order of detention were closed under section 258 of the Code
vide Order dated 17.10.2023. of Criminal Procedure. Only three actions
4. The action under the provisions were initiated under section 93 of the Pro-
of the Act was taken against the petitioner hibition Act. The petitioner has suffered
on the basis of the offences registered conviction only in one case. Therefore ac-
against her, the preventive actions under cording to the Counsel, this material is not
section 93 of the Maharashtra Prohibition sufficient to bring the petitioner within the
Act and the two statements of the anony- ambit of dangerous person or a bootlegger.
mous witnesses recorded against her. The Ordinary course of laws would be sufficient
details of the offences registered against to deal with the activities of the petitioner.
the petitioner is recorded in paragraph 8. He would further submit that the
No. 4 of the impugned grounds of deten- reports of the chemical analysis collected
tion. The gist of the depositions of the wit- during the investigation of the offences reg-
nesses is recorded in paragraph No. 4.5 of istered against the petitioner, do not spell
the order of detention. out any opinion that the consumption of the
5. Considering the activities of the contraband would be dangerous for human
petitioner, the respondent No. 2/detaining consumption and hazardous to public
authority formed subjective satisfaction in health. Without there being any experts’
paragraph No. 8 that the petitioner falls in opinion, the respondent No. 2/detaining
the categories of ‘dangerous person’ and authority has arrived at conclusion in para-
‘bootlegger’. Her being at large is harmful graph No. 10 and 11 of the impugned order
to the lives of the public in general and it which reflects lack of application of mind.
9. Learned Counsel for the petitioner to justify the action taken against the peti-
submits that petitioner was not arrested in tioner by the detaining authority which is
any of the matters. Only on couple of occa- confirmed by the respondent No. 1. He re-
sions, she was served with notice under ferred to the criminal antecedent of the pe-
section 41(A)(1) of Code of Criminal Proce- titioner, the papers of investigation espe-
dure which shows that the activity alleged cially reports of the chemical analysis col-
against the petitioner is not of serious nature, lected during the course of investigation of the
requiring arrest. This would cast doubt on the various offences against her. LearnedAPP would
subjective satisfaction of the detaining author- refer to paragraph No. 5 and 6 of grounds of
ity. It is further submitted that though the detention to demonstrate the material consid-
petitioner was running business since 8 to 10 ered to arrive at subjective satisfaction and ob-
years prior to the impugned action, no offence jectively assessing her activities. He would
as such was registered against her. The crimi- refer to paragraph No. 7 to 12 of the grounds
nal activities of the petitioner is confined to of order of detention to demonstrate as to
the offences under the provisions of how subjective satisfaction is arrived at by
Maharashtra Prohibition Act and not under the detaining authority.
any other provisions of Penal Laws. Hence 13. Learned APP submitted that the
it would be perverse to brand her as dan- petitioner has indulged in the criminal ac-
gerous person and to detain her. tivities repetitively and has created a terror
10. Lastly learned Counsel would sub- in the vicinity. A deterrent action was re-
mit that entire action of the respondent No. quired to be taken considering the notori-
2 and the approving authority is without ety of the petitioner. The acquittal recorded
application of the mind and the activities against the petitioner in the matters is not
of the petitioner could have been curbed by the sole relevant factor. Despite the preven-
the regular criminal laws instead of resort- tive actions taken against her, she has not
ing to MPDA Act. stopped indulging in the criminal activities.
11. To buttress the submissions, 14. Learned APP submitted that the
learned Counsel for the petitioner seeks to reports of the chemical analysis collected
rely upon following judgments : in the various offences registered against
(i) (Devidas Lalji Ade Vs. State of Maharashtra the petitioner demonstrate the percentage
& ors.)1, 2022 DGLS(Bom.) 4197(A.B.) : 2023 of the alcohol. The detaining authority has
All.M.R.(Cri.) 130(A.B.). rightly held that the consumption of a liq-
(ii) (Prakash Chandrakant Kanjar Vs. State of uor is injurious to the public health. He
Maharashtra & anr.)2, Criminal Writ Peti- would vehemently submit that the activi-
tion No. 1285/2023. ties of the petitioner could not have been
(iii) (Sandeep Govind Pawar Vs. State of curbed by the regular criminal laws and
Maharashtra & ors.) 3, 2023(2)
therefore the drastic action was required to
Bom.C.R.(Cri.) 457(A.B) : 2023 All.M.R.(Cri.)
be taken against her.
698(A.B.).
(iv) (A.ST. Arunachalam Pillai Vs. Southern 15. It is further submitted that the ar-
Roadways Ltd. & anr.) , A.I.R. 1960 S.C. rest of the petitioner is not relevant consid-
4
1191. eration for taking action under the provi-

12. The learned APP referred to the sions of the MPDA Act. Though the peti-
affidavit in reply to oppose the petition and tioner was served with a notice under sec-
tion 41(A)(1) of the Code it would not mean tion of the petition. Learned APP submits
that the activities of the petitioner is of the that he is surprised by the submissions of
lesser evil. Learned APP would submit that the petitioner and he has no opportunity to
the impugned action seeks to achieve two deal with the submissions as affidavit-in-
purposes, deterrent and reformative. reply was already filed. Learned APP sub-
16. Learned APP seeks reliance upon mits that if a petition is filed under Chapter
the following judgments : XVII, Rule 1 of High Court Appellate Side
(i) (Pesala Nookaraju Vs. Government of Rules, it is incumbent to raise specific
Andhra Pradesh)5, Criminal Appeal No. grounds of objections.
2304/2023. 19. Learned Counsel for the petitioner
(ii) (Ambhika Magasvargiya Mastyavaivasaik has countered the above submissions. He
Sahakari Sanstha Maryadit Vs. State of would submit that already grounds of ob-
Maharashtra & ors.)6, W.P. No. 8607/2019, jection especially ground No. F and G have
reported in 2022 DGLS(Bom.) 569.
been raised and there was sufficient oppor-
(iii) (Ramesh Balu Chavan Vs. Commissioner
tunity to the respondent to counter the sub-
of Police Solapur)7, 2017 DGLS(Bom.) 2114
: 2017 All.M.R.(Cri.) 3683.
missions. He would submit that the submis-
sions advanced by the petitioner are borne
17. Before we enter into the merits of
from the grounds of detention and record.
the matter, it would be relevant to refer to
No submission is advanced which is alien
the objections raised by the learned APP Mr.
to the reasoning or the grounds of objec-
Mahendra Nerlikar, for following submis-
tion of the detaining authority. He would
sions made by the petitioner for the first
further submit that the submissions go to
time in the High Court :
the root of the matter and it is permissible
(i) The petitioner was acquitted from ten of- to raise such grounds.
fences and has not been arrested in any of
the offences and as such there is no incrimi- 20. Learned APP has relied upon the
nating material against him to arrive at sub- order passed by the Division Bench on
jective satisfaction. 14.2.2022 i n the matter of Ambhika
(ii) The petitioner was being served only with Magasvargiya Mastyavaivasaik Sahakari
a notice under section 41(A)(1) which is in- Sanstha (supra) as well as Ramesh Balu
dicative of the fact that his arrest was not Chavan (supra) to buttress the preliminary
required. objection. Learned Counsel for the peti-
(iii) There is no subjective satisfaction as the tioner has countered it by relying upon
reports of the chemical analysis which are judgments of the Supreme Court in the
sought to be pitted against the petitioner matter of A.ST. Arunachalam Pillai (supra).
do not spell out opinion that consumption
of contraband was injurious to public 21. We have considered the rival sub-
health. missions of the parties on the ground of
18. He would submit that the peti- preliminary objection. The petition has been
tioner was granted leave to amend the pe- filed under Articles 226 and 227 of the Con-
tition by Order dated 22.12.2023. Without stitution of India. The grounds of detention
amending memo, the learned Counsel for cum reasons assigned by the respondent
the petitioner preferred to work out the No. 2/detaining authority are assailed by
matter and argued certain points which are the petitioner. The present matter falls un-
not incorporated in the grounds of objec- der the provision of Chapter XVII, Rule 18
of the Appellate Side Rules. If petition is by the writ Court. We find that the submis-
purely filed under Article 226 of the Con- sions raised by the petitioner are substan-
stitution of India then it would fall under tive and need adjudication.
Chapter XVII, Rule 1. In the present matter, 24. We have considered the submis-
the petitioner is not invoking original juris- sions of the learned Counsel on merits. We
diction of the High Court. The composite have gone through the relevant record with
jurisdiction original and supervisory is be- the assistance of learned Counsel. The im-
ing invoked by the petitioner. Therefore the pugned order of detention was passed on
order which is sought to be relied by the 31.8.2023. The proposal under section 3(3)
learned APP in the matter of Ambhika of the Act was approved on 11.9.2023 by the
Magasvargiya Mastyavaivasaik Sahakari respondent No. 1. Thereafter the matter was
Sanstha (supra) would have no application placed before the advisory Board. The peti-
to the matter in hand. tioner was heard on 9.10.2023. The Advi-
22. We have not been pointed out any sory Board confirmed the order of deten-
submission made by Counsel which is not tion by Order dated 17.10.2023.
dealt with by the detaining authority. Nei- 25. Learned Counsel for the petitioner
ther anything is being pointed out by the submitted that the detaining authority has
respondents which is being raised for the recorded in paragraph No. 11 that the con-
first time in the writ petition. The submis- traband seized from the petitioner in vari-
sions are being borne from the record pro- ous offences is harmful to the human lives
duced before the detaining authority. We and considering the percentage of the alco-
are of the considered view that when the hol, it is hazardous for human consumption.
High Court is examining sustainability of We have gone through the reports of the
orders of detention referring to the grounds chemical analysis in respect of the liquid
of objections and reasons for arriving of collected during the course of investigation
subjective and objective satisfaction, no of the respective offences under section 65
separate ground of objection need to be in- of the Maharashtra Prohibition Act. We do
corporated in the memo when those are al- not find that in any of the reports, there is a
ready borne from the record. specific opinion of the analyzer that con-
23. Only when the submission which sumption of the liquid would be danger-
is totally alien or which is outside the record ous to human lives. We have not been
placed before the detaining authority or pointed out any material on record on the
which is being pressed into service for the basis of which, the subjective satisfaction
first time in the High Court need an incor- has been arrived at by the detaining author-
poration in the memo of petition. The peti- ity. The respondent No. 2/detaining author-
tioner has already raised ground No. F and ity is not an expert. To come to conclusion
G. The submission in respect of purport of that consumption of contraband having
report of chemical analysis or purport of particular percentage of alcohol would be
notice under section 41(A)(1) of the Code, hazardous to public lives, need an expert’s
are borne from the record. We find the pre- opinion. In the absence of the exercise re-
liminary objection raised is unsustainable. quired to be undertaken by the detaining
If the submissions go to the root of the mat- authority to confirm from the experts, the
ter then those are required to be considered consequences and repurcation recorded in
paragraph No. 11 of the grounds of deten- its conclusion on this point. Therefore, we
tion are unsustainable and perverse. are in agreement with the High Court that
if the detaining authority is of the opinion
26. A useful reference can be made to
that it is necessary to detain a person under
the judgment rendered by a coordinate the Act to prevent him from indulging in
bench in the matter of (Satyavan Shakha sale of goods dangerous for human con-
Rathod Vs. Commissioner of Police and sumption the same should be based on some
others)8, in Criminal Writ Petition Stamp material and the copies of such material
No. 15879/2023 decided on 25.10.2023 which should be given to the detenu.”
is squarely applicable to the facts of the 27. In this regard, learned Counsel for
present matter for quashing the detention the petitioner is justified in placing reliance
order. Similar type of arguments were noted upon the judgments of Prakash (supra); the
by the Apex Court in the matter of (Dis- relevant paragraph 15 reads as follows :
trict Collector, Ananthapur Vs. V. “15. So far as regards the challenge on the other
Laxmanna)9, (2005)3 S.C.C. 633. Paragraph ground is concerned, it is to be stated that,
No. 7 and 8 reads as follows : registration of the last two crimes, being C.R.
“7. We do not think that this argument of the No. 31/2023 and 159/2023 and two in-cam-
learned Counsel can be accepted. If the de- era statements appear to have triggered the
tention is on the ground that the detenu is sponsoring authority to put up a proposal
indulging in manufacture or transport or for petitioner’s detention. Admittedly, C.A.
sale of arrack then that by itself would not reports of the illicit liquor seized from the
become an activity prejudicial to the main- petitioner appear to have not been available
tenance of public order because the same can for being presented before the detaining
be effectively dealt with under the provi- authority. There was, therefore, nothing be-
sions of the Excise Act but if the arrack sold fore the detaining authority to reach to a con-
by the detenu is dangerous to public health clusion that the illicit liquor seized from the
then under the Act, it becomes an activity petitioner in those two crimes was unfit for
prejudicial to the maintenance of public or- human consumption. Although there were
der, therefore, it becomes necessary for the C.A. reports pertaining to the illicit liquor
detaining authority to be satisfied on mate- seized from the petitioner in connection with
rial available to it that the arrack dealt with the other crimes relied on, none of the C.A.
by the detenu is an arrack which is danger- reports indicate the said liquor was unfit or
ous to public health to attract the provisions hazardous for even consumption although it
of the Act and if the detaining authority is contained ethyl alcohol in different percent-
satisfied that such material exists either in age. The facts of the case in case of Pesala (su-
the form of report of the Chemical Exam- pra) would indicate the seized illicit liquor
iner or otherwise, copy of such material therein was subjected to chemical analysis. The
should also be given to the detenu to afford C.A. reports indicate the same was unfit for
him an opportunity to make an effective rep- human consumption. It is true that the detain-
resentation. ing authority has, in the order of detention,
8. Therefore, while holding that dealing with observed the consumption of illicit liquor was
arrack, which is dangerous to public health harmful. However, there was no material be-
would become an act prejudicial to the fore him to substantiate his view. In case of
maintenance of public order attracting the Pesala, the Apex Court, observed in para-
provisions of the Act, it must be held that it graph No. 65 as under :
is obligatory for the detaining authority to “65. Just because four cases have been regis-
provide the material on which it has based tered against the appellant detenu under the
Prohibition Act, by itself, may not have any dure. In three cases, the proceedings are still
bearing on the maintenance of public or- pending at various levels.
der. The detenu may be punished for the 29. It also reveals that the preventive
offenc es whic h have been registered
action has been taken against the petitioner
against him. To put it in other words, if
under section 93 of the Maharashtra Prohi-
the detention is on the ground that the
detenu is indulging in manufacture or
bition Act on three occasions. After the last
transport or sale of liquor then that by it- preventive action registered on 24.7.2023
self would not become an activity preju- bearing No. 5/2023, only one offence bear-
dicial to the maintenance of public order ing C.R. No. 267/2023 has been registered
because the same can be effectively dealt under the provision of section 65(e) of the
with under the provisions of the Act 1986, Prohibition Act. There appears to be ten-
it becomes an activity prejudicial to the dency to indulge in offences under the pro-
maintenance of public order, therefore, it visions of Maharashtra Prohibition Act.
becomes necessary for the detaining au- There is no record available that any offence
thority to be satisfied on material avail- under other penal provisions has been regis-
able to it that the liquor dealt with by the tered and action has been taken against the
detenu is liquor which is dangerous to petitioner. After last preventive action regis-
public health to attract the provisions of
tered on 24.7.2023, only one offence bearing
the 1986 Act and if the detaining author-
C.R. No. 267/2023 has been registered against
ity is satisfied that such material exists ei-
ther in the form of report of the Chemical her which cannot be said to be alarming
Examiner or otherwise, copy of such ma- number. We do not find any aggravated
terial should also be given to the detenu form of activity of the petitioner. We find
to afford him an opportunity to make an that the petitioner could have been dealt
effective representation.” with under regular criminal law instead of
28. Learned Counsel for the petitioner resorting to provision of MPDA Act.
vehemently submitted that there is only one 30. The grounds of objection of deten-
conviction recorded against the petitioner tion recorded by respondent No. 2 shows
and in almost ten matters, she was acquit- that in paragraph No. 8, it is recorded that
ted. According to him the alleged criminal the petitioner falls within the meaning of
activity of the petitioner can be dealt with dangerous person as well as she is also
by the regular criminal law and resorting branded as a bootlegger. We are of the opin-
to MPDA Act is not required. We have con- ion that there is material on record to sug-
sidered the criminal antecedents of the pe- gest that petitioner can be branded as a
titioner. It reveals from record that there are bootlegger. But there is no evidence on
in all sixteen offences registered against her. record to bring her within purview of ‘dan-
All the offences are under the provisions of gerous person’. The petitioner appears to
section 65(e) of Maharashtra Prohibition be involved in a peculiar type of offence
Act. Out of them, she was acquitted in ten under the prohibition act. We do not find
offences. Only in case of offence bearing No. that any other offences registered against
65/2021 there is imposition of fine of Rs.300. her under Indian Penal Code or any other
In case of two offences, the matter was di- criminal law.
rected to be closed under the provisions of 31. Learned Counsel for the petitioner
section 258 of the Code of Criminal Proce- has also referred to the statements of two
anonymous witnesses. The record shows ard of adversely affecting the “mainte-
that the petitioner was indulging in the il- nance of public order”. In this case, the
legal activity of selling of liquor for last 8 to apprehension of a disturbance to public
10 years preceding action of detention. The order owing to a crime that was reported
over seven months prior to the detention
witnesses also referred to the terror estab-
order has no basis in fact. The apprehen-
lished by the petitioner and her notorious sion of an adverse impact to public order
activities of threatening, abusing the per- is a mere surmise of the detaining author-
sons concerned. During this period no of- ity, especially when there have been no
fence under Chapter XVI or XVII of Penal reports of unrest since the detenu was re-
Code has been registered against her. There- leased on bail on 8 January 2021 and de-
fore, we find force in the submissions made tained with effect from 26 June 2021. The
by the petitioner by referring to paragraph nature of the allegations against the detenu
No. 15, 16 and 18 of the judgment of Devidas are grave. However, the personal liberty
Lalji Ade (supra). They are as follows : of an accused cannot be sacrificed on the
altar of preventive detention merely be-
“15. That leaves three registered offences
cause a person is implicated in a criminal
against the petitioner i.e. C.R. Nos. 125/2021,
proceeding. The powers of preventive de-
373/2021 and 468/2021 referred to herein
tention are exceptional and even draco-
above. Admittedly, in none of these offences
nian. Tracing their origin to the colonial
the petitioner was arrested. He was merely
era, they have been continued with strict
served with a notice under section 41-A(1)
constitutional safeguards against abuse.
of the Code of Criminal Procedure, 1973 in
Article 22 of the Constitution was specifi-
each offence. That means the notice was
cally inserted and extensively debated in
given to the petitioner where his arrest was
the Constituent Assembly to ensure that
not required. Thus, in all these registered
the exceptional powers of preventive de-
offences, the investigating agency did not
tention do not devolve into a draconian
feel it necessary to arrest the petitioner. In
and arbitrary exercise of state authority.
Paragraph No. 4 of the grounds there is a
The case at hand is a clear example of non-
reference that the action was initiated un-
application of mind to material circum-
der section 93 of the Maharashtra Prohibi-
stances having a bearing on the subjective
tion Act for execution of bond on 6.9.2021.
satisfaction of the detaining authority. The
The bond was for security. Those proceed-
two FIRs which were registered against the
ings were dropped on 24.11.2021. No action
detenu are capable of being dealt by the
was taken for the alleged breach of the bond.
ordinary course of criminal law.”
16. Thus, it is quite clear that action was know-
18. In the present case, the petitioner was not
ingly not taken by the police authorities un-
even arrested in the three registered offences
der the ordinary law. In this view of the mat-
and, therefore, these observations are appli-
ter, resorting to this extraordinary step of de-
cable to the present case. Learned APP sub-
taining the Petitioner by way of preventive
mitted that the petitioner ’s activities are
detention order can not be justified. In this
prejudicial to the maintenance of public or-
context, observations of the Hon’ble Supreme
der, however, the detaining authority has
Court in the case of (Mallada K. Sri Ram Vs.
failed to record a satisfaction as to why or-
State of Telangana and others)10, reported in
dinary law of the land was ineffective in
2022 S.C.C. OnLine S.C. 424 are important. It
curbing his activities. Merely stating that
is observed in Paragraph No. 15 thus -
ordinary law of the land was not effective
“A mere apprehension of a breach of law and to curb his activities is not enough. In the
order is not sufficient to meet the stand- petitioner’s case no steps were taken under
normal law to curb his activities and hence been registered against him with such alle-
it can not be said they were ineffective. gations. It is, therefore, reiterated that, the
Therefore resorting to passing of the deten- in-camera statements taken at their face
tion order was not necessary. It shows non- value, it would at the most be a question of
application of mind on the part of the de- law and order. Based on such statements
taining authority. In this situation, it was not alone, the order of detention, in our view,
necessary to have resorted to this extraordi- in the present case, does not sustain. For all
nary remedy without exercising the pow- the aforesaid reasons, we find the petition
ers under the ordinary law.” deserves to be allowed. Hence the order :
32. The learned Counsel for the peti- ORDER
tioner has also sought reliance upon the (I) The Criminal writ petition is allowed in
judgment of Prakash (supra). Paragraph No. terms of prayer Clause (b) and (c).
23 is the relevant to support the submissions (ii) The petitioner be set at liberty forthwith if
of the petitioner which is as follows : not required in any other case.”
“23. The aforesaid two in-camera statements We are of the opinion that this aspect
have been verified by the Sub-Divisional of the matter is not properly appreciated by
Police Officer. Relying on this statement, the the detaining authority. There is no subjec-
learned A.P.P. would submit that, the activi- tive satisfaction on this aspect of the matter
ties of the petitioner were necessarily preju-
and the impugned order is unsustainable.
dicial to maintenance of public order. He
would further submit that, it is well settled 33. Learned Counsel for the petitioner
that, whether material was sufficient or not has also made submissions on the purport
is not for the Court to decide by pplying of notice under section 41(A)(1). However
objective basis. The detaining authority had our bench has taken a view in the matter of
rightly arrived at the subjective satisfaction Vinod (supra). The relevant portion of para-
based on the two in-camera statements. In graph No. 36 is as follows :
our view, in first nstance, we are of the view “36. It is to be noted that section 41-A(1) of the
that, it is very risky to rely on the only in- Code of Criminal Procedure is to be resorted
camera statements to sustain the order of to by the Investigating Officer before arrest-
detention in the facts and circumstances of ing an individual and that provision would
the case. Close reading of both those state- regulate his powers to arrest an individual.
ments no way lead to us to infer that the Needless to state that the arrest contem-
persons with whom the witness had a wran- plated under the Code of Criminal Proce-
gle, had consumed illicit liquor at the peti- dure for carrying out the investigation into
tioner’s liquor den. The petitioner, giving a crime by resorting to custodial interroga-
threats to those 2 itnesses and his associates tion would be essentially for completing the
manhandling them, was at the most, in the investigation. Suffice for the purpose to
facts and circumstances of the case, an issue observe that in the matter of (Arnesh Kumar
of maintenance of law and order. The peti- Vs. State of Bihar and anr.)11, 2014(3)
tioner has been allegedly running business Bom.C.R.(Cri.) 362(S.C.) : (2014)8 S.C.C. 273
of illicit liquor for 4 – 5 years next before the Supreme Court has laid down several
the action of his preventive detention was guidelines which have to be borne in by the
taken. There is not a single incident reported Investigating Officer before arresting a per-
at the police station alleging him to have son. We are pointing out the law to demon-
abused and assaulted anyone. No crime for strate that the submission of the learned
the offences punishable under any of the Advocate for the petitioner that the very fact
sections of the Indian Penal Code has ever that the I.O. did not feel necessary to arrest
828 Mahesh P. Andhale v. State of Maharashtra 2024(1)
the petitioner although the crimes were reg- 35. Learned APP has not made any
istered would be indicative of the fact that submissions on the application of section
even he did not require the petitioner to be 5A of the Act, albeit there is a plea raised in
sent behind the bars, is fallacious. The ar- the affidavit-in-reply. We have already re-
rest for carrying out investigation into a
corded that the subjective satisfaction of the
crime would be for a limited purpose of fa-
cilitating the Investigating Officer to com- detaining authority is not only doubtful but
plete the investigation. Such arrest cannot perverse. The material on record is not ad-
be looked upon as an action which can be equate to take recourse to the drastic provi-
aimed at preventing the accused from in- sion of action under the Act. The criminal
dulging in a similar activity rather any antecedent and the statements of two wit-
such approach would be inconsistent with nesses are not sufficient to show involvement
the mandate of law laid down in Arnesh of the petitioner to the criminal overtact un-
Kumar (supra). The action of preventive der Penal Code or other Criminal Law. The
detention under the preventive detention grounds of detention which are the basis for
laws would be aimed at abating the spe-
passing impugned order are unsustainable.
cific activities of an individual whereas the
arrest for the purpose of investigation can- We do not find impediment of section 5A
not be aimed at preventing him from in- of the Act to quash the impugned order.
dulging in any such activity. Precisely for 36. For the reasons stated above, we
this reason, we are not in agreement with are inclined to allow writ petition. We there-
the submission of the learned advocate for fore pass following order.
the petitioner that petitioner being not ORDER
arrested in the crimes should be taken into
account to draw an inference that even the (i) The Order dated 31.8.2023 passed by the
I.O. did not feel it necessary to abate his respondent No. 2/detaining authority, de-
unlawful activities. In short the purpose of taining the petitioner under section 3(2) of
arrest in respect of crime is aimed at con- MPDA Act is quashed and set aside.
clusion of the investigation, whereas, deten- (ii) Needless to state that the order of approval
tion of a person under the preventive de- passed by the respondent No. 1 dated
tention law is to prevent him from indulg- 9.10.2023 is also unsustainable and quashed
ing in certain activities.” and set aside.
(iii) The petitioner shall forthwith be released
We are not inclined to approve sub-
from imprisonment.
missions in respect of notice under section
41(A)(1) of the Code. The rule is made absolute in above terms.
34. Learned APP has referred to judg- Petition allowed.
ment of Pesala (supra) especially paragraph -----
No. 64, 65 and 71. The judgment of the Su- To constitute offence under section 3 of
preme Court is distinguishable on the facts. PITA Act, ingredients thereto has to be
We have already expressed our reservations satisfied
for the subjective satisfaction recorded by 2024(1) Bom.C.R.(Cri.) 828
the respondent No. 2 in the case in hand. Before :
Similarly, we are not in the agreement with M.S. Karnik, J.
learned APP for relying upon the judgment Mahesh Panjabrao Andhale ... Applicant.
of the Division Bench in the matter of Versus
Ramesh Balu Chavan (supra). State of Maharashtra & anr. ... Respondents.
Bom.C.R.(Cri.) Mahesh P. Andhale v. State of Maharashtra 829
Revision Application No. 35 of 2021, de- Order dated 9/2/2021 passed by the trial
cided on 17-1-2024. Court rejecting the discharge application
Indian Penal Code, 1860, Secs. 188, preferred by the applicant in Special Case
376, 344, 366B, 370A(2), 372, 373 & 34 – Im- Child Protection No. 82/2019.
moral Traffic (Prevention) Act, 1956, Secs. 3. On 30/11/2018, the First Information
3, 4, 5 & 6 – Foreigners Act, 1946, Sec. 14 – Report No. 347 of 2018 came to be lodged
Foreigners Order, 1998, Secs. 3 & 6 – Dis- agai nst six accused persons with
charge application – Application rejected by Trial Faraskhana Police Station, Pune, for the of-
Court – Premises that belong to applicant was fences punishable under sections 188, 376,
used as a brothel – Held, merely because appli- 344, 366B, 370A(2), 372, 373 read with 34 of
cant’s premises was in occupation of co-accused the Indian Penal Code and sections 3, 4, 5, 6
who were indulging in activities which consti- of the Immoral Traffic (Prevention) Act,
tute aforesaid offence will not be sufficient to 1956, (hereafter referred to as “PITA Act”).
proceed against applicant unless requirements Later on, offences punishable under section
of Section 3 of PITA Act necessary to constitute 14 of the Foreigners Act, 1946 and sections
an offence qua applicant-are satisfied. Merely 3 and 6 of the Foreigners Order, 1998, came
because applicant failed to inform local police to be added.
about execution of registered leave and license 4. It is the case of the prosecution that
agreement will not take prosecution case any the premises that belong to the applicant
further as this does not constitute an offence was used as a brothel and hence the appli-
under PITA Act. It cannot be said that ingredi- cant is charged for the offence punishable
ents necessary to constitute alleged offence un- under section 3 of the PITA Act along with
der Section 3 of PITA Act are made out qua ap- the other offences. The premises which
plicant who is landlord. None of conditions enu- comprise the flat was let out on leave and
merated in Clauses (a) and (b) mentioned in sub- license basis by a registered agreement
section (2A) of Section 3 are satisfied to attract dated 20/6/2018 executed between the ap-
presumption that applicant had knowledge about plicant and accused Biren. Biren occupied
premises or any part thereof was being used as a the said premises along with his wife who
brothel. Applicant stands discharged. Applica- is accused No. 1 and their minor son. It is
tion is allowed. (Paras 9 to 12) alleged that the victim girl who was 16 years
Advocates appeared : of age was trafficked by the accused No. 1
A.R. Avachat a/w. Siddhant Deshpande & Vijay from Bangladesh. The victim started resid-
Babar, for applicant. ing in the said flat along with accused No.
Hrishikesh S. Shinde, for respondent No. 2. 1 and Biren. It is alleged that accused No.
A.R. Patil, A.P.P., for State. 2-Biren and accused No. 1 forced the vic-
PSI Rakesh N., Faraskhana Police Station, Pune City. tim to indulge in acts which constitute of-
340.PM/IN/ND/TC/PN fences under the aforesaid sections.
M.S. KARNIK, J.: – Heard learned Coun- 5. The residents of the society where
sel for the applicant, learned APP for the the flat was situated noticed that young
state and learned Counsel for respondent male persons were visiting the said flat at
No. 2 who is appointed through legal aid. regular intervals. From the statement of the
2. This Revision Application is filed applicant, it is seen that the rent was ini-
by the applicant to quash and set aside the tially paid for three months. However, there
830 Mahesh P. Andhale v. State of Maharashtra 2024(1)
was a default on the part of accused No. 2- (1) Any person who keeps or manages, or acts
Biren to pay the rent for September 2018 and or assists in the keeping or management of,
October 2018. The accused was not respond- a brothel shall be punishable on first con-
ing despite calls made by the applicant. The viction with rigorous imprisonment for a
term of not less than one year and not more
applicant then was informed by the neigh-
than three years and also with fine which
bours about young male persons visiting may extend to two thousand rupees and in
the said flat at regular intervals. The appli- the event of a second or subsequent convic-
cant questioned the accused-Biren and his tion, with rigorous imprisonment for a term
wife. When they did not give any satisfac- of not less than two years and not more than
tory answers the applicant called upon the five years and also with fine which may ex-
accused to vacate the flat. Accordingly ac- tend to two thousand rupees.
cused vacated the flat sometime in the sec- (2) Any person who-
ond week of November 2018. Factually, the (a) being the tenant, lessee, occupier or per-
flat was in occupation of the accused No. 2 son in charge of any premises, uses, or
Biren and accused No. 1 from the second knowingly allows any other person to
week of June 2018 upto the second week of use, such premises or any part thereof as
a brothel, or
November 2018 for 5 months. No doubt the
statement of the applicant-accused has no (b) being the owner, lessor or landlord of any
premises or the agent of such owner, les-
evidentiary value and in any case nothing
sor or landlord, lets the same or any part
turns on the statement of the applicant thereof with the knowledge that the same
which is recorded during the course of the or any part thereof is intended to be used
investigation. as a brothel, or is wilfully a party to the
6. Learned APP and learned Counsel use of such premises or any part thereof
for respondent No. 2 argued in support of as a brothel,
the order passed by the trial Court. It is sub- shall be punishable on first conviction with
mitted that the applicant is the owner of the imprisonment for a term which may ex-
flat and hence he is complicit with the other tend to two years and with fine which
may extend to two thousand rupees and
accused in the commission of the offence
in the event of a second or subsequent
being the owner of the premises which was conviction, with rigorous imprisonment
used as a brothel. It is submitted that the ap- for a term which may extend to five years
plicant should have exercised caution by ex- and also with fine.
ercising due diligence and informing the po- (2A) For the purposes of sub-section (2), it
lice about letting out the premises on leave shall be presumed, until the contrary is
and license basis which he failed to do so proved, that any person referred to in
and must be presumed to be aware of the Clause (a) or Clause (b) of that sub-sec-
activities the coaccused were indulging in. tion, is knowingly allowing the premises
or any part thereof to be used as a brothel
7. Heard learned Counsel. So far as
or, as the case may be, has knowledge that
the applicant is concerned, it is relevant to the premises or any part thereof are being
consider section 3 of the PITA Act which used as a brothel, if,-
reads thus:- (a) a report is published in a newspaper hav-
“Section 3. Punishment for keeping a brothel ing circulation in the area in which such
or allowing premises to be used as a person resides to the effect that the
brothel. premises or any part thereof have been
Bom.C.R.(Cri.) Mahesh P. Andhale v. State of Maharashtra 831
found to be used for prostitution as a re- lished in the newspaper in terms of sub-sec-
sult of a search made under this Act; or tion 2A(a) of section 3 and therefore Clause
(b) a copy of the list of all things found during (a) or Clause (b) of sub-section 2A of sec-
thesearch referred to in Clause (a) is given tion 3 of the PITA Act is not attracted. Thus,
to such person. there is no prima facie material to show the
(3) Notwithstanding anything contained in any complicity of the applicant in terms of what
otherlaw for the time being in force, on con- is laid down by section 3(2)(b) or sub-sec-
viction of anyperson referred to in Clause tion 2A(a) or (b) of section 3 of the PITA Act.
(a) or Clause (b) of sub-section (2) of any
10. Though the leave and license
offence under that sub-section inrespect of
any premises or any part thereof, anylease agreement was of 11 months for the
or agreement under which such premises premises, the same was vacated by the ac-
have been leased out or are held or occu- cused No. 2-Biren sometime in the second
pied at the timeof the commission of the week of November 2018, that is within a
offence, shall become voidand inoperative period of five months from its execution. The
with effec t from the date of the neighbours have only stated that they noticed
saidconviction.” (emphasis mine) young male persons visiting the premises at
8. In the context of section 3, it needs frequent intervals. The statement of the vic-
to be noted that the statement of the estate tim recorded under section 161 or under sec-
agent was recorded by the investigating tion 164 of the Code of Criminal Procedure
agency whom the applicant had requested does not incriminate the applicant or indi-
to find a suitable tenant for the premises. cates his involvement in the offence.
The said estate agent had introduced ac- 11. There is nothing on record to in-
cused No. 2-Biren with the present appli- dicate that the applicant was knowing the
cant. There is nothing on record to indicate co-accused prior to the execution of the
that the applicant had knowledge that the leave and license agreement. The applicant
premises was intended to be used as a was introduced to the co-accused by the
brothel. Further, there is no material on estate agent. There is thus absolutely no
record to show that the applicant is willfully material to indicate that the applicant had
a party to the use of such premises or any any connection with the co-accused to show
part thereof as a brothel. Merely because his complicity in the aforesaid offence. The
the applicant’s premises was in occupation mere fact that the appellant is the owner of
of the co-accused who were indulging in the the premises in question having executed a
activities which constitute the aforesaid of- registered leave and license agreement with
fence will not be sufficient to proceed the co-accused by itself will not constitute
against the applicant unless the require- sufficient material to proceed against the
ments of section 3 of the PITA Act neces- applicant in the absence of prima facie satis-
sary to constitute an offence qua the appli- fying the other requirements of section 3 qua
cant-are satisfied. the landlord. Merely because the applicant
9. Let me consider whether there is failed to inform the local police about the
any material to prima facie demonstrate that execution of the registered leave and license
the conditions spelt out in Clauses (a) and agreement will not take the prosecution
(b) of sub-section 2A of section 3 of the PITA case any further as this does not constitute
Act are satisfied. There is no report pub- an offence under the PITA Act.
832 Rahibai A. Pawar v. State of Maharashtra 2024(1)
12. As indicated earlier, there is no When there was no premeditated act and
material on record to indicate that the ap- there is mere use of hands and legs, it is
plicant has let the premises or any part difficult to accept that, both accused had
thereof with the knowledge that the same intention or even knowledge that death
or any part thereof were intended to be used could be outcome of their beating
as a brothel, or is wilfully a party to the use 2024(1) Bom.C.R.(Cri.) 832
of such premises or any part thereof as a (AURANGABAD BENCH)
brothel. From the materials, as they stand Before :
and allegations even if taken at face value, Abhay S. Waghwase, J.
it cannot be said that the ingredients neces- Rahibai Arjun Pawar & anr. ... Appellants.
sary to constitute the alleged offence under
Versus
section 3 of the PITA Act are made out qua
the applicant who is the landlord. None of
the conditions enumerated in Clauses (a) Criminal Appeal No. 727 of 2002, decided
and (b) mentioned in sub-section (2A) of on 9/19-1-2024.
section 3 are satisfied to attract the pre- Indian Penal Code, 1860, Secs. 304
sumption that the applicant had knowledge Part II & 34 – Appeal against conviction –
about the premises or any part thereof was Culpable homicide not amounting to murder –
being used as a brothel. It is definitely not a case of homicide, or even
13. The application, therefore, de- culpable homicide not amounting to murder –
serves to be allowed and is accordingly al- It is a case of voluntarily causing hurt, thereby
lowed in terms of prayer Clauses (a) and attracting offence under Section 323 of IPC –
(b) which read thus:- Occurrence have developed all of a sudden – It
is not intended and targeted assault that too
“(a) that this Hon’ble Court may be pleased to
quash and set aside the Impugned Order dated
with particular knowledge of its outcome –
9/2/2021 rejecting the discharge application of the Both ladies were unarmed and there is no pre-
applicant in Special Case Child Protection No. vious animosity or grudge – Both ladies might
82/2019 pending in the Court of the Learned not be aware that their such overt act would
Special Judge, Pune, qua the applicant.” unfortunately turn out to be fatal – Held,
“(b) that this Hon’ble Court may be pleased to di- when there was no premeditated act and there
rect that the Applicant be discharged from Spe- is mere use of hands and legs, it is difficult to
cial Case Child Protection No. 82/2019 pending accept that, both accused had intention or even
in the Court of the Learned Special Judge, Pune.” knowledge that death could be outcome of their
14. Consequently, the applicant beating. Impugned judgment and order is
stands discharged in the aforesaid Special quashed and set aside. Criminal Appeal is partly
Case. The application is disposed of in the allowed. (Paras 16 to 20)
above terms. Advocates appeared :
15. I appreciate the valuable assist- Joydeep Chatterji, for appellants.
ance rendered by Advocate Hrishikesh S. S.M. Ganachari, A.P.P., for respondent – State.
Shinde, who appeared on behalf of re- 342.PM/IN/ND/TC/PN
spondent No. 2 in this proceeding. ABHAY S. WAGHWASE, J.: – Both appel-
Application allowed. lants/convicts are hereby taking exception
----- to the judgment and order of conviction
dated 23.12.2002 passed by IInd Additional
Bom.C.R.(Cri.) Rahibai A. Pawar v. State of Maharashtra 833
Sessions Judge, Jalna in Sessions Case No. PW2 Ganesh and PW3 Laxman also a resident
34 of 1998, by which they are held guilty of the same vicinity as of deceased.
for commission of offence under section 304 PW4 Dr. Rajkumar Gothwal, autopsy doctor,
Part II read with section 34 of Indian Penal who conducted PM on dead body of Indubai
Code (IPC) and sentenced to suffer rigor- on 20.4.1997.
ous imprisonment for 7 years to each of PW5 Villas, panc h to memorandum
them and to pay fine. panchanama (Exh.58).
PW6 Sk. Nazim, panch to memorandum of dis-
2. In nutshell, challan was filed
closure and panchanama of seizure of sticks.
against one Baburao and present appel-
PW7 Shakuntala, an acquaintance of deceased.
lants, alleging that, on 18.4.1997 at about
PW8 Devidas, informant, who lodged FIR
11:00 a.m., they approached deceased and
(Exh.63).
questioned her (for naming appellant
PW9 Ratnamala, PW10 Pramila and PW11
Rahibai for maintaining illicit relations with Suresh are the neighbours and eye wit-
accused No. 1.) Accused No. l Baburao in- nesses.
stigated both present appellants to beat de- PW12 Revtabai an acquaintance of deceased,
ceased Indubai, upon which they both who allegedly received oral dying declara-
showered kicks and fist blows on her ab- tion.
dominal part. At relevant time, deceased PW13 Kusum, a Nurse, according to whom,
Indubai was pregnant. She suffered pain deceased Indubai was carrying pregnancy
and while she was taken to the hospital, on of three months.
the way she breathed her last, and there- PW14 API Champalal Shevgan, police official
fore, PW8 Devidas set law into motion vide who registered AD No. 10/1997 and en-
report Exh.63. trusted investigation to Shri Kanade (PW17).
3. Initially AD was registered, but on PW15 Ramesh is the husband of deceased. His
further inquiry, crime was registered for testimony is at Exh.83.
offence punishable under section 302 of IPC PW16 ASI Pralhad Sanap, PSO, who noted re-
port lodged by PW8 Devidas.
and all three accused were duly charge-
PW17 API Kanade, police officer, before whom
sheeted and tried by learned Additional
memorandum of disclosure was given and
Sessions Judge, who, on appreciation of
in consequence to it he caused seizure and
evidence reached to a finding that, prosecu- finally charge-sheeted accused on comple-
tion has failed to establish the occurrence tion of investigation.
to be homicide and rather held only present SUBMISSIONS
appellants (original Accused Nos. 2 and 3)
5. Learned Counsel for appellants
guilty that, too for charge under section 304
would submit that, this is apparently not a
Part II of IPC and sentenced them as spelt
case attracting charge of homicide. Accord-
out in the operative part. Precisely the same
ing to him at the threshold, the charge is
is questioned before us by way of instant
therefore misplaced as there was no pre-
appeal.
meditated act, nor there was any intention
4. In support of above case, prosecu- and knowledge. He pointed out that, al-
tion examined following witnesses: leged incident had taken place all of a sud-
PW1 Bhagwan, adjoining neighbour to the den in the backdrop of alleged defamation
house of deceased. of accused Nos. 1 and 3, which had erupted
53/24(1) at the scene of occurrence. He specifically
pointed out that, none of the appellants tient of epilepsy. Though prosecution
went armed and even accusations are raised claimed deceased to be carrying pregnancy,
regarding beating by means of fist and kick he emphasized that, there is no evidence
blows, and so, it is his submission that, by about her such ailment and even autopsy
no means charge of section 302 of IPC was doctor has negated pregnancy upon con-
attracted but appellants and acquitted ac- ducting autopsy. Hence, he submits that,
cused are made to face and answers such case of prosecution is in absence of any
charge and even tried for the same. foundation or cogent and reliable evidence.
6. He further invited attention of the 9. He further pointed out that, de-
Court to the testimonies of prosecution wit- ceased was examined by medical expert at
nesses and would emphasize that, almost the rural hospital, but there is no evidence
half of the prosecution witnesses have re- about such examination or about any injury
tracted and have not supported prosecu- either internal or external.
tion, i.e. PWl Bhagwan, PW2 Ganesh, PW3 10. It is also his submission that, so
Laxman and PW5 Vilas, PW6 Sk. Nazim and called ocular account being full of material
PW7 Shakuntala, who were examined by omissions, is liable to be discarded forthwith.
prosecution as direct eye witnesses. For said So called eye witnesses have improvised their
reason, he submits that, oral evidence of versions. Even they are inconsistent.
prosecution was weak, fragile and unwor- 11. Lastly, it is his submission that,
thy of credence or relevance. with such weak quality of evidence, learned
7. He would further bring to the no- trial Court ought not to have recorded guilt
tice of the Court that, in the case in hand of appellants even when on same set of evi-
prosecution had failed to establish death of dence accused No. l Baburao was acquitted.
Indubai to be only and only homicidal one Resultantly, he prays for indulgence of this
and not otherwise. He took this Court Court by allowing the appeal.
through the testimony of autopsy doctor 12. In answer to above, learned APP
and would point out that it is apparently would submit that, appellants have merci-
emerging from his testimony that, in spite lessly beaten deceased Indubai, who was
of death of Indubai had taken place on pregnant and a patient of epilepsy. Accord-
19.4.1997, autopsy was carried out on ing to him, though there is use of fist and
20.4.1997 i.e. when deadbody was in decom- kick blows, he submitted that, repeated and
posed condition. Autopsy surgeon’s opin- numerous blows were targeted on vital or-
ion was reserved for CA and that, said doc- gan of the deceased, as a result of which
tor candidly stated in chief itself that, opin- she suffered severe pain and even before
ion could not be issued as dead body was she could be treated, she died on the way
in decomposed condition. Resultantly, it is itself. By examining PW4 Dr.Rajkumar
his submission that, death of Indubai is not Gothwal, homicidal death has been estab-
established to be homicidal one, so as to lished. There is overwhelming ocular ac-
attract the charge for which accused per- count. Witnesses have withstood cross and
sons were indicted. nothing damaging to the prosecution has
8. Learned Counsel also brought to been brought on record. That, there are
the notice of this Court that very case of some omissions, but the same are not ma-
prosecution is also that deceased was a pa- terial. Core of prosecution case having re-
Bom.C.R.(Cri.) Rahibai A. Pawar v. State of Maharashtra 835
mained intact, it is his submission that, 16. PW9 Ratnamala also claims to be
learned trial Judge rightly held appellants an eye-witness and even according to her
guilty and as there is no merits in appeal, it Rahibai questioned deceased as to why she
is prayed that, the same be dismissed. has stated to accused No. 3 about illicit re-
13. While exercising powers under lations between Rahibai and accused No. 1
section 374 of Cr.P.C., this Court is called Baburao and then called accused No. 3
upon to re-examine, re-appreciate and Laxmibai on the spot. Accused Rahibai
reanalyze the entire evidence adduced be- pushed deceased and slapped her on face
fore the trial Court i.e. in the capacity of first and thereafter both accused Nos. 2 and 3
Appellate Court and hence last fact finding gave kick and fist blows on the chest and
Court also. stomach of Indubai. Even according to this
14. Witnesses on behalf of prosecu- witness, Indubai was pregnant. Both ac-
tion, for proper appreciation could be cat- cused went back and deceased informed
egorized as under : about beating to her, to her husband and
i] Neighbours and acquaintances :- PW1 PW15 Ramesh, husband and others took her
Bhagwan, PW2 Ganesh, PW3 Laxman, PW8 initially to the PHC at Kumbhar
Devidas - informant, PW9 Ratnamala, PW10 Pimpalgaon, where deceased was exam-
Pramila and PW11 Suresh. ined by Dr. Deshmukh and advised to shift
ii] Pancha :- PW5 Vilas and PW6 Sk. Nazim. Indubai to civil hospital, Jalna, but on the
iii] Medical evidence :- PW4 Dr. Rajkumar way in Ambad road Indubai died.
Gothwal - Autopsy doctor and PW13 17. It thus transpires that, alleged oc-
Kusum is a Nurse. currence of beating to Indubai had alleg-
iv] Investigating Officers : PW14 API edly taken place around l1:00 a.m. and she
Champalal, PW16 ASI Pralhad Sanap and was taken to the hospital on the next day. It
PW17 API Kanade. is clearly emerging from prosecution wit-
EVIDENCE ON BEHALF OF PROSECU- nesses, more particularly, PW8 Devidas and
TION PW9 Ratnamala that, accused Rahibai and
15. Allegations are that, accused Nos. Laxmibai both gave fist blows and kick
1, 2 and 3 came to deceased. According to blows. None speaks about appellant to be
informant PW8 Devidas, appellant Rahibai armed with any article. The genesis is al-
questioned deceased as to why she has leged utterance by deceased regarding il-
stated to Laxmibai (accused No. 3) about licit relationship between accused No. l and
illicit relations between herself and accused. accused No. 2. Deceased appears to be taken
Further according to informant, he saw to hospital almost after 20 to 24 hours of
Rahibai initially pull the hair of Indubai, occurrence.
made her lie on the ground and give fist 18. On close scrutiny of autopsy doc-
and kick blows. Laxmibai also assaulted tor’s evidence, it has admittedly come on
Indubai with fist and kick blows. Accord- record that, post mortem was done when
ing to informant, accused No. l Baburao was dead body was in decomposed condition.
instigating both Rahibai and Laxmibai to Autopsy surgeon spoke about his inability
beat Indubai. Therefore, except alleged in- to issue opinion regarding cause of death.
stigation there is no overt act attributed to According to him, death might have taken
Baburao (accused No. 1). place for more than 48 hours. In cross, he
has admitted that, due to decomposition, mosity or grudge. Both ladies might not be
injuries were not visible. Even none of the aware that their such overt act would unfor-
witnesses or husband deposed about notic- tunately turn out to be fatal.
ing any external injuries on the person of 21. Therefore, considering above at-
deceased. She seems to have made mere com- tending circumstances, it is difficult to agree
plaint of pain, but as stated above, even au- with the conclusion arrived at by learned
topsy doctor has not come across any inter- trial Judge that it is a case attracting offence
nal damage to any vital organ. He has also under section 304 Part II. Resultantly, judg-
ruled out pregnancy of deceased which is ment and order of learned trial Court re-
claimed by PW8 Devidas and PW9 cording guilt of offence under section 304
Ratnamala. Part II of IPC is required to be quashed and
19. Therefore, there is no clear finding set aside. Accordingly, interference is called
or opinion as to what is the exact cause of for to that extent and hence I proceed to pass
death. Autopsy doctor’s evidence is also si- following of order :-
lent about any injury, which is sufficient in ORDER
the ordinary course of nature to cause of (I) Criminal Appeal is partly allowed.
death. There is nothing in support of the case (II) The judgment and order passed in Sessions
of prosecution that victim was patient of epi- Case No. 24 of 1998 by IInd Additional Ses-
lepsy. Autopsy doctor’s evidence is particu- sions Judge, Jalna on 23.12.2002, convicting
larly silent on such ailment being reported. original accused No. 2 Rahibai w/o. Arjun
Resultantly, medico legal evidence does not Pawar and accused No. 3 Laxmibai w/o.
suggest probable cause of death so as to record Baburao Ganeshkar for the offence punish-
able under section 304 Part II of IPC, stands
a finding of homicidal death.
set aside.
20. However, in view of direct evi- (III) Instead original accused No. 2 Rahibai w/
dence discussed above, definitely there was o. Arjun Pawar and accused No. 3 Laxmibai
beating to Indubai, but by fist and kick w/o. Baburao Ganeshkar are hereby held
blows. Under such circumstances, when guilty for committing offence punishable
there was no premeditated act and there is under section 323 of IPC and are hereby sen-
mere use of hands and legs, it is difficult to tenced to suffer rigorous imprisonment for
accept that, both accused had intention or one year and to pay fine of Rs. l,000/- (Ru-
pees One Thousand Only) each i/d to suffer
even knowledge that death could be the
further rigorous imprisonment for three
outcome of their beating. Resultantly, in the months by each of them.
considered opinion of this Court, it is defi- (IV) Needless to mention that, the period un-
nitely not a case of homicide, or even cul- dergone by the appellants i.e. accused No. 2
pable homicide not amounting to murder. Rahibai w/o. Arjun Pawar and accused No.
Rather at the most it seems to be a case of 3 Laxmibai w/o. Baburao Ganeshkar, as
voluntarily causing hurt, thereby attracting undertrial prisoners or as a result of convic-
offence under section 323 of IPC. Occur- tion by the trial Court, should be given set
rence seems to have developed all of a sud- off while calculating the period of sentence
den. It is apparently not intended and tar- at the time of releasing the appellant-ac-
cused on completion of sentence of R.I. for
geted assault that too with particular knowl-
one year.
edge of its outcome. Admittedly, both ladies
(V) The appellants to surrender their bail
were unarmed and there is no previous ani- bonds.
Bom.C.R.(Cri.) Madhura M. Gadgil v. Milind N. Gadgil 837
(VI) It is clarified that there is no change in rest dia challenges the judgment and Order
of the order of the Additional Sessions dated 25 July, 2019 passed by the Additional
Judge, Jalna. Sessions Judge, Sangli, in Criminal Appeal
(VII) The Additional Sessions Judge, Jalna as No. 150 of 2010, thereby setting aside the
well as the Jail authority to take note of this order of maintenance which was granted
judgment.
by the M.M. Court, Sangli, under the Do-
Appeal allowed. mestic Violence Act (for short “D.V. Act.”).
----- FACTS:
Claim for maintenance after dissolution of 2. It is undisputed that the petitioner
marriage : Maintainable got married with respondent No. 1 on 26
2024(1) Bom.C.R.(Cri.) 837 May, 1990, at Miraj. On 5 July, 1991, a fe-
Before : male child namely Charuta alias Manasi,
Rajesh S. Patil, J. was born out of the said marriage.
Madhura Milind Gadgil ... Petitioner. 3. The petitioner has alleged that in
Versus the year 1997, respondent No. 1 drove her
Milind Neelkant Gadgil & anr. ... Respondents. away from the matrimonial house and
Criminal Writ Petition No. 491 of 2020, shortly thereafter, respondent No. 1 filed
decided on 6/28-11-2023. Divorce Petition No. 27 of 1997 against the
Protection of Women From Domes- petitioner, on the ground of cruelty, before
tic Violence Act, 2005, Secs. 2(a) & 22 – the Court of Senior Division, Sangli. The
Claim for maintenance after divorce – petitioner at the same time filed an Appli-
Maintainability – There is no prohibition un- cation for restitution of conjugal rights.
der D.V. Act for an aggrieved person against fil- 4. Divorce Petition filed by respond-
ing an Application for maintenance after disso- ent No. 1 (husband) was allowed by judg-
lution of marriage. (Para 28) ment and Order dated 17 August, 2006 and
Cases referred : application of the petitioner (wife), for res-
1. Prabha Tyagi Vs. Kamlesh Devi, (2022)8 S.C.C. 90. titution of conjugal rights was dismissed.
2. Kamatchi Vs. Lakshmi Narayanan, A.I.R. 2022 5. On 3 October, 2006, the petitioner
S.C. 2932. (wife) filed an Appeal challenging the di-
3. My Palace Mutually Aided Co-operative Society vorce decree passed by the Court of Senior
Vs. B. Mahesh, 2022 DGLS(SC) 1051 : 2022 S.C.C.
OnLine S.C. 1063. Division, Sangli. In the meanwhile, custody
of the daughter was given to respondent
No. 1 (husband).
Pramod G. Kathane with Samyak A. Bhatkar
Anjaykumar R. Kori, for petitioner. 6. On 29 September, 2007, Charuta
Madhura M. Gadgil – petitioner present in Court. alias Manasi, daughter of the petitioner
S.S. Patwardhan, for respondent 1. (wife) and respondent No. 1 (husband),
N.B. Patil, A.P.P., for State – respondent 2. died by committing suicide.
1401.PM/IN/SG/RR/PN 7. The petitioner (wife) filed an appli-
RAJESH S. PATIL, J.: – Rule. Rule made cation under D.V. Act before the M.M. Court,
returnable forthwith. Sangli, against respondent No. 1 (husband).
This Criminal writ petition is filed 8. The M.M. Court, Sangli, after hear-
under Article 227 of the Constitution of In- ing the Application for maintenance, by its
838 Madhura M. Gadgil v. Milind N. Gadgil 2024(1)
Judgment and Order dated 13 April, 2010, petitioner (wife) under sections 18, 19, 20
allowed the Application of the petitioner and 22 of the Domestic Violence Act (for
(wife) and granted maintenance of Rs. short ‘D.V. Act’) is not maintainable. Mr.
2,300/- per month (inclusive of rent) to be Kathane further submitted that the Sessions
paid by respondent No. 1 (husband). Court did not consider the fact that the pe-
titioner (wife) had no place to reside of her
9. Respondent No. 1 (husband) chal- own and had no source of income.
lenged the Order of maintenance, by filing
(iii) Mr. Kathane submitted that the Sessions
an Appeal before the Sessions Court, by Court committed an error by holding that
way of Criminal Appeal No. 150 of 2010. respondent No. 1 (husband) did not have
10. In the meantime, Appeal filed by his own business and did not have sufficient
the petitioner (wife), challenging the di- income to pay compensation.
vorce decree passed by the Court of Senior (iv) Mr. Kathane further submitted that the
Division, Sangli, was allowed by the judg- Sessions Court misdirected itself by hold-
ment and Order dated 26 February, 2013. ing that parties are separated by the decree
Second Appeal filed by respondent No. 1 of divorce which was granted before the D.V.
(husband) is admitted by this Court and is Act came into existence. But in fact, the said
pending for hearing and final disposal. decree of divorce was challenged by way of
an Appeal by the petitioner (wife) and the
11. The Sessions Court after hearing
said fact is earlier recorded by the Sessions
Criminal Appeal No. 150 of 2010 of the re-
Judge in its Order.
spondent No. 1 (husband), wherein the
(v) Mr. Kathane submitted that the Sessions
Order of maintenance was under challenge,
Court erred in concluding that the marriage
by its Judgment and Order dated 25 July, was dissolved by the decree of divorce,
2019, allowed the Criminal Appeal by set- therefore, maintenance application was not
ting aside the Order of Maintenance. maintainable in law.
12. Present Criminal writ petition (vi) Mr. Kathane referred to two Judgments to
challenges the Judgment and Order dated buttress his submission, first one was of
25 July, 2019 passed in Criminal Appeal No. (Prabha Tyagi Vs. Kamlesh Devi)1, reported
150 of 2010. in (2022)8 S.C.C. 90 and the judgment of
13. This Court by its Order dated 10 (Kamatchi Vs. Lakshmi Narayanan)2, re-
February, 2021 admitted the present Crimi- ported in A.I.R. 2022 S.C. 2932.
nal Writ Petition and thereafter by Order 15. On the other hand, Mr. S.S.
dated 20 October, 2023, matter was posted Patwardhan made his submissions on be-
for hearing and final disposal. half of respondent No. 1 (husband).
SUBMISSIONS (i) Mr. Patwardhan submitted that the Sessions
Court has rightly considered the position in
14. Mr. Kathane made submissions on law and set aside the judgment and Order
behalf of the petitioner/Wife. of the M.M. Court.
(i) Mr. Kathane submitted that the Sessions (ii) Mr. Patwardhan further submitted that it
Judge committed an error in allowing the is brought on record that the petitioner
husband’s Criminal Appeal and setting (wife) was staying separately from the year
aside a well-reasoned Order passed by the 1997. Therefore, after such a long period
M.M. Court, Sangli. there was no question about she being
(ii) The Sessions Court committed a mistake granted any kind of maintenance from the
by holding that the Application made by the respondent No. 1 (husband).
(iii) Mr. Patwardhan further submitted that 17 August, 2006, i.e. after coming into force
divorce was already granted by a Competent of the D.V. Act. It is a matter of fact that the
Court to the respondent No. 1 (husband), Sessions Court, in its Order, has recorded
therefore, an Application under the D.V. Act that an appeal against granting of divorce
for maintenance was not sustainable. decree was filed by the petitioner (Wife)
(iv) Mr. Patwardhan again further submitted that before the Court of Senior Division, Sangli.
there is no merit in the Petition, Petition The said Appeal was filed on 3 October,
though admitted should now be dismissed. 2006. The custody of the daughter, aged 16,
ANYALYSIS & CONCLUSION was granted to respondent No. 1 (Hus-
16. The M.M. Court, Sangli, after hear- band). Unfortunately, on 29 September,
ing the parties, by its Judgment in Order 2007, the daughter of the petitioner and of
dated 13 April, 2010, granted maintenance respondent No. 1, namely Charuta, commit-
of Rs. 2,300/- per month to the petitioner ted suicide and died.
(Wife). The respondent No. 1 (husband) 20. The petitioner (Wife) thereafter, on
challenged the said order of maintenance 3 February, 2009, filed an Application under
before the Session Judge. The Sessions sections 18, 19, 20 and 22 of the D.V. Act be-
Court set aside the Order that had granted fore the M.M. Court, Sangli. In the said D.V.
maintenance. Application, on 13 October, 2010, the M.M.
17. The Sessions Judge has gone on a Court by its Order granted the petitioner
footing that once marriage is dissolved by maintenance of Rs. 2,300/- per month, to be
a decree of divorce, the marriage is not into paid by the respondent No. 1 (Husband).
existence, therefore, the maintenance appli- 21. The D.V. Act which came into force
cation filed after dissolution of marriage on 13 September, 2005, section 2(a) defines
will not be maintainable. Further, the Ses- aggrieved person, which reads as under :
sions Court also held that there was no evi- “2(a). ‘aggrieved person’ means any woman who
dence produced by petitioner (Wife) in re- is, or has been, in a domestic relationship with
spect of income of the husband and just by the respondent and who alleges to have been sub-
mentioning that the husband was into print- jected to any act of domestic violence by the re-
ing business, it does not help the cause that spondent.” [Emphasis Supplied]
he was earning sufficiently. So also the fact So also, the D.V. Act defines monetary re-
that petitioner (Wife) did not disclose any- lief under section 2(k), monetary relief as under:
thing about her income, the M.M. Court was “2(k). ‘monetary relief’ means the compensation
wrong in granting maintenance of sum of Rs. which the Magistrate may order the respondent
2,300/- per month to the petitioner (Wife). to pay to the aggrieved person, at any stage dur-
ing the hearing of an application seeking any
18. It will be important to note that the
relief under this Act, to meet the expenses in-
Application for maintenance filed by the pe- curred and the losses suffered by the aggrieved
titioner (Wife) on 21 January, 2009 was under person as a result of the domestic violence.”
the Protection of Women from Domestic [Emphasis Supplied]
Violence Act, 2005 (for short “D.V. Act”). 22. To answer the question whether
19. The D.V. Act came into force from the petitioner (Wife) is entitled to file an
13 September, 2005. The Divorce Petition Application under the D.V. Act after the
filed by the respondent No. 1 (Husband) dissolution of the marriage; the judgment
was allowed by judgment and Order dated of Supreme Court in the case of Prabha Tyagi
840 Madhura M. Gadgil v. Milind N. Gadgil 2024(1)
(supra) needs to the considered, since it person and the person against whom the relief
deals with the issue. There were three is claimed ?
po i nts f o r c o nsi derati o n bef o re Su- It is held that there should be a subsisting domestic
preme Court: relationship between the aggrieved person and
(i) Whether the consideration of Domestic Incidents the person against whom the relief is claimed vis-
Report (for short “DIR”) is mandatory before à-vis allegations of domestic violence. How-
initiating the proceedings under the D.V. Act in ever, it is not necessary that at the time of fil-
order to invoke substantive provisions of sections ing of an application by an aggrieved person,
18 to 20 and 22 of the said Act ? the domestic relationship should be subsisting.
In other words, even if an aggrieved person is
(ii) Whether it is mandatory for the aggrieved per-
not in a domestic relationship with the re-
son to reside with those persons against whom
spondent in a shared household at the time of
the allegations have been levelled at the point of
filing of an application under section 12 of the
commission of violence ?
DV Act but has at any point of time lived so or
(iii) Whether there should be a subsisting domestic
had the right to live and has been subjected to
relationship between the aggrieved person and
domestic violence or is later subjected to domes-
the persons against whom the relief is claimed ?
tic violence on account of the domestic relation-
23. In the present proceedings the an- ship, is entitled to file an application under sec-
swer to Point Nos. (ii) and (iii) would be nec- tion 12 of the DV Act.” [Emphasis supplied]
essary. Paragraph Nos. 54, 55 and 75.3 of Judg- 24. In the present proceedings, the
ment of Prabha Tyagi (supra) reads as under :- Sessions Court has agreed with the M.M.
“54. …Question 2, namely, “Whether it is manda- Court, on findings of ‘Mental ill-treatment’
tory for the aggrieved person to reside with those to the petitioner. The findings to that extent
persons against whom the allegations have been are confirmed by me. The proposition of
levelled” is accordingly answered. It is held that law laid down by the Supreme Court in the
it is not mandatory for the aggrieved person to
judgment of Prabha Tyagi (supra) is squarely
have actually lived or resided with those persons
against whom the allegations have been levelled
applicable to the present proceedings.
at the time of seeking relief. If a woman has the 25. So also, it is a matter of fact that
right to reside in a shared household, she can even though a divorce decree was granted,
accordingly enforce her right under section 17(1) an Appeal to the said divorce decree was
of the DV Act. If a woman becomes an aggrieved immediately filed by the petitioner (Wife)
person or victim of domestic violence, she can and the decree of divorce was subsequently
seek relief under the provisions of the DV Act set aside by the Ad-Hoc District Judge,
including her right to live or reside in the shared Sangli, vide Order dated 26 February, 2013.
household under section 17 read with section 19 However, without taking these facts into
of the DV Act.
consideration, the Sessions Court has come
55. Hence, the appellant herein had the right to live
to a conclusion that there was no marriage
in a shared household i.e. her matrimonial home
and being a victim or domestic violence could
on the date of coming into force of D.V. Act
enforce her right to live or reside in the shared i.e., on 13 September, 2005. According to me,
household under the provisions of the DV Act the Sessions Court has committed grave
and to seek any other appropriate relief provided error, not only on the point that there was
under the DV Act. This is irrespective of whether an Appeal filed to the divorce decree, but
she actually lived in the shared household. also to the fact that before coming into force
“75.3 (iii) Whether there should be a subsisting of the D.V. Act there was dissolution of
domestic relationship between the aggrieved marriage. Which is in fact, an incorrect find-
ing. Therefore, I am setting aside the find- hence, after such a long period there was
ing recorded by the Sessions Court. no question about she being granted any
26. As far as the issue pertaining to kind of maintenance from the respondent
limitation period for filing an Application No. 1 (Husband). As the incidents of domes-
under D.V. Act is concerned, the Supreme tic violence are continuous and so also, the
Court in the Judgment of Kamatchi (supra) marriage was subsisting though it got dis-
has held that the application of section 468 solved on 17 August, 2006 through a decree
of Cr.P.C. will only come into play from the of divorce, which was later set aside on 26
date of commission of such an offence till February, 2013 by the Appellate Court,
the time of Application preferred under which was not considered by the Sessions
section 12 of D.V. Act, there is no offence Court. It is also a matter of fact that the re-
committed in terms of the provision of the spondent No. 1 (Husband) preferred an
Act and as such there would never be a appeal to the Order dated 26 February, 2013
starting point for limitation from the date passed by the Ad-hoc District Judge, Sangli
of the application under section 12 of the before this Court by way of Second Appeal,
Act. It will be important to place reliance however, the same is admitted and pend-
upon Paragraph No. 15 of the Judgment of ing. As the Second Appeal is admitted and
Kamatchi (supra), which reads as under :- no stay is granted, the divorce decree as of
“15. Let us now consider the applicability of these today stands nullified as per Order dated
principles to cases under the Act. The provisions 26 February, 2013. The Supreme Court in
of the Act contemplate filing of an application catena of Judgments has held that unless
under section 12 to initiate the proceedings be- the decree is set aside by an appropriate
fore the concerned Magistrate. After hearing both proceeding in Appeal or Revision, a decree
sides and after taking into account the material even if it be erroneous, is still binding be-
on record, the Magistrate may pass an appro-
tween the parties. Reference can be drawn
priate order under section 12 of the Act. It is
only the breach of such order which constitutes
upon to the Judgment of Supreme Court in
an offence as is clear from section 31 of the the case of (My Palace Mutually Aided Co-
Act. Thus, if there be any offence committed operative Society Vs. B. Mahesh and Oth-
3
in terms of the provisions of the Act, the limi- ers) , reported in 2022 DGLS(SC) 1051 : 2022
tation prescribed under section 468 of the Code S.C.C. OnLine S.C. 1063.
will apply from the date of commission of such 28. The Sessions Court has recorded
offence. By the time an application is preferred a finding that there was no marriage at the
under section 12 of the Act, there is no offence date of filing the Application under DV Act
committed in terms of the provisions of the Act
as a reason for allowing the Appeal filed
and as such there would never be a starting point
for limitation from the date of application under by respondent No. 1 (Husband). This issue
section 12 of the Act. Such a starting point for is no more res integra and stands settled by
limitation would arise only and only after there the Supreme Court as well as this Court,
is a breach of an order passed under section 12 holding that there is no prohibition under
of the Act. [Emphasis supplied] the D.V. Act for an aggrieved person against
27. Therefore, I am not satisfied with filing an Application for maintenance after
the findings of the Sessions Court which the dissolution of marriage. The Sessions
records that since the petitioner (Wife) has Court totally lost track to the fact that there
been residing separately since 1997 and is no such bar under the D.V. Act. In fact,
842 Aslam B. Shaikh v. State of Maharashtra 2024(1)
the definition of aggrieved person is quite ate Application to seek enhancement to the
broad in its applicability and meaning. So amount of maintenance.
also, the definition of monetarily relief un- (d) The respondent No. 1 is granted a time pe-
der section 2(k) is broad enough to bring riod of two months to clear all the outstand-
into its wings, the Application made by the ing amount of maintenance, as of date.
petitioner (Wife). Petition allowed.
29. As far as the amount of mainte- -----
nance granted by the M.M. Court is con- Culpable homicide is not murder if it is
cerned, the same was a paltry sum of Rs. committed without premeditation
2,300/- per month granted in the year 2010. 2024(1) Bom.C.R.(Cri.) 842
Taking into consideration the facts and cir- (AURANGABAD BENCH)
cumstances, as well as the cost of living to- Before :
day, according to me, the amount of main- R.G. Avachat & Neeraj P. Dhote, JJ.
tenance granted is quite on the lower side. Aslam Babulal Shaikh … Appellant.
The Sessions Court’s finding about the earn-
Versus
ing of the respondent No. 1 bears no sense,
as it has held that the respondent No. 1
(Husband) was not having business of his Criminal Appeal No. 303 of 2017, decided
own, entirely based on the admission by the on 5/10-1-2024.
petitioner (Wife) that the respondent No. 1 Indian Penal Code, 1860, Secs. 302,
was having business of screen printing. It 323, 504 & 34 – Appeal against conviction –
further recorded that income of the re- Murder trial – Whether it is a murder or culpa-
spondent No. 1 (Husband) is in past tense ble homicide not amounting to murder – Dif-
and not in present tense or for that matter, ference between two parts of Section 304 of IPC
in present continuous tense. According to is that under first part, crime of murder is first
me, the Sessions Court has not given a established and accused is then given benefit of
proper reasoning, instead placed its empha- one of exceptions to Section 300 of IPC, while
sis on to the grammatical aspect in the Ap- under second part, crime of murder is never es-
plication filed by the petitioner and there- tablished at all – Therefore, for purpose of hold-
fore, I am setting aside the same. ing an accused guilty of offence punishable un-
30. Hence, for the reasons recorded der second part of Section 304 of IPC, accused
above, this Criminal Writ Petition is allowed need not bring his case within one of exceptions
with following directions: to Section 300 of IPC – Held, Culpable homi-
cide is not murder if it is committed without
(a) The impugned judgment and Order dated
25 July, 2019 passed by the Additional Ses- premeditation in a sudden fight in heat of pas-
sions Judge, Sangli in Criminal Appeal No. sion upon a sudden quarrel and without offender
150 of 2010 is quashed and set aside and the having taken undue advantage or acted in a cruel
order dated 13 April, 2010, passed by the or unusual manner. There is nothing to indi-
M.M. Court, Sangli is confirmed. cate offence to have been committed with pre-
(b) The findings of Sessions Court, confirming meditation. Incident was preceded by a quarrel
the M.M. Court’s findings on ‘Mental and even manhandling between parties. Appel-
illtreatment’ stands confirmed. lant fished out a knife like weapon and gave its
(c) The petitioner/Wife is granted liberty to two blows. Incident took place in a spur of mo-
approach appropriate Court with appropri- ment. Appellant cannot be said to have had in-
Bom.C.R.(Cri.) Aslam B. Shaikh v. State of Maharashtra 843
tended to commit murder. All of them had been is a Masjid, “Jama Masjid” at village Karanji
to Masjid to offer prayers. Appellant’s case Bk.,Taluka Kopargaon, District Ahmednagar.
gets covered by Exception 4 to Section 302 of Most of the Muslim (male) persons of the vil-
Indian Penal Code. Nature of injuries suffered lage had been to the Masjid to offer prayers.
and it being a case of two blows, case falls in It was about 10.00 a.m., after prayers were
Part I of Section 304 of IPC since intention to over, most of them left the Masjid. About
kill is there. Criminal Appeal is partly allowed. 52 acres of land belongs to Masjid (Wakf).
(Paras 21 to 25) Most of the land was given to Muslim per-
Cases referred : sons for cultivation. Babulal, father of the
1. State of Rajasthan Vs. Teja Singh, 2001 appellant was, as such, given 1 acre of land.
All.M.R.(Cri.) 994. He had sold it to one Aarne of village Shirdi.
2. State of Punjab Vs. Harbans Singh, (2003)11 S.C.C. 203. Office bearers of the Wakf had, therefore,
3. Kalyan Deorao Sawase Vs. State of Maharashtra, preferred an application to the Wakf Board.
2021 DGLS(Bom.) 1907(A.B.) : 2022 Cri.L.J.
1088(A.B.).
It was allowed. Shri Aarne had to return the
4. Pophlya Motya Valvi Vs. State of Maharashtra, land to the Masjid. It was in the year 2007, a
1979 Cri.L.J. 1310. Trust (Wakf) was formed and registered.
5. State of U.P. Vs. Mohd. Iqram, A.I.R. 2011 S.C.W. 3844. Ayub Banemiya (P.W.3) was the President
6. Anbazhagan Vs. State, Cri.A. No. 2043/2023, dt. and Hyder Criminal Appeal No. 303/2017
20-7-2023.
Shaikh (deceased) was the Vice President.
Advocates appeared : 5 more persons were the trustees.
S.J. Salunke, for appellant.
4. Shabbir Shaikh (P.W.1), who is
S.D. Ghayal, A.P.P., for respondent.
brother of Hyder (deceased), Babulal, his
339.PM/IN/ND/TC/PN
son Aslam (appellant) and 6 – 7 others re-
Per R.G. AVACHAT, J.: – The challenge in mained in the Masjid to discuss over the
this appeal is to a judgment and Order land for “Kabrastan”. Babulal and the ap-
dated 29/6/2017, passed by learned 2nd pellant questioned as to why a land is pro-
Additional Sessions Judge, Kopargaon in posed to be bought for Kabrastan when the
Sessions Case No. 58/2016. Vide impugned Masjid (Wakf) held a lot of land. They also
judgment and order, the appellant has been asked for accounts of the funds of the Wakf.
convicted for offence punishable under sec- A quarrel, therefore, ensued between
tion 302 of the Indian Penal Code and sen- Babulal and appellant on one hand and the
tenced to undergo imprisonment for life deceased on the other. Meanwhile, the
with fine of Rs. 2000/-, in default to undergo mother of the appellant too came there. Per-
rigorous imprisonment for six months. sons became physical with each other (short
FACTS of scuffle). The appellant allegedly went to
2. The appellant along with his parents his house in the nearby of the Masjid and
was tried for offences punishable under sec- returned with a Gupti like weapon. He gave
tions 302, 323, 504 read with section 34 of the two blows near right ribs of Hyder. Hyder
Indian Penal Code. The parents of the appel- fell down. The appellant and his father
lant have been acquitted. The State has not thereafter went away.
preferred appeal against their acquittal. 5. Hyder was rushed to local hospi-
3. The case of the prosecution in brief tal. Since his condition was serious, he was
is that, it was a day of Ramazan Eid. There shif ted to Critical Care Hospital at
Kopargaon. P.W.1 Shabbir, in the mean- of the Wakf was there. Learned Counsel
while, approached the Police Station and took us through the evidence of P.W.2 Altaf
lodged F.I.R. (Exh.10). Crime vide C.R. No. to suggest that, both Altaf and P.W.1 Shabbir
85/2016 for offence punishable under sec- (informant) were present at one of the shop
tions 307, 323, 504, read with section 34 of blocks outside the Masjid. They entered the
the Indian Penal Code came to be registered Masjid only after hearing cries. The inform-
against the appellant and his parents. ant is none other than the real brothers of
Hyder succumbed to the injuries. Section the deceased. His claim to have had wit-
302 of the Indian Penal Code, therefore, nessed the incident stood falsified by the
came to be invoked. evidence of P.W.2 Altaf. The trial Court has,
6. P.W.8 Shahaji (Police Inspector) was therefore, rightly not believed the evidence
entrusted with the investigation. He paid of both these witnesses. According to
visit to the scene of offence. Crime scene learned Counsel, then remained the evi-
panchanama (Exh.25) was drawn. The appel- dence of P.W.3 Ayyub. This witness too was
lant was arrested. Pursuant to the disclo- inimical with the deceased. He had lodged
sure statement made by him, a knife came a police report against the appellant and his
to be recovered. The dead body was sub- father one year before the incident. This
jected to post-mortem examination. State- witness claims to have had shifted the in-
ments of persons acquainted with the facts jured to the hospital. There was admittedly
and circumstances of the case were re- profused bleeding. Had P.W.3 Ayyub really
corded. On completion of the investigation, been there to take the deceased to the hos-
the appellant and his parents were pro- pital, clothes on his person must have
ceeded against by filing the charge-sheet. stained with blood. The Investigating Of-
7. Learned Additional Sessions Judge ficer did not seize his clothes nor did he
(trial Court) framed the Charge (Exh.5). The (P.W.3 Ayyuub) offered the same to the In-
appellant and others pleaded not guilty. It vestigating Officer. So far as regards recov-
was their defence that, in view of a long ery of knife pursuant to disclosure state-
standing enmity, a false crime has been reg- ment is concerned, the learned Counsel
istered. Hyder died of injuries suffered on would submit that, the Chemical Analys-
account of his fall on the iron rods lying in er’s report indicates no blood grouping of
the Masjid premises for construction pur- the blood stains found on the said article
pose. could be determined. According to him, it
8. To brine home the charge, the pros- is the case of the prosecution that an assault
ecution examined 8 witnesses and pro- was made with a weapon like Gupti. The
duced in evidence certain documents. article before the Court is a knife. Our at-
Learned trial Court, by the judgment and tention has also been adverted to the evi-
order, convicted the appellant and sen- dence of the Medical Officer (P.W.6 Dr.
tenced as stated above. Krishna), who conceded to the suggestions
9. Heard. Learned Counsel for the that the injuries found on the person of the
appellant would submit that, the so called deceased could be possible if iron rod gets
eye-witnesses examined in proof of a charge pierced in a body. In support of his submis-
were inimical with the appellant and his sions, the learned Counsel relied on the fol-
family members. The dispute over affairs lowing authorities :
1
(1) (State of Rajasthan Vs. Teja Singh) , 2001 Muslim persons of village Karanji had gath-
All.M.R.(Cri.) 994, Alleged eye-witness ered in Jama Masjid, at the village to offer
stated that she had lifted the body of the prayers. It was little past 10.00 a.m. on 7/7/
deceased which was bleeding and her 2016, after prayers were over, most of the
clothes had become blood stained. Investi-
persons went away. Admittedly, deceased
gating Officer failed to recover the said
clothes giving room for a genuine complaint Hyder suffered the injuries in an incident
that her presence is doubtful. that occurred in Masjid after prayers were
(2) (State of Punjab Vs. Harbans Singh & anr.)2, over. The question is, whether deceased met
(2003)11 S.C.C. 203. with homicidal death or was it an accident
Non-examination of independent witness, cer- as has been suggested by learned Counsel
tainly throws considerable doubt on pros- for the appellant. Post-mortem report
ecution case. (Exh.31) records the cause of death as,
(3) (Kalyan Deorao Sawase Vs. State of “Hypovulmic shock due to lung injury”.
Maharashtra) 3, 2021 DGLS(Bom.) Clause 17 of the post mortem report indi-
1907(A.B.) : 2022 Cri.L.J. 1088(A.B.) cates Hyder to have suffered following sur-
Mere recovery of a weapon/article on the dis- face injuries :-
closure statement given by the accused un-
(1) Stapled sutured operative wound on right
der section 27 of the Evidence Act is a weak
side of chest wall starting from mid poste-
kind of evidence and cannot be wholly re-
rior axillary line of 7th rib directly forward
lied upon and conviction cannot be based
downward towards mid line up to mid cla-
upon discovery.
vicular line up to 10th rib, 42 cm. in length
(4) (Pophlya Motya Valvi Vs. State of and 2 cm. in width.
Maharashtra)4, 1979 Cri.L.J. 1310.
(2) Sutured stapled wound right infra scapu-
Blood stains on the clothes of agriculturist lar area horizontal.
would hardly provide any incriminating
(3) Sutured stapled operative wound on back
evidence.
of postal margin 5 x 1 cm.
(5) (State of U.P. Vs. Mohd. Iqram & anr.)5,
(4) Operated drained output of injury axillary
A.I.R. 2011 S.C.W. 3844 Circumstances not
line on 10th rib 3 x 2 cm., bleeding.
put to accused in his examination under
section 313 of Cr.P.C. cannot be used 12. P.W.6 Dr. Krishna had conducted
against him. the post-mortem examination. He admitted
10. The learned Addl.P.P. would, on the suggestions given to him in his cross-
the other hand, submit that presence of examination to the effect that, Injury Nos. 1
P.W.3 Ayyub at the scene of offence has not and 2 may be possible by insertion of an
been disputed. He took us through the rea- iron rod. Dr. Krishna’s evidence does not,
sons given by the trial Court for convicting therefore, lead us to infer the deceased to
the appellant. Acc ording to learned have died as a result of stab injuries. We
Addl.P.P., the evidence on record has rightly have, therefore, to advert to the eye witness
been appreciated. No case for interference account.
with the impugned judgment and order is, 13. P.W.1 Shabbir (informant) is a real
therefore, warranted. Learned Addl.P.P. ul- brother of the deceased. He may, therefore,
timately urged for dismissal of the appeal. be said to be an interested witness. In his
11. We have considered the submis- examination-in-chief, he narrated the inci-
sions advanced. Let us turn to the evidence dent. It is in his evidence that, after an oral
on record. It was Ramazan Eid. Most of the wrangle between the deceased on one hand
and the appellant and his father on the It is reiterated that, whato has been de-
other, the appellant went home and came posed by P.W.2 Altaf in his examination-
back with a Gupti like weapon. He did not in-chief has not at all been traversed in his
say it was a Gupti. It is further in his evi- cross-examination. Although his evidence
dence that, the appellant gave two blows falsifies P.W.1 Shabbir to have been inside
with the said weapon. the Masjid while the incident took place, his
14. We do not propose to refer to evi- evidence (P.W.2 Altaf) goes a long way to
dence of P.W.1 Shabbir in extenso in view establish that while he entered the Masjuid,
of evidence of P.W.2 Altaf being grossly in- P.W.3 Ayyub and Banemiya lifted Hyder
consistent with material particulars of the and took him to a local hospital on a motor-
evidence of P.W.1 Shabbir. bike. As such, presence of P.W.3 Ayyub at
15. P.W.2 Altaf testified that, after the the time of the incident in Masjid gets es-
prayers were over on 7/7/2016, he was tablished.
present at one of the shop blocks outside 17. Let us now turn to the evidence of
the Masjid. P.W.1 Shabbir was with him. On P.W.3 Ayyub. It is in his evidence that, after
hearing the shouts/noise emanating from the prayers were over, 7 – 8 persons re-
the Masjid, both of them went in. He saw mained behind. Others left the Masjid. De-
Hyder (deceased) lying on the ground. Both ceased Hyder, Banemiya, Mukhtar, he him-
Ayyub and Banemiya lifted him. He and self, appellant and his father remained be-
Shabbir assisted Ayyub and Banemiya to hind. A discussion over shortage of land for
make Hyder sit on the motorbike. Shabbir Kabrastan was there amongst the persons
(P.W.1) sat on the motorbike to hold Hyder. present in the Masjid. The appellant and his
Altaf was riding the motorbike. Hyder was father asked Hyder to return 1 acre land to
first rushed to a local hospital. He did not them. A quarrel, therefore, ensued between
accompany them to the local hospital. appellant and his father on one hand and
Hyder was then shifted to a hospital at the deceased on the other. Parties became
Kopargaon. He went to Kopargaon. physical with each other (scuffled). The fa-
16. Close reading of the cross-exami- ther of the appellant caught hold of collar
nation of P.W.3 Ayyub indicates that, what of the father of P.W.3 Ayyub. The appellant
has been deposed to in his examination-in- assaulted Hyder with a knife (Sura). He
chief has not at all been denied or taken gave two blows therewith. Hyder fell down.
exception to. True, it has come on record He was shifted to a local hospital of Dr.
during the cross-examination of P.W.1 to Jadhav and then taken to Critical Care Cen-
P.W.3 that, females are not allowed to enter tre at Kopargaon.
Masjid for prayers and no weapon is al- 18. In the cross-examination of P.W.3
lowed to be carried there. Our attention has Ayyub, it has come on record that, there was
also been drawn to the scene of offence profused bleeding. In the first breath he
panchanama (Exh.25) to suggest the build- stated that clothes on his person were
ing material like sand and iron rods were stained with blood. He then changed his
stored in the Masjid. P.W.2 Altaf admitted version to state that only his hands were
that, place whereat Hyder was lying had stained with blood. Our attention has also
blood stains. Clothes on the person of been drawn to the scene of off ence
Ayyub and Banemiya were blood stained. panchanama and the photographs thereof to
indicate the presence of P.W.3 Ayyub ried in is required to be removed. The fact
thereat. His evidence also indicates that he remains that, the appellant must have with
met the Investigating Officer after Hyder him a knife like weapon with which he gave
breathed his last. For the next 5 – 6 days, he two blows. The Investigating Officer was
was in the village itself. He also admitted also not questioned as to why did he not
to have had lodged police report against the seize blood stained clothes of the persons
appellant and his father about one and a who claim to have rushed Hyder to the lo-
half year before the incident. The said re- cal hospital.
port was in relation to a quarrel over a lava- 20. So far as regards the evidence of
tory of Masjid. seizure of knife pursuant to the disclosure
19. The question is, whether convic- statement is concerned, we are not inclined
tion can be sustained on the sole testimony to give much importance thereto since
of P.W.3 Ayyub. At the cost of repetition, it blood group of the blood stains found
is stated that, presence of this witness in the thereon could not be ascertained. C.A. re-
Masjid at the very time of incident has been port in that regard is inconclusive. The C.A.
proved by the evidence of P.W.2 Altaf. P.W.1 reports though admitted in evidence have
to P.W.3 are the cousins of the appellant. not been put to the appellant during his
There was no family feud. A dispute was examination under section 313 of the Code
over management of the affairs of the Wakf. of Criminal Procedure.
No questions were put to P.W.3 Ayyub and/ 21. So far as regards the authorities
or the Investigating Officer as to how many (supra) relied on by learned Counsel for the
days after the incident his statement was appellant are concerned, we need to ob-
recorded. No question was put to P.W.3 serve that the each prosecution case is de-
Ayyub in his cross-examination to dispute cided on peculiar facts and circumstances
his presence in the Masjid at the relevant appearing therein. The facts of Teja Singh
time. It being a Ramazan Eid, almost all the (supra), it was an appeal against acquittal.
Muslims were expected to be in the Masjid It has been observed in para No. 4 of the
to offer prayers. Accordingly, all of them said judgment as under :
were there. Nothing has been brought on “4. We have examined the evidence of the three
record by the defence to suggest P.W.3 eye-witnesses as also that of Iqbal Singh
Ayyub was elsewhere at the relevant time. (PW-10) the Investigating Officer. We have
The defence that the deceased suffered in- also perused the evidence of Ram Pratap,
juries as a result of fall on iron rod does not Sarpanch (DW-1) and we do not find any
reason to differ with the finding of the
appeal. The deceased suffered 4 injuries. 2
High Court which sitting as the first Court
or 3 of them could be said to have been pos- of appeal on facts, had every right to
sibly caused if iron rod gets pierced. For reappreciate the evidence. In our opinion,
causing such kind of injuries, a fall of a per- the High Court, in that process, has not
son has to be on iron rods standing vertical committed any error. As a matter of fact,
and not lying flat. True, no weapon is per- the explanation put forth by the learned
mitted to be carried inside of Masjid. There Counsel in regard to the delay in the F.I.R.
is, however, nothing to indicate that persons reaching the Court is not tenable because
entering the Masjid were first frisked at the assuming that there were some Court holi-
days that cannot be a ground for the de-
gate and whatever impermissible to be car-
lay in the F.I.R. reaching the Magistrate,
because requirement of law is that the to be likely to cause the death of the person
F.I.R. should reach the concerned Magis- to whom the harm is caused, or—
trate without any undue delay. We are of 3rdly.— If it is done with the intention of caus-
the opinion that the explanation given by ing bodily injury to any person and the bod-
the prosecution regarding the delay in the ily injury intended to be inflicted is suffi-
F.I.R. reaching the Magistrate is neither cient in the ordinary course of nature to
convincing nor acceptable.” cause death, or—
22. So far as regards judgment in 4thly.— If the person committing the act knows
Harbans Singh (supra) is concerned, the pros- that it is so imminently dangerous that it
ecution witnesses and the respondents be- must, in all probability, cause death, or such
long to different political fractions. They were bodily injury as is likely to cause death, and
commits such act without any excuse for
not on friendly terms. P.W.4 and P.W. 11
incurring the risk of causing death or such
therein were found to be partisan witnesses. injury as aforesaid.
We reiterate that, there can hardly be a prec- ...................
edent in a criminal case based on facts. ...................
23. We reach the conclusion that, un- Exception 4.— Culpable homicide is not mur-
controverted evidence of P.W.2 Altaf makes der if it is committed without premedita-
out the presence of P.W.3 Ayyub in the tion in a sudden fight in the heat of passion
Masjid while the incident took place. No upon a sudden quarrel and without the of-
particular number of witnesses are required fender having taken undue advantage or
to prove a fact in issue. Although P.W.3 was acted in a cruel or unusual manner.
not on friendly terms with the deceased, the 25. There is nothing to indicate the
reason therefor was not personal. The de- offence to have been committed with pre-
fence version that the deceased died on ac- meditation. The incident was preceded by
count of his accidental fall on iron rods is a quarrel and even manhandling between
highly improbable. As such, it was a case of the parties. The appellant fished out a knife
culpable homicide. Now the question is like weapon and gave its two blows. The
whether it is a murder or culpable homi- incident took place in a spur of moment. The
cide not amounting to murder. appellant cannot be said to have had in-
24. We, therefore, need to advert to tended to commit murder of Hyder. All of
sections 299 and 300 of the Indian Penal them had been to the Masjid to offer
Code, which read thus : prayers. The appellant’s case gets covered
299. Culpable homicide.— Whoever causes by Exception 4 to section 302 of the Indian
death by doing an act with the intention of Penal Code. The nature of injuries suffered
causing death, or with the intention of caus- and it being a case of two blows, the case
ing such bodily injury as is likely to cause falls in Part I of section 304 of the Indian
death, or with the knowledge that he is Penal Code since intention to kill is there.
likely by such act to cause death, commits The Apex Court, in case of (Anbazhagan Vs.
the offence of culpable homicide. The State, represented by the Inspector of
300. Murder.— Except in the cases hereinafter Police)6, Criminal Appeal No. 2043/2023,
excepted, culpable homicide is murder, if decided on 20/7/2023 observed :-
the act by which the death is caused is done
“60. Few important principles of law discern-
with the intention of causing death, or—
ible from the aforesaid discussion may be
2ndly.— If it is done with the intention of caus- summed up thus:-
ing such bodily injury as the offender knows
(1) When the Court is confronted with the ques- sion ‘sufficient in the ordinary course of
tion, what offence the accused could be said nature to cause death’ but is of a lower de-
to have committed, the true test is to find gree of likelihood which is generally spoken
out the intention or knowledge of the ac- of as an injury ‘likely to cause death’ and the
cused in doing the act. If the intention or case does not fall under Clause (2) of section
knowledge was such as is described in 300 of the IPC, (iii) when the act is done with
Clauses (1) to (4) of section 300 of the IPC, the knowledge that death is likely to ensue
the act will be murder even though only a but without intention to cause death or an in-
single injury was caused. . . . . . jury likely to cause death.
(2) Even when the intention or knowledge of To put it more succinctly, the difference be-
the accused may fall within Clauses (1) to tween the two parts of section 304 of the IPC
(4) of section 300 of the IPC, the act of the is that under the first part, the crime of mur-
accused which would otherwise be murder, der is first established and the accused is
will be taken out of the purview of murder, then given the benefit of one of the excep-
if the accused’s case attracts any one of the tions to section 300 of the IPC, while under
five exceptions enumerated in that section. the second part, the crime of murder is never
In the event of the case falling within any of established at all. Therefore, for the purpose
those exceptions, the offence would be cul- of holding an accused guilty of the offence
pable homicide not amounting to murder, punishable under the second part of section
falling within Part 1 of section 304 of the IPC, 304 of the IPC, the accused need not bring
if the case of the accused is such as to fall his case within one of the exceptions to sec-
within Clauses (1) to (3) of section 300 of tion 300 of the IPC.”
the IPC. It would be offence under Part II of We are, therefore, inclined to partly
section 304 if the case is such as to fall within allow the appeal. The appellant is in jail
Clause (4) of section 300 of the IPC. Again,
since the day of his arrest except his release
the intention or knowledge of the accused
on provisional bail on account of Covid-19.
may be such that only 2nd or 3rd part of
section 299 of the IPC, may be attracted but As such, he is actually in jail for little over 6
not any of the clauses of section 300 of the years. We, therefore, propose to sentence
IPC. In that situation also, the offence would him to rigorous imprisonment for a period
be culpable homicide not amounting to of eight years with no alteration in the
murder under section 304 of the IPC. It amount of fine imposed by the trial Court.
would be an offence under Part I of that sec- 26. In the result, the appeal partly suc-
tion, if the case fall within 2nd part of sec- ceeds. Hence the order :
tion 299, while it would be an offence un-
der Part II of section 304 if the case fall within ORDER
3rd part of section 299 of the IPC. (i) The Criminal Appeal is partly allowed.
(3) . . . . . . . . . . . . (ii) The order of conviction and the consequen-
(4) . . . . . . . . . . . . tial sentence of the appellant for offence
punishable under section 302 of the Indian
(5) Section 304 of the IPC will apply to the fol-
Penal Code, passed by learned 2nd Addi-
lowing classes of cases: (i) when the case
tional Sessions Judge, Kopargaon in Ses-
falls under one or the other of the clauses of
sions Case No. 58/2016 vide judgment and
section 300, but it is covered by one of the
Order dated 29/6/2017, is hereby set aside.
exceptions to that section, (ii) when the in-
Instead, the appellant is convicted for the
jury caused is not of the higher degree of
offence punishable under section 304 (Part
likelihood which is covered by the expres-
I) of the Indian Penal Code and therefore
54/24(1) sentenced to suffer rigorous imprisonment
850 Leena D. Gavkar v. State of Maharashtra 2024(1)
for eight years and to pay fine of Rs. 2000/- 3. X Vs. State of Telangana, 2018(3) Bom.C.R.(Cri.)
(Rupees two thousand). 317(S.C.) : (2018)16 S.C.C. 511.
(iii) Rest of the terms of the impugned order of 4. Dolat Ram Vs. State of Haryana, 1995(1) S.C.C. 349.
conviction and sentence to stand unaltered. 5. CBI Vs. Subramani Gopalkrishnan, 2011(5)
S.C.C. 296.
Appeal allowed.
6. Dataram Singh Vs. State of U.P., 2018(3) S.C.C. 22.
----- 7. Gurcharan Singh Vs. State (Delhi Admn.), 1978
Bail once granted should not be cancelled S.C.C. (Cri) 41.
in a mechanical manner Advocates appeared :
2024(1) Bom.C.R (Cri.) 850 Pradyumna Tyagi (through V.C.) a/w. Ms. Gayatri
Before : Gokhale i/b. Ms. Sneha Jethwa, for applicant.
P.H. Gaikwad, A.P.P., for respondent-State.
Madhav J. Jamdar, J.
Kuldeep Nikam, for respondent No. 3.
Leena Dasharath Gavkar ... Applicant.
346.PM/IN/ND/RJ/TC
Versus
State of Maharashtra & ors. ... Respondents. MADHAV J. JAMDAR, J.: – Heard Mr.
Tyagi, learned Counsel appearing for the
Criminal Application No. 11 of 2024, de-
Applicant (through V.C.), Mr. Gaikwad,
cided on 9-2-2024.
learned APP appearing for the respondent-
Indian Penal Code, 1860, Secs.
State and Mr. Nikam, learned Counsel ap-
376(2)(n), 377 & 504 – Code of Criminal
pearing for respondent No. 3.
Procedure, 1973, Secs. 437 & 439 – Cancella-
2. The Criminal Application is pre-
tion of bail – Criminal Application is preferred
ferred seeking quashing and setting aside
seeking quashing and setting aside of bail Or-
of bail order dated 16th August, 2023 passed
der – There is a distinction between rejection of
by learned Additional Sessions Judge, Pune
bail in a case of non-bailable offence at an initial
in Criminal Bail Application No. 4940 of
stage and cancellation of bail after it has been
2023 Dusane Page No. 1 (“impugned or-
granted – Held, bail once granted should not be
der”) and for cancellation of bail granted
cancelled in a mechanical manner without con-
to the respondent No. 3.
sidering whether any supervening circum-
stances have rendered it unfavourable to a fair 3. It is the contention of Mr. Tyagi,
trial to allow accused to retain his or her free- learned Counsel appearing for the applicant
dom by enjoying concession of bail during trial. that the respondent No. 3 i.e. the accused
Additional Sessions Judge has provided detailed had approached the applicant i.e. the vic-
reasons for granting bail to Respondent 3 and tim through a matrimonial website and
therefore impugned order granting bail cannot thereafter established a physical relation-
be termed as mechanical or perverse in nature. ship with the applicant. A WhatsApp group
This is not a ft case for quashing and setting was also created by the family members of
aside impugned bail order and for cancellation respondent No. 3 and that of the Applicant.
of bail granted to Respondent 3. Application is He submitted that the respondent No. 3
rejected. (Paras 10 to 14) established a physical relationship with the
Applicant by making a promise of marriage
Cases referred :
and thereafter, the respondent No. 3 mar-
1. Puran Vs. Rambilas, 2001(5) Bom.C.R. 830(S.C.)
: (2001)6 S.C.C. 338, ried a different woman. Therefore, an of-
2. Anil Nirwan Vs. State (NCT of Delhi), 2024 S.C.C. fence under sections 376(2)(n), 377 and 504
OnLine Del. 3. of the Indian Penal Code, 1860 is made out.
Bom.C.R.(Cri.) Leena D. Gavkar v. State of Maharashtra 851
He further submitted that the false prom- 5. It is well established that there is a
ise of marriage made to the applicant was distinction between rejection of bail in a
only for the purpose of establishing physi- case of non-bailable offence at an initial
cal relations with the applicant on the pre- stage and cancellation of bail after it has
text of marriage. He relied on the decision of been granted.
the Supreme Court of India in the case of 6. The Supreme Court of India in the
(Puran Vs. Rambilas)1 , 2001(5) Bom.C.R. case of (X Vs. State of Telangana)3, 2018(3)
830(S.C.) : (2001)6 S.C.C. 338, and particularly Bom.C.R.(Cri.) 317(S.C.) : (2018)16 S.C.C. 511,
on paragraph No. 11 thereof. He submitted has reiterated the law in this regard in para-
that the order granting bail passed by the graph Nos. 14 and 15, which read as under:-
learned trial Court is a mechanical order and “14. In a consistent line of precedent this Court
is perverse as the factual aspects have not been has emphasised the distinction between the re-
taken into consideration. He also relied on the jection of bail in a non-bailable case at the initial
decision of the Delhi High Court in the case stage and the cancellation of bail after it has been
of (Anil Nirwan Vs. State (NCT of Delhi)) , 2 granted. In adverting to the distinction, a Bench
2024 S.C.C. OnLine Del 3, and particularly on of two learned Judges of this Court in (Dolat
Ram Vs. State of Haryana)4, 1995(1) S.C.C.
paragraph No. 18 thereof.
349, observed that : (SCC pp. 350-51, para 4)
4. On the other hand, Mr. Nikam, “4. “Rejection of a bail in a non-bailable case at the
learned Counsel appearing for respondent initial stage and the cancellation of bail so
No. 3 submitted that even a bare perusal of granted, have to be considered and dealt with
the F.I.R. shows that the relationship be- on different basis. Very cogent and overwhelm-
tween the Applicant and the respondent ing circumstances are necessary for an order
No. 3 was consensual. The said contact be- directing the cancellation of the bail, broadly
tween the Applicant and the respondent (illustrative and not exhaustive) are: adminis-
No. 3 was established in the year 2021 tration of justice or evasion of attempt to evade
the due course of justice or abuse of the conces-
through a matrimonial website and the
rd sion granted to the accused in any manner. The
F.I.R. has been lodged only on 23 July 2023.
satisfaction of the Court, on the basis of mate-
He submitted that although the applicant rial placed on the record of the possibility of
and the respondent No. 3 came in contact the accused absconding is yet another reason
with each other through a matrimonial justifying the cancellation of bail. However, bail
website, thereafter there was a constant ex- once granted should not be cancelled in a me-
change of messages between them and chanical manner without considering whether
thereby consensual relations developed be- any supervening circumstances have rendered
tween them. He submitted that both - the ap- it no longer conducive to a fair trial to allow
the accused to retain his freedom by enjoying
plicant and the respondent No. 3, were never
the concession of bail during the trial.”
serious about their relationship. He submit-
15. These principles have been reiterated by another
ted that investigation is completed and
two- Judge Bench decision in (CBI Vs.
Charge-sheet is fled. respondent No. 3 has Subramani Gopalkrishnan)5, 2011(5) S.C.C.
been released on bail on 16th August 2023. He 296, and more recently in (Dataram Singh Vs.
further submitted that in the Application for State of U.P.)6, 2018(3) S.C.C. 22. : (Subramani
cancellation of bail, there is no allegation case, SCC pp. 303-04, para 23)
whatsoever, made out that the respondent “23. It is also relevant to note that there is differ-
No. 3 has violated any of the bail conditions. ence between yardsticks for cancellation of bail
852 Leena D. Gavkar v. State of Maharashtra 2024(1)
and appeal against the order granting bail. Very for the Applicant fairly submitted that he
cogent and overwhelming circumstances are is not seeking cancellation of bail on the
necessary for an order directing the cancella- ground that the respondent No. 3 has vio-
tion of bail already granted. Generally speak- lated any bail conditions. He submitted that
ing, the grounds for cancellation of bail are,
the only ground on which cancellation of
interference or attempt to interfere with the due
course of administration of justice or evasion bail is sought is that the order passed by
or attempt to evade the due course of justice or the learned trial Court is perverse and that
abuse of the concessions granted to the accused it does not take into consideration the fac-
in any manner. These are all only few illustra- tual position.
tive materials. The satisfaction of the Court on 10. Learned Counsel appearing for
the basis of the materials placed on record of the Applicant has relied on Puran (supra)
the possibility of the accused absconding is and more particularly on paragraph No. 11
another reason justifying the cancellation of
thereof, which reads as under:
bail. In other words, bail once granted should
not be cancelled in a mechanical manner with- 11. Further, it is to be kept in mind that the concept
out considering whether any supervening cir- of setting aside the unjustifed illegal or perverse
cumstances have rendered it no longer condu- order is totally different from the concept of can-
cive to a fair trial to allow the accused to retain celling the bail on the ground that the accused
his freedom by enjoying the concession of bail has misconducted himself or because of some new
during the trial.” “ facts requiring such cancellation. This position
is made clear by this Court in (Gurcharan Singh
7. Thus, it is well established that the Vs. State (Delhi Admn.))7, (1978)1 S.C.C. 118
grounds for cancellation of bail particu- : 1978 S.C.C. (Cri) 41 : A.I.R. 1978 S.C. 179 .
larly are interference or attempt to inter- In that case the Court observed as under: (SCC
fere with the due course of administra- p. 124, para 16)
tion of justice or evasion or attempt to “If, however, a Court of Session had admitted an
evade the due course of justice or abuse accused person to bail, the State has two op-
of the concessions granted to the accused tions. It may move the Sessions Judge if cer-
in any manner. The satisfaction of the tain new circumstances have arisen which
Court, on the basis of material placed on were not earlier known to the State and nec-
record, of the possibility of the accused essarily, therefore, to that Court. The State
may as well approach the High Court being
absconding is also another reason justi-
the superior Court under section 439(2) to
fying cancellation of bail.
commit the accused to custody. When, how-
8. Thus, it is well established that ever, the State is aggrieved by the order of
bail once granted should not be cancelled the Sessions Judge granting bail and there
in a mechanical manner without consid- are no new circumstances that have cropped
ering whether any supervening circum- up except those already existing, it is futile
stances have rendered it unfavourable to for the State to move the Sessions Judge again
a fair trial to allow the accused to retain and it is competent in law to move the High
his or her freedom by enjoying the con- Court for cancellation of the bail. This posi-
tion follows from the subordinate position of
cession of bail during trial.
the Court of Session vis-à-vis the High
9. In this case, there is no allegation Court.”
that the respondent No. 3 has violated any 11. He relied on Anil Nirwan (supra)
of the conditions of bail. It is to be noted and more particularly on paragraph No. 18
that Mr. Tyagi, learned Counsel appearing thereof which reads as under:
Bom.C.R.(Cri.) Leena D. Gavkar v. State of Maharashtra 853
“18. It is not in dispute that the complainant and trix is recorded. The native places of prosecu-
the petitioner met on a dating App “Hinge” trix and the applicant are different. As such
and not on a matrimonial App. There has been there is no possibility of pressurizing or meet-
exchange of numerous WhatsApp messages being. Prima-facie it is seen that there are no
tween them and in none of the messages there antecedents. In such circumstances, further
is any promise made by the petitioner to marry detention is not required. The applicant is
the prosecutrix or a proposal of marriage ready to furnish surety and abide by terms and
mooted by the prosecutrix and accepted by the conditions. It is proper to grant bail on strin-
petitioner.” gent terms and conditions.”
12. The learned Additional Sessions Judge, 13. The factual position on record in
while granting bail has recorded the reasons in this case shows that the Applicant came in
paragraph No. 7 which reads as under: contact with the respondent No. 3 through
“7. On perusal of FIR, prima-facie it is seen that a matrimonial website on 10th October, 2021
the applicant and prosecutrix met on matrimo- and that the online conversation began from
nial site. They started to meet in October. 11th October, 2021 and thereafter consensual
Prima-facie Ld. Advocate for applicant has fled relations developed between them. The
some chats between prosecutrix and the ap- F.I.R. has been lodged only on 23rd July 2023.
plicant. On perusal of police papers it is seen
14. Perusal of the said text chats
that the police has also recovered the chats be-
clearly shows that the learned Additional
tween prosecutrix and the applicant. Prima-
facie it is seen as per the F.I.R. the request was Sessions Judge has taken a possible and
sent on 10/10/2021 and the chats have begun plausible view. The learned Additional Ses-
from 11/10/2021. The prosecutrix and appli- sions Judge has provided detailed reasons
cant, both are major. They worked in Software for granting bail to the respondent No. 3
company. Prima-facie considering the chats, and therefore the impugned order grant-
it is seen that the talks are bold. Considering ing bail cannot be termed as mechanical or
the chatting, prima-facie it is seen that the ap- perverse in nature. The factors pointed out
plicant though chatted with the prosecutrix, by the learned Counsel appearing for the
he is not serious about being in serious rela- applicant may be relevant at the stage of
tionship. Prima-facie it is seen that the pros- trial but are not relevant for deciding the
ecutrix who proposed for marriage in Febru- Application for cancellation of bail.
ary-2022. The applicant denied the proposal.
Prima- facie it is seen that thereafter, the rela-
15. Accordingly, this is not a ft case
tions turned sour. Prima-facie the threats are for quashing and setting aside the im-
also seen at the hands of the prosecutrix. I have pugned bail order and for cancellation of
gone through the police papers, it is seen that bail granted to respondent No. 3. The Ap-
substantial part of the investigation is done. plication is rejected and disposed of as such.
The recovery is done. The mobile phones are 16. It is clarifed that the observations
seized. Medical examination is done. The made herein are prima facie observations for
C.D.R. is called. Spot panchanama is also considering the prayer of cancellation of
done. Prima-facie it is seen that substantial bail and the learned trial Court shall decide
part of investigation is over. Prima-facie ap- the case on its own merits and uninfluenced
plicant is arrested on 24/7/2023. He is behind
by the observations made in this judgment.
the bars for almost three weeks. Whatever evi-
dence is there in form of digital nature it is Application disposed off.
with the police. The statement of the prosecu- -----
854 Clinton Fernandes v. State of Goa 2024(1)
When material on record shows that self – Court cannot look into any other material
relationship between accused and victim or even so called affidavit and reply filed by re-
are consensual and in statement under spective parties in order to come to conclusion
Section 164 of Cr.P.C. she exonerate ac- whether to frame charge or not – Power are lim-
cused, in such circumstances ingredient of ited to material which is appended to charge
Section 376 not made out and accused sheet. (Para 28)
entitled to be discharge (C) Code of Criminal Procedure, 1973,
2024(1) Bom.C.R.(Cri.) 854 Sec. 227 – Discharge application – Duty of
(PANAJI BENCH) Court while deciding same – Stated – While con-
Before : sidering provisions of Section 227 of CrPC,
Bharat P. Deshpande, J. Court is having a duty to sift and weigh all evi-
Clinton Fernandes ... Applicant. dence for limited purpose to find out whether
Versus there is any prima facie case to proceed against
State of Goa & ors. ... Respondents. accused and to frame charge – Test to deter-
mine prima facie case would always depend
Criminal Revision Application No. 19 of
upon fact of each and every case – While do-
2023, decided on 15-1-2024.
ing so it is duty of Court to find out as to what
(A) Code of Criminal Procedure, 1973, view could be taken – If two views are possi-
Sec. 227 – Indian Penal Code, 1860, Secs. ble and one of them giving rise to suspicion
376, 313 & 201 – Discharge Application – Of- only as distinguished from grave suspicion,
fence of rape – Complaint shows that victim and Court is justified in discharging accused –
accused were friendly with each other and in that However while exercising such power Court
context they developed physical relationship on has to apply its judicious mind and to deter-
promise to marry – However, it does not show mine as to whether case for trial has been made
that such promise was given before establishing out or not. It is also equally true that at this
sexual relationship and that too with an inten- stage Court is not bound to conduct mini trial
tion not to comply with it – Victim herself dis- by marshaling evidence on record.
closed that accused accompanied to her and was
Cases referred :
introduced to her family members – In State-
1. Sonu @ Subhash Kumar Vs. State of Uttar
ment of victim recorded under Section 164 of Pradesh, 2021 DGLS(SC) 163.
Cr.P.C. she completely exonerate accused and 2. Pramod Suryabhan Pawar Vs. State of
herself admits that relationship between them Maharashtra, (2019)9 S.C.C. 608.
was consensual – Further decision to abort fe- 3. State of Karnataka Vs. Jatin Chhabria, 2020(4)
tus was taken jointly by victim and accused and Kar.L.J. 59.
both of them visited clinic – Statement of doctor Advocates appeared :
corroborate same – Ingredients of Sections 376, Kautuk Raikar, for applicant.
313, 201 of IPC not made out from material Pravin Faldesai, A.P.P., for respondents 1 & 2.
placed on record – View which is more plausible 351.PM/IN/RB/RR/PN
is favouring accused – Discharge application li- BHARAT P. DESHPANDE, J.: – Heard Mr.
able to be allowed. (Paras 15, 17, 18, 19, 20, 21, Raikar, learned Counsel for the applicant and
22, 24, 25, 28, 29 & 35) Mr. Pravin Faldesai, learned Additional Public
(B) Code of Criminal Procedure, 1973, Prosecutor for the respondent Nos. 1 and 2.
Secs. 227 & 228 – Framing of charge – Is only 2. Even though the notice was issued
on basis of material available in charge sheet it- to the victim, none appeared for her. Mr.
Bom.C.R.(Cri.) Clinton Fernandes v. State of Goa 855
Faldessai points out that the victim is tim, the procedure was carried out. Thus he
present. A reply is filed on behalf of re- submits that the ingredients of sections 313
spondent No. 3 which is dated 5/12/2023 and 201 of IPC are not made out for fram-
thereby opposing the present proceedings. ing of charge.
3. The challenge in the present peti- 7. Mr. Raikar placed reliance in the
tion is to the order passed by the learned case of (Sonu @ Subhash Kumar Vs. State
Sessions Judge dated 25/8/2023 by which the of Uttar Pradesh and Anr.)1, Criminal Appeal
application for discharge filed by the appli- No. 233 of 2021, dated 1/3/2021 reported in
cant/accused was rejected and at the same 2021 DGLS(SC) 163 wherein the Apex Court
time directed to frame charge against the has considered its earlier decision in the case
applicant/accused for the offence punish- of (Pramod Suryabhan Pawar Vs. State of
able under sections 376, 313 and 201 of IPC. Maharashtra)2, (2019)9 S.C.C. 608.
4. Admit. Heard learned Counsel for 8. Mr. Raikar also placed reliance in
final disposal at the admission stage itself the case of (State of Karnataka Vs. Jatin
with consent. Chhabria)3, 2020(4) Kar.L.J. 59. He submits
5. Mr. Raikar appearing for the appli- that if two views are possible and the view
cant would submit that from the charge- favouring to the accused is a plausible view,
sheet and statement of the victim recorded the same have to be accepted even at the
under sections 161 and 164 of CrPC, it is stage of considering the matter for framing
amply clear that ingredients of section 376 of charges.
of IPC are not made out. He submits that 9. Per contra, the learned Additional
relationship between applicant and the vic- Public Prosecutor Mr. Faldessai would sub-
tim was consensual and there was no prom- mit that the victim had filed affidavit be-
ise to marry with intention to defraud the fore this Court confirming her statement
victim. He submits that first of all the state- given to the Police on which FIR was regis-
ment/complaint of the victim nowhere tered and even before the trial Court, she
shows that from the inspection, the peti- confirmed her contentions raised in the
tioner/applicant had an intention to cheat complaint. He submits that the cumulative
the victim in connection with the proposal facts of such statement would clearly show
for marriage. He would then submit that that there is grave suspicion against the ac-
the consent has to be considered in view of cused which shows that relationship was
the statements given by the victim as sim- established on the false promise of mar-
ply breach of promise cannot be considered riage. He would further submit that the
as false promise from the inception. statement of the Doctor clearly goes to show
6. Mr. Raikar would submit that there that initially the victim came to his hospital
is absolutely nothing on record to show that along with the accused however she sud-
there was any refusal on the part of the ap- denly disappeared but was brought again
plicant to marry the victim. He submits that by the accused which shows that she was
due to subsequent developments and the forced to abort. He therefore submits that
fact that the applicant is of young age, he the observations of the learned Sessions
along with the victim decided to abort the Court need no interference.
child. Accordingly both approached the 10. Rival contentions fall for determi-
Doctor and after consent given by the vic- nation.
11. Statement of the victim reported such condition her statement was recorded
by the Victim Assistance Unit on 25/3/2022 which she claimed that it should be dis-
shows that the victim along with the ac- carded. There is absolutely no material to
cused became friendly and even the accused show that such letter signed by the victim
was introduced to the family members of herself on 29/3/2022 was not given volun-
the victim. The accused used to visit the tarily to the Investigating Officer.
victim at her place at Caranzalem. During 13. In view of this statement dated 29/
such visits, the physical relationship was 3/2022, the Investigating Officer addressed a
established. It was the contention of the vic- letter to the Magistrate for recording the state-
tim that such a relationship was consented ment of the victim under section 164 of CrPC.
only when the accused informed her that 14. The statement under section 164
he would marry her. However somewhere of CrPC was thereafter recorded on 30/3/
in the month of March 2022 the victim be- 2022 by the Magistrate and after giving
came aware of her pregnancy and accord- oath to the victim.
ingly she informed the accused. The victim 15. Perusal of the statement recorded
then disclosed that the accused stated that he on oath would clearly go to show that the
is ready to continue with the relationship only victim along with the accused were in a
if the baby is not there. Thereafter the accused consensual relationship and due to which
took the victim to one hospital at Porvorim the victim became pregnant.
wherein the concerned Doctor gave her some
16. During such a statement the vic-
tablets. The victim claimed that the accused
tim disclosed and that too on oath before
forced her to take those tablets. Thereafter on
the Magistrate that she along with the vic-
22/3/2023 accused again took her to the same
tim voluntarily went to the Doctor at
Doctor wherein some more medicines have
Porvorim with intention to terminate the
been prescribed/administered and at that
pregnancy. Accordingly, she signed the con-
time she was forced to sign the consent
sent form and the Doctor prescribed medi-
form. The victim claimed that she was not
cines. After consuming the said tablet she
in her full senses and was forced to sign aborted the child and the fetus was buried
such a consent form. Thereafter on the same near the cross. She also disclosed that there-
night, the pregnancy was terminated and after she was taken to the Police Station by
the fetus was buried near the cross at her mother and accordingly her statement
Bambolim with the help of the accused. was recorded. She also mentioned that later
12. The Panchanama and other inves- on she realised that the contents of her state-
tigations were conducted. However, the vic- ment recorded by the Police on 25/3/2022
tim refused to cooperate with the investi- and accordingly disclosed before the Mag-
gating agency when she was asked to dis- istrate that the accused is innocent and has
close the place of offence in connection with been falsely implicated. She even disclosed
section 376 of IPC. On 29/3/2022 the victim that she do not wish to pursue the case.
herself addressed a letter to Police Inspec- 17. The statement of the Doctor along
tor stating that on the earlier date she was with the consent form collected and pro-
under the influence of the prescribed anti duced along with the charge-sheet would
psychotic pills and alcohol and due to which clearly go to show that consent was given
she was under a grief, displeasure and in by the victim without any coercion or force.
Bom.C.R.(Cri.) Clinton Fernandes v. State of Goa 857
18. While considering the provisions fact” arising out of a promise to marry, two
of section 227 of CrPC, the Court is having proposition must be established. Firstly, the
a duty to sift and weigh all evidence for the promise of marriage must have been a false
limited purpose to find out whether there promise, given in bad faith and with no in-
is any prima facie case to proceed against tention of being adhered to at the time it
the accused and to frame charge. The test was given. The false promise itself must be
to determine prima facie case would always of immediate relevance, or bear a direct
depend upon the fact of each and every nexus to the victim’s decision to engage in
case. While doing so it is duty of the Court physical relationship. This has been laid
to find out as to what view could be taken. down by the land mark decision in the case
If two views are possible and one of them of Pramod Suryabhan Pawar (supra).
giving rise to suspicion only as distin- 23. In the case of Sonu @ Subhash
guished from the grave suspicion, the Court Kumar (supra) a reference is made to the
is justified in discharging the accused. observations in the case of Pramod
19. However while exercising such Suryabhan Pawar (supra) which are found in
power Court has to apply its judicious mind paragraph No. 9. The Apex Court has ob-
and to determine as to whether the case for served in paragraph 9, 10 and 11 as under :
trial has been made out or not. It is also 9. In Pramod Suryabhan Pawar (supra), while deal-
equally true that at this stage Court is not ing with a similar situation, the principles of law
bound to conduct mini trial by marshaling which must govern a situation like the present
the evidence on record. were enunciated in the following observations:
20. In the present matter, question “Where the promise to marry is false and the inten-
with regard to ingredients of section 375 tion of the maker at the time of making the
promise itself was not to abide by it but to de-
and mostly the second aspect i.e. with her
ceive the woman to convince her to engage in
consent, will have to be interpreted. It is well
sexual relations, there is a “misconception of
settled that this consent must be free from any
fact” that vitiates the woman’s “consent”. On
coercion, force or otherwise. In the present the other hand, a breach of a promise cannot be
matter, the complaint dated 25/3/2022 clearly said to be a false promise. To establish a false
goes to show that the victim and the accused promise, the maker of the promise should have
were friendly with each other and in that had no intention of upholding his word at the
context they developed physical relation- time of giving it...”
ship. It is the contention of the victim that 10. Further, the Court has observed:
such physical relationship was developed “To summarise the legal position that emerges from
on the basis of promise to marry. the above cases, the “consent” of a woman with
21. It is now well settled proposition respect to section 375 must involve an active
of law that if such promise is believed to be and reasoned deliberation towards the proposed
false promise from the inception and with act. To establish whether the “consent” was
vitiated by a “misconception of fact” arising
only an intention to obtain the consent, then
out of a promise to marry, two propositions
it becomes a promise by misrepresentation.
must be established. The promise of marriage
Only in such circumstance, the ingredients must have been a false promise, given in bad
of section 375 comes into play. faith and with no intention of being adhered to
22. To establish whether “consent” at the time it was given. The false promise it-
was vitiated by a “misrepresentation of self must be of immediate relevance, or bear a
direct nexus to the woman’s decision to engage Sessions Court while ascertaining as well as
in the sexual act.” considering the material while rejecting the
11. Bearing in mind the tests which have been enun- discharge application. Unfortunately, there is
ciated in the above decision, we are of the view no reference or any discussion as to why the
that even assuming that all the allegations in statement of the victim recorded before the
the FIR are correct for the purposes of considering
Magistrate under section 164 of CrPC has
the application for quashing under section 482 of
CrPC, no offence has been established. There is no been disbelieved even at this stage.
allegation to the effect that the promise to marry 26. The learned Sessions Court in the
given to the second respondent was false at the in- impugned order recorded that while decid-
ception. On the contrary, it would appear from the ing the application for discharge, opportu-
contents of the FIR that there was a subsequent nity was given to the victim who claimed
refusal on the part of the appellant to marry the that the statement under section 164 of
second respondent which gave rise to the registra- CrPC was recorded when the accused again
tion of the FIR. On these facts, we are of the view
gave her promise to marry. The learned Ses-
that the High Court was in error in declining to
entertain the petition under section 482 of CrPC
sions Judge believed such statement of the
on the basis that it was only the evidence at trial victim without considering the impact of
which would lead to a determination as to whether the statement recorded by the Magistrate
an offence was established. and that too on oath.
24. Though the initial complaint dated 27. The reply filed by the victim in this
23/3/2022 shows that there was promise to Court is not on affidavit, however, it is only
marry, it nowhere shows that such promise signed by the victim.
was given before establishing a sexual rela- 28. The question of framing of charge
tionship and that too with an intention not to is only on the basis of the material available
comply with it. The victim herself disclosed in the charge-sheet itself. It is well settled that
that the accused accompanied to her and was the Court cannot look into any other material
introduced to her family members. or even so called affidavit and reply filed by
25. After detection of pregnancy, the respective parties in order to come to the
though initially the accused came to the vic- conclusion whether to frame charge or not.
tim and stated to her that he would con- The power under sections 227 and 228 of
tinue the relationship if the baby was not CrPC are therefore limited to the material
there, such statement is not found when it which is appended to the charge sheet.
was recorded by the Magistrate under sec- 29. In the present matter, the learned
tion 164 of CrPC. It is necessary to note that Sessions Court believed the statement or the
the statement recorded under section 164 reply of the victim which she filed while
of CrPC is on oath and that too before the opposing the application for discharge,
Magistrate. Such statement is having more however completely ignored the statement
weightage than the one which is recorded of the victim which she gave on oath be-
under section 161 of CrPC. It is nowhere fore the Magistrate and recorded under sec-
case of the victim that her statement was tion 164 of CrPC. Besides this, the record
recorded by the Magistrate on any false shows that the victim is from time to time
promise or on threat by the accused. The changing her version. The first statement
statement so recorded is part and parcel of was recorded on 25/3/2022 wherein she
the charge-sheet. It was before the learned impleaded the accused. The statement un-
Bom.C.R.(Cri.) Mohammed Iqbql v. State of Maharashtra 859
der section 164 of CrPC was recorded be- further treatment when she was forced to
fore the Magistrate on 30/3/2022 wherein terminate the pregnancy.
the victim has completely exonerated the 33. Since the ingredients of section 375
accused. The third statement by way of re- of IPC are not made out from the material
ply of the applicant for discharge filed in placed on record and the view favouring
trial Court whereas her forth statement is the accused is more probable, the observa-
by way of reply filed to this revision. tions of the learned Sessions Court with re-
30. In the case of Sonu @ Subhash gard to framing of charge require interference
Kumar (supra) the Apex Court observed that as the same are against the settled principles
the facts of each case have tobe considered as well as the facts in the present matter.
for the purpose of arriving to the conclu- 34. The ingredients of section 313 of IPC
sion that there is material to frame charge are also not made out in view of the state-
or not. In that matter, the statement of the ment under section 164 before the Magistrate,
victim was also recorded under section 164 the statement of Doctor and Consent form.
of CrPC wherein she has specifically stated These documents prima facie show that con-
that her relationship with the accused was sent to abort was given by the victim without
a consensual. On that basis, the Apex Court any coercion or force. Thus ingredients of sec-
observed that due to subsequent develop- tion 201 IPC are also not made out.
ment refusal to marry cannot be termed as 35. The material placed along with the
the refusal from the inception and obtain- charge sheet fails to satisfy the ingredients of
ing consent by misconception. Accordingly, sections 375, 313 and 201 IPC. The view which is
the charge framed against the accused Sonu more plausible in the present matter is clearly
was quashed and set aside. favouring the accused. Under these circum-
31. The matter in hand is having many stances and for the above reasons, the revision
similarities with the case of Sonu wherein succeeds. The impugned order is hereby
the statement of the victim recorded under quashed and set aside. The application filed
section 164 CrPC completely exonerate him for discharge by the accused stands allowed.
and the victim herself admits that the rela- 36. The revision stands disposed of
tionship between them was consensual. accordingly.
Similarly, the decision to abort the fetus was
Application allowed.
taken jointly by the victim and the accused
and accordingly both of them visited the -----
clinic/hospital at Porvorim. Common intention contemplated by
32. The statement of Doctor who is Section 34 of IPC pre-supposes prior
having a clinic at Porvorim recorded on concert
4/4/2022. His statement also clearly goes 2024(1) Bom.C.R.(Cri.) 859
to show that the victim come to his hos- Before :
pital along with the accused and agreed M.S. Karnik, J.
for the termination of pregnancy. State- Mohammed Iqbql Mangu Ismail ... Appellant.
ment further shows that thereafter the Versus
victim visited his hospital for further State of Maharashtra ... Respondent.
treatment. It is highly improbable that the Criminal Appeal No. 385 of 1997, decided
victim would visit the same hospital for on 12-1-2024.
860 Mohammed Iqbql v. State of Maharashtra 2024(1)
Indian Penal Code, 1860, Secs. 367 & 2. The prosecution case in brief is thus:-
34 – Appeal against conviction – Common in- PW-1 is the proprietor of a jewellery
tention – Whether proved – Held, common in- shop. On 8.3.1991 at about 10.45 p.m., PW-1
tention contemplated by Section 34 of IPC pre- left his shop to meet his acquaintance. As
supposes prior concert. It requires meeting of he came out of peru compound, two per-
minds. It requires a prearranged plan before a sons (accused) stopped PW-1. One of them
man can be vicariously convicted for criminal was holding a knife in his hand. He pointed
act of another. Criminal act must have been done out the knife to PW-1 and asked him not
in furtherance of common intention of all ac- shout otherwise he will be killed. The other
cused. There is absolutely no material on record accused put his hand on PW-1’s shoulder
to indicate that co-accused shared a common and said “Saheb Ke Pass Chalo”. A taxi was
intention with appellant to commit offence. In standing near the spot. The taxi driver was
absence of any cogent materials against appel- occupying the driver’s seat and another
lant, impugned judgment and order is set aside. personaccused No. 1 (present appellant)
Criminal Appeal is allowed. (Paras 8 to 11) was sitting on the front seat next to the taxi
Cases referred : driver. The accused who threatened PW-1
1. Gadadhar Chandra Vs. State of West Bengal, asked him to sit on the rear seat in the mid-
Cri.A.No. 1661/2009, dt. 15.3.2022. dle. The two accused sat on the either side
Advocates appeared : of PW-1. The accused persons who were
Megha Bajoria, for appellant. sitting on the rear seat uttered the words
A.R. Patil, A.P.P., for State. “Chalo”. The taxi headed in the direction
341.PM/IN/ND/TC/PN of Bharat Mata Cinema. The accused sitting
M.S. KARNIK, J.: – The challenge in this on the rear seat asked PW-1 as to how much
Criminal Appeal is to the order of convic- money he was carrying. They asked him to
tion rendered by the 1st Additional Princi- take out the money. PW-1 kept quite. As the
pal Judge and Additional Sessions Judge, taxi proceeded ahead one police jeep in-
Greater Mumbai in Sessions Case No. 304 tercepted it. The person (appellant) sitting
of 1995 convicting the appellant Moham- on the front seat as well as the two accused
med Iqbal Magnu Ismail Ansari for the of- who were sitting next to the PW-1 on the
fence punishable under sections 367 read rear seat started running away. The taxi
with 34 of the Indian Penal Code (hereafter driver remained seated in the taxi. The ap-
‘IPC’ for short), thereby sentencing him to pellant was caught by the police with the
suffer rigorous imprisonment for two years help of the public. Thereafter, PW-1 and the
and to pay fine of Rs. 1,000, in default of appellant were taken to the Police Station.
payment of fine, to undergo two months The FIR came to be registered. The appel-
rigorous imprisonment. The appellant is lant was searched in presence of panchas.
also convicted for the offence punishable One knife was found on his person. PW-1
under sections 393 read with 34 of the IPC identified the appellant in the Court.
and sentenced to undergo two years rigor-
3. PW-2 who is examined at Exhibit 8
ous imprisonment and to pay fine of Rs.
is the wireless operator of the police vehi-
1,000/-, in default of payment of fine, to
cle which intercepted the taxi. PW-2 de-
undergo further rigorous imprisonment for
posed that he noticed the activities of the
two months. The appellant was found not
passengers sitting on the rear seat suspi-
guilty of the other charges.
Bom.C.R.(Cri.) Mohammed Iqbql v. State of Maharashtra 861
cious and therefore the police party decided the knife found on his person is sufficient
to intercept the taxi. The appellant who was to demonstrate that the appellant is guilty
sitting in front started running away when of the alleged offence and hence the con-
the taxi was intercepted by the police. PW- viction recorded by the trial Court be sus-
2 says that even the accused sitting on the tained. My attention is invited by learned
rear seat ran away. PW-2 with the help of APP to the findings recorded by the trial
the public nabbed the appellant who is the Court to submit that the appeal is without
accused No. 1. any merit.
4. So far as PW-4 is concerned, he was 7. With the assistance of learned
examined at Exhibit 11. PW-4 is the Inspec- Counsel for the appellant and learned APP
tor of the Traffic Department who was also I have perused the paper book, the deposi-
in the police vehicle. PW-2 informed PW-4 tions of the witnesses and the impugned
about the activities of the accused in the taxi order. I have heard learned Counsel for the
which PW-2 found to be suspicious. The appellant and learned APP and perused the
evidence of PW-3 is not relevant as he is a materials on record.
panch witness in respect of the test identifi- 8. The prosecution case against the
cation of the co-accused. appellant is mainly based on the evidence
5. PW-5, examined at Exhibit 13 is the of PW-1 - the complainant and that of PW-2
panch witness in respect of the search of the – wireless operator of the police vehicle
person of the appellant at the Police Station. which intercepted the taxi. A careful perusal
PW-5 has turned hostile. In any case the trial of the evidence of PW-1 would reveal that
Court has returned a finding that the case no overt act is attributed to the appellant.
against the appellant about possession of PW-1 was forced to sit in the taxi by the
knife at the time of attempt to commit rob- coaccused. It is the co-accused who threat-
bery or at the time of his search is not ened PW-1 at the point of a knife. Nothing
proved beyond reasonable doubt and the is seen from the evidence of PW-1 to indi-
accused cannot found guilty of those of- cate that there was any communication be-
fences. PW-6 examined at Exhibit 14 is a tween the co-accused who forced PW-1 to
Police Havildar, his evidence is not relevant. sit in the taxi by threatening him and the
PW-7 examined at Exhibit 19 is the Investi- appellant who was sitting in front seat of
gating Officer. the taxi. According to learned APP, the in-
6. Learned APP submitted that the criminating circumstances against the ap-
appellant was apprehended at the spot. It plicant is (a) he was sitting on the front seat
is submitted that the appellant was in the of the taxi when PW-1 was forcibly made to
taxi at the time when PW-1 was asked to sit sit in the taxi by the co-accused and (b) that
on the rear seat by the co-accused. It is sub- the appellant tried to make good his escape
mitted that the appellant was carrying a when the police vehicle intercepted the taxi.
knife. Learned APP further submitted that The learned APP was at pains to point out
when the police vehicle intercepted the taxi, that these circumstances are enough to sus-
the appellant started running away. It is his tain a conviction against the appellant.
submission that the appellant’s presence in 9. Apart from this there is absolutely
the taxi, the conduct of running away when no material on record to indicate that the
the police vehicle intercepted the taxi and co-accused shared a common intention with
862 Vinod D. Jaiswal v. District Magistrate Aurangabad 2024(1)
the appellant to commit the aforesaid of- believe that he shared a common intention
fence. The Hon’ble Supreme Court in the with the other two accomplices of kidnap-
case of (Gadadhar Chandra Vs. The State ping PW-1 and putting him in fear of death,
of West Benga)l, Criminal Appeal No. 1661 attempted to rob him. The observation that
of 2009 dated 15.3.2022 in paragraph 9 has when the demand for money was made by
observed that the common intention con- other two persons who were sitting besides
templated by section 34 of IPC pre-supposes the victim, the appellant played a role of
prior concert. It requires meeting of minds. keeping a watch over the driver of the taxi
It requires a prearranged plan before a man is an inference which is without any basis.
can be vicariously convicted for the crimi- For arriving at the conclusion that the appel-
nal act of another. The criminal act must lant shared a common intention with the other
have been done in furtherance of the com- accused, in my opinion there is hardly any
mon intention of all the accused. In a given material to indicate the existence of a prior
case, the plan can be formed suddenly. concert or pre-arranged plan. In the absence
10. In the present case, the taxi driver of any cogent materials against the appellant,
has not been examined. There is nothing on the impugned judgment and order dated 10/
record to show that there was any commu- 11.4.1997 of the 1st Additional Principal Judge
nication between two accused sitting on the and Additional Sessions Judge, Greater
rear seat of the taxi and the appellant or for Mumbai so far as the appellant is concerned
that matter any other evidence to form an needs to be set aside. The appellant is ac-
opinion that the co-accused shared a com- quitted for the charges against him.
mon intention with the appellant. To con- 12. The Criminal Appeal is allowed
vict the appellant only on the basis of him in the above terms. The fine amount if paid
sitting in the taxi on the front seat coupled be refunded to the appellant.
with his conduct of trying to run away when 13. I appreciate the able assistance ren-
the police intercepted the taxi, will be highly dered by Advocate Megha Bajoria appearing
unsafe. In my opinion the evidence on on behalf of the appellant appointed by the
record falls short in proving the guilt of the Legal Aid Services Authority.
appellant beyond reasonable doubt. Appeal allowed.
11. I have perused the judgment and -----
order of the trial Court. As indicated ear-
Purpose of detention of a person under
lier, the trial Court has found that so far as
preventive detention law is to prevent
the case against the appellant about posses-
him from indulging in certain activities
sion of knife at the time of attempt to com-
mit robbery or at the time of his search is 2024(1) Bom.C.R.(Cri.) 862
not proved beyond reasonable doubt and (AURANGABAD BENCH)
hence the accused has not been found guilty Mangesh S. Patil & Shailesh P. Brahme, JJ.
of those offences. However, the trial Court Vinod Dhannulal Jaiswal … Petitioner.
while holding that there is sufficient evi- Versus
dence against the accused to hold the ap- District Magistrate Aurangabad & ors.
pellant guilty for the offences punishable
... Respondents.
under section 367 read with 34 of the IPC
has observed that there is every reason to Criminal Writ Petition No. 1430 of 2023,
decided on 3/17-1-2024.
Bom.C.R.(Cri.) Vinod D. Jaiswal v. District Magistrate Aurangabad 863
Maharashtra Prevention of Danger- 12. Satyavan Vs. Commissioner, Cri.W.P. (ST) No.
ous Activities of Slumlords, void Bootleg- 15879/2023.
13. Prakash Vs. State, Criminal W.P. No. 1285/2023.
gers, Drug-Offenders, Dangerous Persons
14. Magar Pansingh Pimple Vs. State of
and Video Pirates Act, 1981, Sec. 3(2) – Maharashtra, 2006(1) Bom.C.R.(Cri.) 88(A.B.) :
Constitution of India, Arts. 226 & 227 – 2006(1) Mah.L.J.(Cri.) 28(A.B.).
Maharashtra Prohibition Act, 1949, Secs. 15. Chandrakant alias Bala Vs. Satish Sahany,
65(e) & 93 – Code of Criminal Procedure, 1996(2) Bombay Cr.C. 15.
1973, Sec. 41A(1) – Detention order – Subjec- 16. Pandu Shetti Vs. Commissioner of Police,
Cri.W.P. No. 940/1988, dt. 6-10-1988.
tive satisfaction – Held, purpose of arrest in re-
17. Ramesh Ghanekar Vs. R.D. Tyagi, 1987(2)
spect of crime is aimed at conclusion of investi- Bom.C.R. 537 : 1986 Cri.L.J. 1421.
gation, whereas, detention of a person under 18. Arnesh Kumar Vs. State of Bihar, 2014(3)
preventive detention law is to prevent him from Bom.C.R.(Cri.) 362(S.C.) : (2014)8 S.C.C. 273.
indulging in certain activities. Respondent 1- Advocates appeared :
detaining authority has arrived at a subjective Ms. Jayashree Tripathi h/f. Rupesh A. Jaiswal, for
satisfaction based on objective material which petitioner.
by no stretch of imagination could be said to be M.M. Nerlikar A.P.P., for respondent/State.
arbitrary and capricious so that this Court could 343.PM/IN/ND/TC/PN
cause inference under Article 226 of Constitu- Per MANGESH S. PATIL, J.: – Heard. Rule.
tion. None of grounds being put forth by peti- Rule is made returnable forthwith. Learned
tioner to challenge impugned order is sustain- APP waives service for all the respondents.
able in law and on facts. Writ petition is dis- At the joint request of the parties the matter
missed. (Paras 32 to 36) is heard finally at the stage of admission.
Cases referred : 2. By resorting to the provisions of
1. Rama Dhondu Borade Vs. V.K. Saraf, Commis- Articles 226 and 227 of the Constitution of
sioner of Police, 1989(3) Bom.C.R.400(S.C.) : India, the petitioner is challenging the or-
(1989)3 S.C.C. 173.
der passed by the respondent No. 1 – De-
2. Rashid Kapadia Vs. Medha, (2012)11 S.C.C. 745.
taining Authority under section 3(2) of the
3. Nirmala Sawant Vs. Commissioner of Police Pune
City, Cri.W.P. No. 3362/2022, dt. 17-1-2023. Maharashtra Prevention of Dangerous Ac-
4. Akshay Mukund Gaikwad Vs. Commissioner of tivities of Slumlords, void Bootleggers,
Police, Pimpri Chinchwad, Cri.No. 1590/2023, dt. Drug-Offenders, Dangerous Persons and
20-7-2023. Video Pirates Act, 1981 (herein after the
5. Pesala Nookaraju Vs. Government of Andhra
MPDA Act) dated 14.7.2023, directing his
Pradesh, 2023 LiveLaw 678(S.C.).
6. District Collector, Ananthapur Vs. V. Laxmanna,
detention with a view to prevent him from
2005(3) S.C.C. 663 : 2005 C.J. 400(S.C.). acting in any manner prejudicial to the
7. Abdul Nasar Adam Ismail Vs. State of mandates of public order being a bootleg-
Maharashtra, 2013(2) Bom.C.R.(Cri.) 517(S.C.) : ger. He has taken into consideration inter
A.I.R. 2013 S.C. 1376. alia, twelve crimes registered against him
8. Harish Pahwa Vs. State of U.P., A.I.R. 1981 S.C.
1126.
of which the last three were under the pro-
9. K.M. Abdulla Kunhi Vs. Union of India and State visions of section 65(e) of the Maharashtra
of Karnataka, A.I.R. 1991 S.C. 574. Prohibition Act, 1949 (the Prohibition Act)
10. Riyaz Ahmed Vs. State of Maharashtra, Cri.W.P. registered on 31.3.2023, 17.6.2023 and
No. 643/2014, dt. 2-5-2014. 18.6.2023. He took into consideration that
11. Union of India Vs. Yumnam Anand M. @ Bochaand,
even a preventive action under section 93
2007(3) S.C.C.(Cri.) 622 : 2007 Cri.L.J. 2439.
of the Prohibition Act initiated against him passed by the State Government on his rep-
on 31.3.2023. The respondent No. 1 – De- resentation was never communicated to
taining Authority has also taken into con- him and consequently the order of preven-
sideration statements of couple of anony- tive detention is liable to be quashed and
mous witnesses to arrive at a subjective sat- set aside.
isfaction while passing the order of preven- 7. The learned Advocate for the peti-
tive detention. tioner would then assail the order of deten-
3. On the very day of the order, after tion on the ground that the Detaining Au-
the grounds of detention (Exhibit-E) were thority - respondent No. 1 has taken into
communicated to the petitioner, he was consideration the aforementioned three lat-
committed to the prison. The order was forest crimes registered against the petitioner
warded to the State which accorded ap- under section 65(e) of the Prohibition Act.
proval under section 3(3) of the MPDA Act The reports of the Chemical Analyzer have
on 20.7.2023 which was also communicated been obtained but are absolutely silent as
to him on the same day i.e. 20.7.2023. to the quality of the contraband muchless
4. The petitioner then made a repre- there is no express opinion that consump-
sentation through his Advocate on 10.8.2023 tion of such contraband was injurious to
which was forwarded to the State Govern- human health. The CA reports merely give
ment through the Superintendent of percentage of ethyl alcohol in water as 31%,
Aurangabad Central Prison. 41% and 26%, v/v. In the absence of any such
5. The learned Advocate for the peti- opinion of the Chemical Analyzer, the sub-
tioner would submit that contrary to the jective satisfaction arrived at by the re-
mandate of law, the petitioner’s represen- spondent No. 1 - detaining authority that
tation was not decided expeditiously and the petitioner’s alleged activity would be
the delay would go to the root of the order prejudicial to the public health is arbitrary
of detention. To buttress her submission she and would vitiate his subjective satisfaction.
would rely upon the decisions in the mat- 8. The learned Advocate for the peti-
ter of (Rama Dhondu Borade Vs. V.K. Saraf, tioner would then submit that there is ab-
Commissioner of Police and ors.)1, 1989(3) solutely no material to substantiate the sub-
Bom.C.R.400(S.C.) : (1989)3 Supreme Court jective satisfaction arrived at by the re-
Cases 173, (Rashid Kapadia Vs. Medha)2, spondent No. 1 - detaining authority that
(2012)11 S.C.C. 745, (Mrs. Nirmala Sawant the liquor allegedly being sold by the peti-
Vs. The Commissioner of Police Pune City tioner had either affected the societal peace
and ors.)3, Criminal W.P. No. 3362/2022, de- or had potential of ruining the life of the
cided on 17.1.2023 and (Akshay Mukund families of the persons consuming it. She
Gaikwad Vs. Commissioner of Police, would submit that a vague report has been
Pimpri Chinchwad and ors.)4, Criminal W.P. obtained by the respondent No. 1 - detain-
No. 1590/2023, decided on 20.7.2023. ing authority from the doctor of the Primary
6. She would submit that this is the Health Center, Aurala mentioning that such
precise and basic ground on which the pe- a liquor distilled by the petitioner would
titioner is seeking to challenge the order of endanger the health of the people.
preventive detention. No attempt was made 9. Learned Advocate for the petitioner
to explain the delay rather the order if any would submit that the statements of the two
witnesses are also vague. They do not dis- sidered objectively and was rejected. It was
close the specific day and date when the communicated to him by a speed post with
petitioner allegedly threatened them. State- a covering letter dated 14.9.2023. There was
ments of these two witnesses would at the no delay in consideration of his represen-
most demonstrate that the petitioner is a tation and the provision of Article 22(5) of
‘dangerous person’ but would not substan- the Constitution has been complied with.
tiate the subjective satisfaction of the re- 12. By referring to the decision in the
spondent No. 1 - detaining authority of his matter of (Abdul Nasar Adam Ismail Vs.
being a ‘bootlegger’. State of Maharashtra and ors.)7, 2013(2)
10. Learned Advocate for the peti- Bom.C.R.(Cri.) 517(S.C.) : A.I.R. 2013 Su-
tioner would, lastly, submit that the peti- preme Court 1376, the learned APP would
tioner was not arrested in any of the three submit that a plausible explanation has
last crimes registered against him. Rather been tendered for whatever delay that had
he was served with a notice under section occasioned in taking a decision on petition-
41-A of the Code of Criminal Procedure er’s representation, in the affidavit-in-reply.
which fact was indicative that even the In- It has not resulted in causing any prejudice
vestigating Officer did not seek to arrest to him since the selfsame grounds which
him which would be inconsistent with the he has taken in the representation were put
subjective satisfaction arrived at by the re- up by him when he was personally heard
spondent No. 1 – detaining authority that by the advisory board. He would submit
his being at large would be prejudicial to that in view of the explanation offered to in
the public order. Reliance is placed by the the affidavit-in-reply the petitioner is not
learned advocate for the petitioner on the entitled to derive any benefit on the ground
following decisions : of delay in deciding the representation.
i. (Pesala Nookaraju Vs. The Government of 13. The learned APP would then sub-
Andhra Pradesh and ors.)5, 2023 LiveLaw mit that this Court has inherent limitations
678(S.C.).
in causing any interference in the subjec-
ii. (District Collector, Ananthapur Vs. V.
tive satisfaction arrived at by the detaining
Laxmanna)6, 2005(3) S.C.C. 663 : 2005 C.J.
400(S.C.). authority. He would submit that the very
fact that the petitioner was involved in sev-
11. The learned APP would oppose
eral crimes under the Prohibition Act, three
the petition relying upon the affidavit of the
of which were in the recent past, that in it-
Joint Secretary of the Home Department
self was sufficient for the respondent No. 1
(Special) of the State Government and cou-
- detaining authority to reach to a conclu-
ple of affidavits of the respondent No. 1 –
sion that the ordinary law was not enough
Detaining Authority. He would submit that
to restrain him from indulging in the activi-
the requisite procedure as contemplated in
ties which were having the potential of ad-
law has been duly followed. Even though
versely affecting the public order.
the petitioner had not filed any representa-
tion immediately, he was personally heard 14. The learned APP would advert our
by the Advisory Board and had raised same attention to the definition of ‘bootlegger’
grounds which he mentioned in the repre- contained in the MPDA Act. He would sub-
sentation filed subsequently still it was con- mit that ‘maintenance of public order’ is the
phrase used therein. If the respondent No.
55/24(1)
1 – detaining authority has not formed his which in turn refers to the decision in the
subjective satisfaction on the ground that matter of Harish Pahwa (supra) and more
the contraband seized from the petitioner importantly the constitution bench judg-
was prejudicial to public health, the stand ment in the matter of (K.M. Abdulla Kunhi
of the petitioner regarding absence of any Vs. Union of India and S tate of
opinion of the chemical analyzer that the Karnataka)9 , A.I.R. 1991 Supreme Court
contraband was injurious to public health, 574. Paragraph No. 14 reads as under :
would not sustain. He would also point 14. The principles which have been laid down by
out that even the preventive action taken the Constitution Bench and the other judgments
under section 93 of the Prohibition Act which we have referred to earlier can be summa-
had not the desired result since the peti- rized. Article 22(5) of the Constitution casts a
tioner continued to indulge in manufac- legal obligation on the Government to consider
turing liquor illegally. the detenu’s representation as early as possible.
Though no time limit is prescribed for disposal
15. Learned APP would also submit of the representation, the constitutional impera-
that since the petitioner does not claim to tive is that it must be disposed of as soon as pos-
possess any licence under the Prohibition sible. There should be no supine indifference,
Act for manufacturing or possessing liq- slackness or callous attitude. Any unexplained
uor that in itself is sufficient to brand him delay would be a breach of constitutional impera-
as a ‘bootlegger’ in view of the definition tive and it would render the continued deten-
contained in the MPDA Act. He would tion of the detenu illegal. That does not, how-
submit that huge quantity of liquor was ever, mean that every day’s delay in dealing with
the representation of the detenu has to be ex-
seized from his possession. In the absence
plained. The explanation offered must be reason-
of any licence under the Prohibition Act, he able indicating that there was no slackness or
having been found in possession of huge indifference. Though the delay itself is not fatal,
quantity of liquor in itself is sufficient to the delay which remains unexplained becomes
demonstrate that his being at large was unreasonable. The Court can certainly consider
prejudicial to public order. whether the delay was occasioned due to permis-
16. We have considered the rival sub- sible reasons or unavoidable causes. It is not
missions and perused the papers. As far as enough to say that the delay was very short. Even
longer delay can as well be explained. So the test
the ground regarding delay in taking deci-
is not the duration or the range of delay, but
sion by the State Government on the peti-
how it is explained by the authority concerned.
tioner’s representation, the importance of If the inter departmental consultative proce-
taking such decision as expeditiously as dures are such that the delay becomes inevita-
possible need not be over emphasized, in ble, such procedures will contravene the con-
view of Article 22(5) of the Constitution stitutional mandate. Any authority obliged to
of India and in he light of the decisions make order of detention should adopt proce-
of the Supreme Court in the matters of dure calculated towards expeditious considera-
Rama Dhondu Borade and Rashid Kapadia tion of the representation. The representation
(supra) and (Harish Pahwa Vs. State of must be taken up for consideration as soon as
8 such representation is received and dealt with
U.P. and ors.) , A.I.R. 1981 Supreme Court
continuously (unless it is absolutely necessary
1126. However, simultaneously, one also
to wait for some assistance in connection with
needs to refer to the decision in the mat- it) until a final decision is taken and commu-
ter of Abdul Nasar Adam Ismail (supra), nicated to the detenu.
17. A careful reading of these obser- 9.9.2023 through e-mail he forwarded his
vations would demonstrate that even remarks to the State Government (Exhibit
though no time limit has been prescribed R-9). There was a public holi day on
under Article 22(5) it is constitutionally 10.9.2023. The State Government received
imperative that the representation is de- those remarks on 11.9.2023 (Exhibit R-10).
cided as early as possible. It is only if the 19. In the affidavit filed by the Joint
delay remains unexplained it would be in Secretary o f the Go vernment of
breach of the mandate. However, every Maharashtra, Home Department he has
day’s delay need not be explained. The ex- substantiated the stand of the respondent
planation must be reasonable and should No. 1 – detaining authority in his affidavit-
indicate that there was no slackness or in- inreply about the former’s office having re-
difference. More importantly it has been ceived the remarks of the latter on 11.9.2023.
held that though the delay itself is not fatal It then mentions that the section Officer af-
the delay which remains unexplained be- ter putting up an endorsement forwarded
comes unreasonable. it to the Joint Secretary on 12.9.2023 who in
18. In light of the above principles, if turn forwarded it to the Additional Chief
one examines matter in hand, foremost cir- Secretary Home on 13.9.2023 and the Addi-
cumstance that needs to be borne in mind tional Chief Secretary Home considered the
is the fact that admittedly the petitioner petitioner’s representation and rejected it on
submitted his representation on 16.8.2023 14.9.2023. The affidavit expressly mentions
to the Superintendent of Central Prison about such rejection having been commu-
Harsul. The affidavitin- reply filed by the nicated to the petitioner by speed post with
respondent No. 1 – detaining authority letter dated 14.9.2023.
mentions that on the same day with cover- 20. Taking into account the fact that
ing letter the representation was forwarded all the aforementioned aspect expressly
to the Additional Chief Secretary, Home mentioned in the affidavits-in-reply filed by
Department (Exhibit R-6). By communica- the detaining authority and the one filed by
tion dated 17.8.2023 the Home Department the Joint Secretary of the Home Department
forwarded it to his office which was re- have not been sought to be controverted by
ceived on 25.8.2023. By that communication the petitioner by filing any rejoinder. In our
the State Government had solicited his considered view, the statements in the affi-
opinion on all the issues raised by the peti- davit give sufficient and reasonable expla-
tioner (Exhibit R-7). It was received in his nation and clearly explain the time con-
office on 25.8.2023 in the inward section and sumed for deciding the petitioner’s repre-
was received by the Naib Tahsildar serving sentation. Similarly, there is no substance
in the Home Department on 30.8.2023. Af- in the stand of the petitioner that the order
ter processing the file, by communication of rejection of his representation was never
dated 4.9.2023 he called para-wise remarks communicated to him. Consequently, the
from the sponsoring authority that is Su- first ground for challenging the impugned
perintendent of State Excise (Exhibit R-8). order of detention is not sustainable in law.
The Superintendent of State Excise for- 21. As has been observed in the mat-
warded the para-wise remarks on 8.9.2023. ter of Abdul Nasar Adam Ismail (supra), du-
Thereafter, on the very next date that is ration of the delay in deciding the repre-
sentation has to be considered in the light lar set of circumstances considered this as-
of the explanation sought to be assigned for pect of absence of opinion in the chemical
the delay. It is not the duration but the ex- analysis report that the contraband seized
planation that is relevant. It would always was injurious to human health and have
depend upon the facts and circumstances concluded that it would go to the root of
of each case and the explanation offered. A the validity of the detention order.
short delay wherein the representation 23. It is necessary to note that the re-
dated 11.2.2014 which was decided on spondent No. 1 – detaining authority has
4.3.2014 in the matter of (Riyaz Ahmed Vs. not expressly resorted to any reasoning on
State of Maharashtra and ors.)10, Criminal the ground that the contraband seized from
W.P. No. 643/2014, decided on 2.5.2014 was the petitioner was found to be injurious to
held to have not been explained, whereas, public health. The reasoning assigned by
in the matter of (Union of India Vs. Yumnam him nowhere attempts to pursue that line.
Anand M. @ Bochaand) 11 , 2007(3) In other words though there is some refer-
S.C.C.(Cri.) 622 : 2007 Cri.L.J. 2439 decided ence in the statements of the anonymous
by the Supreme Court, the representation witnesses regarding potential of consump-
dated 18.12.1989 rejected and communi- tion of liquor adversely affecting health, the
cated on 30.1.1990, in the facts and circum- respondent No. 1 - detaining authority has
stances mentioned therein the delay was not formed his subjective satisfaction on the
found to be properly explained. If on the ground that the contraband seized from the
facts and circumstances peculiar to the mat- petitioner was injurious to human health.
ter in hand, as we have indicated herein If that be so, absence of opinion in the
above, the petitioner’s representation dated chemical analysis report regarding the con-
10.8.2023 was decided 14.9.2023, sufficiently traband being injurious to human health or
explains the delay and would not go to the consumption, would be inconsequential.
root of validity of the detention order in When the impugned order does not pro-
view of the explanation offered which has ceed on that line, the petitioner’s stand that
gone without a demur. in the absence of such opinion of chemical
22. Now, to the other ground being analyzer the order of detention would viti-
emphasised by the petitioner regarding ate is not legally tenable.
absence of specific observation in the 24. A similar argument was repelled
Chemical Analysis Report that the contra- by a co-ordinate bench of this Court in the
band allegedly seized from the petitioner’s matter of (Magar s/o Pansingh Pimple Vs.
possession was not fit for human consump- State of Maharashtra and ors.)14, 2006(1)
tion or was injurious or harmful to health. Bom.C.R.(Cri.) 88(A.B.) : 2006(1) Mah.L.J.(Cri.)
Admittedly, the Chemical Analyzer Reports 28(A.B.). The observations can be found in
do not expressly opine that the contraband paragraph No. 8 which read thus :
was harmful or dangerous to human health. 8. Copies of the reports of the Chemical Analyst in
It is also true that co-ordinate benches of both the matters, which are registered against
this Court in the matter of (Satyavan Vs. the petitioner on 26.11.2004 and 30.12.2004, are
12
Commissioner) , Criminal W.P. (ST) No. available at paper book pages 107 and 108, re-
13 spectively. In both the matters, analyst has re-
15879/2023 and (Prakash Vs. State) ,
ported the percentage of ethyl alcohol V. by V.
Criminal W.P. No. 1285/2023 have in simi- and the reports conclude, by saying that, the
material can be used for distillation of intoxi- that the petitioner is a ‘bootlegger’. The
cated liquor and that it is medicinal/antiseptic/ definition of ‘bootlegger’ contained in sec-
toilet preparation, nor a flavouring material. tion 2(b) reads as under :
Advocate Shri Gorhe, by placing reliance on the
Section 2(b) “bootlegger” means a person, who
observations of a Division Bench of this High
distills, manufactures, stores, transports, im-
Court at Bombay, in the matter of
ports, exports, sells or distributes any liquor,
(Chandrakant alias Bala Vs. Satish
Sahany)15, 1996(2) Bombay Cr.C. 15, urged intoxicating drug or other intoxicant in contra-
that, since the sample of the matter sent to Ana- vention of any provisions of the Bombay Prohi-
lyser has not been found to be harmful to cause bition Act, 1949 and the rules and orders made
danger to life and public health, this cannot be a thereunder, or of any other law for the time be-
valid ground for detention, as held in unreported ing in force or who knowingly expends or ap-
judgment of the Bombay high Court in the case plies any money or supplies any animal, vehi-
of (Pandu Shetti Vs. Commissioner of Po- cle, vessel or other conveyance or any recepta-
lice)16, in Criminal Writ Petition No. 940 of cles or any other materials whatsoever in fur-
1988, decided on 6.10.1988. therance or support of the doing any of the above
The argument is unsustainable for two reasons. mentioned things by or through any other per-
Firstly, the report of the Analyser is not relied son, or who abets in any other manner the doing
upon, for demonstrating that the preparation, of any such thing ;
which was found with the petitioner at the time 26. Bearing in mind this definition, it
of raids on 26.11.2004 and 30.12.2004, was dan- is quite clear that the phraseology merely
gerous to public health. The reports are relied indicates that it is sufficient if the activity
upon to show that, the State has made out a of the person is prejudicial to the mainte-
prima facie case against the petitioner, regard- nance of public order. It conspicuously does
ing manufacturing of intoxicant material in
not mention that the activity has to be also
breach of the provisions of the Bombay Prohibi-
prejudicial to public health. If that is so,
tion Act. As pointed out by Learned Counsel for
the petitioner, by relying upon the observations when the order of detention also does not
of another Division Bench of Bombay High resort to reasoning that the contraband
Court, in the matter of (Ramesh Ghanekar Vs. seized from the petitioner was dangerous
R.D. Tyagi)17, 1987(2) Bom.C.R. 537 : 1986 to human health, in our considered view,
Cri.L.J. 1421 in order to justify the order of de- absence of opinion in the chemical analysis
tention under section 3 of the MPDA Act, the report that the contraband seized from the
Detaining Authority is required to satisfy itself petitioner was injurious to health would be
of two ingredients, (i) the petitioner is bootleg- of no consequences and will not vitiate the
ger within the meaning of Clause (b) of section impugned order.
2 of the Act, and (ii) he is acting in any manner
prejudicial to the maintenance of public order. 27. There is one more aspect which
The reliance on the reports of the Chemical Ana- needs to be emphasised as regards the con-
lyser is mainly for the purpose of demonstrat- traband seized from the petitioner’s posses-
ing that the Petitioner is a bootlegger. sion. Apart from the fact that he was alleg-
We are in respectful agreement with edly involved in manufacturing/possessing
the reasoning. illicit liquor, as can be noticed, the percent-
25. It is in this context, it is necessary age of ethyl alcohol found in the three sam-
to bear in mind the fact that the impugned ples in respect of the latest three crimes was
order of preventive detention under the 31%, 41% and 26% in water v/v. Meaning
MPDA Act has been passed on the ground thereby that there is no standardization or
quality check which otherwise could have was a goon and a bootlegger. There was feel-
been there had there been production of ing of insecurity in the people from Aurala.
such liquor with a requisite licence. Pre- He also spoke about foul smell due to manu-
cisely for this reason, even we find no ille- facturing of illicit liquor, women, girls and
gality in the subjective satisfaction arrived at children finding it difficult in moving freely
by the respondent No. 1 – detaining author- in the area, many of the resident migrated
ity based on the opinion given by the Medi- from that place. He lastly stated that in the
cal Officer of Primary Health Avrala that by last week of June 2023 at about 19:30 hours
virtue of such varied percentage of ethyl al- when he was going home, petitioner ac-
cohol there is a possibility of even there could costed him and threatened him by holding
be percentage which would have potential his collar for being smart and objecting to
of being injurious to human health. his activities and slapped him twice and in
28. As far as the statements of the two spite of he having raised alarm nobody
anonymous witnesses are concerned, the turned up to intervene and the petitioner
submission of the learned advocate for the thereafter having left by threatening him of
petitioner is to the effect that accepting the dire consequences if anybody would raise
statements of the witnesses, the activity of voice against him. We see no reason to dis-
the petitioner alleged by these two wit- card these statements and version of these
nesses at the most would show the peti- two witnesses merely on the ground that
tioner to be a ‘dangerous person’ which they had not made any attempt to set the
would fall short to substantiate the version criminal law in motion. A common man
of the detaining authority seeking to brand would think twice before resorting to law
him as a ‘bootlegger’. if he was to take cause against the persons
29. A careful perusal of the statements involved in illegal activities. That is a com-
of these two witnesses would reveal that mon human tendency and the experience.
witness ‘A’ has been knowing the petitioner 31. The learned Advocate for the pe-
for 4 to 5 years. He was running a den of titioner has been relying upon the recent
liquor. Many criminals gather there and cre- decision of the Supreme Court in the mat-
ate fearful atmosphere. Some people would ter of Pesala Nookaraju (supra). She would
even vomit after consuming illicit liquor submit that mere registration of several
and lie on road. Foul smell spread across crimes under the Prohibition Act in itself
the area and due to fear nobody was ready would not be sufficient to substantiate the
to file complaint against the petitioner. He subjective satisfaction of the respondent No.
also narrated that in the first week of June 1 – detaining authority, that his being at
2023 at about 20.30 hours when he was re- large would be prejudicial to the public or-
turning home the petitioner accosted him der. In that matter the grounds of detention
and at the point of knife threatened him by furnished to the detenu therein were re-
questioning him for informing about peti- garding registration of cases from January
tioner’s activities to police and declaring 2021 to March 2022 against him under A.P.
that he would not stop manufacturing il- Prohibition (Amendment) Act, 2020 for dis-
licit liquor. tributing, storing, transporting and selling
30. Witness ‘B’ also stated that he was liquor, further observing that it was caus-
knowing the petitioner for 5 to 6 years who ing huge damage to the public health as
well as public peace and tranquility. The to public health then under the Act, 1986, it be-
chemical examiner’s report opined that it comes an activity prejudicial to the maintenance
was illicitly distilled liquor which was un- of public order, therefore, it becomes necessary
fit for human consumption and injurious to for the detaining authority to be satisfied on
material available to it that the liquor dealt with
health. In the backdrop of such fact situa-
by the detenu is liquor which is dangerous to
tion the Supreme Court culled down the public health to attract the provisions of the 1986
law by referring to several decisions to point Act and if the detaining authority is satisfied
out succinctly the difference in the concept that such material exists either in the form of
of ‘law and order’ and ‘public order’. In the report of the Chemical Examiner or otherwise,
context of the peculiar facts and circum- copy of such material should also be given to the
stances and the law discussed following detenu to afford him an opportunity to make an
observations can be found in paragraph effective representation.
Nos. 64 and 65 which are being relied upon 32. A careful perusal of these observa-
by the learned advocate for the petitioner : tions in our considered view clearly demon-
64. Thus, from the various decisions referred to strates that in the peculiar facts and circum-
above, it is evident that there is a very thin line stances and the grounds based on which the
between the question of law and order situation order of preventive detention was passed
and a public order situation, and some times, therein the observations were made.
the acts of a person relating to law and order 33. In the matter in hand, as we have
situation can turn into a question of public or-
discussed herein above, the impugned or-
der situation. What is decisive for determining
der of detention has not been passed on the
the connection of ground of detention with the
maintenance of public order, the object of deten- ground that the illicit liquor seized from the
tion, is not an intrinsic quality of the act but possession of the petitioner was injurious
rather its latent potentiality. Therefore, for de- to health so that opinion of the chemical
termining whether the ground of detention is analyzer in that regard would be necessary.
relevant for the purposes of public order or not, Apart from the fact that in spite of the sev-
merely an objective test based on the intrinsic eral offences having been registered against
quality of an act would not be a safe guide. The the petitioner and even preventive action
potentiality of the act has to be examined in the having been taken, it did not apparently
light of the surrounding circumstances, poste- yield any desired effect. Based on the state-
rior and anterior for the offences under the Pro- ments of couple of anonymous witnesses
hibition Act.
the detention order mentions above con-
65. Just because four cases have been registered tinuous activity of the petitioner having
against the appellant detenu under the Prohibi-
adverse effect on the public order.
tion Act, by itself, may not have any bearing on
the maintenance of public order. The detenu may 34. It is therefore apparent that the
be punished for the offences which have been reg- facts in the matter in hand are peculiar and
istered against him. To put it in other words, if the observations in the matter of Pesala
the detention is on the ground that the detenu is Nookaraju (supra) cannot be pressed into
indulging in manufacture or transport or sale of service as is being submitted by the learned
liquor then that by itself would not become an Advocate for the petitioner.
activity prejudicial to the maintenance of public 35. Turning to the submission of the
order because the same can be effectively dealt
learned Advocate for the petitioner to the
with under the provisions of the Prohibition Act
but if the liquor sold by the detenu is dangerous
effect that the petitioner was merely issued
with notice under section 41-A of the Code (Arnesh Kumar Vs. State of Bihar and
of Criminal Procedure and even the Inves- anr.)18 , (2014)8 S.C.C. 273 the Supreme
tigating Officer was never required to ar- Court has laid down several guidelines
rest him would be a circumstance repelling which have to be borne in by the Investi-
the stand of the respondent No. 1 – detain- gating Officer before arresting a person. We
ing authority that the ordinary law would are pointing out the law to demonstrate that
not be sufficient to prevent the petitioner’s the submission of the learned Advocate for
alleged activities, we are of the considered the petitioner that the very fact that the I.O.
view that the circumstance that in spite of did not feel necessary to arrest the petitioner
the petitioner having involved in as many although the crimes were registered would
as twelve crimes of which eleven are in re- be indicative of the fact that even he did not
spect of offences under the Prohibition Act require the petitioner to be sent behind the
including the latest three ones, in itself is bars, is fallacious. The arrest for carrying
sufficient to demonstrate that irrespective out investigation into a crime would be for
of having been prosecuted for these many a limited purpose of facilitating the Inves-
times he is continuing with the alleged ac- tigating Officer to complete the investiga-
tivity of manufacturing/possessing illicit tion. Such arrest cannot be looked upon as
liquor is demonstrative of the fact that the an action which can be aimed at prevent-
ordinary law of the land has been unable ing the accused from indulging in a similar
to abate his activities as a bootlegger. Perti- activity rather any such approach would be
nently, in spite of a preventive action hav- inconsistent with the mandate of law laid
ing been initiated against him under sec- down in Arnesh Kumar (supra). The action
tion 93 of the Prohibition Act in the month of preventive detention under the preven-
of March 2023 he has been involved in sub- tive detention laws would be aimed at abat-
sequent two offence under section 65(e) of ing the specific activities of an individual
the Prohibition Act in the month of June whereas the arrest for the purpose of inves-
2023. This further substantiates the infer- tigation cannot be aimed at preventing him
ence drawn by the respondent No. 1 – de- from indulging in any such activity. Pre-
taining authority that the ordinary law of cisely for this reason, we are not in agree-
the land was falling short to prevent the ment with the submission of the learned
petitioner’s activities as a bootlegger. advocate for the petitioner that petitioner
36. It is to be noted that section 41- being not arrested in the crimes should be
A(1) of the Code of Criminal Procedure is taken into account to draw an inference that
to be resorted to by the Investigating Of- even the I.O. did not feel it necessary to
ficer before arresting an individual and that abate his unlawful activities. In short the
provision would regulate his powers to ar- purpose of arrest in respect of crime is
rest an individual. Needless to state that the aimed at conclusion of the investigation,
arrest contemplated under the Code of whereas, detention of a person under the
Criminal Procedure for carrying out the preventive detention law is to prevent him
investigation into a crime by resorting to from indulging in certain activities.
custodial interrogation would be essentially 37. In view of the above, in our con-
for completing the investigation. Suffice for sidered view, the respondent No. 1 – de-
the purpose to observe that in the matter of taining authority has arrived at a subjective
Bom.C.R.(Cri.) Kashinath P. Jadhav v. State of Maharashtra 873
satisfaction based on the objective material is invoked cannot apply for bail after 60 days on
discussed here-in-above which by no ground of default in completing investigation
stretch of imagination could be said to be within 60 days. (Para 25)
arbitrary and capricious so that this Court Cases referred :
could cause inference under Article 226 of 1. Rakesh Kumar Paul Vs. State of Assam, (2017)15
the Constitution. None of the grounds be- S.C.C. 67.
ing put forth by the petitioner to challenge 2. Rajiv Chaudhary Vs. State (NCT) of Delhi, (2001)5
the impugned order is sustainable in law S.C.C. 34.
and on facts. 3. Ram Chandra Bhagat Vs. State of Jharkhand,
(2010)13 S.C.C. 780.
38. The writ petition is dismissed. 4. Aslam Babalal Desai Vs. State of Maharashtra,
Rule is discharged. 1993(3) Bom.C.R. 166(S.C.) : (1992)4 S.C.C. 272.
Petition dismissed. 5. Irfan Moiuddeen Saiyyed Vs. State of
Maharashtra, 2023(2) Bom.C.R.(Cri.) 690 : 2023
----- S.C.C. OnLine Bom. 983.
Applicant against whom Section 409 IPC 6. Alnesh Akil Somji Vs. State of Maharashtra, 2022
is invoked cannot apply for bail after 60 DGLS(Bom.) 1219 : 2022 S.C.C. Online Bom. 11566.
days on ground of default in completing 7. Lalita Saini Vs. State, 2019 S.C.C. OnLine Del. 9651.
investigation within 60 days 8. Manjinder Singh Vs. State of Punjab, C.R.R. Nos.
1504 & 1505 of 2019, dt. 12-7-2019.
2024(1) Bom.C.R.(Cri.) 873
9. Qazi Mohammed Nooruddin Vs. State of
Before : Uttarakhand, 2019 S.C.C. Online U.T.T. 147.
M.S. Karnik, J. Advocates appeared :
Kashinath Pandurang Jadhav & ors. Subhash Jha a/w. Shraddha Kataria a/w. Kunal
... Applicants. Jadhav a/w. Praveena Venkatraman a/w. Linisha
Seth a/w. Ritesh Kesarwani i/b. Law Global, for
Versus
applicants.
State of Maharashtra ... Respondent. Sudeep Pasbola a/w. Ayush Pasbola a/w. Rickin
Bail Application Nos. 2973 & 2954 of Dang a/w. Anuj Singh i/b. Ganesh and Co., for
2023, decided on 18-10-2023. Intervener/First Informant.
(A) Indian Penal Code, 1860, Sec. 409 – Ms. Veera Shinde, A.P.P., for State.
Criminal breach of trust – Facts clearly reveal 1402.PM/IN/SG/RR/PN
that admittedly amount of USD 3 million was M.S. KARNIK, J.: – By this application, the
paid by first informant company to accused com- applicants who have been arraigned as ac-
pany – There was thus an entrustment of prop- cused in connection with First Information
erty by informant to accused who represented Report (FIR) No. 28 of 2023 registered with
that company would procure and sell sugar as Economic Offences Wing (EOW), Unit VI,
per agreement – Invoking Section 409 of IPC is Crime Branch, Mumbai for alleged offences
justified. (Para 18) punishable under sections 406, 409, 420 read
(B) Code of Criminal Procedure, 1973, with 120-B of Indian Penal Code (IPC)
Sec. 167(2)(a)(i) – Application for default bail claims an indefeasible right accrued in fa-
– When a provision like Section 409 of IPC also vour of the applicants under section 167(2)
prescribes punishment with imprisonment for of the Code of Criminal Procedure (hereaf-
life, then to such an offence Section 167(2)(a)(i) ter “Cr.P.C.”, for short) for default bail.
is applicable and not Section 167(2)(a)(ii) – And 2. The complainant lodged FIR No. 28
thus applicant against whom Section 409, IPC of 2023 dated 5/7/2023 alleging as under:
874 Kashinath P. Jadhav v. State of Maharashtra 2024(1)
The applicant – Parth Kashinath from the date of arrest i.e. on or before 4/9/
Jadhav is the Director of M/s. Royal Agro 2023. The applicants, therefore, filed appli-
Mart Pvt. Ltd. The complainant - M/s. K.G. cations to enforce their indefeasible right
Invest Company is based in Kyrgyzstan, under section 167(2) of the Cr.P.C. to get
placed an order with the applicant’s com- default bail on 11/9/2023. It is further sub-
pany for the supply of S-30 sugar in package mitted that the Additional Chief Metropoli-
of 50 Kgs. PP- bags of the crop year 2021-2022 tan Magistrate rejected the applications on
@ USD 520/- per MT which aggregates to USD the ground that section 409 of IPC provides
62,400/-. The complainant remitted USD for imprisonment for life or imprisonment
30,00,000/- on or about 15/6/2022. The allega- for either description for a term which may
tion is that the applicant’s company did not extend to ten years. The applicant filed ap-
export any sugar and at later point of time plications in the Sessions Court, Mumbai,
returned back USD 10,00,000/- to the first in- seeking grant of default bail under section
formant company on 20/9/2022. The appli- 167(2) of Cr.P.C.
cants and other accused came to be arrested 5. Shri Jha submitted that the learned
on 5/7/2023 at 5.30 p.m. and they were produced Magistrate failed to comprehend the two-
in the Court of learned Metropolitan Magistrate’s fold issue raised, in as much as (i) section
47th Court at Esplanade, Mumbai, on the fol- 409 of IPC cannot be pressed into service
lowing day. On 6/7/2023, the applicants were because of the transaction between the par-
remanded to police custody till 11/7/2023 which ties being that of buyer and seller and there
was later extended. is no ‘entrustment of property’ as is the re-
3. According to Shri Jha, learned quirement under section 409 of the IPC and
Counsel for the applicants, the maximum (ii) assuming that section 409 of the IPC is
period to file the charge-sheet would be 60 applicable, then also, the period for filing
days. Despite the applicants being charged the charge-sheet is 60 days and not 90 days.
under section 409 of IPC, the charge-sheet 6. Shri Jha further submitted that the
still would be required to be filed under transaction was pure and simple in nature
section 167(2)(a)(ii) of Cr.P.C. within 60 days in which the complainant had placed an
as a minimum sentence of 10 years as pro- order with the accused company which is
vided under section 167(2)(a)(i) is not ap- in the nature of sales/purchase and assum-
plicable to section 409 of IPC, as it is a dis- ing there is a breach of contract, the rem-
cretion of a Court of Magistrate to impose edy is to either approach the arbitrator or
the punishment. It is submitted that the file proceedings in the Civil Court. It is sub-
Court of Magistrate in view of section 29(1) mitted that section 409 of IPC can not be
of Cr.P.C., even if the case is tried before the pressed into service as the applicants are
Chief Judicial Magistrate and/or Chief Met- not an entity specified by section 409 which
ropolitan Magistrate does not have the is sine qua non for applicability of section
power to impose sentence of more than 7 409 of IPC. It is, therefore, submitted that
years. It is submitted that the applicants are section 409 of IPC is not attracted. As the
being prosecuted in a case which is triable charge-sheet has not been filed within 60
by the Court of Magistrate. days from the date of first remand, the ap-
4. Shri Jha submitted that the charge- plicants are entitled to default bail under
sheet should have been filed within 60 days section 167(2) of Cr.P.C.
7. Learned Counsel submits that even (ii) (Manjinder Singh Vs. State of Punjab)8,
assuming the invocation of section 409 of Decided on 12/7/2019 in CRR 1504 of 2019
IPC is justified, then also section 167(2)(a)(i) and CRR 1505 of 2019.
of Cr.P.C. will not be applicable as the re- (iii) (Qazi Mohammed Nooruddin Vs. State Of
quirement under law is that the minimum Uttarakhand)9, 2019 S.C.C. Online U.T.T. 147.
sentence has to be of not less than 10 years; (iv) Rakesh Kumar Paul Vs. State of Asam (supra).
whereas section 409 of IPC does not have 11. With the assistance of the learned
any provision which mandates the mini- Counsel, I have perused the materials on
mum sentence being that of 10 years. It is reco rd. The applicant-Kashi nath
submitted that in respect of all other of- Pandurang Jadhav is accused No. 1. The
fences section 167(2)(a)(ii) of the Cr.P.C. applicant has introduced the first inform-
would be applicable. ant to the director of their company and his
8. It is the submission of Shri Jha that son-Mr. Parth Jadhav and his nephew Mr.
section 409 of the IPC is invoked in the Vikas Gaikwad who are the applicants
present case only with a view that the in- herein in Bail Application No. 2954 of 2023.
vestigating agencies can avail of further The informant wanted to procure 12,000
time beyond 60 days to file charge-sheet. matric tons (MT) sugar from India. During
the procurement process, one Mr. Rohit
9. Shri Jha in support of his submis-
sions relied upon the following decisions:- Sharma introduced the authorised repre-
sentative of the informant company to ac-
(i) (Rakesh Kumar Paul Vs. State of Assam)1,
(2017)15 S.C.C. 67.
cused No. 1 and was made to believe that
(ii) (Rajiv Chaudhary Vs. State (NCT) of he was a genuine businessman and mer-
Delhi)2, (2001)5 S.C.C. 34. chant dealing in sugar export. The accused
(iii) (Ram Chandra Bhagat Vs. State of projected themselves as genuine agents/
Jharkhand)3, (2010)13 S.C.C. 780. merchants who had the capacity to procure
(iv) (Aslam Babalal Desai Vs. State Of and supply 12,000 MT sugar to the first in-
Maharashtra)4, 1993(3) Bom.C.R. 166(S.C.) formant company. It is the accusation that
: (1992)4 S.C.C. 272. by deceiving the first informant, the accused
(v) (Irfan Moiuddeen Saiyyed and Ors. Vs. State with dishonest intentions induced the first
of Maharashtra)5, 2023(2) Bom.C.R.(Cri.) 690 informant company to make a payment of
: 2023 S.C.C. OnLine Bom. 983. USD 30,00,000/- (INR 24,00,00,000/- approxi-
(vi) (Alnesh Akil Somji Vs. State of mately) in the account of the accused No.5
Maharashtra)6, 2022 DGLS(Bom.) 1219 : company. Sale-purchase agreement dated
2022 S.C.C. Online Bom. 11566.
19/5/2022 was entered into between the
10. On the other hand, Smt. Shinde, accusedcompany and the first informant
learned APP and Shri Pasbola, learned company. In the salepurchase agreement
Counsel for the complainant/intervener, the procurer-seller in the agreement is re-
argued in support of the impugned order ferred to as M/s. Royal Agro Mart Pvt. Ltd.-
passed by the learned Magistrate and accused No. 5, which is represented by ac-
prayed for dismissal of the applications. cused No. 1-the applicant in Bail Applica-
Reliance is placed on the following deci- tion No. 2973 of 2023. The agreement is
sions in support of their submissions:- signed and executed by the director of the
(i) (Lalita Saini Vs. State)7, 2019 S.C.C. OnLine company i.e. Mr. Parth Jadhav, accused No.
Del. 9651. 2 and who is the son of accused No. 1. As
per the terms of the contract, the accused they would immediately start the refund
company had to procure and supply 12,000 process on 10/8/2023 itself. The accused
MT (+/-2%) sugar on immediate basis after failed in their commitment.
receiving 50% of the advance amount of 12. According to the first informant
proforma invoice dated 19/5/2022. The first company, the accused were only indulging
informant company on 20/5/2022 trans- in delaying tactics. As the accused could not
ferred an amount of USD 30,00,000/- in fa- procure the sugar, it was decided to cancel
vour of the accused company. As per the the order of sugar. After mutual discus-
commitment, the accused was supposed to sions between respective representatives,
start the delivery of the sugar. On 24/5/2022, the accused stated that if they could not
the Government of India issued a Notifica- procure the sugar, the entire amount will
tion No. 10/2015-20 which provided that be refunded in 3 tranches. It was assured
w.e.f. 1/6/2022 upto 31/10/2022 or until fur- that a refund of USD 1 million would be
ther orders, whichever is earlier, export of immediate and the remaining USD 2 mil-
sugar is allowed only with specific permis- lion would be repaid in 2 tranches by 20/
sion from the Directorate of Sugar, DFPD, 9/2022 and 27/9/2022.
Ministry of Consumer Affairs, Food and 13. The first informant filed a com-
Public Distribution. The notification was plaint and proceedings against the accused
applicable from 1/6/2022 onwards and not before the Director General of Foreign
prior to the given date. Further, the accusa- Trade (DGFT). By the letter dated 13/10/
tion is that the accused lured the first in- 2022, the accused company assured to pay
formant by stating that they would imme- the amount of USD 3 million and demanded
diately start sending the sugar and there- that after the payment was made the first
fore, the first informant company paid the informant company should withdraw the
amount to the accused company. The ac- complaint and proceedings made by them
cused, time and again informed the inform- before the DGFT. After repeated follow-ups,
ant that they are in the process of procur- the amount of USD 1 million was refunded.
ing the sugar for them and supplying the The accused company then assured the first
same as per their agreement. On 1/8/2022 informant company that since the restric-
the first informant issued a notice to the tions of sugar export were struck off, the
accused to refund/return the amount of accused had procured sugar from a dealer
USD 30,00,000/- that was paid by them for in Sangli and are about to execute a pur-
sugar. On 3/8/2022, the accused company chase order with them. They convinced the
apologised for the delay in export as per the first informant with certainty that they
terms of the contract dated 19/5/2022 stat- would supply sugar at the earliest. The ac-
ing that the ban was imposed by the Gov- cused shared a copy of the cheque of Rs.
ernment of India on export of the sugar. The 15,20,00,000/- and the purchase order as
accused company requested the first in- well as with the first informant company.
formant company for time thereby promis- The accused company came to know that
ing and assuring them that till 10/8/2022 the said cheque was dishonoured and the
they will send as many containers of Indian seller with whom they had placed the or-
sugar S-30 to Bandar Abbas so that sugar der had initiated legal proceedings against
can reach Kyrgyzstan before 31/8/2023 or the accused. The accusation is that not only
the monies belonging to the first informant their trust who never had the intention to
company were siphoned off but the accused procure and supply the sugar to the first
repeatedly committed the acts of criminal informant company and always wanted to
breach of trust. cheat them for siphoning off their money.
14. After the complaint was lodged by 16. During the course of the investi-
the informant with the Consulate of gation, it was revealed that money given by
Kyrgyzstan on 6/3/2023, the parties came to the first informant company was diverted
a mutual agreement whereby the accused and siphoned off by the accused to purchase
agreed to pay the remaining amount of USD personal assets and clear debts viz. gold
2 million in a certain timeline of 4 instal- loans with banks on the pretext of procur-
ments and if the accused failed to do so then ing sugar for the first informant company
the accused will provide original docu- as agents/merchants. The materials on
ments of the property owned by them in record reveal that after receiving payment
respect of some property. A mutual agree- from the first informant company, the ac-
ment was, therefore, entered into signed cused siphoned off and misappropriated
by the parties. On 30/3/2023, the DGFT the said amount for their personal use in
passed an order that the accused have not the manner reflected in the following chart
acted as per the sale-purchase agreement submitted by the learned APP:-
and that their justification for the same 17. It is pertinent to note that section
was not proper and if they don’t repay the 409 of the IPC was invoked as an offence at
amount of USD 2 million i.e. due and pay- the time of registration of the FIR alongwith
able to the first informant company then the other sections of the IPC. Learned Coun-
they would initiate legal proceedings as sel Shri Jha submitted that section 409 of
per the relevant statutory provisions. the IPC is not attracted in the present case.
Even thereafter, the accused requested It is his submission that if section 409 is
some more time to repay the entire amount wrongly invoked then the applicant is en-
and accordingly entered into a Memoran- titled to default bail as the charge-sheet is
dum of Understanding (MoU) dated 12/5/ not filed within 60 days. To appreciate this
2023. It was mentioned that failure to re- submission, it is necessary to see the ingre-
pay the said amount, the accused would dients of section 409 of the IPC. Section 409
surrender their rights in the immovable of the IPC reads thus:-
property mentioned in the MoU. “409. Criminal breach of trust by public serv-
15. The first informant company later ant, or by banker, merchant or agent.—Who-
came to know that there were multiple ever, being in any manner entrusted with
criminal cases against the applicants and property, or with any dominion over prop-
their company by multiple investigating erty in his capacity of a public servant or
in the way of his business as a banker, mer-
agencies including the CBI. The accused are
chant, factor, broker, attorney or agent,
facing similar cases with similar facts reg- commits criminal breach of trust in respect
istered with Pant Nagar Police Station, of that property, shall be punished with
Mumbai. It is thus the accusation that right imprisonment for life, or with imprison-
from inception the accused had orches- ment of either desc ription for a term
trated this modus of luring and deceiving which may extend to ten years, and shall
the first informant by criminally gaining also be liable to fine.”
18. The facts clearly reveal that admit- 10 years and whereas section 409 of the IPC
tedly the amount of USD 3 million was paid does not have any provision which man-
by the first informant company to the ac- dates the minimum sentence being that of
cused company. There was thus an entrust- 10 years. It is submitted that in respect of
ment of the property by the informant to all other offences section 167(2)(a)(ii) of the
the accused who represented that the com- Cr.P.C. would be applicable.
pany would procure and sell the sugar as 20. To appreciate this submission of Shri
per the agreement. The accused never had Jha, it is important to refer to section 167 of the
the wherewithal or arrangement for pro- Cr.P.C. The relevant portion reads thus:-
curement and supply of sugar and prima “Section 167 – Procedure when investigation
facie it appears that the funds obtained cannot be completed in twenty-four hours.
through such modus was meant to be di- (2) The Magistrate to whom an accused per-
verted to clear the outstandings of the ac- son is forwarded under this section may,
cused and for investing in other business. whether he has or has not jurisdiction to try
Thus, the money of the first informant com- the case, from time to time, authorise the
pany was utilised by the accused company detention of the accused in such custody as
for clearing their debts and purchasing such Magistrate thinks fit, for a term not
exceeding fifteen days in the whole; and if
more property. Prima facie, I have no hesita-
he has no jurisdiction to try the case or com-
tion in holding that the respondents are jus- mit it for trial, and considers further deten-
tified in invoking section 409 of the IPC. It tion unnecessary, he may order the accused
is once again made clear that these are prima to be forwarded to a Magistrate having such
facie observations as I had to deal with the jurisdiction:
painstaking submissions advanced by the Provided that—
learned Counsel for the applicants that sec- (a) the Magistrate may authorise the detention
tion 409 of the IPC is invoked only to de- of the accused person, otherwise than in
feat the applicants’ right to claim default bail custody of the police, beyond the period of
under section 167(2) of the Cr.P.C. so that fifteen days, if he is satisfied that adequate
the investigating agencies get the benefit of grounds exist for doing so, but no Magis-
extended time beyond 60 days to file trate shall authorise the detention of the ac-
cused person in custody under this para-
charge-sheet. The decisions relied upon by
graph for a total period exceeding,-
the learned Counsel for the applicants in
(i) ninety days, where the investigation relates
Alnesh Akil Somji (supra) and Irfan Moiuddeen
to an offence punishable with death, impris-
Saiyyed (supra) are distinguishable on facts onment for life or imprisonment for a term
as in the facts of those cases the Court was of not less than ten years;
of the opinion that invocation of section 409 (ii) sixty days, where the investigation relates
of the IPC is unjustified. to any other offence, and, on the expiry of
19. The next submission of Shri Jha, the said period of ninety days, or sixty days,
learned Counsel for the applicants is that as the case may be, the accused person shall
even assuming that invocation of section be released on bail if he is prepared to and
409 of the IPC is justified, then also section does furnish bail, and every person released
on bail under this sub-section shall be
167(2) (a)(i) of the Cr.P.C. would not be ap-
deemed to be so released under the provi-
plicable as the requirement of law is that a sions of Chapter XXXIII for the purposes of
minimum sentence has to be of not less than that Chapter;” (emphasis supplied)
21. Placing reliance on section 409 of death and any lower sentence; (b) offences
the IPC, Shri Jha submitted that the pun- punishable with life imprisonment and any
ishment prescribed thereunder is punish- lower sentence; and (c) offences punishable
with minimum sentence of 10 years.
ment with imprisonment for life or impris-
onment which may extend to 10 years. It is 84.3. In all cases where the minimum sentence is
less than 10 years but the maximum sentence
the contention of Shri Jha that section 409
is not death or life imprisonment then section
which prescribes the punishment of impris- 167(2)(a)(ii) will apply and the accused will
onment which may extend to 10 years will be entitled to grant of “default bail” after 60
take away section 409 from the sweep of days in case charge-sheet is not filed.
section 167(2)(a)(i) as such period of 90 days 84.4. The right to get this bail is an indefeasi-
is applicable only if the imprisonment is for ble right and this right must be exercised by
a term of not less than 10 years. the accused by offering to furnish bail.”
22. The Supreme Court in Rakesh (emphasis supplied)
Kumar Paul (supra) interpreted the provi- 23. It i s thus held that sec tion
sions of section 167(2)(a)(i) and (ii). The 167(2)(a)(i) of the Cr.P.C. is applicable only
Supreme Court considered section 167 from in cases where the accused is charged with
personal liberty perspective, then discussed (a) offences punishable with death and any
as regards default bail as an indefeasible lower sentence; (b) offences punishable
right while laying down the procedure for with life imprisonment and any lower sen-
obtaining default bail coupled with the duty tence; and (c) offences punishable with
and responsibility of the Court on coming minimum sentence of 10 years. The Su-
to know that the accused person before it is preme Court explained that in all cases
entitled to “default bail” to at least apprise where the minimum sentence is less than
him or her of the indefeasible right. Their 10 years but the maximum sentence is not
Lordships observed that a contrary view death or life imprisonment then section
would diminish the respect for personal lib- 167(2)(a)(ii) will apply and the accused will
erty, on which so much emphasis has been be entitled to grant of “default bail” after
laid by the Supreme Court. In the concur- 60 days in case the charge-sheet is not filed.
ring opinion of the majority authored by His I must bear in mind the principles laid
Lordship Deepak Gupta J. in paragraph No. down by the Supreme Court that the right
84 it is observed thus:- to get bail is an indefeasible right and this
“84. In view of the above discussion, my find- right must be exercised by the accused by
ings are as follows: offering to furnish bail.
84.1. I agree with both my learned Brothers that 24. In the present case, if the interpre-
the amendment made to the Prevention of tation of section 409 of the IPC, as placed
Corruption Act, 1988 by the Lokpal and by Shri Jha is accepted, according to me, that
Lokayuktas Act, 2013 applies to all accused
would amount to reading the provisions of
charged with the offences under this Act ir-
respective of the fact whether the action is section 409 in a piecemeal manner, com-
initiated under the Lokpal and Lokayuktas pletely ignoring that section 409 provides
Act, 2013, or any other law. for punishment of imprisonment for life as
84.2. Section 167(2)(a)(i) of the Code is appli- well. The submission of Shri Jha would have
cable only in cases where the accused is found favour with me in the absence of the
charged with (a) offences punishable with words “with imprisonment for life” in sec-
880 Santosh S. Koli v. State of Maharashtra 2024(1)
tion 409 of the IPC; in such a situation, the bail. I am afraid that the decision in Asalm
accused would be governed by section Babalal Desai (supra) is distinguishable in the
167(2)(a)(ii) as held by the Supreme Court context of section 409 of the IPC as section
in paragraph No. 84.3 of Rakesh Kumar Paul 167(2)(a) (i) leaves no scope for ambiguity,
(supra). Section 409 of the IPC prescribes the only view possible which is already dis-
punishment of imprisonment for life or cussed hereinbefore is the one in conso-
imprisonment which may extend to 10 nance with that what is laid down in Rakesh
years. The prescribed punishment which Kumar Paul (supra).
may extend to 10 years cannot be read in- 27. I, therefore, do not find any merit
dependently and by excluding the pun- in the contentions of Shri Jha, consequently
ishment of imprisonment for life which is the applications are dismissed.
an integral part of section 409. It is impor- 28. The applications are disposed of.
tant to note that even section 167(2)(a)(ii) All the interim applications, if any, stand
provides that in all cases where the mini- disposed of.
mum sentence is less than 10 years but the Applications dispeosed off.
maximum sentence is not death or life im-
-----
prisonment then section 167(2)(a)(ii) will
apply... (emphasis mine) As activities of petitioner falls under
definition of bootlegger and detrimental
25. There is no disputing the proposi-
to public order, order of preventive deten-
tion laid down in the Rajiv Chaudhary (su-
tion passed against petitioner are proper
pra) relied upon by Shri Jha that the expres-
2024(1) Bom.C.R.(Cri.) 880
sion “not less than” would mean imprison-
ment should be 10 years or more and would (AURANGABAD BENCH)
cover only those offences for which pun- Before :
ishment could be imprisonment for a clear Mangesh S. Patil & Shailesh P. Brahme, JJ.
period of 10 years or more. However, when Santosh Subhash Koli ... Petitioner.
a provision like section 409 of the IPC also Versus
prescribes punishment with imprisonment State of Maharashtra & ors. ... Respondents.
for life, then to such an offence section Criminal Writ Petition No. 1858 of 2023,
167(2)(a)(i) is applicable and not section decided on 22-2-2023/4-3-2024.
167(2)(a)(ii). (A) Maharashtra Prevention of Danger-
26. Shri Jha then relied upon the de- ous Activities of Slumlords, Bootleggers,
cision in Aslam Babalal Desai (supra), invit- Drug Offenders and Dangerous Persons
ing my attention to paragraph No. 15 to and Video Pirates Act, 1981, Secs. 3(1) &
submit that even where two views are pos- 2(b) – Preventive detention – On basis of five
sible, in a matter belonging to the field of offences – Validity – Petitioner involved in five
criminal justice involving the liberty of an offences which was in relation to possession of
individual, the provision must be construed illicit liquor and selling it – In camera state-
strictly in favour of the individual liberty ments of witnesses shows that petitioner has il-
since even the law expects early completion licit liquor den at various places – Young gen-
of the investigation. It is observed that the eration is victim of activities of petitioner which
delay in completion of the investigation can is affecting peace and tranquility – Two offences
be on pain of the accused being released on out of five have been registered against petitioner
Bom.C.R.(Cri.) Santosh S. Koli v. State of Maharashtra 881
after preventive action taken against petitioner Magistrate, Jalgaon detaining the petitioner
– Preventive action has not deterred petitioner under section 3(1) of the Maharashtra Pre-
from continuing with his notoriety – Petitioner vention of Dangerous Activities of
is aggressive and has tendency to terrorize peo- Slumlords, Bootleggers, Drug Offenders
ple – Nobody dares to complain against him or and Dangerous Persons and Video Pirates
depose against him – Activities of petitioner falls Act, 1981 (hereinafter referred as to the
under definition of bootlegger and detrimental ‘M.P.D.A. Act’ for the sake of brevity and
to public order – Order of detention, proper. convenience).
(Paras 8, 9, 10 & 11) 3. The respondent No. 2/District Mag-
(B) Maharashtra Prevention of Danger- istrate proceeded against the petitioner un-
ous Activities of Slumlords, Bootleggers, der section 3(1) of the M.P.D.A. Act on the
Drug Offenders and Dangerous Persons basis of five offences, two preventive actions
and Video Pirates Act, 1981, Sec. 5A – Or- and in camera statements of the witnesses.
der of detention – Challenge to – Applicability The petitioner is held to be a bootlegger,
of Section 5A – Section 5A has no application if whose activities are recorded to be prejudi-
challenge on ground of delay, violation of princi- cial to the maintenance of public order.
pal of natural justice or violation of Article 22(5) 4. The learned Counsel for the peti-
of Constitution – If grounds of challenge are based tioner has advanced following submissions :
on subjective satisfaction, propriety, sufficiency of I. Subjective satisfaction is perverse.
incriminating material, Section 5A of Act steps in II. In CR No. 760/2018 and CR. No. 24/2019,
– In such situation, entire order of detention would the petitioner does not figure in FIR.
not get vitiated, even if one or more grounds of III. Most of the crimes are shown to be against
challenge would have merit. (Para 18) one Santosh Raut not the petitioner.
Cases referred : IV. There is no incriminating material to pro-
ceed against the petitioner for draconian
1. Pradeep Nilkanth Paturkar Vs. S. Ramamurthi,
1993 S.C.C.(Cri.) 392. action.
2. District Collector Ananthapur Vs. V. Laxmanna, V. There is no expert opinion solicited on the
(2005)3 S.C.C. 663. chemical analyzers reports.
3. Ganesh @ Nana Gangaram Koli Vs. State of VI. There is delay in taking action against the
Maharashtra, Cri.W.P. 1530/2023, dt. 9-2-2024. petitioner.
4. Hasan Khan Ibne Haider Khan Vs. R.H. VII. In camera statements have not been veri-
Mendnoca, 200(5) Bom.C.R. 814. fied by the competent authority.
5. Vinod Dhannulal Jaiswal Vs. District Magistrate, 5. The learned Counsel for the peti-
2024 DGLS(Bom.) 554.
tioner places reliance on the following judg-
Advocates appeared : ments in support of his submissions.
Abid R. Shaikh, for petitioner.
(i) (Pradeep Nilkanth Paturkar Vs. S.
Ms. S.S. Joshi, A.P.P., for respondents 1 to 3. Ramamurthi and others)1, reported in 1993
352.PM/IN//RB/RR/PN S.C.C.(Cri.) 392.
Per SHAILESH P. BRAHME, J.: – Rule. (ii) (District Collector Ananthapur and another
Rule is made returnable forthwith. Heard Vs. V. Laxmanna)2, reported in (2005)3
both the sides finally with their consent. S.C.C. 663.
2. This petition seeks to challenge or- (iii) Judgment dated 9.2.2024 of this Court in
der dated 29.9.2023 passed by the District the matter of (Ganesh @ Nana Gangaram
Koli Vs. The State of Maharashtra and oth-
56/24(1) ers)3, in Cri.W.P. No. 1530 of 2023.
882 Santosh S. Koli v. State of Maharashtra 2024(1)
6. The learned Assistant Public Pros- found to be in possession of illicit liquor and
ecutor supports the impugned order. She selling it. In camera statements of both the
seeks reliance on the affidavit-in-reply filed witnesses reveal that the petitioner has a il-
to repeal the submissions of the petitioner. licit liquor den at various places in the vicin-
She would submit that there is cogent ma- ity of Kusumba. He is aggressive and has a
terial against the petitioner which is rightly tendency to terrorise people. Nobody dares
appreciated by the detaining authority. The to complain against him or depose against
petitioner has been properly identified and him. The activities of the petitioner are
he is involved in the offence pitted against squarely covered by definition of bootlegger
him. The time line has been properly fol- provided in section 2(b) of the M.P.D.A. Act.
lowed by the authorities. There is due veri- 10. We have perused in camera state-
fication of in camera statements. As such ments of both the witnesses. The statements
there is no informity or illegality in the im- have been verified by Sub-Divisional Police
pugned action. Officer on 6.9.2023. We don’t find any infir-
7. The learned A.P.P. has placed reli- mity in the statements and verification. The
ance on following judgments : petitioner suffered preventive action under
A. (Hasan Khan Ibne Haider Khan Vs. R. H. section 93 of the Maharashtra Prohibition
Mendnoca)4, reported in 200(5) Bom.C.R. 814. Act on 6.4.2022 and 15.6.2023. He is reported
B. Judgment dated 17.1.2024 of this Court in to be habitual offender. He has created ter-
the matter of (Vinod Dhannulal Jaiswal Vs. ror. He operates dens at various places of
District Magistrate and others)5, in Cri. W.P. Kusumba. Young generation is the victim
No. 1430 of 2023 reported in 2024 of the activities of the petitioner which is
DGLS(Bom.) 554. affecting peace and tranquility. Above ma-
8. We have considered rival submis- terial shows that the activities of the peti-
sions of the parties. All offences registered tioner are detrimental to the public order.
against the petitioner, which are considered 11. The preventive action against the
by the detaining authority are under the petitioner is based on only five offences. CR
provisions of the Maharashtra Prohibition
No. 760/2018 and 24/2019 have not been
Act, 1941. It cannot be ignored that two of-
considered by the detaining authority.
fences bearing CR No. 124/2020 and 530/
Therefore, the submission in respect of
2021 under the self same Act were regis-
these offences is not relevant. We do not
tered, preceding CR No. 581/2021 which is
find any fault in the subjective satisfaction
considered by the respondent No. 2. The
arrived at by the respondent No. 2.
petitioner appears to have been involved in
the criminal activities between 2018 to 2023. 12. The learned Counsel for the peti-
Last, two offences bearing CR. No. 375/2023 tioner has drawn our attention to school
and 573/2023 have been registered after the leaving certificate produced on record to
preventive action under section 93 of the show that petitioner’s name is Santosh
Maharashtra Prevention Act is taken Subhash Koli. We have gone through rel-
against the petitioner. Preventive action has evant papers. It is true that at many places
not deterred the petitioner from continuing name appearing is Santosh Subhash Raut.
with his notoriety. However, notices under section 41(1-A) of
9. In all offences which are considered the Criminal Procedure Code have been
by the detaining authority, the petitioner is served upon the petitioner in all the of-
Bom.C.R.(Cri.) Santosh S. Koli v. State of Maharashtra 883
fences except CR. No. 375/2023. There is no find that the judgment is distinguishable on
material on record to show that he has ever facts and may not help the petitioner.
refused to accept the notice or challenged the 16. Next judgment cited by the peti-
identity. He has secured bail in various of- tioner is in the matter of District Collector
fences. Therefore his plea raising doubt about Ananthapur and another Vs. V. Laxmanna (su-
identity does not warrant consideration. pra) on the point that there is no material
13. We have gone through the reports available on record to show that the activi-
of the chemical analysis collected during the ties of the petitioner are dangerous to pub-
investigation of the offences pitted against lic health. We have recorded a finding that
the petitioner. The petitioner does not hold expert’s opinion in the present case is not
requisite licence or permit to manufacture necessary to draw an inference that the con-
liquor. His activity is prohibited under the sumption of illicit liquor would be danger-
statute. The report of the chemical analysis ous to public health. Therefore, the ratio laid
shows the percentage of ethyl alcohol in down in the judgment may not apply to the
water. In the absence of any permit or li- present case.
cence any activity of manufacturing of liq- 17. Lastly, the learned Counsel for the
uor is per-se illegal. Therefore, consumption petitioner has relied upon the judgment of
of such illicit liquor would be injurious to our Bench in the matter of Ganesh Vs. State
public health. We are of the considered view of Maharashtra (supra). Our attention is in-
that an expert’s opinion would not be re- vited to paragraph No. 12 of the judgment.
quired. We find no merit in the submissions In that matter, we had recorded that there
of the petitioner in this regard. was no live link between the order of de-
14. The petitioner has referred to of- tention and material for detention. That
fences of the year 2021 and 2022 to contend matter differs on the material pitted against
that the stale offences have been referred. the detenue. The case in hand reveals bra-
The offences referred by the detaining au- zen and undittered illegal activities/notori-
thority are from 1.9.2021 to 8.8.2023. The ety of the petitioner. We are therefore not
offences prior to 1.9.2021 have not been inclined to apply the ratio laid down in that
taken into consideration. Last two offences judgment.
are registered on 10.6.2023 and 8.8.2023. In 18. It is expedient to disclose one more
camera statements were recorded on legal facet. It is common knowledge that
2.9.2023 and 3.9.2023. They were verified on order of detention passed under the Act
6.9.2023. The detaining authority received would be challenged on various grounds
proposal on 18.9.2023. We do not find any comprising of delay, live link, procedural
delay or absence of live link between the violation, violation of Article 22(5) of the
material against the petitioner and the pro- Constitution of India, violation of principles
posed action. of natural justice, subjective satisfaction, etc.
15. The learned Counsel for the peti- It is difficult to comprehend all the grounds.
tioner has referred to judgment of the Su- Challenges on the ground of delay, viola-
preme Court in the matter of Pradeep tion of principles of natural justice or viola-
Nilkanth Paturkar Vs. S. Ramamurthi and oth- tion of Article 22(5) of the Constitution go
ers (supra) on the point of delay. We have to the root of the matter affecting power of
considered paragraph Nos. 13 and 14. We the detaining authority. In such a situation,
884 Rashmi Mehrotra v. Manvi Sheth 2024(1)
safeguard of section 5A of the Act has no to her marriage and she being daughter in law
application. However, if the grounds of had a right to reside in shared household. Ap-
challenge are based on subjective satisfac- pellate Court rightly considered pleadings in
tion, propriety, sufficiency of incriminating application and held that specific contentions
material, section 5A of the Act steps in. In have been made about living in a joint family
such a situation, entire order of detention alongwith respondents and all of them having
would not get vitiated, even if one or more subjected aggrieved person to domestic violence
grounds of challenge would have merit. of different kinds on various occasions. Appel-
19. In the matter of Ganesh Vs. State of late Court observed that though one person can-
Maharashtra (supra), we upheld submission not live at different places at same time he/she
of delay which was issue going to the root can certainly live in two houses situated in same
of jurisdiction. In the case in hand, we have city. There is no infirmity in view taken by Ap-
not accepted the ground of delay. Therefore pellate Court. Revision application stands dis-
by implication of section 5A of the Act, in missed. (Paras 21 to 26)
the present matter even if we accept sub- Cases referred :
mission on the point of absence of expert’s 1. Prabha Tyagi Vs Kamlesh Devi, (2022)8 S.C.C. 90.
opinion affecting subjective satisfaction, 2. Sudama Dutt Sharma Vs State of Rajasthan, 2016
impugned order cannot be vitiated. S.C.C. OnLine Raj. 8192;
3. Dhananjay Mohan Zombade Vs. Prachi
20. For the reasons recorded above, Dhananjay Zombade, 2023(3) Bom.C.R.(Cri.) 954.
we dismiss the criminal writ petition. Rule 4. Shradha Sumti Fogla Vs. Narayanprasad B. Fogla,
is discharged. W.P. No. 814/2022 (N.B.), dt. 5-4-2023.
Petition dismissed. 5. Kamatchi Vs. Lakshmi Narayan, 2022 S.C.C.
OnLine S.C. 446.
----- 6. Arun Daniel Vs. Suganya, 2022 S.C.C. OnLine
Aggrieved person had a right to reside in Mad, 5435.
shared household 7. Neeharika Infrastructure Pvt. Ltd Vs. State of
Maharashtra, 2021 S.C.C. OnLine S.C. 315.
2024(1) Bom.C.R.(Cri.) 884
8. Manohar Keshardev Mali Vs. CBI, 2019 S.C.C.
Before : OnLine Bom 8916.
Sharmila U. Deshmukh, J. 9. Jalendra Sakharam Khare Vs. State of
Rashmi Mehrotra & anr. ... Applicants. Maharashtra, 2023(2) Bom.C.R.(Cri.) 677.
10. Adalat Prasad Vs. Rooplal Jindal, 2004(2)
Versus
Bom.C.R.(Cri.) 857(S.C.) : (2004)7 S.C.C. 338.
Manvi Sheth & anr. ... Respondents. 11. Nandakishor Vyavhare Vs. Mangala, 2018(2)
Crim. Revision Application No. 270 of Bom C.R.(Cri.) 626.
2023, decided on 16-1/1-2-2024. 12. Aditya Anand Varma Vs. State of Maharashtra,
2022(3) Bom.C.R.(Cri.) 48 : 2022 All.M.R. (Cri.)
Protection of Women from Domes- 2317.
tic Violence Act, 2005, Secs. 2(s), 12, 17 &
29 – Right to reside in shared household – Ap-
Shanay Shah i/b. Ms. Nerissa Almeida, for applicants.
plicants discharged by trial Court – Order of Pritesh Burad, Samit Vaviya & Ms. Madhuri Gamre i/
trial Court set aside by First Appellate Court – b. Pritesh Burad Associates, for respondent No. 1.
Held, in view of sub-section (1) of Section 17 of 347.PM/IN/ND/RJ/TC
DV Act, aggrieved person had a right to reside
SHARMILA U. DESHMUKH, J.: – Revi-
in shared household and as such continued to
sion application challenges the order dated
have a subsisting domestic relationship owning
17th July, 2023 passed by the learned Ses-
Bom.C.R.(Cri.) Rashmi Mehrotra v. Manvi Sheth 885
sions Judge in Criminal appeal No. 111 of Kandivali East, Mumbai [for short
2022 allowing the appeal of respondent No. “Gundecha premises”] pursuant to a regis-
1 and setting aside the order dated 6th tered leave and licence agreement whereas
April, 2022 passed by the Metropolitan the applicants’ residence at all times was
Magistrate discharging the applicants from 10B, Tower D, Viceroy Park, Thakur Village,
the proceedings filed under the provisions Kandivali East, Mumbai [for short “Viceroy
of Protection of Women from Domestic Vio- premises”]. He would submit that in the
lence Act, 2005 [for short “the DV Act”]. application filed under section 12 of the DV
2. The relationship of parties interse Act by respondent No. 1, the relief sought
is not in dispute. Revision applicants are the is to restrain the respondents from alienat-
mother-in-law and father-in-law of re- ing the Complainant and her belongings
spondent No. 1. respondent No. 1 was mar- from the shared matrimonial household
ried to Arjun, the son of revision applicants being A1-801, Gundecha Trillium, Thakur
on 9th February 2020. An application under Village, Kandivali East, Mumbai and to re-
section 12 of the DV Act came to be filed by strain the applicants from dispossessing the
respondent No. 1 against her husband and complainant from the shared matrimonial
the applicants on 22nd February 2021. The household – Gundecha and a direction to
applicants preferred an application dated the respondents to remove themselves from
17th March, 2021 before the Magistrate chal- the shared matrimonial household being
lenging the maintainability of complaint Gundecha. He has invited the attention of
and for dropping of the proceedings/strik- this Court to the pleadings in paragraph 12
ing off/discharge/deleting their names from of the complaint that on 11th February 2020,
the array of parties as respondents. The said complainant’s grihapravesh was organised
application came to be resisted by respond- at Gundecha which is the shared matrimo-
ent No. 1. The Metropolitan Magistrate vide nial household of complainant where she
order dated 6th April, 2022 discharged the has been living with Arjun in domestic re-
applicants herein from the proceedings. lationship. He would further point out the
Against the order of discharge, Criminal pleadings in paragraph 18 of the complaint
appeal No. 111 of 2022 under section 29 of wherein it is contended that there was quar-
the DV Act came to be filed by respondent rel between respondent No. 1 and Arjun; at
No. 1. By the impugned order dated 17th that time the parents of respondent No. 1
July, 2023, the appeal was allowed and the were residing with respondent No. 1 and
order of Magistrate was quashed and set that respondent No. 1’s parents then spoke
aside. to the applicants regarding Arjun’s action.
3. Heard Mr. Shanay Shah, learned He would further point out the pleadings
Counsel appearing for the applicants and in paragraph 28 of the complaint that shared
Mr. Pritesh Burad, learned Counsel appear- household of the parties is Gundecha. Ac-
ing for respondent No. 1. cording to Mr. Shah, it is a specific case in
4. Mr. Shah, learned Counsel for the the complaint that the premises at
applicants submits that since inception of Gundecha is a shared household. He sub-
marriage, respondent No. 1 and the appli- mits that the definition of domestic relation-
cant’s son Arjun are residing at A1-801, ship under section 2(f) of DV Act contem-
Gundecha Trillium, Thakur Vill age, plates a relationship between the parties
who lived or have at any point of time lived plicants under section 498A of IPC , the
together in a shared household and that police have filed a closure report under sec-
being so, on reading of the complaint as it tion 169 of the Code of Criminal Procedure,
is, it cannot be said that there was any do- 1973. In support of his submissions, Mr.
mestic relationship between the applicants Shah relies upon following decisions :
and respondent No. 1 as the shared house- A) (Sudama Dutt Sharma Vs State of
hold according to respondent No. 1 was Rajasthan)2, 2016 S.C.C. OnLine Raj. 8192;
Gundecha. He submits that the complaint B) Decision of this Court in Crim. Applica-
does not show that the parties at any point tion No. 312 of 2023 (Aurangabad Bench)
of time resided together at Gundecha. He in (Dhananjay Mohan Zombade Vs. Prachi
would submit that the pre-requisite of do- Dhananjay Zombade)3, decided on 18th July
2023; reported in 2023(3) Bom.C.R.(Cri.) 954;
mestic relationship does not stand satisfied
and the provisions of DV Act are not appli- C) Decision of this Court in Crim. W.P. No.
814 of 2022 (Nagpur Bench) in (Sou.
cable. He would further point out that al-
Shradha Sumti Fogla Vs. Narayanprasad B.
though there are some averments in the Fogla)4, decided on 5th April 2023.
complaint as regards the applicants resid-
5. Per contra Mr. Burad, learned Coun-
ing with respondent No. 1 at Gundecha, it
sel for respondent No. 1 submits that ap-
is settled that fleeting visits cannot satisfy
plication for discharge was not maintain-
the ingredient of shared household as de-
able in view of the decision of Apex Court
fined in section 2(s) of DV Act. He submits
in (Kamatchi Vs. Lakshmi Narayan)5, 2022
that for the purpose of application of D.V
S.C.C. OnLine S.C. 446. Pointing to the de-
Act, there has to be some permanency at-
cision of Full Bench of Madras High Court
tached to the residence in shared house-
in the case of (Arun Daniel Vs. Suganya)6,
hold. He submits that the reliefs claimed can
2022 S.C.C. OnLine Mad. 5435, he submits
at the most be claimed against Arjun and
that Full Bench of Madras High Court has
not against the applicants. He distinguishes
held that subject-matter of DV Act proceed-
the decision of the Apex Court in (Prabha
ings is purely a civil matter and the Magis-
Tyagi Vs Kamlesh Devi)1, (2022)8 S.C.C. 90, trate exercising jurisdiction under section
and submits that the facts of that case are 12 of the DV Act is not a criminal Court. He
clearly distinguishable and in the facts of submits that in view thereof, the applica-
that case, the issue answered by the Apex tion seeking discharge itself was not main-
Court was that it was not mandatory for the tainable. As regards merits of the case, Mr.
aggrieved person to reside with the persons Burad submits that there was a domestic
against whom the allegations are levelled relationship between respondent No. 1 and
at the point of commission of violence. He the applicants as the applicants were resid-
would further submit that the Apex Court ing with respondent No. 1 in both matri-
in the facts of that case held that there was monial shared households, i.e., “Gundecha
subsisting domestic relationship between premises” and “Viceroy premises”, as the
the aggrieved person and the person ownership of both the properties vest with
against whom the relief was claimed which the applicants and they were residing to-
facts are clearly distinguishable in the gether as a joint family. Pointing to the de-
present case. Mr. Shah would further sub- cision of learned Sessions Court, he submits
mit that in the FIR lodged against the ap- that it is the specific observation of the Ses-
sions Court that there is substantial mate- missions, learned Counsel for respondent
rial in the form of specific averments made No. 1 relies upon the following decisions:
by the complainant in DV Act proceedings. A) (Neeharika Infrastructure Pvt. Ltd Vs. State
He would further submit that the health of Maharashtra)7, 2021 S.C.C. OnLine S.C. 315;
insurance policy and the employment let- B) (Manohar Keshardev Mali Vs. CBI )8, 2019
ter of respondent No. 1 confirms that she S.C.C. OnLine Bom. 8916;
was residing at “Viceroy premises” with the C) Decision of this Court in Crim. Application No.
applicants. He submits that there is a pre- 179 of 2020 (nagpur Bench) (Jalendra
planned conspiracy to oust respondent No. Sakharam Khare Vs . State of
1 from the shared household which is evi- Maharashtra)9, decided on 6th June 2023. re-
ported in 2023(2) Bom.C.R.(Cri.) 677 :
dent from the factual position that after the
copy of complaint was served upon the ap- 6. In rejoinder, Mr. Shah would sub-
rd
plicants on 23 February 2021, the leave and mit that in paragraph 9(d)(iii), of the affi-
licence agreement was terminated on 2nd davit-in-reply filed to the present revision,
March, 2021 and now the property has been the respondent No. 1 has sought to clarify
given on leave and licence basis to some that during Covid-19 pandemic the appli-
third party. He further submits that the trial cants started residing with respondent No.
Court as well as the Sessions Court have 1 at Gundecha premises, which pleading
considered that relationship between the with clarity is missing from application
parties is not merely licensor and licensee under section 12 of the DV Act. He would
which is evident from the fact that the ap- submit that in Sudama Dutt Sharma (supra)
plicant had added the name of respondent the Rajasthan High Court has held that in
No. 1 for the purpose of using the club fa- the absence of concrete proof about the do-
cilities in “Gundecha premises”. Pointing mestic relationship i.e., the applicants and
to the pleadings in the application, he respondent No. 1 had been living in a
would submit that the instances of mental shared household and she has been sub-
torture, physical abuse, domestic violence jected to do mestic violence, the
maintainability of complaint itself is under
and emotional abuse inflicted by the appli-
serious cloud.
cant have been narrated in the complaint
and as such prima facie case of domestic vio- 7. Considered the submissions and
lence is made out. He submits that the de- perused the record.
cision in the case of Prabha Tyagi (supra) is 8. Firstly, I shall deal with the objec-
squarely applicable to facts of present case. tion on ground of maintainability of appli-
He would further point out the order cation for discharge as raised by Mr. Burad,
passed by Metropolitan Magistrate dated by relying upon the decision in Kamatchi Vs.
23rd October, 2021 in application under sec- Lakshmi Narayanan, 2022 SCC Online SC 446.
tion 23 of DV Act holding that there is am- In that case petition was filed under section
ple evidence on record to show that the re- 482 of the Code of Criminal Procedure, 1973
spondent and the applicants were residing for quashing of the DV proceedings. The
at Gundecha. At this stage, learned Coun- Apex Court was considering the issue of
sel appearing for the applicants would sub- limitation qua section 468 of Code of Crimi-
mit that the said order has been stayed by nal Procedure, 1973 (Cr.PC). One of the sub-
the Sessions Court. In support of his submission raised before the Apex Court was
that in view of (Adalat Prasad Vs. Rooplal
Jindal )10, 2004(2) Bom.C.R.(Cri.) 857(S.C.) : spondent No. 1 has claimed “Gundecha
(2004)7 S.C.C. 338, the remedy lies in invok- premises” as shared household and that
ing section 482 of Cr.P.C. The Apex Court there are no averments in the application
held that the scope of notice under section to indicate that the applicants resided with
12 of the DV Act is to call for the response the respondent in “Gundecha premises”.
from the respondents in terms of statute so 10. Before proceeding further it will
that after considering rival submissions be profitable to reproduce the definition of
appropriate order can be passed and that “aggrieved person’, “domestic relation-
the matter stands on different footing and ship” and “shared household” as defined
the dictum of Adalat Prasad (supra) would in section 2(a), section 2(f) and section 2(s)
not get attracted at the stage notice is issued of the Act, which read thus :
under section 12 of the DV Act. As regards (a) ‘aggrieved person’ means any woman who
the decision in Arun Daniel (supra), which is, or has been, in a domestic relationship
is a decision of Full bench of Madras High with the respondent and who alleges to have
Court, it needs to be noted that the Full been subjected to any act of domestic vio-
Bench of this Court in (Nandakishor lence by the respondent
11
Vyavhare Vs. Mangala) , 2018(2) Bom (f) “domestic relationship” means a relationship
C.R.(cri.) 626. has held that the inherent between two persons who live or have, at any
powers under section 482 of the Code can point of time, lived together in a shared house-
be invoked for the purpose of quashing of hold, when they are related by consanguinity,
marriage, or through a relationship in the na-
DV proceedings. In the instant case, the
ture of marriage, adoption or are family mem-
Revision Application challenges the order
bers living together as a joint family.
passed under section 29 of the DV Act by
(s) “shared household” means a household where
the Appellate Court reversing the order of the person aggrieved lives or at any stage
the Metropolitan Magistrate discharging has lived in a domestic relationship either
the Revision Applicants. The present appli- singly or along with the respondent and in-
cation not being an application under sec- cludes such a household whether owned or
tion 482 of Cr.P.C, the entire discussion as tenanted either jointly by the aggrieved per-
to whether proceedings for quashing un- son and the respondent, or owned or ten-
der section 482 of Cr.P.C. is maintainable or anted by either of them in respect of which
not is unwarranted. The revision applica- either the aggrieved person or the respond-
tion is maintainable against the order ent or both jointly or singly have any right,
passed under section 29 of the DV Act. title, interest or equity and includes such a
household which may belong to the joint
9. Now coming to the merits of the family of which the respondent is a mem-
matter, the thrust of the submissions of Mr. ber, irrespective of whether the respondent
Shah for the applicants is that considering or the aggrieved person has any right, title
the definition of domestic relationship and or interest in the shared household.”
shared household under section 2(f) and 11. Conjoint reading of the above defi-
section 2(s) of the DV Act, the Applicants nitions would indicate that the aggrieved
and the respondents cannot be said to be in person is required to be in domestic rela-
a domestic relationship. This submission is tionship i.e. should have lived or have at any
premised on the ground that in the appli- point of time lived together in a shared
cation under section 12 of DV Act, the re- household. A shared household is a house-
hold where the aggrieved person lives or are in domestic relationship, irrespective of
at any stage has lived in a domestic rela- the pleadings, the statutory definition will
tionship either singly or along with the re- have to be given effect. As stated above, the
spondents. It also includes the household definition of “shared household” includes
owned or tenanted by the aggrieved per- a household which may belong to the joint
son and the respondent either jointly or by family of which the respondent is a mem-
either of them and in respect of which ei- ber, which in the present case is “Viceroy
ther of them jointly or singly have any right premises”.
title or interest or equity. It also includes a 14. Even if the contention of Mr. hah
household belonging to the joint family of is accepted that the parties never resided at
which the respondent is member irrespec- “Viceroy premises”, the fact is respondent
tive of any right title or interest in the shared No. 1 had a right to reside in “Viceroy
household. premises”. If that right exists in respond-
12. What is presented for considera- ent No. 1, then the parties will have to be
tion is whether absent the factual scenario held to be in domestic relationship as held
of not having resided together in the shared by the Apex Court in case of Prabha Tyagi
household, the requirement of domestic (supra).
relationship is satisfied or not. In the instant 15. It will be necessary to consider the
case, it is not disputed that parties are re- decision in Prabha Tyagi (supra) in some de-
lated by marriage. However, what is sought tail. In that case, the aggrieved person was
to be submitted is that the parties had not married on 18th June, 2005 and on 15th July,
lived together in a shared household which 2005 her husband expired and the ag-
as per application under section 12 of the grieved person was constrained to reside
DV Act is “Gundecha premises”. The ad- at her parents house. The contention of the
mitted position is that the premises at respondents was that the aggrieved person
“Gundecha premises” as well as “Viceroy had stayed only one night after her mar-
premises” are owned by the Revision Ap- riage at the ancestral house and was there-
plicants and the premises at “Gundecha after residing separately with her husband
premises” was given on leave and licence and there was no domestic relationship.
basis to Arjun, the son of applicants. Two issues relevant for our purpose which
13. In the application filed under sec- was under consideration of the Apex Court
tion 12 of the DV Act, respondent No. 1 has was whether there should be a subsisting
referred to “Gundecha premises” as the domestic relationship between the ag-
matrimonial shared household. The ques- grieved person and the persons against
tion is whether by referring to “Gundecha whom relief is claimed and whether it is
premises” as matrimonial shared house- mandatory for the aggrieved person to re-
hold by the respondent No. 1, the statutory side with those persons against whom alle-
definition of shared household under sec- gations have been levelled at the time of
tion 2(s) of DV Act will be restricted in its commission of violence. The High Court in
applicability only to “Gundecha premises” that case had held against the aggrieved
and not “Viceroy premises”. In my opinion, person for the reason that it was necessary
the answer is an emphatic “No”. For the to show that the aggrieved person was shar-
purpose of considering whether the parties ing the household with the respondent and
there was domestic relationship between premises belonging to the applicants, re-
the parties. The Apex Court observed that spondent No. 1 being the wife of their son,
sub section (1) of section 17 of DV Act con- had a right to reside in either of the premises.
fers right on every woman in a domestic 18. Apart from the discussion above,
relationship to reside in the shared house- in the instant case there is specific pleading
hold and is not restricted to actual resi- about the parties having resided together
dence. By way of illustration, the Apex in “Gundecha premises”. It has been stated
Court has explained that a woman who is in paragraph 12 and 19 as under :
or has been in a domestic relationship has “12. That at the time of the marriage between the
the right to reside not only in the house of Complainant and the respondent No. 1, the Com-
her husband, if it is located in another place plainant was given various valuable items and
which is also a shared household but also jewellery by the respondents as well as from her
in the shared household which may be in a parents, family and friends. The same forms part
different location in which the family of her of the Complainant’s istridhan, After marriage,
husband resides. on 10th February, 2020 the Complainant went
to Mumbai and started staying at 10 B, Tower
16. The Apex Court while answering D, Viceroy Park, Mumbai. Pertinently, after the
the issue as to whether it is mandatory for wedding, the respondents 1, 2 and 3 represented
the aggrieved person to reside with those to the Complainant that it would not be safe to
persons against whom the allegations have keep so much jewellery with the Complainant
been levelled has held that is it not manda- alone and that the respondents would keep it safe,
tory for the aggrieved persons to have ac- and in the event the Complainant required it,
tually lived or resided with those persons they would return it to her. The Complainant
against whom the allegations have been lev- was made to entrust her entire istridhan to the
respondents No. 1, 2 and 3 on the pretext of safe
elled at the time of seeking relief. Perti-
keeping and only retained daily wear jewellery
nently, the issue as regards the subsisting
etc. It is submitted that on 11th February 2020,
domestic relationship was answered by the the Complainant’s ‘Greh Pravesh’ was organ-
Apex Court in paragraph 62 as under: ised at an Apartment bearing No. A-1, 801,
“62. As the appellant had a right to reside in the Gundecha Trillium, Thakur Village, Kandivali
shared household as she was in a domestic rela- East, Mumbal, which is the matrimonial shared
tionship with her husband till he died in the ac- household of the Complainant where she has been
cident and had lived together with him therefore living with the respondents in a domestic rela-
she also had a right to reside in the shared house- tionship. However, right after marriage and dur-
hold despite the death of her husband in a road ing lockdown due to COVID-19, the parties were
accident. The aggrieved person continued to have initially residing together at property bearing no.
subsisting domestic relationship owing to her 10B, Tower D, Viceroy Park Mumbai, which is
marriage and she being the daughter in law had in 1KM radius of the aforesaid matrimonial
the right to reside in the shared household” household of the Complainant being Apartment
17. The decision in Prabha Tyagi (su- bearing No. A- 1, 801, Gundecha Trillium. Af-
pra) is sufficient answer to the submission ter the lockdown was relaxed, the respondents
that as the Revision Applicants and re- started residing at Apartment bearing No. A-1,
801, Gundecha Trillium. It is submitted that the
spondent No. 1 did not reside in “Viceroy
respondent No. 3 owns both the aforementioned
premises” there is no subsisting domestic properties and the parties till today are residing
relationship. It cannot be denied that together. It is further submitted that all times
whether at Gundecha or Viceroy, both the all the respondents live together as a joint fam-
ily and are in continuous domestic relationship parties. It is also pleaded that during the
with each other.” Covid pandemic the parties were resided
“19…………………… The parents of the respond- at “Viceroy premises”. Perusal of the appli-
ent No. 1 i.e. respondent Nos. 2 and 3 were cation filed by the respondent No. 1 indi-
present at the house as they were sleeping in cates allegations of domestic violence qua
the other room and were there during the en- the Applicants as regards dispossessing her
tire incident, however they failed to utter a sin-
from “Gundecha premises”, being tortured,
gle word in support of the Complainant and
instead joined the respondent No. 1 and fur- harassed, abused and beaten for not bring-
ther insulted the Complainant ……”. ing sufficient dowry and insulting and hu-
19. In the reply filed by the No. 1 to miliating the parents of respondent No. 1.
the discharge application, it is specifically 20. Pertinently, learned Single Judge
pleaded that the applicants own both the of this Court in the case of (Aditya Anand
12
properties and the Complainant has been Varma Vs. State of Maharashtra) , 2022(3)
residing with the respondents in both the Bom.C.R.(Cri.) 48 : 2022 All.M.R. (Cri.) 2317,
premsies as a joint family. It is also con- was considering the challenge where an
tended that health insurance policy bought application by the petitioners therein to dis-
by the husband of the Complainant as also miss the DV Act application came to be re-
her employment letter reflects the address jected. In that case, the specific contention
of “Viceroy premises”. The submission of raised was that respondent No. 2 therein had
Mr. Shah that the living in the household never resided in the matrimonial house and
denotes certain permanency to be attached was thus never in a domestic relationship. In
to the residence cannot be brushed aside as that case, there was not even a pleading in
mere casual visits or fleeting visits is not the application that the parties had ever re-
sufficient to establish domestic relationship sided together in a shared household. Learned
between the parties. However, in the instant Single Judge held that the decision in the case
case, the submission of Mr. Shah cannot of Prabha Tyagi (supra) is a complete answer
come to the aid of the Applicants for the to the submission that since respondent No.
reason that the respondent No. 1 has spe- 2 therein had not actually resided, respond-
cifically pleaded about the parties residing ent No. 2 was not in a domestic relation-
together in “Gundecha premises” after ship with the petitioner. I am respectfully
lockdown was relaxed and that the parties bound by the decision of the Apex Court as
continued residing and at all time lived to- well as the co-ordinate bench of this Court.
gether as a joint family. It also needs to be The decision in Sudama Dutt Sharma (supra)
noted that both the premises are situated was prior to the decision of the Apex Court
within a distance of 1 Km and even if the in Prabha Tyagi (supra) and does not assist
duration of residence is not pleaded, the the revision applicants.
averments prima facie does not indicate that 21. The submission of Mr. Shah that
these were mere casual visits or fleeting the decision in the case of Prabha Tyagi (su-
visits. Whether the respondent No 1 is able pra) is distinguishable in the facts is liable
to substantiate the case is matter of trial. to be rejected for in that matter despite the
However at this stage it cannot be said that death of husband of the aggrieved woman,
the application does not disclose the exist- by taking into consideration sub-section (1)
ence of domestic relationship between the of section 17 of the DV Act, the Apex Court
had held that even right to live would enti- 24. As regards the decision in the case
tle the aggrieved woman to file an applica- of Shradha Fogla (supra), the aggrieved per-
tion under section 12 of the DV Act. The son and her husband were residing in
factual scenario in the case before the Apex America for a period of almost 9 years and
Court was that the aggrieved woman had during this period she would come down
never lived in the shared household but had to India and would have a fleeting visits to
lived separately with her husband. Despite the matrimonial house and she never re-
that, the Apex Court held that in view of sided there permanently. In that case, there
sub-section (1) of section 17 of the DV Act, was no pleading of the applicant that she
the aggrieved person had a right to reside permanently resided in India and more
in the shared household and as such con- particularly at the family residence at
tinued to have a subsisting domestic rela- Mumbai and that she had not provided the
tionship owning to her marriage and she actual duration of stay at the time of her
being the daughter in law had a right to visits to India. It was in the facts of that case,
reside in the shared household. learned Single Judge had dismissed the
22. In the present case, the facts are petition of the aggrieved person discharg-
on a better footing inasmuch as in the ap- ing the in-laws except the husband. The said
plication itself it has been contended by re- decision being clearly distinguishable is not
spondent No. 1 that the parties were resid- applicable to the facts of present case.
ing together at “Gundecha premises” after 25. The trial Court by its order dated
the lockdown was lifted. In my view, the 6th April, 2022 held that the main allega-
decision in the case of Prabha Tyagi (supra) tions are against the respondent No. 1 and
which has been followed by learned Single there are no specific allegations against the
Judge of this Court in the case of Aditya respondents Nos. 2 and 3. That, in the ap-
Anand Varma (supra) is squarely applicable plication both addresses have been pro-
to the facts of present case. vided, however, one person cannot reside
23. As regards the decision in the case at different places at the same time. The trial
of Dhananjay Zombade (supra) in the facts of Court considered the pleadings in the Com-
that case, there were no pleadings in the plainant’s application that “Gundecha
complaint/ application that the applicants premises” is the Complainant’s matrimonial
therein were living with the respondent shared household. The trial Court dis-
together as members of joint family and charged the Revision Applicants for the rea-
thus for want of specific pleadings and in son that evasive allegations are made
view of an impeccable evidence placed on against respondent Nos. 2 and 3. Before this
record showing their separate residence, Court, there were no submissions advanced
learned Single Judge held that the appli- that the application under DV Act did not
cants do not come within the definition of make out any case of domestic violence qua
domestic relationship with the respondents. the Revision Applicants.
The facts of the case are clearly distinguish- 26. The Appellate Court rightly con-
able as in the instant case as discussed above sidered the pleadings in the application and
there are specific pleadings as regards the held that specific contentions have been
resi dence o f the parties together at made about living in a joint family
“Gundecha premises”. alongwith the respondents and all of them
Bom.C.R.(Cri.) Sukhwinder Singh v. State of Punjab 893
having subjected the aggrieved person to Ms. Nupur Kumar, AOR Ambuj Tiwari, Ms.
domestic violence of different kinds on vari- Niharika Tanwar, for respondents.
ous occasions. The Appellate Court ob- 332.PM/IN//RB/RR/PN
served that though one person cannot live at ORDER : Leave granted.
different places at the same time he/she can 2. This appeal challenges the judg-
certainly live in two houses situated in same ment and Order dated 15.11.2023 passed by
city. In my opinion, there is no infirmity in the High Court of Punjab and Haryana at
the view taken by the Appellate Court. Chandigarh in CRM-M No. 55754 of 2023.
27. Having regard to the discussion 3. The appellant Sukhwinder Singh
above, there is no merit in the revision appli- has been has been facing trial in connection
cation. Revision application stands dismissed. with a crime registered pursuant to First
28. In view of the disposal of revision, Information Report No. 149 of 2021 dated
pending application taken out in this revi- 31.5.2021 lodged with Police Station Sadar
sion, if any, does not survive and the same Fazilka, District Fazilka, in respect of of-
is disposed of. fences punishable under sections 15, 15C,
Revision application dismissed. 22, 22C, 29 of the Narcotic Drugs and Psy-
chotropic Substances Act, 1985.
-----
4. An application seeking regular bail
Charge-sheet was filed and 21 witnesses
having been rejected by the High Court vide
to be examined in matter and accused was
impugned Order dated 15.11.2023, the ap-
in custody since long, therefore he is
pellant has preferred the instant appeal.
entitled for bail
5. This Court, vide its order dated
2024(1) Bom.C.R.(Cri.) 893
24.1.2024, issued the notice in the instant
(SUPREME COURT)
matter.
Before :
6. Heard learned Counsel for the ap-
B.V. Nagarathna & Augustine George
pellant in support of the petition and
Masih, JJ.
learned Counsel for the State and perused
Sukhwinder Singh @ Bittu … Appellant. the material on record. The appellant is in
Versus custody from 20.3.2023.
State of Punjab ... Respondent. 7. It is submitted that charge-sheet has
Criminal Appeal No. 1204 /2024 (Aris- been filed and there are 21 witnesses to be
ing out of SLP(Crl.)No. 883/2024), decided on examined in the matter and the appellant
26-2-2024. is about 29 years of age.
Code of Criminal Procedure, 1973, Sec. 8. Considering the facts on record, in
439 – Narcotic Drugs and Psychotropic Sub- our view, the case for bail is made out.
stances Act, 1985, Secs. 15, 15C, 22, 22C & 29 –
We, therefore, allow this appeal and
Bail – Application for – Offence under NDPS Act –
direct as under:
Accused is 29 yrs. of age – He was in custody since
“The appellant Sukhwinder Singh shall be
long – Charge-sheet was also filed and 21 witnesses to
produced before the concerned trial Court
be examined in matter – Bail granted. (Para 6) as early as possible and the trial Court
Advocates appeared : shall release him on bail, subject to such
Ajit Pravin Wagh, AOR Ms. Astha Prasad, Ms. conditions as it may deem appropriate to
Shubhangi Pandey, for petitioners. impose to ensure his presence in the pro-
894 Sonika V. Kadam v. Vishnudas H.Kadam 2024(1)
ceedings arising out of FIR No. 149 of 2021 2. Rajesh Talwar Vs. Central Bureau of Investiga-
mentioned above.” tion, (2012)4 S.C.C. 217.
9. It is directed that the appellant shall 3. Jyoti Mishra Vs. Dhananjaya Mishra, (2010)8
S.C.C. 803.
extend complete cooperation in the trial of
4. Nahar Singh Yadav Vs. Union of India, (2011)1
the instant case. The appellant shall not S.C.C. 307.
misuse his liberty in any manner. Advocates appeared :
10. Any infraction of the conditions Nikhil D. Patil, for applicant.
shall entail cancellation of bail granted to Mainak Adhikary, for respondent Nos. 1 to 6.
the appellant. S.S. Kaushik, A.P.P., for respondent-State.
11. With these observations, the ap- 349.PM/IN/ND/RJ/TC
peal is allowed. MADHAV J. JAMDAR, J.: – Heard Mr. Patil,
Appeal allowed. learned Counsel appearing for the applicant,
----- Mr. Adhikary, learned Counsel who has in-
Section 406 of Cr.P.C. contemplates that structions to appear for the respondent Nos.
power of transfer is to be used when same 1 to 6 and Ms. Kaushik, learned APP appear-
is expedient for ends of justice ing for the respondent-State.
2024(1) Bom.C.R.(Cri.) 894 2. This is a Criminal Application filed
Before : under section 407 (1)(c) of the Code of Crimi-
Madhav J. Jamdar, J. nal Procedure, 1973 (“Cr.P.C.”). The applicant
Sonika Vishnudas Kadam … Applicant. is seeking the following substantive prayer:-
Versus “a. This Hon’ble Court be pleased to transfer the
Cri M.A. No. 17 of 2017 pending before Jt, Civil
Vishnudas Haribhau Kadam & ors.
Judge Junior Division and Judicial Magistrate
… Respondents. First Class, Junnar to Learned Judicial Magis-
Criminal Application No. 502 of 2022, trate First Class, Thane.”
decided on 5-2-2024. 3. It is necessary to set out certain fac-
Code of Criminal Procedure, 1973, tual aspects before considering the rival
Sec. 407(1)(c) – Protection of Women from submissions :-
Domestic Violence Act, 2005, Secs. 12, 18, i. The marriage between the Appli-
19, 20, 21, & 22 – Hindu Marriage Act, 1955, cant and the respondent No. 1 was solem-
Secs. 10 & 24 – Transfer of case – Power of High nised on 26th April 2016 at Ghatkopar,
Court to transfer cases and appeals – Factors which Mumbai. The Applicant after marriage re-
could be kept in mind while considering an appli- sided with the respondent No. 1 and his
cation for transfer of trial – Held, Section 406 of family members at Room No. 4, Shivsagar
Cr.P.C. contemplates that power of transfer is to Rahivasi Sangh Chawl No. 13, Barve Nagar,
be used when same is expedient for ends of justice. Ghatkopar (W) Mumbai 400 084.
Considering availability of transport facilities even ii. As per the contention of the appli-
for Respondent 1, it is more convenient to at- cant-Wife, the Applicant was ousted from
tend Court at Thane than at Junnar, District- her matrimonial house on 18th September
Pune. Application is allowed. (Paras 11 to 15) 2016. The Applicant filed a Criminal M.A.
Cases referred : No. 17 of 2017 under sections 12, 18, 19, 20,
1. Archana Sachin Deshmukh Vs. State of 21, 22 of the Protection of Women from Do-
Maharashtra, 2022 DGLS(Bom.) 955.
mestic Violence Act, 2005 (“D.V. Act”) in the
Bom.C.R.(Cri.) Sonika V. Kadam v. Vishnudas H.Kadam 895
Court of learned Judicial Magistrate First mother are residing at Diva (E), Thane 400612.
Class, Junnar. In the said D.V. Proceedings, It is stated that the said Criminal M.A. No. 17
address of the applicant is mentioned as C/ of 2017 was filed at Junnar as at that time
o. Devanand Narayan Chalak, R./at owing to a threat to her life in Mumbai, she
Dingare, Taluka Junnar, District-Pune. Said was forced to reside at Junnar and as the ap-
Devanand Chalak is uncle of the applicant. plicant was in desperate need of interim or-
It is specifically mentioned in the applica- ders under the provisions of the D.V. Act she
tion that as the applicant was ousted from has filed the case at Junnar, Pune. It is stated
her matrimonial house by the respondents in the application that Junnar is about 155 k.m.
on 18th September, 2016 and thereafter she away from Diva and that the said case be
was threatened on several occasions by the transferred to the Court of learned Judicial
respondent No. 1, the applicant moved to Magistrate First Class, Thane. It is also stated
her uncle’s residence at Dingare, Taluka- that the respondent No. 1 is residing at
Junnar, District-Pune, and subsequently Ghatkopar, Mumbai.
filed proceedings under the D.V. Act before 5. Mr. Nikhil Patil, learned Counsel ap-
the learned Judicial Magistrate First Class, pearing for the applicant pointed out the
Junnar. Perusal of the said D.V. proceedings above facts and submitted that in the facts and
clearly shows that in fact reference has also circumstances of this case and in the interest
been made to the Complaint dated 13th of justice, the said D.V. proceedings be trans-
December, 2016 lodged in Ghatkopar Police ferred from the Court of learned Judicial Mag-
Station, Mumbai by the applicant. istrate First Class, Junnar to the Court of
iii. The present respondent No. 1 filed learned Judicial Magistrate First Class, Thane.
Marriage Petition No. A- 3101 of 2016 un- 6. On the other hand, it is the conten-
der section 10 of the Hindu Marriage Act, tion of Mr. Adhikary, learned Counsel appear-
1955 in the Family Court at Bandra seeking ing for the respondent Nos. 1 to 6 that al-
judicial separation. In the said proceedings, though residence of respondent No. 1 is situ-
by order dated 4th July 2019, learned Family ated in Ghatkopar- Mumbai, the respondent
Court at Bandra directed the respondent No. No. 1 is residing in Pune and it is his submis-
1 to pay Rs. 7,000/- per month towards interim sion that the respondent No. 1 was unem-
maintenance under section 24 of the Hindu ployed and therefore was residing with his
Marriage Act, 1955 and has further ordered brother i.e. respondent No. 2 at Ghatkopar,
payment of Rs. 5,000/- per month towards Mumbai. He relied on the decision of a
rent. The respondent No. 1 on 1st April, 2022 learned Single Judge in the case of Sow.
withdrew the said Marriage Petition No. A- (Archana W/o. Sachin Deshmukh Vs. The
3101 of 2016 without complying with the said State of Maharashtra & ors.)1, Criminal Ap-
order and without making any payment. It is plication No. 2565/2021 (Aurangabad Bench).
contended by the applicant that the said Mar- reported in 2022 DGLS(Bom.) 955, wherein
riage Petition filed before Family Court at the decision of the Supreme Court of India in
Bandra was withdrawn behind the back of the case of (Rajesh Talwar Vs. Central Bu-
the applicant. reau of Investigation and ors.)2, (2012)4 S.C.C.
4. In the above facts and circumstances, 217, has been relied upon. Mr. Adhikary,
the present Criminal Application is preferred learned Counsel appearing for the respond-
inter alia stating that the applicant and her ent Nos. 1 to 6 has more particularly relied on
paragraph Nos. 7, 8 and 10 of Archana “7. Further, other decisions of the Apex Court are also
Deshmukh (supra). required to be considered. in Rajesh Talwar Vs.
7. As far as the first contention of Central Bureau of Investigation and others with
companion matter, (2012)4 S.C.C. 217, wherein
learned Counsel appearing for the respond-
observations have been made that, inconvenience
ent Nos. 1 to 6 that the respondent No. 1 is cannot be valid basis for transfer of “criminal pro-
residing in Pune, it is to be noted that no ma- ceedings” from one Court to another under sec-
terial is pointed out to substantiate the same. tion 406 of the Code of Criminal Procedure. In
In fact, no affidavit-in-reply is filed to the Rajesh Talwar (supra), it is further held that:
present Criminal Application. It is significant “Jurisdiction of a Court to conduct criminal pros-
to note that the address of the respondent No. ecution is based on the provisions of Cr.P.C.
1 in the cause title of this Criminal Applica- Often either the complainant or the accused
tion is mentioned as residing at Shivsagar have to travel across an entire State to at-
Rahivasi Sangh Chawl No. 13, Room No. 4, tend to criminal proceedings before a ju-
Barve Nagar, Ghatkopar (W), Mumbai 400084 risdictional Court. In some cases to reach
and he has been served notice of this Crimi- the venue of the trial Court, a complainant
or an accused may have to travel across
nal Application at the said address. In the D.
several States. Likewise, witnesses too may
V. proceedings filed before the learned Judi- also have to travel long distances, in order
cial Magistrate First Class, Junnar the address to depose before the jurisdictional Court.
of the respondent No. 1 is mentioned as that If the plea of inconvenience for transfer-
of Ghatkopar and he has been served at the ring the cases from one Court to another,
same address. It is further significant to note on the basis of time taken to travel to the
that the respondent No. 1 filed the Marriage Court conducting the criminal trial is ac-
Petition No. A-3101 of 2016 in the Family cepted, the provisions contained in Cr.P.C.
Court at Bandra and not in the Family Court earmarking the courts having jurisdiction
at Pune. Thereafter the respondent No. 1 with- to try cases would be rendered meaning-
drew the Marriage Petition on 1st April, 2022 less. Convenience or inconvenience are in-
consequential so far as the mandate of law is
as otherwise the respondent No. 1 was re-
concerned.”
quired to comply with the order granting
8. In the case of Rajesh Talwar (supra) itself, reli-
maintenance. Thus, the factual position on ance has been placed on the decision in (Jyoti
record clearly establishes that the respond- Mishra Vs. Dhananjaya Mishra)3, (2010)8
ent No. 1 is residing in Mumbai. There is S.C.C. 803, wherein it has been observed in Para
no material on record in support of the con- Nos. 5 and 6:-
tention that the respondent No. 1 is a resi- “5. It is true that in cases of dissolution of mar-
dent of Pune. It is further significant to note riage, restitution of conjugal rights or mainte-
that the applicant is residing at Mumbai is nance, this Court shows much indulgence to
specifically mentioned in the Criminal Appli- the wife and ordinarily transfers the case to a
cation and the same is not denied by the replace where it would be more convenient for
the wife to prosecute the proceedings. But a
spondent No. 1.
criminal case is on a somewhat different foot-
8. Mr. Adhikary, learned Counsel ap- ing. The accused may not be able to attend the
pearing for the respondent Nos. 1 to 6 has Court proceedings at Indore for many reasons,
relied on Archana Deshmukh (supra) and more one of which may be financial constraints, but
particularly on paragraph Nos. 7, 8 and 10 the consequences of non-appearance of the accused
thereof which read as follows:- before the Indore Court would be quite drastic.
Bom.C.R.(Cri.) Sonika V. Kadam v. Vishnudas H.Kadam 897
6. Having regard to the consequences of non-appear- reasons so stated by the applicant is justified,
ance of the accused in a criminal trial, we are loath is a question and therefore, the decision of Jyoti
to entertain the petitioner’s prayer for transfer. Mishra (supra) would prevail and therefore the
In a criminal proceeding, the right of the accused application deserves to be rejected at the
to a fair trial and a proper opportunity to defend threshold.” (Emphasis added)
himself cannot be ignored for the convenience of 9. It is to be noted that the learned Sin-
the complainant simply because she happens to gle Judge in Archana Deshmukh (supra) has
be the estranged wife.” discussed about the factual aspects in the
“10. The two cases which the applicant had filed be- said case in paragraph No. 6 which reads
fore the Family Court at Jalna have been decided as under:-
and the appeal filed by respondent No. 2 is pend-
“6. At the outset, it is to be noted that Regular Crimi-
ing before this Court. The convenience of the wife
nal Case No. 277 of 2017 was filed in the year 2017
can be considered in civil cases and not in criminal
and till 2021 there was no problem for the appli-
cases as observed in Jyoti Mishra (supra). There is
cant with the said case. She allowed it to be contin-
no question of use of constitutional powers of this
ued with the Court of learned Judicial Magistrate
Court under Article 226 of the Constitution of In-
First Class, Chikhli. Now, all of a sudden, appli-
dia or even the inherent powers of this Court un-
cant says that her parents are old and cannot at-
der section 482 of the Code of Criminal Procedure.
tend Chikhli Court. It is pertinent to note that re-
The ratio laid down in Siku Industries (supra) will
spondent No. 3 is also 63 years old person. So only
not be applicable here. It was the case for the of-
old age cannot be the criteria and now the pan-
fences under paragraph 76(a) of the Employees
demic situation is improved and the courts are func-
Provident Funds Scheme,1952 read with sections
tioning full fledged. The ratio laid down in Rupali
14(2) and 14-A (1) and/or section 14-A (2) of the
Devi (supra) cannot be denied, however, it is to be
Employees Provident Funds Act, 1952. The Divi-
sion Bench had then concluded that the cause of noted that the said decision had considered whether
action for the prosecution of the petitioners for the the place where wife takes shelter after she leaves
alleged contravention of the provisions of the Provi- the matrimonial home or driven away by the in-
dent Funds Scheme has wholly arisen at Nagpur laws, would get jurisdiction or not. Whether to
and the opponent No. 1 was not authorized to ini- transfer the said case from one Court to another,
tiate the criminal prosecutions against the petition- would definitely be in the discretion of the courts
ers before a Magistrate at Bombay and therefore in view of section 406 and 407 of the Code of Crimi-
writ of mandamus was issued to opponent No. 1 nal Procedure.”
refraining opponent No. 1 from proceeding with 10. Thus, the factual position in Archana
the criminal prosecutions against the petitioners Deshmukh (supra) and the discussion in above
in Bombay. The liberty was given to opponent No. mentioned paragraphs thereof clearly shows
1 or any other person authorized by the Provident that the relief of transfer was rejected inter alia
Fund Commissioner to initiate prosecution against on the ground that investigation was com-
the petitioners in a Court at Nagpur. Here in the pleted, Charge-sheet was filed in the year 2017
present case, we are not considering the juris- and the reasons stated by the applicant in that
diction of the Court. Definitely the Court at case seeking transfer were not justified. There-
Chikhli as well as Court at Jalna [in view of
fore, it cannot be said that as contended by
decision in Rupali Devi (supra)] will have ju-
risdictions. But when already the proceedings the learned Counsel appearing for the re-
were launched, investigation was complete spondent Nos. 1 to 6 that Criminal Case can-
and charge-sheet is filed in the year 2017 it- not be transferred. In fact, Jyoti Mishra (supra)
self, whether transfer of the said case on the as referred to in Archana Deshmukh (supra) also
57/24(1) does not lay down the law to the effect that
criminal case cannot be transferred in any cir- 13. Section 406 of the Cr.P.C. contem-
cumstances whatsoever. In fact, paragraph plates that power of transfer is to be used
Nos. 5 and 6 of Jyoti Mishra (supra) show that when the same is expedient for the ends of
the said decision is in the facts and circum- justice. Section 407 of the Cr.P.C. is more
stances of that case. elaborate. However, it is clear that the pa-
11. Section 406 of the Cr.P.C. is the rameters of transfer under sections 406
power of the Supreme Court to transfer cases and 407 of the Cr.P.C. are almost identi-
and appeals from one High Court to another cal. The Supreme Court in case of (Nahar
High Court or from a Criminal Court un- Singh Yadav Vs. Union of India)4 , (2011)1
der the jurisdiction of one High Court to S.C.C. 307, has held as follows:-
another Criminal Court of equal or supe- “29. … Some of the broad factors which could be kept
rior jurisdiction under the jurisdiction of in mind while considering an application for trans-
another High Court. Sub-section (1) of sec- fer of the trial are:
tion 406 of the Cr.P.C. is relevant and the i) when it appears that the State machinery or pros-
same reads as under:- ecution is acting hand in glove with the ac-
cused, and there is likelihood of miscarriage of
“406. Power of Supreme Court to transfer
cases and appeals.— (1) Whenever it is made justice due to the lackadaisical attitude of the
to appear to the Supreme Court that an order prosecution;
under this section is expedient for the ends (ii) when there is material to show that the accused
of justice, it may direct that any particular may influence the prosecution witnesses or cause
case or appeal be transferred from one High physical harm to the complainant;
Court to another High Court or from a Crimi- (iii) comparative inconvenience and hardships
nal Court subordinate to one High Court to likely to be caused to the accused, the com-
another Criminal Court of equal or superior plainant/the prosecution and the wit-
jurisdiction subordinate to another High nesses, besides the burden to be borne by the
Court.” (Emphasis added) State exchequer in making payment of travel-
12. Section 407 of the Cr.P.C. is the ling and other expenses of the official and non-
power of High Court to Transfer cases and official witnesses;
appeals. Relevant portion of sub-section (1) (iv) a communally surcharged atmosphere, indicat-
of said section 407 specifying the circum- ing some proof of inability of holding fair and
stances in which power thereunder is to be impartial trial because of the accusations made
and the nature of the crime committed by the
exercised, is set out herein below:-
accused; and
“407. Power of High Court to transfer cases and
(v) existence of some material from which it can be
appeals.— (1) Whenever it is made to appear to
inferred that some persons are so hostile that they
the High Court—
are interfering or are likely to interfere either di-
“(a) that a fair and impartial inquiry or trial can- rectly or indirectly with the course of justice.”
not be had in any Criminal Court subordinate
(Emphasis added)
thereto, or
(b) that some question of law of unusual difficulty 14. This is a case where the factual po-
is likely to arise; or sition on record, which is also undisputed as
(c) that an order under this section is required by there is no affidavit-in-reply filed, clearly
any provision of this Code, or will tend shows that the matrimonial house of the ap-
to the general convenience of the parties plicant is at Ghatkopar, Mumbai, the marriage
or witnesses, or is expedient for the ends was solemnised at Ghatkopar, Mumbai and
of justice,...” (Emphasis added) due to harassment, the applicant lodged a
Bom.C.R.(Cri.) Shameem Bano v. Union of India 899
complaint with the Ghatkopar Police Station, Recording of finding mandated under
Mumbai. The applicant was threatened and Section 37 of NDPS Act is a sine qua non for
therefore she moved to Junnar, Pune to her granting bail to an accused under NDPS Act
uncle’s place and filed D.V. Proceedings for 2024(1) Bom.C.R.(Cri.) 899
urgent reliefs. It is further significant to note Before :
that the respondent Nos. 1 to 6 are residents Prithviraj K. Chavan, J.
of Ghatkopar (West)-Mumbai. Although, it is Shameem Bano Gulam Kureshi ... Applicant.
the oral submission of Mr. Adhikary, learned Versus
Counsel appearing for the respondents that
Union of India & anr. ... Respondents.
respondent No. 1 is a permanent resident of
Criminal Bail Application No. 256 of 2022,
Pune, no documentary evidence regarding
decided on 2/5-2-2024.
the said contention is produced. In fact, the
respondent No. 1 is served notice of the said Narcotic Drugs and Psychotropic Sub-
D.V. Proceedings and of this Criminal Appli- stances Act, 1985, Secs. 8(c), 20(b)(ii)C, 27A,
cation at his address at Ghatkopar, Mumbai. 29 & 37 – Enlargement of applicant on bail –
In any case, it is further significant to note that Grounds to be considered – Contraband was seized
the respondent No. 1 has filed Marriage Peti- under panchanama – Held, recording of finding
tion No. A-3101 of 2016 under section 10 of mandated under Section 37 of NDPS Act is a sine
the Hindu Marriage Act, 1955 in the Family qua non for granting bail to an accused under
Court at Bandra against the respondents seek- NDPS Act. There are reasonable grounds for be-
ing a decree of judicial separation and the lieving that applicant is not guilty of offences with
same was withdrawn. It is very significant to which she has been charged and is unlikely to com-
note that the respondent No. 1 has not filed mit any offence while on bail. Applicant has been
the Marriage Petition at Family Court, Pune incarcerated for more than 3 years ever since her
but at Family Court, Bandra, Mumbai. Assum- arrest on 13-12-2020. Charge has not yet been
ing that the respondent No. 1 is residing at framed There is no likelihood of trial being con-
Pune, then also considering the availability cluded within a reasonable period. Application is
of transport facilities even for respondent No. allowed. (Paras 23 to 27)
1, it is more convenient to attend the Court at Cases referred :
1. Mohan Lal Vs. State of Rajastan, 2015(3)
Thane than at Junnar, District-Pune.
Bom.C.R.(Cri.) 67(S.C.) : (2015)6 S.C.C. 222.
15. It is clear that the decision in Archana 2. Tofan Singh Vs. State of Tamil Nadu, A.I.R. (2020)
Deshmukh (supra) is in the facts and circumstances S.C. 5592.
of the said case and therefore, the same will have 3. Jitendra Jain Vs. NCB, Bail App No. 2682 of 2021,
no application to the present case. dt. 26-7-2022.
4. State of Kerala Vs. Rajesh, (2020)12 S.C.C. 122.
16. In the facts and circumstances of this
5. Narcotics Control Bureau Vs. Mohit Agarwal, 2022
case and in terms of section 407(1)(c) of the DGLS(S.C.) 893.
Cr.P.C., the Applicant is entitled for the relief of Advocates appeared :
transfer. Accordingly, the Criminal Application Taraq Sayed a/w. Ashwini Achari, Alisha Parekh,
is allowed in terms of prayer Clause (a). for applicant.
17. The Criminal Application is disposed A.A. Palkar, A.P.P., for respondent State.
of in above terms with no order as to costs. Shreeram Shirsat, Special P.P. a/w. Janvi Mate,
Janveer Khan, Karishma Rajesh & Shekhar Mane,
Application allowed. for respondent – UOI, NCB.
----- 348.PM/IN/ND/RJ/TC
900 Shameem Bano v. Union of India 2024(1)
PRITHVIRAJ K. CHAVAN, J.: – The ap- cal shaped dark brown substance purported
plicant is one of the four accused, who to be Charas weighing 3.531 kgs. The con-
seeks her release on bail in connection traband was seized under the panchanama.
with alleged offences punishable under All the accused were served with a sum-
sections 8(c) read with 20(b)(ii)C, 27A and mons under section 67 of the NDPS Act.
29 of the Narcotics Drugs and Psycho- Accused Nos. 1 and 2 namely Aftab and
tropic Substances Act, 1985 (NDPS Act). Sabir were placed under arrest. Statement
2. The prosecution case in brief goes of the applicant was recorded and she was
like this. also placed under arrest.
3. Pursuant to a secrete information re- 7. After investigation, respondent
ceived by the Narcotics Control Bureau (NCB) filed a charge-sheet in the Special Court
that two Indian nationals namely Aftab Ail against all the four accused under sections
Hishamoddin Shaikh (Aftab), Sabir Ali Azhar 8(c) read with 20(b)(ii)C, 27A and 29 of the
Sayyed (Sabir) are travelling from Hazarat NDPS Act. The applicant preferred an ap-
Nizamuddin to LTT, Kurla, Mumbai by Train plication for bail before the Sessions Court,
No. 02172 in Coach No. B9, seat Nos. 51 and Mumbai which came to be rejected on 8th
57 along with substantial quantity of Narcot- November 2021 and, therefore, now she has
ics Drugs in their luggage trolley bag. approached this Court.
4. When the said train reached LTT, 8. I heard Mr. Sayed, learned Counsel
Kurla, Mumbai on 12th December 2020, the for the applicant as well as Mr. Shirsat, learned
officials of the respondent – NCB accosted Special Public Prosecutor for the respondent
Aftab and Sabir whose description matched at a considerable length.
with the information received by it. The train 9. At the outset, Mr. Sayed would ar-
arrived around 22:45 hours on Platform No. gue that the applicant being a poor lady has
2. Aftab and Sabir were accosted when they been made a scapegoat by rest of the accused.
were about to alight from B9 coach along with She is innocent and was unaware as to how
the four ladies and two children with two trol- she was lured to accompany them to Hazarat
ley bags. It is alleged that accused - Aftab had Nizamuddin. She was paid petty amount of
a red and maroon colour Italian Tourist trol- Rs. 5,000/-. He would argue that the informa-
ley bag while accused – Sabir had a brown tion note of the NCB does not indicate
colour Elegant company trolley bag. whether the applicant, in fact, is a co-travel-
5. During interrogation of those two ler with the accused since there is no proof in
persons, the raiding team noticed four ladies the form of train ticket or any other material
and two children accompanying the two ac- in the form of reservation chart indicating that
cused namely Shameem Bano Gulam the applicant did travel with the co-accused.
Qureshi, Nilofer Korabu, Yasmin Iqbal Payak, 10. The contraband was found from the
S. Tahmeena Sabir Ali Sayyed, Sayyad Sidra possession of accused – Aftab and Sabir and,
and Sayyad Sidiya. therefore, there is no material to connect the
6. During search of a bag carried by ac- applicant with the alleged crime. The Coun-
cused – Aftab, the team noticed dark col- sel would also invite my attention to the state-
oured round shape substance purported to ment of one Sayyad Masur Hasan @ Firoz,
be Charas weighing 3.095 kgs. Upon search- who had stated in his statement under sec-
ing another bag, the team noticed cylindri- tion 67 of the NDPS Act that the amount of
Rs. 3 lac, which he had given to the applicant for the offence under section 18 of the NDPS
were in fact toy currency notes. Mr. Sayed Act. The Supreme Court held that possession
would argue that the applicant was unaware for the purpose of section 18 of the NDPS
of this fact also. As such, he submits that since Act is basically connected to “actus of physi-
the contraband has not been recovered from cal control and custody”. The term “posses-
the actual and conscious possession of the sion” consists of two elements. First, it re-
applicant as well as the fact that the applicant fers to the corpus or the physical control and
being an illiterate lady is unable to understand the second, it refers to the animus or intent
English language, she was totally ignorant of which has reference to exercise of the said
the entire proceedings conducted by the re- control. The Hon’ble Supreme Court has
spondent in English language. surveyed several decisions on this aspect.
11. It is contended that since the accused However, considering the material placed
No. 4 – Firoz has already been released on on record in the instant case, it would be
bail by the Sessions Court who was arrested difficult to construe that the applicant had
on the basis of statement of the co-accused, the animus or intent qua the contraband.
the applicant also deserves to be released on 14. Learned Special Public Prosecutor
the ground of parity. would further emphasize on rigours of sec-
12. Mr. Shirsat, learned Special Public tion 37 of the NDPS Act. He has placed reli-
Prosecutor on the other hand, invited my at- ance upon a few decisions of this Court which
tention to the observations made by the trial shall be referred to hereinafter. While con-
Court while rejecting the application for bail cluding, he vehemently urged to reject the
qua the applicant where it has been observed application inter alia submitting that at the
that the applicant was travelling with the main most the trial can be expedited.
accused in the same train and in the same 15. Law as regards a statement in the
coach from Delhi to Mumbai who alighted at form of confession recorded under section 67
LTT, Kurla, Mumbai together and were inter- of the NDPS Act is inadmissible and the said
cepted by the respondent at the same point issue is no more res integra in view of the well
of time. Even though nothing has been found known judgment of the Supreme Court in
in her possession, namely commercial quan- case of (Tofan Singh Vs. State of Tamil Nadu)2,
tity of Charas, the same was found in the pos- A.I.R. (2020) S.C. 5592. It is held that even the
session of the main accused with whom the statement of a co-accused under section 67 of
applicant was travelling. Mr. Shirsat would the NDPS Act cannot form the basis for re-
argue that the applicant was in constructive jecting an application for bail. Indubitably, the
possession of the contraband and, therefore, applicant in her statement recorded under
she being a part of the entire network, very section 67 of the NDPS Act stated in Hindi
well knew that the contraband was being that she had a talk with accused – Firoz on
transported from Delhi to Mumbai. 7th December 2020, who informed her to ac-
13. He placed reliance on a judgment company accused – Aftab and Sabir to Delhi
of the Supreme Court in the case of (Mohan in order to bring the contraband. She was paid
Lal Vs. State of Rajastan) 1 , 2015(3) Rs. 5000/- by Firoz who had already been re-
Bom.C.R.(Cri.) 67(SC) : (2015)6 S.C.C. 222. The leased on bail by the trial Court. It is a matter
Hon’ble Supreme Court was dealing with an of record that what had been received by the
appeal by the accused against his conviction applicant at New Delhi is in the form of pur-
ported currency notes, which are used by chil- of the NDPS Act. Insofar as section 27A is con-
dren (toy currency notes). Her statement un- cerned, which indicates indulgence of an ac-
der section 67 of the NDPS Act further in- cused in financing, directly or indirectly, any
dicates that bags containing contraband – of the activities specified in sub-clauses (i)
Charas was kept on seat No. 57 by the ac- to (v) of [Clause (viiib) of section 2] or har-
cused – Sabir and another bag was kept on bours any person engaged in any of the
seat No. 51 by accused – Aftab. Admittedly, aforementioned activities, shall be punish-
nothing came to be seized from the posses- able with rigorous imprisonment for a term
sion of the applicant and, therefore, it can- which shall not be less than ten years. What
not be said that she was in conscious pos- has been surfaced from the record of the
session with animus, custody or dominion prosecution is that those were toy currency
over the prohibited substance which could notes, in the sense, those were meant for
only be proved during trial. children’s game and as such prima facie the
16. If six of them were travelling from applicant does not appear to be involved in
Hazarat Nizamuddin to LTT, Kurla, Mumbai financing either directly or indirectly any ac-
how come there were only two reserved tick- tivities in respect of the Narcotic drugs or psy-
ets in coach No. B9 with seat Nos. 51 and 57? chotropic substances.
17. It creates a doubt about the authen- 20. As already stated, since nothing has
ticity of the raid conducted by the respond- been found in the possession of the applicant
ent as to why the other ladies travelling with and merely because she was a co- traveller
the accused have neither been intercepted nor that too sans valid travelling tickets, would
their statements were recorded under section not ipso facto mean that she abetted or had
67 of the NDPS Act in order to find out the entered into any criminal conspiracy with the
truth. How come so many persons were prime accused. The observations made by a
found travelling only on the basis of two tick- single Judge of this Court case of (Jitendra Jain
ets in Coach No. B9 Seat Nos. 51 and 57? How Vs. NCB & anr.)3, (Bail Application No. 2682
the applicant could travel without a valid of 2021, decided on 26th July 2022) (Coram:
ticket all the way from Delhi to LTT, Kurla, Bharati Dangre, J.), therefore, can be distin-
Mumbai in a reserved coach? It is not the case guished accordingly. In the said case, cash
of the prosecution that the applicant has an- amount in the form of Indian Currency, US
tecedents to her discredit. Dollars, Pounds and Dirhams were recovered
18. The arrest report qua the applicant under the panchanama. The applicant in that
dated 13th December, 2020 appears to be case was found to have received money
drafted in a mechanical way as it appears through his girl friend in google account.
that the Zonal Director, Superintendent and There was tangible evidence enclosed with
Investigating Officers stated in the said re- the complaint as regards drug trafficking and
port “he was communicated his grounds of procuring, possessing and purchasing as well
arrest to the applicant” who is a female. Be as consumption of Charas. It, therefore, can-
that as it may. not be a ratio decidendi to be looked into in view
19. It is not the case of the prosecution of peculiar facts of this case.
that the applicant is liable for a punishment 21. Insofar as the rigours of section 37
for consumption of any Narcotic drug or psy- of the NDPS Act are concerned, certain re-
chotropic substance as provided in section 27 strictions have been placed on the powers of
this Court while granting bail to a person ac- in case of (State of Kerala and ors. Vs. Rajesh
cused of having committed an offence under and ors.)4, (2020)12 S.C.C. 122. The Supreme
the NDPS Act. The limitations on granting of Court has carved out scheme of section 37
bail specified in Clause (b) of sub-section (1), more particularly the expression “reasonable
are, of course in addition to the limitations grounds” in para 20 to 23 of the judgment,
under the Code of Criminal Procedure. which is extracted below :-
22. Admittedly, an opportunity has al- “20. The scheme of section 37 reveals that the exercise
ready been granted to the Special Public Pros- of power to grant bail is not only subject to the
ecutor to oppose the application moved by limitations contained under section 439 of the
CrPC, but is also subject to the limitation placed
the applicant. Insofar as satisfaction of this
by section 37 which commences with non obstante
Court that there are reasonable grounds for Clause. The operative part of the said section is in
believing that she is not guilty of such offence the negative form prescribing the enlargement of
and that she is not likely to commit any of- bail to any person accused of commission of an of-
fence while on bail, as already discussed fence under the Act, unless twin conditions are
hereinabove, nothing had been found in con- satisfied. The first condition is that the prosecu-
scious possession of the applicant who ap- tion must be given an opportunity to oppose the
pears to be a passenger in the same coach application; and the second, is that the Court must
without any valid ticket. Reluctance of the be satisfied that there are reasonable grounds for
respondent in not recording the statement of believing that he is not guilty of such offence. If
either of these two conditions is not satisfied, the
other women accompanied with the main
ban for granting bail operates.
accused and the applicant though it is stated
21. The expression “reasonable grounds” means some-
that all were travelling together, would cre- thing more than prima facie grounds. It contem-
ate a cloud of suspicion. As such, prima facie, plates substantial probable causes for believing that
there are reasonable grounds for believing the accused is not guilty of the alleged offence. The
that she is not guilty of such offence. As al- reasonable belief contemplated in the provision re-
ready stated, what had been transpired from quires existence of such facts and circumstances as
the record is that the money which exchanged are sufficient in themselves to justify satisfaction
hands was nothing but toy currency notes. that the accused is not guilty of the alleged offence.
In the case on hand, the High Court seems to have
23. The role of accused No. 4 – Firoz is
completely overlooked the underlying object of sec-
almost on the same pedestal to that of the
tion 37 that in addition to the limitations provided
applicant who has been granted bail by the under the Cr.P.C., or any other law for the time
trial Court. As already stated, it is needless to being in force, regulating the grant of bail, its lib-
go into the aspect of the expression “reason- eral approach in the matter of bail under the NDPS
able grounds” used in Clause (ii) of sub-sec- Act is indeed uncalled for.
tion (1) of section 37 of the NDPS Act, which 22. We may further like to observe that the learned
would necessarily mean that there should be Single Judge has failed to record a finding man-
some credible, plausible grounds for the Court dated under section 37 of the NDPS Act which is
to believe that the accused is not guilty of the a sine qua non for granting bail to the accused under
alleged offence. Of course, as already stated the NDPS Act.
the ‘reasonable grounds’ herein are more than 23. The submission made by learned Counsel for the
respondents that in Crime No. 14/2018, the bail
prima facie grounds.
has been granted to the other accused persons(A1
24. Mr. Shirsat has, therefore, placed to A4), and no steps have been taken by the pros-
reliance on a decision of the Supreme Court ecution to challenge the grant of post arrest bail to
the other accused persons, is of no consequence High Court has committed grave error by not
for the reason that the consideration prevailed applying the terms and conditions imposed
upon the Court to grant bail to the other accused under section 37 of the NDPS Act and in view
persons will not absolve the act of the accused of the embargo placed in section 37 of the
respondent(A5) from the rigour of section 37 of
NDPS Act, the respondent ought not to have
the NDPS Act.”
been admitted to bail as it was a case of con-
25. Indeed, recording of finding man-
structive / conscious possession of the con-
dated under section 37 of the NDPS Act is a
traband, psychotropic substances as well as
sine qua non for granting bail to an accused
active participation of the respondent in an
under the NDPS Act. The findings as recorded
organized gang that was involved in smug-
hereinabove qua the applicant are not in the
gling of the drug. As already stated, the ratio
context of finding the applicant not guilty of
laid down in the Mohit Agarwal (surpa) can be
the offence or whether the applicant has in
distinguished in light of the facts discussed
fact committed or not committed any offence
hereinabove.
under the NDPS Act but the entire exercise is
27. Admittedly, the applicant has been
only for the purpose of considering as to
incarcerated for more than 3 years ever since
whether the applicant can be enlarged on bail
her arrest on 13th December 2020. The charge
or otherwise. In light of the aforesaid facts,
has not yet been framed. There is no likeli-
there are reasonable grounds for believing
hood of the trial being concluded within a
that the applicant is not guilty of the offences
reasonable period.
with which she has been charged and is un-
likely to commit any offence while on bail. 28. Dehors merits of the case and in view
of various pronouncements referred to
26. The Hon’ble Supreme Court in the
hereinabove, I am persuaded to release the
case of (Narcotics Control Bureau Vs. Mohit
5 applicant on bail albeit imposing certain con-
Agarwal) , Criminal appeal No. 1001-1002 of
ditions, which would take care of the appre-
2022, decided on 19th July 2022. reported in
hension expressed by the learned Special
2022 DGLS(S.C.) 893. while cancelling the bail
Public Prosecutor.
of the applicant even dehors the confessional
statement of the respondent and the co-ac- 29. Consequently, the following order
cused under section 67 of the NDPS Act ob- is expedient :-
served that there was other material brought ORDER
on record by the NCB which ought to have (a) The application is allowed.
(b) The applicant be released on executing a P.R.
dissuaded the High Court from exercising its
bond in the sum of Rs. 30,000/- with one or
discretion in favour of the respondent accused
two sureties in the like amount to the satis-
by concluding that there were reasonable faction of the Special Court in Special Case
grounds to justify that he was not guilty. In No. 652 of 2021 for the offence punishable
case of Mohit Agarwal (supra) it seems that the under section 8(c) read with 20(b)(ii)C, 27A
High Court had completely overlooked the and 29 of the NDPS Act.
fact that on the basis of a disclosure statement (c) The applicant shall report the office of the
made by the respondent himself huge quan- NCB, Mumbai on first Saturday of every
tity of Narcotic drugs and injections were month between 10.00 a.m. to 1.00 p.m. till
seized from the godown of the co-accused – charge is framed.
(d) After framing the charge, the applicant
Pramod Jaipuria who was subsequently ar-
shall attend each date in the trial Court
rested by the Department. It is stated that the
scrupulously.
Bom.C.R.(Cri.) C.B.I. v. Kapil Wadhawan 905
(e) The applicant shall not tamper with the evi- said accused persons/entities induced consortium
dence or attempt to influence or contact any banks to sanction huge loans aggregating to Rs.
of the witnesses or persons concerned with 42,000 crores approx. and thereafter they siphoned
this case. off and misappropriated a significant portion of
(f) The applicant shall furnish her residential funds by falsifying books of account of DHFL and
address and contact details forthwith to the
deliberately and dishonestly defaulted on repay-
respondent and the Special Court. The ap-
plicant shall inform in case of any change in ment of legitimate dues of said consortium banks,
her contact details or residential address to and thereby caused a wrongful loss of Rs. 34,000
the respondent as well as the Special Court. crores to consortium lenders – Held, Only when a
(g) In case of two consecutive defaults either in charge-sheet is not filed and investigation is kept
attending the respondent or the trial Court or pending, benefit of proviso appended to sub-sec-
in case of breach of any of the aforesaid con- tion (2) of Section 167 of Code would be available
ditions, the prosecution shall be at liberty to to an offender; once, however, a charge-sheet is filed,
seek cancellation of her bail. said right ceases. Such a right does not revive only
30. The application stand disposed of because a further investigation remains pending
in the aforesaid terms. within meaning of sub-section (8) of Section 173
Application allowed. of Code. Charge-sheet having been filed against
----- respondents-accused within prescribed time limit
Only when a charge-sheet is not filed and and cognizance having been taken by Special Court
investigation is kept pending, benefit of of offences allegedly committed by them, respond-
default bail would be available to an ents could not have claimed statutory right of de-
offender; once, however, a charge-sheet is fault bail under Section 167(2) on ground that in-
filed, said right ceases vestigation qua other accused was pending. Both,
2024(1) Bom.C.R.(Cri.) 905 Special Court as well as High Court having com-
(SUPREME COURT) mitted serious error of law. Impugned orders is set
Before : aside. Appeal stands allowed. (Paras 21 to 25)
Bela M. Trivedi & Pankaj Mithal, JJ. Cases referred :
1. Dinesh Dalmia Vs. CBI, 2008 (Supp.) Bom.C.R.
Central Bureau of Investigation ... Appellant. 128(S.C.) : (2007)8 S.C.C. 770.
Versus 2. M. Ravindran Vs. Intelligence Officer, Directo-
Kapil Wadhawan & anr. ... Respondents. rate of Revenue Intelligence, (2021)2 S.C.C. 485.
Criminal Appeal No. 391 of 2024(@ Spe- 3. Suresh Kumar Bhikamchand Jain Vs. State of
Maharashtra, (2013)3 S.C.C. 77.
cial Leave Petition (Cri.) No. 11775 of 2023), de-
4. Rakesh Kumar Paul Vs. State of Assam, (2017)15
cided on 24-1-2024. S.C.C. 67.
Indian Penal Code, 1860, Secs. 120B, 5. Sanjay Dutt Vs. State through CBI, Bombay (II),
206, 409, 411, 420, 424, 465, 468 & 477A – Pre- 1995(1) Bom.C.R. 186(S.C.) : (1994)5 S.C.C. 410.
vention of Corruption Act, 1988, Sec. 13(2) & 6. Naranjan Singh Nathawan Vs. State of Punjab,
(1952)1 S.C.C. 118.
(1)(d) – Cancellation of default bail – Respond-
7. Ram Narayan Singh Vs. State of Delhi, 1953 S.C.R.
ents 1 and 2 have been granted default bail under 652 : A.I.R. 1953 S.C. 277.
Section 167(2) Cr.P.C. – Chairman and Manag- 8. A.K. Gopalan Vs. Government of India, (1966)2
ing Director, DHFL, along with 12 other accused S.C.R. 427 : A.I.R. 1966 S.C. 816.
persons entered into a criminal conspiracy to cheat 9. Natabar Parida Vs. State of Orissa, (1975)2 S.C.C.
220 : 1975 S.C.C.(Cri.) 484.
consortium of 17 banks led by Union Bank of In-
10. Serious Fraud Investigation Office Vs. Rahul
dia, and in pursuance to said criminal conspiracy, Modi, 2022 S.C.C. OnLine S.C. 153.
906 C.B.I. v. Kapil Wadhawan 2024(1)
11. K. Veeraswami Vs. Union of India, (1991)3 S.C.C. 655. that the DHFL, Sh. Kapil Wadhawan, the then
12. Satya Narain Musadi Vs. State of Bihar, (1980)3 Chairman and Managing Director, DHFL,
S.C.C. 152 : 1980 S.C.C.(Cri.) 660.
along with 12 other accused persons entered
13. Anil Saran Vs. State of Bihar, (1995)6 S.C.C. 142 :
1995 S.C.C.(Cri.) 1051. into a criminal conspiracy to cheat the con-
14. Popular Muthiah Vs. State, 2006 B.C.I. (soft) sortium of 17 banks led by Union Bank of In-
24(S.C.) : (2006)7 S.C.C. 296 : (2006)3 S.C.C.(Cri.) 245. dia, and in pursuance to the said criminal con-
15. Adalat Prasad Vs. Rooplal Jindal, 2004(2) spiracy, the said accused persons/entities in-
Bom.C.R.(Cri.) 857(S.C.) : (2004)7 S.C.C. 338 : 2004 duced the consortium banks to sanction huge
S.C.C.(Cri.) 1927.
16. Subramanium Sethuraman Vs. State of
loans aggregating to Rs. 42,000 crores approx.
Maharashtra, 2005(1) Bom.C.R.(Cri.) 189(S.C.) : and thereafter they siphoned off and misap-
(2004)13 S.C.C. 324 : 2005 S.C.C.(Cri.) 242. propriated a significant portion of the said
17. Everest Advertising (P) Ltd. Vs. State, Govt. of NCT funds by falsifying the books of account of
of Delhi, 2007(2) Bom.C.R.(Cri.) 501(S.C.) : (2007)5 DHFL and deliberately and dishonestly de-
S.C.C. 54 : (2007)2 S.C.C.(Cri.) 444.
faulted on repayment of the legitimate dues
of the said consortium banks, and thereby
S.V. Raju, A.S.G.,for appellant.
Mukul Rohatgi, Sr.Adv., for respondent No. 1.
caused a wrongful loss of Rs. 34,000 crores to
Amit Desai, Sr.Adv., for respondent No. 2. the consortium lenders during the period
357.PM/IN/ND/PN/TC January, 2010 to December, 2019.
Per BELA M. TRIVEDI, J.: – Leave granted. 4. The respondent No. 1-Kapil
2. The appellant-CBI has sought to chal- Wadhawan and respondent No. 2-Dheeraj
lenge the impugned Order dated 30.5.2023 Wadhawan came to be arrested by the appel-
passed by the High Court of Delhi at New lant-CBI in connection with the said FIR on
Delhi in CRL. M.C. No. 6544 of 2022 uphold- 19.7.2022 and were remanded to judicial cus-
ing the Order dated 3.12.2022 passed by the tody on 30.7.2022.
Special Judge (PC Act), CBI-08, New Delhi 5. After carrying out the investigation,
(hereinafter referred to as the Special a charge-sheet for the offences under section
Court), by which respondent Nos. 1 and 2 120B read with section 206, 409, 411, 420, 424,
have been granted default bail under sec- 465, 468 and 477A of IPC and section 13(2)
tion 167(2) Cr.P.C. read with 13(1)(d) of PC Act came to be filed
3. The short facts giving rise to the by the CBI against 75 persons/entities includ-
present appeal are that an FIR bearing No. ing the respondent Nos. 1 and 2 on 15.10.2022.
RC2242022A0001 came to be registered in CBI, 6. Respondent Nos. 1 and 2 filed an ap-
ACVI/SIT, New Delhi on 20.6.2022, on the plication under section 167(2) of Cr.P.C. on
basis of the complaint lodged by Sh. Vipin 29.10.2022 before the Special Court seeking
Kumar Shukla, DGM, Union Bank of India, statutory bail on the ground that the
Nariman Point, Mumbai, for the offences pun- chargesheet filed by the CBI was incomplete
ishable under section 120-B read with section and no final report as defined under section
409, 420 and 477A of IPC and section 13(2) 173(2) Cr.P.C. was filed within the statutory
read with section 13(1)(d) of PC Act, 1988 period provided under section 167(2) Cr.P.C.,
(hereinafter referred to as the PC Act), against or in the alternative seeking their release from
Dewan Housing Finance Corporation Ltd. judicial custody in view of lack of jurisdiction
(DHFL) and 12 other accused persons/com- of the Court as there was no approval under
panies. It was alleged in the said FIR inter alia section 17A of the PC Act as amended in 2018.
7. The Special Court vide the Order Cr.P.C. has been granted by the courts below
dated 26.11.2022 held that the Special Court after the Special Court took the cognizance of
had the jurisdiction to deal with the matter the alleged offences against the respondents,
and the bar under section 17A of the PC Act which is against the statutory scheme of the
was not applicable to the facts of the case. Code. According to him, it is only when a
By a separate Order dated 26.11.2022, the charge-sheet is not filed and investigation is
Special Court took the cognizance of the kept pending, the benefit of the proviso ap-
alleged offences against all the 75 accused pended to sub-section (2) of section 167 of the
and issued production warrants against the Code would be available to the offender, how-
present respondent Nos. 1 and 2 (A-1 and ever once the charge-sheet is filed, the said
A-2) as also against accused No. 7. The Spe- right of the accused ceases, and such a right
cial Court also issued warrants/summons does not revive merely because a further in-
against the other accused. vestigation remains pending within the
8. Thereafter, the Special Court vide meaning of section 173(8) of the Code. To but-
the Order dated 3.12.2022 holding that the tress his submissions, Mr. S.V. Raju has placed
investigation was incomplete and the heavy reliance on the decision in case of
chargesheet filed was in piecemeal, further (Dinesh Dalmia Vs. CBI)1 , 2008 (Supp.)
held that the respondent Nos. 1 and 2 (A-1 Bom.C.R. 128(S.C.) : (2007)8 S.C.C. 770. He also
and A-2) were entitled to the statutory bail relied upon the judgment in (M. Ravindran
under section 167(2) Cr.P.C. Vs. Intelligence Officer, Directorate of Rev-
9. The appellant-CBI, being aggrieved enue Intelligence)2, (2021)2 S.C.C. 485 to sub-
by the said Order dated 3.12.2022 passed by mit that where the accused fails to apply for
the Special Court filed a petition being default bail when his right accrues, and sub-
Crl.M.C. No. 6544 of 2022 before the High sequently a chargesheet, additional complaint
Court under section 482 read with section or a report seeking extension of time is pre-
439(2) of Cr.P.C. The High Court vide the im- ferred before the Magistrate, the right to de-
pugned Order dated 30.5.2023 dismissed the fault bail would be extinguished.
said petition and upheld the Order dated 11. Per contra, the learned Senior Advo-
3.12.2022 passed by the Special Court. cate Mr. Mukul Rohatgi for the respondent
SUBMISSIONS: No. 1 submitted that the issue of cognizance
10. The learned ASG, Mr. S.V. Raju for had nothing to do with the default bail, in as
the appellant vehemently submitted that the much as the right under section 167(2) is a
chargesheet was filed by the appellant-CBI on statutory right, when the charge-sheet is not
the completion of the investigation qua 75 ac- filed within the prescribed time limit and even
cused including the present respondents stat- if filed, a complete charge-sheet is not filed.
ing that further investigation qua some other According to him, the courts below have con-
accused was pending, which did not mean cluded that it was an incomplete chargesheet
that an incomplete chargesheet was filed that was filed by the CBI, which entitled the
against the respondents. Learned ASG sub- respondents to the statutory right of getting
mitted that report under section 173 Cr.P.C. the benefit of default bail under section 167(2)
filed by the CBI was complete containing all of Cr.P.C. Mr. Mukul Rohatgi has relied upon
the details as required by law. In the instant the decision in (Suresh Kumar Bhikamchand
3
case, the statutory bail under section 167(2) Jain Vs. State of Maharashtra & Anr.) ,
(2013)3 S.C.C. 77 to buttress his submission the accused named in the FIR was pending,
that cognizance is not relevant basis for de- though the report under sub-section (2) of
termining whether the investigation is com- section 173 (Charge-sheet) against respond-
plete or not for the purpose of default bail ents along with the other accused was filed
under section 167(2) Cr.P.C. Reliance is also within the prescribed time limit and though
placed on the decision in case of (Rakesh the cognizance of the offence was taken by
Kumar Paul Vs. State of Assam)4, (2017)15 the special Court before the consideration of
S.C.C. 67 to submit that if the charge-sheet is the application of the respondents seeking de-
not filed and the right for default bail has rip- fault bail under section 167(2) Cr.P.C.?
ened into the status of indefeasibility, it can- 14. For better appreciation of the sub-
not be frustrated by the prosecution on any missions made by the learned Counsels for
pretext. Mr. Rohatgi sought to distinguish the the parties, the relevant parts of section 167
Dalmia’s case (supra) relied upon by Ld. ASG and section 173 are reproduced as under: -
Mr. S.V. Raju by submitting that in the said “167. Procedure when investigation cannot be
case, the accused was absconding and the completed in twenty-four hours. –
charge-sheet was already filed, whereas in the 1. ………………………………..
instant case, the charge-sheet filed has been 2. The Magistrate to whom an accused person is
held to be incomplete. According to him, the forwarded under this section may, whether he
concurrent findings recorded by two courts, has or has not jurisdiction to try the case, from
time to time, authorise the detention of the
unless perverse should not be interfered with,
accused in such custody as such Magistrate
even if there was an error of law. He further thinks fit, for a term not exceeding fifteen days
submitted that once the bail is granted and in the whole; and if he has no jurisdiction to
interim order staying the operation of such try the case or commit it for trial, and consid-
order passed by the High Court is not passed ers further detention unnecessary, he may or-
by the Supreme Court, the proceeding par- der the accused to be forwarded to a Magis-
takes the colour of cancellation of bail for trate having such jurisdiction:
which the criteria are absolutely different. Provided that—
12. Learned Senior Advocate Mr. (Subs. by Act 45 of 1978, section 13(a), for para-
Amit Desai appearing for the respondent graph (a) (w.e.f. 18-12-1978)[(a) the Magistrate
may authorise the detention of the accused
No. 2 adopted the arguments made by the
person, otherwise than in custody of the po-
Ld. Senior Advocate Mr. Mukul Rohatgi lice, beyond the period of fifteen days, if he
for the respondent No. 1, and further sub- is satisfied that adequate grounds exist for
mitted that the filing of charge-sheet was doing so, but no Magistrate shall authorise
a subterfuge or ruse to defeat the inde- the detention of the accused person in cus-
feasible right of the respondents con- tody under this paragraph for a total period
ferred under section 167(2) Cr.P.C. exceeding—
ANALYSIS: (i) ninety days, where the investigation relates to
an offence punishable with death, imprison-
13. In the instant appeal, the main ques-
ment for life or imprisonment for a term of
tion that falls for our consideration is, whether not less than ten years;
the respondents were entitled to the benefit (ii) sixty days, where the investigation relates to
of the statutory right conferred under the pro- any other offence, and, on the expiry of the
viso to sub section 2 of section 167 Cr.P.C, on said period of ninety days, or sixty days, as
the ground that the investigation qua some of the case may be, the accused person shall be
released on bail if he is prepared to and does lating to the commission of the offence was
furnish bail, and every person released on bail first given.
under this sub-section shall be deemed to be (3)……………………………..
so released under the provisions of Chapter (4)……………………………..”
XXXIII for the purposes of that Chapter;] 15. There cannot be any disagreement
(b)…………………………………… with the well settled legal position that the
(c)…………………………………… right of default bail under section 167(2)
173. Report of Police Officer on completion of Cr.P.C. is not only a statutory right but is a
investigation.
right that flows from Article 21 of the Consti-
—
tution of India. It is an indefeasible right, none-
(1) Every investigation under this Chapter shall
theless it is enforceable only prior to the fil-
be completed without unnecessary delay.
ing of the challan or the chargesheet, and does
(Inst. By Act 5 of 2009, section 16(a) (w.e.f. 31-12-
2009))[(1A) The investigation in relation to not survive or remain enforceable on the
3 [an offence under sections 376, 376A, challan being filed, if already not availed of.
376AB, 376B, 376C, 376D, 376DA, 376DB or Once the challan has been filed, the ques-
376E] from the date on which the information of grant of bail has to be considered
tion was recorded by the officer in charge and decided only with reference to the mer-
of the Police Station.] its of the case under the provisions relating
(2) (i) As soon as it is completed, the officer in to grant of bail to the accused after the fil-
charge of the police station shall forward to ing of the challan. The Constitution Bench
a Magistrate empowered to take cognizance in (Sanjay Dutt Vs. State through CBI,
of the offence on a police report, a report in
Bombay (II))5, 1995(1) Bom.C.R. 186(S.C.) :
the form prescribed by the State Govern-
(1994)5 S.C.C. 410 while considering the
ment, stating—
(a) the names of the parties;
provisions of section 20(4)(bb) of the Ter-
(b) the nature of the information;
rorist and Disruptive Activities (Prevention)
(c) the names of the persons who appear to be Act, 1987 read with section 167(2) Cr.P.C. had
acquainted with the circumstances of the case; very pertinently held that:-
(d) whether any offence appears to have been “48. We have no doubt that the common stance
committed and, if so, by whom; before us of the nature of indefeasible right of
(e) whether the accused has been arrested; the accused to be released on bail by virtue of
(f) whether he has been released on his bond and, section 20(4)(bb) is based on a correct reading
if so, whether with or without sureties; of the principle indicated in that decision. The
indefeasible right accruing to the accused in
(g) whether he has been forwarded in custody
such a situation is enforceable only prior to
under section 170.
the filing of the challan and it does not sur-
(Ins. By Act 5 of 2009, section 16(b) (w.e.f. 31-12-
vive or remain enforceable on the challan be-
2009)[(h) whether the report of medical exami-
ing filed, if already not availed of. Once the
nation of the woman has been attached where
challan has been filed, the question of grant of
investigation relates to an offence under 2 [sec-
bail has to be considered and decided only
tions 376, 376A, 376AB, 376B, 376C, 376D,
with reference to the merits of the case under
376DA, 376DB] or section 376E of the Indian
the provisions relating to grant of bail to an
Penal Code (45 of 1860)].]
accused after the filing of the challan. The cus-
(ii) The officer shall also communicate, in such tody of the accused after the challan has been
manner as may be prescribed by the State filed is not governed by section 167 but differ-
Government, the action taken by him, to the ent provisions of the Code of Criminal Proce-
person, if any, by whom the information re-
dure. If that right had accrued to the accused “17.In our view, grant of sanction is nowhere
but it remained unenforced till the filing of contemplated under section 167 CrPC. What
the challan, then there is no question of its the said section contemplates is the comple-
enforcement thereafter since it is extinguished tion of investigation in respect of different
the moment challan is filed because section types of cases within a stipulated period and
167 CrPC ceases to apply. The Division Bench the right of an accused to be released on bail
also indicated that if there be such an applica- on the failure of the investigating authorities
tion of the accused for release on bail and also to do so. The scheme of the provisions relat-
a prayer for extension of time to complete the ing to remand of an accused, first during the
investigation according to the proviso in sec- stage of investigation and, thereafter, after
tion 20(4)(bb), both of them should be consid- cognizance is taken, indicates that the legisla-
ered together. It is obvious that no bail can be ture intended investigation of certain crimes
given even in such a case unless the prayer for to be completed within 60 days and offences
extension of the period is rejected. In short, punishable with death, imprisonment for life
the grant of bail in such a situation is also sub- or imprisonment for a term of not less than 10
ject to refusal of the prayer for extension of years, within 90 days. In the event, the inves-
time, if such a prayer is made. If the accused tigation is not completed by the investigating
applies for bail under this provision on expiry authorities, the accused acquires an indefea-
of the period of 180 days or the extended pe- sible right to be granted bail, if he offers to
riod, as the case may be, then he has to be re- furnish bail. Accordingly, if on either the 61st
leased on bail forthwith. The accused, so re- day or the 91st day, an accused makes an ap-
leased on bail may be arrested and commit- plication for being released on bail in default
ted to custody according to the provisions of of charge-sheet having been filed, the Court
the Code of Criminal Procedure. It is settled has no option but to release the accused on
by Constitution Bench decisions that a peti- bail. The said provision has been considered
tion seeking the writ of habeas corpus on the and interpreted in various cases, such as the
ground of absence of a valid order of remand ones referred to hereinbefore. Both the deci-
or detention of the accused, has to be dis- sions in (Natabar Parida Vs. The State of
missed, if on the date of return of the rule, the Orissa)9, case (1975)2 S.C.C. 220 : 1975
custody or detention is on the basis of a valid S.C.C.(Cri.) 484 and in Sanjay Dutt case [(1994)5
order. (See Naranjan Singh Nathawan Vs. S.C.C. 410 : 1994 S.C.C.(Cri.) 1433 were in-
State of Punjab)6, (1952)1 S.C.C. 118 : 1952 stances where the charge-sheet was not filed
S.C.R. 395 : A.I.R. 1952 S.C. 106 : 1952 Cri.L.J. within the period stipulated in section 167(2)
656 ; (Ram Narayan Singh Vs. State of Delhi)7, CrPC and an application having been made
1953 S.C.R. 652 : A.I.R. 1953 S.C. 277 : 1953 for grant of bail prior to the filing of the charge-
Cri.L.J. 1113 and (A.K. Gopalan Vs. Govern- sheet, this Court held that the accused enjoyed
ment of India)8, (1966)2 S.C.R. 427 : A.I.R. 1966 an indefeasible right to grant of bail, if such
S.C. 816 : 1966 Cri.L.J. 602. an application was made before the filing of
16. In Suresh Kumar Bhikamchand Jain Vs. the charge-sheet, but once the charge-sheet
State of Maharashtra & Anr. (supra), the appel- was filed, such right came to an end and the
lant-accused had sought default bail under accused would be entitled to pray for regular
bail on merits.
section 167(2) on the ground that though the
18. None of the said cases detract from the posi-
charge-sheet was filed within the stipulated
tion that once a charge-sheet is filed within
time, the cognizance was not taken by the the stipulated time, the question of grant of
Court, for want of sanction to prosecute the default bail or statutory bail does not arise.
accused. The Court dispelling the claim of the As indicated hereinabove, in our view, the fil-
accused held: - ing of charge-sheet is sufficient compliance
with the provisions of section 167(2)(a)(ii) in sions of section 167, CrPC and that an accused
this case. Whether cognizance is taken or not cannot demand release on default bail under
is not material as far as section 167 CrPC is section 167(2) on the ground that cognizance
concerned. The right which may have accrued has not been taken before the expiry of 60 days.
to the petitioner, had charge-sheet not been The accused continues to be in the custody of
filed, is not attracted to the facts of this case. the Magistrate till such time cognizance is
Merely because sanction had not been ob- taken by the Court trying the offence, which
tained to prosecute the accused and to pro- assumes custody of the accused for the pur-
ceed to the stage of section 309 CrPC, it can- pose of remand after cognizance is taken. The
not be said that the accused is entitled to grant conclusion of the High Court that the accused
of statutory bail, as envisaged in section 167 cannot be remanded beyond the period of 60
CrPC. The scheme of CrPC is such that once days under section 167 and that further re-
the investigation stage is completed, the Court mand could only be at the post-cognizance
proceeds to the next stage, which is the taking stage, is not correct in view of the judgment
of cognizance and trial. An accused has to re- of this Court in Bhikamchand Jain (supra).”
main in custody of some Court. During the 18. In the instant case as transpiring
period of investigation, the accused is under from the record, the respondents (A1 and A2)
the custody of the Magistrate before whom were arrested in connection with the FIR in
he or she is first produced. During that stage,
question on 19.7.2022, and the report (the
under section 167(2) CrPC, the Magistrate is
vested with authority to remand the accused chargesheet) running into about 900 pages
to custody, both police custody and/or judi- under section 173(2) was filed by the CBI
cial custody, for 15 days at a time, up to a maxi- against the respondents along with other 73
mum period of 60 days in cases of offences accused on 15.10.2022. In the said report it was
punishable for less than 10 years and 90 days stated in Para No. 66 that: -
where the offences are punishable for over 10 “66. With regard to ascertaining roles of remain-
years or even death sentence. In the event, an ing FIR named accused persons namely Sh.
investigating authority fails to file the charge- Sudhakar Shetry, M/s Amaryllis Realtors & M/
sheet within the stipulated period, the accused s Gulmarg Realtors, remaining CAs (who had
is entitled to be released on statutory bail. In audited balance sheets of e-DHFL & Shell
such a situation, the accused continues to re- companies and who had facilitated the pro-
main in the custody of the Magistrate till such moters), ultimate beneficiaries/end use of di-
time as cognizance is taken by the Court try- verted funds through shell companies & other
ing the offence, when the said Court assumes Wadhawan Group Companies, the DHFL of-
custody of the accused for purposes of remand ficials, insider share trading of DHFL shares,
during the trial in terms of section 309 CrPC. bank officials, NHB officials and other con-
The two stages are different, but one follows nected issues, further investigation under sec-
the other so as to maintain a continuity of the tion 173(8) of Cr. PC is continuing.
custody of the accused with a Court.” List of additional witnesses and additional docu-
17. Again, in (Serious Fraud Inves- ments will be filed as and when required.
tigation Office Vs. Rahul Modi & Ors.)10 , It is, therefore, humbly prayed that the afore-
2022 S.C.C. OnLine S.C. 153 this Court fol- said accused persons may be summoned
lowing Suresh Kumar Bhikamchand Jain (su- and be tried in accordance with the provi-
pra) observed: - sions of law.”
“11. It is clear from the judgment of this Court in 19. The Special Court thereafter had
Bhikamchand Jain (supra) that filing of a charge- taken cognizance of the alleged offences as
sheet is sufficient compliance with the provi- per the Order dated 26.11.2022. It appears that
earlier the Special Court had rejected the ap- and stating therein (a) the names of the par-
plication of the respondents (accused) seek- ties; (b) the nature of the information; (c) the
ing statutory bail under section 167(2) Cr.P.C., names of the persons who appear to be ac-
however at that time the issue was whether quainted with the circumstances of the case;
(d) whether any offence appears to have been
qua the offences against the respondents, pe-
committed and, if so, by whom (e) whether
riod of sixty days or ninety days was applica- the accused has been arrested; (f) whether he
ble for grant of mandatory bail due to non- had been released on his bond and, if so,
filing of chargesheet by the investigating whether with or without sureties; and (g)
agency, and it was held by the Special Court whether he has been forwarded in custody
that the period of ninety days was applicable under section 170. As observed by this Court
in case of the respondents, in which the in (Satya Narain Musadi Vs. State of
chargesheet could be filed by the CBI. The Bihar)12, (1980)3 S.C.C. 152, 157 : 1980
respondents thereafter filed another applica- S.C.C.(Cri.) 660] that the statutory require-
tion under section167(2) after the cognizance ment of the report under section 173(2)
would be complied with if the various de-
of the offences was taken by the Special Court,
tails prescribed therein are included in the
on the ground that the chargesheet filed report. This report is an intimation to the
against them was an incomplete charge-sheet. magistrate that upon investigation into a cog-
20. The bone of contention raised by the nizable offence the Investigating Officer has
learned Senior Counsels for the respondents been able to procure sufficient evidence for
in this appeal is that the appellant – CBI hav- the Court to inquire into the offence and the
ing kept the investigation open qua other re- necessary information is being sent to the
spondents as stated in Para 66 of the charge- Court. In fact, the report under section 173(2)
sheet, the ingredients of section 173 Cr.P.C. purports to be an opinion of the Investigating
Officer that as far as he is concerned he has
could not be said to have been complied with
been able to procure sufficient material for the
and therefore the report/charge-sheet under trial of the accused by the Court. The report is
section 173 could not be said to be a complete complete if it is accompanied with all the
charge-sheet. It is immaterial whether cogni- documents and statements of witnesses as re-
zance has been taken by the Court or not. quired by section 175(5). Nothing more need
According to them the chargesheet filed be stated in the report of the Investigating
against the respondents and others was a sub- Officer. It is also not necessary that all the de-
terfuge or ruse to defeat the indefeasible right tails of the offence must be stated. The details
of the respondents conferred under section of the offence are required to be proved to
167(2) Cr.P.C. bring home the guilt to the accused at a later
stage i.e. in the course of the trial of the case
21. In our opinion, the Constitution
by adducing acceptable evidence.”
Bench in (K. Veeraswami Vs. Union of India
22. In view of the above settled legal
and Others)11, (1991)3 S.C.C. 655 has aptly
position, there remains no shadow of doubt
explained the scope of section 173(2).
that the statutory requirement of the report
“76. The charge-sheet is nothing but a final re-
under section 173(2) would be complied with
port of Police Officer under section 173(2) of
the CrPC. The section 173(2) provides that on if the various details prescribed therein are
completion of the investigation the police of- included in the report. The report under sec-
ficer investigating into a cognizable offence tion 173 is an intimation to the Court that upon
shall submit a report. The report must be in investigation into the cognizable offence, the
the form prescribed by the State Government investigating officer has been able to procure
sufficient evidence for the Court to inquire sheet was not filed in terms of section 173(2)
into the offence and the necessary informa- of Cr.P.C.
tion is being sent to the Court. The report is 24. In Dinesh Dalmia (supra), this Court
complete if it is accompanied with all the has elaborately explained the scope of section
documents and statements of witnesses as 167(2) vis-à-vis section 173(8) Cr.P.C. The para-
required by section 175(5). As settled in the graphs relevant for the purpose of this appeal
afore-stated case, it is not necessary that all are reproduced hereinbelow: -
the details of the offence must be stated. “19. A charge-sheet is a final report within the
23. The benefit of proviso appended to meaning of sub-section (2) of section 173 of
sub-section (2) of section 167 of the Code the Code. It is filed so as to enable the Court
would be available to the offender only when concerned to apply its mind as to whether
cognizance of the offence thereupon should
a charge-sheet is not filed and the investiga-
be taken or not. The report is ordinarily filed
tion is kept pending against him. Once how- in the form prescribed therefor. One of the
ever, a chargesheet is filed, the said right requirements for submission of a police report
ceases. It may be noted that the right of the is whether any offence appears to have been
Investigating Officer to pray for further in- committed and, if so, by whom. In some cases,
vestigation in terms of sub-section (8) of sec- the accused having not been arrested, the in-
tion 173 is not taken away only because a vestigation against him may not be complete.
chargesheet is filed under sub-section (2) There may not be sufficient material for arriv-
thereof against the accused. Though ordinar- ing at a decision that the absconding accused
is also a person by whom the offence appears
ily all documents relied upon by the prosecu-
to have been committed. If the Investigating
tion should accompany the chargesheet, Officer finds sufficient evidence even against
nonetheless for some reasons, if all the docu- such an accused who had been absconding,
ments are not filed along with the charge- in our opinion, law does not require that fil-
sheet, that reason by itself would not invali- ing of the charge-sheet must await the arrest
date or vitiate the charge-sheet. It is also well of the accused.
settled that the Court takes cognizance of the 20. Indisputably, the power of the Investigating
offence and not the offender. Once from the Officer to make a prayer for making further
material produced along with the charge- investigation in terms of sub-section (8) of sec-
sheet, the Court is satisfied about the com- tion 173 is not taken away only because a
charge-sheet under sub-section (2) thereof has
mission of an offence and takes cognizance
been filed. A further investigation is permis-
of the offence allegedly committed by the ac- sible even if order of cognizance of offence has
cused, it is immaterial whether the further been taken by the Magistrate.
investigation in terms of section 173(8) is 21. …………………………………….
pending or not. The pendency of the further 22. It is true that ordinarily all documents accom-
investigation qua the other accused or for pro- pany the charge-sheet. But, in this case, some
duction of some documents not available at documents could not be filed which were not
the time of filing of charge-sheet would nei- in the possession of CBI and the same were
ther vitiate the chargesheet, nor would it en- with GEQD. As indicated hereinbefore, the
title the accused to claim right to get default said documents are said to have been filed on
bail on the ground that the charge-sheet was 20-1-2006 whereas the appellant was arrested
on 12-2-2006. The appellant does not contend
an incomplete charge-sheet or that the charge-
that he has been prejudiced by not filing of
58/24(1) such documents with the charge-sheet. No
such plea in fact had been taken. Even if all (2) of section 167 of the Code stating that the
the documents had not been filed, by reason further investigation was pending, would be
thereof submission of charge-sheet itself does of no consequence if in effect and substance
not become vitiated in law. The charge-sheet such orders were being passed by the Court
has been acted upon as an order of cognizance in exercise of its power under sub-section (2)
had been passed on the basis thereof. The ap- of section 309 of the Code.
pellant has not questioned the said order tak- 31 to 37……………………………………….
ing cognizance of the offence. Validity of the 38. It is a well-settled principle of interpretation
said charge-sheet is also not in question. of statute that it is to be read in its entirety.
23 to 27.…………………………………. Construction of a statute should be made in a
28. It is now well settled that the Court takes cog- manner so as to give effect to all the provi-
nizance of an offence and not the offender. (See sions thereof. Remand of an accused is con-
Anil Saran Vs. State of Bihar)13, (1995)6 S.C.C. templated by Parliament at two stages; pre-
142 : 1995 S.C.C.(Cri.) 1051 and (Popular cognizance and post-cognizance. Even in the
Muthiah Vs. State)14, 2006 B.C.I. (soft) 24(S.C.) same case, depending upon the nature of
: (2006)7 S.C.C. 296 : (2006)3 S.C.C.(Cri.) 245. charge-sheet filed by the investigating officer
29. The power of a Court to direct remand of an in terms of section 173 of the Code, a cogni-
accused either in terms of sub-section (2) of zance may be taken as against the person
section 167 of the Code or sub-section (2) of against whom an offence is said to have been
section 309 thereof will depend on the stages made out and against whom no such offence
of the trial. Whereas sub-section (2) of section has been made out even when investigation
167 of the Code would be attracted in a case is pending. So long a charge-sheet is not filed
where cognizance has not been taken, sub-sec- within the meaning of sub-section (2) of sec-
tion (2) of section 309 of the Code would be tion 173 of the Code, investigation remains
attracted only after cognizance has been taken. pending. It, however, does not preclude an in-
30. If submission of Mr Rohatgi is to be accepted, vestigating officer, as noticed hereinbefore, to
the Magistrate was not only required to de- carry on further investigation despite filing of
clare the charge-sheet illegal, he was also re- a police report, in terms of sub-section (8) of
quired to recall his own order of taking cog- section 173 of the Code.
nizance. Ordinarily, he could not have done 39. The statutory scheme does not lead to a con-
so. (See Adalat Prasad Vs. Rooplal Jindal)15, clusion in regard to an investigation leading
2004(2) Bom.C.R.(Cri.) 857(S.C.) : (2004)7 to filing of final form under sub-section (2) of
S.C.C. 338 : 2004 S.C.C.(Cri.) 1927, section 173 and further investigation contem-
(Subramanium Sethuraman Vs. State of plated under sub-section (8) thereof. Whereas
Maharashtra)16, 2005(1) Bom.C.R.(Cri.) only when a charge-sheet is not filed and in-
189(S.C.) : (2004)13 S.C.C. 324 : 2005 vestigation is kept pending, benefit of proviso
S.C.C.(Cri.) 242 : (2004)7 Scale 733 and (Ever- appended to sub-section (2) of section 167 of
est Advertising (P) Ltd. Vs. State, Govt. of the Code would be available to an offender;
NCT of Delhi)17, 2007(2) Bom.C.R.(Cri.) once, however, a charge-sheet is filed, the said
501(S.C.) : (2007)5 S.C.C. 54 : (2007)2 right ceases. Such a right does not revive only
S.C.C.(Cri.) 444 : (2007)5 J.T. 529(S.C.). It is also because a further investigation remains pend-
well settled that if a thing cannot be done di- ing within the meaning of sub-section (8) of
rectly, the same cannot be permitted to be done section 173 of the Code.”
indirectly. If the order taking cognizance ex-
25. In view of the afore-stated legal po-
ists, irrespective of the conduct of CBI in treat-
sition, we have no hesitation in holding that
ing the investigation to be open or filing ap-
plications for remand of the accused to police the chargesheet having been filed against the
custody or judicial remand under sub-section respondents-accused within the prescribed
Bom.C.R.(Cri.) Ravi L. Naik v. Police Inspector 915
time limit and the cognizance having been rejected said application – Held, When duty is cast
taken by the Special Court of the offences al- upon Court to look into prima facie material and
legedly committed by them, the respondents assume that such material is true on face of it, ac-
could not have claimed the statutory right of cused cannot, by taking recourse of Section 91 of
default bail under section 167(2) on the Cr.P.C. seek an order from Court directing pro-
ground that the investigation qua other ac- duction of any document which according to him
cused was pending. Both, the Special Court proves his innocence. Under Section 91 of Cr.P.C.
as well as the High Court having committed Police Officer may take recourse by summoning
serious error of law in disregarding the legal any person to produce any document during in-
position enunciated and settled by this Court, vestigation or move Court for summoning and
the impugned orders deserve to be set aside production of document in possession of any per-
and are accordingly set aside. son during trial orenquiry. As far as accused is
26. The respondents-accused shall be concerned, his entitlement to an order Under Sec-
taken into custody in this case, if released on tion 91 of Cr.P.C. would clearly be considered at
default bail pursuant to the impugned orders. stage of defence but not prior to it for simple rea-
However, it is clarified that observations made son that it is to satisfaction of Court at a particular
in this judgment shall not influence the Spe- stage that such a document is necessary and desir-
cial Court or High Court while deciding the able to be produced during trial. Thus, impugned
other proceedings, if any pending before order need not interfere. Petition dismissed. (Paras
them, on merits. 29, 30 & 31)
27. The Appeal stands allowed ac- Cases referred :
cordingly. 1. Suresh Kumar Vs. Union of India, 2014 DGLS(SC)
Appeal allowed. 1258 : 2015 All.M.R.(Cri.) 4111(S.C.).
2. Paramjit Kaur Vs. State of Haryana, CRR No. 2605/
----- 2023, dt. 4-12-2023.
Code does not give any right to accused 3. State of Orissa Vs. Debendra Nath Padhi, (2005)1
to produce any document at stage of S.C.C. 568.
framing of charge 4. Satish Mehra Vs. Delhi Admn, (1996)9 S.C.C. 766.
2024(1) Bom.C.R.(Cri.) 915 5. Supdt. Remembrancer of Legal Affair, W.B. Vs. Anul
Kumar Bhunja, (1979)4 S.C.C. 274.
(PANAJI BENCH) 6. Om Parkash Sharma Vs. CBI, (2000)5 S.C.C. 679 :
Before : 2000 S.C.C.(Cri.) 1014.
Bharat P. Deshpande, J. 7. Ashok Kaushik Vs. State, (1999)49 D.R.J. 202.
Ravi Laxman Naik ... Petitioner. 8. State of Gujarat Vs. Dilipsinh Kishorsinh Rao, 2023
Supreme 1052(S.C.).
Versus
Police Inspector & anr. ... Respondents.
Arun Bras De Sa, Franco Coburn & Sahil Sardessai,
Criminal Writ Petition No. 595 of 2023(f), for petitioner.
decided on 12/20-12-2023. Pravin Faldessai, A.P.P., for respondents-State.
Code of Criminal Procedure, 1973, 376.PM/IN/SG/RJ/PN
Secs. 91 & 227 – Evidence Act, 1872, Secs. 123 BHARAT P. DESHPANDE, J.: – Rule. Rule is
& 124 – Framing of charge – Production of docu- made returnable forthwith. Heard finally
ment – Petitioner/accused filed an application with consent of the learned Counsel for the
Under Section 91 of Cr.P.C. before Special Crimi- parties.
nal Court (NDPS) at stage when matter was fixed 2. The petitioner/accused filed an ap-
for arguments for framing of charge – Special Court plication under section 91 of Cr.P.C. before the
916 Ravi L. Naik v. Police Inspector 2024(1)
Special Criminal Court (NDPS) in Case No. 6. Mr. De Sa by placing reliance in the
29 of 2023 at the stage when the matter was case of (Suresh Kumar Vs. Union of India )1,
fixed for arguments for framing of charge. The 2014 DGLS(SC) 1258 : 2015 All.M.R.(Cri.)
said application was rejected by the learned 4111(S.C.) and (Paramjit Kaur Vs. State of
Special Court vide Order dated 15.7.2023, Haryana.)2, CRR No. 2605 of 2023 (O & M)
which is under challenge. decided on 4.12.2023 by the Punjab and
3. Heard Mr. Arun Bras De Sa, learned Haryana High Court, would submit that de-
Counsel for the petitioner and Mr. Pravin tails of CDR and SDR of the mobile phones of
Faldessai, learned Additional Public Prosecu- the raiding party are absolutely necessary to
tor for the respondents-State. establish that the raiding party members were
4. Mr. De Sa would submit that on not present at the time of the panchanama in
4.11.2022 the petitioner was allegedly taken the house of the petitioner. He submits that
away from his home and was booked under in order to have fair investigation and trial, it
FIR No. 104/2022 by the Crime Branch Police is the duty of the Court to call for such records.
Station Ribander on the allegations that dur- He submits that the application was filed only
ing house search, Ganja weighing 5.042kgs, because there is time limit for preservation of
Charas weighing 1.008kgs, cultivated canna- CDR and SDR by the service provider. After
bis plants having flowering and fruiting tops a lapse of one year from the date of alleged
substance suspected to be Ganja weighing panchanama, even the service providers would
5.350kgs were recovered. He would submit not be in a position of furnishing such details.
that no panchanama of search and seizure was 7. Mr. De Sa would then submits that
carried out at the house of the petitioner and no prejudice is going to cause to the pros-
the entire procedure was conducted at the ecution if such details are called and kept
Police Station. He would submit that the mo- with the Court.
bile phone locations of the raiding party mem- 8. Per contra, Mr. Faldessai, learned Ad-
bers are required to be preserved and called ditional Public Prosecutor would submit that
for the purpose of showing that the raiding the accused is not having any right to pro-
party was not present at the house of the pe- duce any document or rely upon any docu-
titioner during the alleged period of the en- ment beyond the charge-sheet and the docu-
tire panchanama. He submits that the petitioner ments attached by the Investigating Agency,
moved such application at the time of bail at the time when the matter is fixed for argu-
which was rejected vide Order dated 11.1.2023. ments before charge or even at the time of
5. Mr. De Sa then would submit that the bail. He would submit that the right of the
wife of the petitioner filed a complaint on accused could be exercised only when the
18.11.2022 with Mapusa Police Station against matter is fixed for defence. At that stage the
the Police Officer claiming therein that they accused may apply to the Court under sec-
entered the house and took away the petition 91 of Cr.P.C. for production of documents
tioner forcibly by fabricating some documents in his defence.
and evidence. He then would submit that 9. Mr. Faldessai would submit that first
another application was filed by the petitioner application under section 91 of Cr.P.C. was
under section 91 of Cr.P.C. dated 27.6.2023 filed along with the bail application which
which was rejected by the Special Court vide was rejected by the trial Court vide its order
the impugned Order dated 15.7.2023. dated 11.1.2023. The accused did not chal-
lenge such order and therefore such order charge of the Police Station. This power could
is final and binding. be exercised for the purposes of any investi-
10. Mr. Faldessai would then submit gation, inquiry, trial or other proceeding un-
that the application filed on 27.6.2023 under this Code by or before such Court or of-
der section 91 of Cr.P.C. itself shows that ficer, such Court may issue a summons, or a
the accused is trying to collect documents written order, to the person in whose posses-
in his defence even when the charges are not sion or power such document or thing is be-
framed. He then submitted that there are spe- lieved to be, requiring him to attend and pro-
cific averments in the application itself that duce it, or to produce it, at the time and place
in order to decide bail application, it is neces- stated in the summons or order.
sary to obtain tower locations of the official 14. Besides this the wording “consid-
mobile of the raiding party members, which ers that the production of any document or
cannot be permitted by taking recourse to sec- other thing is necessary or desirable for the
tion 91 of Cr.P.C. purposes” assumes importance. When an of-
11. Rival contention fall for my deter- ficer in charge of a Police Station while con-
mination. ducting investigation considers that a docu-
12. Chapter VII of Cr.P.C. deals with ment or other thing is necessary or desirable
processes to compel the production of things. for conducting such investigation, he may is-
Section 91 of Cr.P.C. reads thus: sue summons to such person in whose pos-
1. Whenever any Court or any officer in charge of a session or power such a thing exists.
Police Station considers that the production of any 15. Similarly this power could be exer-
document or other thing is necessary or desirable cised by a Court on satisfying that produc-
for the purposes of any investigation, inquiry, trial tion of such a document or other thing is nec-
or other proceeding under this Code by or before
essary or desirable for the purposes of trial or
such Court or officer, such Court may issue a sum-
mons, or such officer a written order, to the person enquiry or other proceedings under the Code.
in whose possession or power such document or The Court either issues summons or passes
thing is believed to be, requiring him to attend and order to that effect directing such person in
produce it, or to produce it, at the time and place whose possession or power the document or
stated in the summons or order. thing exists, to produce it before the Court on
2. Any person required under this section merely to the date fixed therein.
produce a document or other thing shall be deemed 16. It therefore presupposes that there
to have complied with the requisition if he causes are different stages wherein the in charge of
such document or thing to be produced instead of
the Police Station or the Court as the case may
attending personally to produce the same.
be exercise such power only on the satisfac-
3. Nothing in this section shall be deemed-
tion that the document or thing is necessary
1. to affect, sections 123 and 124 of the Indian Evi-
dence Act, 1872 (1 of 1872), or the Bankers, Books or desirable for the purpose of investigation,
Evidence Act, 1891 (13 of 1891), or enquiry, trial or other proceedings. It further
2. to apply to a letter, postcard, telegram or other docu- shows that there is discretion given to the of-
ment or any parcel or thing in the custody of the ficer in charge of the Police Station and Court
postal or telegraph authority. as the case may be to issue summons or order
13. A careful reading of all the above for production of documents or things and
provisions would go to show that it gives only on satisfaction that it is necessary or de-
powers to the Court as well as to the officer in sirable. The stages at which such power could
be exercised need to be kept in mind by the “that in the interest of justice and to decide the bail
authorities with whom such power exists. application filed by the accused it is absolutely nec-
17. The petitioner filed Bail Application essary to obtain the tower location of the official
No. 96 of 2022 on 25.11.2022 and in that appli- mobile numbers or the persons whose names are
mentioned in para No. 5 of this application so that
cation he moved an application under section
it enables this Hon’ble Court to ascertain whether
91 of Cr.P.C. The copy of Order dated 11.1.2023 the said persons were actually present on 4.11.2022
would clearly go to show that the petitioner from 8.20 hrs to 12.40 hrs at the residence of the
alleged that on 4.11.2022 at 7.30 am while he accused or not.”
was sleeping in his bedroom, 8 to 10 men and 20. The petitioner then mentioned in
one woman claiming to be officers of Crime paragraph 7 that earlier application filed on
Branch forcibly took the applicant with them 16.12.2022 was rejected by the Court vide Or-
along with the DVR. The wife of petitioner der dated 11.6.2023, was challenged by the
lodged FIR at Mapusa Police Station claim- petitioner before this Court by filing Crimi-
ing/alleging that her husband has been ab- nal Writ Petition No. 57 of 2023(F). However
ducted however during evening time on the before disposal of the said Writ Petition, a
same day it was reported in the newspaper charge-sheet was filed. Accordingly, the peti-
that the petitioner was arrested by the Crime tioner was granted liberty to file a fresh ap-
Branch for illegally possessing drugs vide plication under section 91 of Cr.P.C. before the
Crime No. 104/2022. It is the contention of the trial Court while disposing of the Writ Peti-
petitioner that the Police officers and his team tion No. 57 of 2023(F). Accordingly, the peti-
fabricated false panchanama alleging that they tioner filed the said application claiming that
conducted such search and seizure call details or tower locations of the raiding
panchanama from 8.20 hours to 12.40 hours party be called.
on 4.11.2022 at his house. Thus the petitioner 21. This application was opposed by the
claimed that in order to certify that such of- prosecution and accordingly learned trial
ficers were present at the location of the Court relying upon the case of Debendra Nath
panchanama, tower locations of official mo- Padhi (supra) rejected such an application.
bile numbers of all raiding party members are 22. Debendra Nath Padhi (supra) is the
absolutely necessary. decision of three Hon’ble Judges of the Su-
18. The learned trial Court in its Order preme Court wherein a question as to
dated 11.1.2023 observed that the power un- whether a trial Court at the time of framing
der section 91 of Cr.P.C. cannot be exercised of charge to consider material filed by the ac-
for collecting the evidence at the stage of bail cused was under determination. While decid-
at the behest of the accused. Reliance was ing such issues, decision of the two learned
placed in the State of (State of Orissa Vs. Judges Bench in the case of (Satish Mehra Vs.
Debendra Nath Padhi)3, (2005)1 S.C.C. 568. Delhi Admn)4, (1996)9 S.C.C. 766 and the case
19. Subsequently, the accused again in (Supdt. And Remembrancer of Legal Affair,
filed a similar application on 27.6.2023 claim- W.B. Vs. Anul Kumar Bhunja)5, (1979)4 S.C.C.
ing therein that he has been falsely implicated 274 were considered. Since there were diver-
and no such house search panchanama was gent views, the matter was placed before the
conducted for the period as mentioned larger Bench. While dealing with the powers
therein. In paragraph 6 of this application, the under sections 227 and 91 of Cr.P.C. observed
petitioner has pleaded as under: thus as under:
25. Any document or other thing envisaged under Court. Challenging those orders before this Court,
the aforesaid provision can be ordered to be pro- reliance was placed on behalf of the accused upon
duced on finding that the same is “necessary or Satish Mehra Vs. Delhi Admn, case (1996)9
desirable for the purpose of investigation, inquiry, S.C.C. 766 : 1996 S.C.C.(Cri.) 1104. The conten-
trial or other proceedings under the Code”. The tions based on Satish Mehra case [(1996)9 S.C.C.
first and foremost requirement of the section is about 766 : 1996 S.C.C.(Cri.) 1104] have been noticed in
the document being necessary or desirable. The para 4 as under: (SCC p. 682)
necessity or desirability would have to be seen with “4. The learned Counsel for the appellant reiterated
reference to the stage when a prayer is made for the the stand taken before the courts below with great
production. If any document is necessary or desir- vehemence by inviting our attention to the deci-
able for the defence of the accused, the question of sion of this Court reported in Satish Mehra Vs.
invoking section 91 at the initial stage of framing Delhi Admn, (1996)9 S.C.C. 766 : 1996
of a charge would not arise since defence of the ac- S.C.C.(Cri.) 1104 laying emphasis on the fact that
cused is not relevant at that stage. When the sec- the very learned Judge in the High Court has taken
tion refers to investigation, inquiry, trial or other a different view in such matters, in the decision
proceedings, it is to be borne in mind that under reported in (Ashok Kaushik Vs. State)7 ,
the section a Police Officer may move the Court (1999)49 D.R.J. 202. Mr. Altaf Ahmed, the learned
for summoning and production of a document as ASG for the respondents not only contended that
may be necessary at any of the stages mentioned in the decisions relied upon for the appellants would
the section. Insofar as the accused is concerned, his not justify the claim of the appellant in this case, at
entitlement to seek order under section 91 would this stage, but also invited, extensively our atten-
ordinarily not come till the stage of defence. When tion to the exercise undertaken by the courts below
the section talks of the document being necessary to find out the relevance, desirability and necessity
and desirable, it is implicit that necessity and de- of those documents as well as the need for issuing
sirability is to be examined considering the stage any such directions as claimed at that stage and
when such a prayer for summoning and produc- consequently there was no justification whatsoever,
tion is made and the party who makes it, whether to intervene by an interference at the present stage
police or accused. If under section 227, what is of the proceedings.”
necessary and relevant is only the record produced 27. Insofar as section 91 is concerned, it was rightly
in terms of section 173 of the Code, the accused held that the width of the powers of that section
cannot at that stage invoke section 91 to seek pro- was unlimited but there were inbuilt, inherent limi-
duction of any document to show his innocence. tations as to the stage or point of time of its exer-
Under section 91 summons for production of docu- cise, commensurate with the nature of proceedings
ment can be issued by Court and under a written as also the compulsions of necessity and desirabil-
order an officer in charge of a Police Station can ity, to fulfill the task or achieve the object. Before
also direct production thereof. Section 91 does not the trial Court the stage was to find out whether
confer any right on the accused to produce docu- there was sufficient ground for proceeding to the
ment in his possession to prove his defence. Sec- next stage against the accused. The application filed
tion 91 presupposes that when the document is not by the accused under section 91 of the Code for
produced process may be initiated to compel pro- summoning and production of documents was dis-
duction thereof. missed and order was upheld by the High Court
26. Reliance on behalf of the accused was placed on and this Court. But observations were made in para
some observations made in the case of (Om 6 to the effect that if the accused could produce any
Parkash Sharma Vs. CBI)6, (2000)5 S.C.C. 679 reliable material even at that stage which might
: 2000 S.C.C.(Cri.) 1014. In that case the applica- totally affect even the very sustainability of the case,
tion filed by the accused for summoning and pro- a refusal to look into the material so produced may
duction of documents was rejected by the Special result in injustice, apart from averting an exercise
Judge and that order was affirmed by the High in futility at the expense of valuable judicial/pub-
lic time, these observations are clearly obiter dicta There is no provision in the Code granting
and in any case of no consequence in view of con- any right to the accused to file any material
clusion reached by us hereinbefore. Further, the or document at the stage of framing of charge.
observations cannot be understood to mean that
The trial Court has to apply its judicious mind
the accused has a right to produce any document
to the facts of the case as may be necessary to
at the stage of framing of charge having regard to
the clear mandate of sections 227 and 228 in Chap- determine whether the case has been made
ter 18 and sections 239 and 240 in Chapter 19. out by the prosecution in the trial on the basis
28. We are of the view that jurisdiction under sec- of charge sheet material only. In case the ac-
tion 91 of the Code when invoked by the accused, cused is able to demonstrate from the charge-
the necessity and desirability would have to be sheet material at the stage of framing the
seen by the Court in the context of the purpose charge which might drastically affect the very
— investigation, inquiry, trial or other proceed- sustainability of the case, it is unfair to sug-
ings under the Code. It would also have to be gest that such material should not be consid-
borne in mind that law does not permit a roving ered or ignored by the Court at that stage. The
or fishing inquiry.
intention of granting a chance to the accused
23. Suresh Kumar (supra) on which Mr.
of making submissions at the stage of argu-
De Sa has placed reliance, is a decision of two
ments before framing of charge, is to assist
Hon’ble Judges. The decision in the case of
the Court to determine whether it is required
Debendra Nath Padhi (supra) was not brought
to proceed to conduct the trial.
to the notice while deciding the case of Suresh
26. The Apex Court further observed
Kumar (supra). Thus the decision of the larger
that it is settled principle of law that at the
Bench is binding on the trial Court as well as
stage of considering an application for dis-
this Court. Suresh Kumar (supra) therefore can-
charge, the Court must proceed on an as-
not be looked into as it turns on its own facts.
sumption that the material which has been
It nowhere discusses the scope of section 91
brought on record by the prosecution is true
of Cr.P.C. as found in the case of Debendra Nath
and evaluate said material in order to deter-
Padhi (supra).
mine whether the facts emerging from the
24. Paramjit Kaur (supra) is entirely
material taken on its face value, disclose the
based on the observations of Suresh Kumar (su-
existence of the ingredients necessary of the
pra). Here also the decision in the case of
offence alleged. At this stage, probative value
Debendra Nath Padhi (supra) was not brought
of the materials has to be gone into and the
to the notice of the learned High Court.
Court is not expected to go deep into the mat-
25. In the (State of Gujarat Vs.
ter and hold that the materials would not
Dilipsinh Kishorsinh Rao)8, 2023 Supreme
warrant a conviction.
1052(S.C.), the Apex Court while dealing with
27. Above observation, though re-
the powers under section 227 of CrPC was
corded by the Apex Court in connection with
called upon to decide as to whether the ac-
section 227 of the Cr.P.C, equally applies to
cused is having any right to file any material
the matter in hand when an application is filed
or document at the stage of framing of charge.
While answering the above question, it is ob- under section 91 of Cr.P.C. at the time of ar-
served by the Apex Court that at the time of guments of bail application. There are spe-
framing of charge or taking cognizance, the cific averments in paragraph 6 of the applica-
accused has no right to produce any material tion filed under section 91 of Cr.P.C. by the
and call upon the Court to examine the same. petitioner that such material is necessary to
effectively decide bail application. Admit- ments under section 91 of Cr.P.C. In this case
tedly, a charge is not framed yet. Though it the petitioner is trying to produce his defence
was suggested/argued that after order was by claiming that no panchanama was con-
passed, the trial Court directed the charges to ducted at his residence between the time
be framed against the accused. One thing is mentioned in the search and seizure
clear that the present application under sec- panchanama. In other words, the petitioner is
tion 91 of Cr.P.C. was moved prior to the or- trying to raise his defence that a false and fab-
der of framing of charge. At that stage it is ricated panchanama was carried out at the Po-
exactly the stage under section 227 of Cr.P.C, lice Station in order to falsely implicate him
the trial Court is duty bound to proceed on in a drug case. Basically this is purely a de-
the assumption that the material which has fence and stage to prove the defence would
been brought on record by the prosecution is arise only after the evidence of prosecution is
true and evaluate said material in order to over during the trial. The question of invok-
determine whether the facts emerging from ing a discretion in view of accused before the
the material taken on its face value disclose start of trial would not be appropriate for the
existence of ingredients which are necessary simple reason that at the stage when the bail
for framing of charge. Such propositions application is filed or even the matter is ar-
equally apply at the stage of grant or refusal gued for the purpose of framing of charges,
of bail specifically when such bail application the Court has to look into only the material
is filed before framing of the charge. and documents placed along with the charge
28. Dilipsinh Kishorsinh Rao (supra), fur- sheet with an assumption that such material
ther observed that the defence of the accused is true and evaluate it in order to determine
is not to be looked into at the said stage when whether the facts emerging from it constitute
the accused seeks to be discharged. The ex- the ingredients of the offence alleged or
pression “the record of the case” used in sec- whether the accused is entitled for bail. No
tion 227 Cr.P.C. is to be understood as the extraneous material at this stage could be
documents and Articles, if any, produced by looked into. When the duty is cast upon the
the prosecution. The Code does not give any Court to look into prima facie material and
right to the accused to produce any document assume that such material is true on the face
at the stage of framing of the charge. The sub- of it, the accused cannot, by taking recourse
mission of the accused is to be confined to the of section 91 of Cr.P.C. seek an order from the
material produced by the investigating Court directing production of any document
agency. The matter in hand was admittedly which according to him proves his innocence.
staged for framing of charge since the charge 30. It is to be borne in mind that under
sheet was filed and though the petitioner section 91 of Cr.P.C. a Police Officer may take
sought leave from this Court in Criminal Writ recourse by summoning any person to pro-
Petition No. 57 of 2023(F), the fact remains that duce any document during investigation or
the purpose for procuring such document by move the Court for summoning and produc-
the aid of section 91 of Cr.P.C. is to decide bail tion of document in possession of any person
application filed by the accused. during trial or enquiry. As far as the accused
29. The necessity or desirability would is concerned, his entitlement to an order un-
have to be seen with reference to the stage der section 91 of Cr.P.C. would clearly be con-
when a prayer made for production of docu- sidered at the stage of defence but not prior
922 Anurag R. Umaley v. State of Maharashtra 2024(1)
to it for the simple reason that it is to the satis- ant was a result of false promise of marriage. Con-
faction of the Court at a particular stage that tinuing prosecution in present case will be a gross
such a document is necessary and desirable abuse of process of law. Application, is allowed.
to be produced during trial. Thus the conten- (Paras 7 to 9)
tion of Mr. De Sa that the CDR’s and mobile Cases referred :
tower locations of the raiding party members 1. Naim Ahamed Vs. State (NCT Of Delhi), 2023 S.C.C.
are necessary for deciding bail application and OnLine S.C. 89.
even for the purpose of framing of charge can- 2. Uday Vs. State of Karnataka, (2003)4 S.C.C. 46.
not be considered at this stage as it is purely 3. Sheikh Arif Vs. State of Maharashtra, 2024
DGLS(S.C.) 64.
in defence of the accused/petitioner which is
4. Jayanti Rani Panda State of West Bengal, 1983
not necessary or desirable at this stage. How- DGLS(Cal.) 90 : 1984 Cri.L.J. 1535 : (1983)2 CHN
ever, at the time of defence of the accused, if 290(Cal).
it is found necessary and desirable, the Court 5. Jaladu, I.L.R. (1913)36 Mad. 453 : 15 Cri.L.J. 24.
may consider such a request. 6. Deepak Gulati Vs. State of Haryana)5, 2013(3) S.C.C.
(Cri.) 660.
31. The impugned order, thus need not
7. Dr. Dhruvaram Murlidhar Sonar Vs. State of
interfere and accordingly the petition stands Maharashtra, 2020(3) S.C.C.( Cri.) 672.
rejected.
32. Rule stands discharged.
Vivek V. Salunke a/w, Aditya S. Targe a/w. Ms. Sneha
Petition rejected. G. Sanap, for applicant.
----- Ms. Sangeeta D. Shinde, A.P.P., for State.
Acknowledged consensual physical rela- 344.PM/IN/ND/RJ/TC
tionship between parties would not consti- M.S. KARNIK, J.: – By this revision under
tute an offence of rape section 397 of the Code of Criminal Procedure
2024(1) Bom.C.R.(Cri.) 922 (“Cr.P.C.” for short), the applicant challenges
Before : the order dated 28/7/2016 passed by the trial
M.S. Karnik, J. Court rejecting the application under section
Anurag Ravindra Umaley ... Applicant. 227 of the Cr.P.C. for discharge. The complain-
Versus ant lodged the complaint against the present
applicant under sections 376 and 506 of the
Indian Penal Code (hereafter “IPC” for short)
Revision Application No. 486 of 2016,
which came to be registered vide C.R. No. 351
16-2-2024.
of 2013 dated 5/12/2013 with Vishrantwadi
Code of Criminal Procedure, 1973, Police Station, Pune.
Secs. 227 & 397 – Indian Penal Code, 1860,
2. Brief facts of the complaint are that
Secs. 376 & 506 – Discharge application – Trial
the complainant at the time of registration of
Court has rejected discharge application – On
the First Information Report (FIR), was work-
promise of marriage, applicant had physical rela-
ing with Aviva Life Insurance company. Prior
tionship with complainant on several occasions –
to the lodging of the FIR, it is her case that
Held, acknowledged consensual physical relation-
around 7 years ago, when she was working
ship between parties would not constitute an of-
with ICICI Lombard General Insurance com-
fence under Section 376 IPC. This is not a case
pany, she was introduced to the present ap-
where consent of complainant is based on miscon-
plicant. Sometime in the year 2011 when the
ception. Materials on record fall short for estab-
complainant was employed in Pune, she hap-
lishing that from inception consent of complain-
Bom.C.R.(Cri.) Anurag R. Umaley v. State of Maharashtra 923
pened to meet the applicant. They exchanged in (Naim Ahamed Vs. State (NCT Of Delhi))1,
their mobile numbers and that very night the 2023 S.C.C. OnLine S.C. 89. He also relied
applicant sent a message to the complainant. upon the decision of the Supreme Court in
After a few days, the applicant proposed the (Uday Vs. State of Karnataka)2, (2003)4 S.C.C.
complainant for a love relationship. The com- 46, which is relied upon in Naim Ahamed (su-
plainant initially hesitated, but later on ac- pra). My attention is also invited to the deci-
cepted the proposal. The applicant went to sion of the Supreme Court in (Sheikh Arif Vs.
the house of the complainant on 8/9/2011. He The State of Maharashtra and anr.)3, Crimi-
requested the complainant for a physical re- nal appeal No. 1368 of 2023, reported in 2024
lationship. The applicant had sexual physical DGLS(S.C.) 64.
relations with the complainant on that day. 4. Learned A.P.P. on the other hand
On the promise of marriage, the applicant had while opposing the application invited my
physical relationship with the complainant on attention to the accusations in the FIR and the
several occasions thereafter. When the com- relevant materials from the charge-sheet. It is
plainant brought up the topic of marriage, the submitted that the applicant should not be
applicant avoided any response. Later, the discharged as prima facie, the accusations taken
complainant came to know that the applicant at its face value satisfy the ingredients of the
was in a relationship with another woman. alleged offence. It is submitted that the appli-
The complainant was informed that the said cant had promised marriage and under this
woman was terminated from the service as misconception, the complainant had con-
some obscene photographs of her and the ap- sented to maintain the physical relationship
plicant which had surfaced were brought to and therefore, her consent was vitiated by
the notice of the employer. On being ques- fraud and misconception justifying framing
tioned by the complainant about his relation- of charges.
ship, the applicant told the complainant that 5. Heard. Before considering the rival
the allegations were false. It is alleged that the submissions and analysing the materials on
applicant threatened the complainant with record, it would be relevant to seek guidance
serious consequences if she tried to enquire from the observations of the Supreme Court
about his relationship. It is alleged that the to arrive at a conclusion whether a case for
applicant thereafter started avoiding the com- discharge is made out on the touchstone of
plainant. When the complainant confronted the well-established principles governing the
the applicant about the promise of marriage subject. In Naim Ahamed (supra), the Supreme
he had made earlier, the applicant flatly re- Court had an occasion to consider the provi-
fused to marry her. The complainant tried to sions of section 90 and section 375 of the IPC.
persuade the applicant time and again to sol- Paragraph Nos. 9 to 17 are relevant and needs
emnise marriage which he did not pay any to be reproduced which read thus:-
heed to and hence, the present complaint was “9. For the better appreciation of the submis-
made on 5/12/2013. sions made by the learned Counsels for the
parties, the relevant provisions contained in
3. Learned Counsel for the applicant
section 90 and section 375 of IPC, are repro-
while assailing the order passed by the trial
duced below: —
Court rejecting the application for discharge, “90. Consent known to be given under fear or
submitted that the applicant’s case is squarely misconception. —A consent is not such a
covered by the decision of the Supreme Court consent as it intended by any section of this
Code, if the consent is given by a person ness of mind or intoxication or the admin-
under fear of injury, or under a misconcep- istration by him personally or through an-
tion of fact, and if the person doing the act other of any stupefying or unwholesome
knows, or has reason to believe, that the con- substance, she is unable to understand the
sent was given in consequence of such fear nature and consequences of that to which
or misconception; or Consent of insane she gives consent.
person.—if the consent is given by a per- Sixthly- With or without her consent, when she
son who, from unsoundness of mind, or is under eighteen years of age.
intoxication, is unable to understand the Seventhly- when she is unable to communicate
nature and consequence of that to which consent.
he gives his consent; or Consent of child. - Explanation 1- For the purposes of this section,
unless the contrary appears from the context, “vagina” shall also include labia majora.
if the consent is given by a person who is
Explanation 2.- Consent means an unequivocal
under twelve years of age.
voluntary agreement when the woman by
375. Rape.- A man is said to commit “rape” if he-
words, gestures or any form of verbal or
(a) penetrates his penis, to any extent, into the non-verbal communication, communicates
vagina, mouth, urethra or anus of a willingness to participate in the specific
woman or makes her to do so with him sexual act:
or any other person; or
Provided that a woman who does not physically
(b) inserts, to any extent, any object or a part of resist to the act of penetration shall not by
the body, not being the penis, into the va-
the reason only of that fact, be regarded as
gina, the urethra or anus of a woman or
consenting to the sexual activity.
makes her to do so with him or any other
Exception 1. A medical procedure or interven-
person; or
tion shall not constitute rape.
(c) manipulates any part of the body of a woman
so as to cause penetration into the vagina, Exception 2.- Sexual intercourse or sexual acts by a
urethra, anus or any part of body of such man with his own wife, the wife not being
woman or makes her to do so with him or under fifteen years of age, is not rape.”
any other person; or 10. It would be germane to note that the basic
(d) applies his mouth to the vagina, anus, ure- principles of criminal jurisprudence warrant
thra of a woman or makes her to do so with that the prosecution has to prove the guilt of
him or any other person, under the circum- the accused beyond reasonable doubt by lead-
stances falling under any of the following ing cogent evidence, however, considering the
seven descriptions: — ethos and culture of the Indian Society, and
First- Against her will. considering the rising graph of the commis-
sion of the social crime - ‘Rape’, the courts have
Secondly- Without her consent.
been permitted to raise a legal presumption
Thirdly- With her consent, when her consent has
as contained in section 114A of the Indian
been obtained by putting her or any per-
Evidence Act. As per section 114A, a presump-
son in whom she is interested in fear of
tion could be raised as to the absence of con-
death or of hurt.
sent in certain cases pertaining to Rape. As per
Fourthly- With her consent, when the man knows the said provision, if sexual intercourse by the
that he is not her husband and that her con- accused is proved and the question arises as
sent is given because she believes that he is to whether it was without the consent of the
another man to whom she is or believes woman alleged to have been raped, and if she
herself to be lawfully married. states in her evidence before the Court that
Fifthly- With her consent when, at the time of she did not consent, the Court shall presume
giving such consent, by reason of unsound- that she did not consent.
11. It cannot be gainsaid that a consent given by 12. The exposition of law in this regard is dis-
a person would not be a consent as intended cernible in various decisions of this Court,
by any section of the Penal Code, 1860, if such however the application of such law or of such
consent was given by the person under the decisions would depend upon the proved
fear of injury, or under a misconception of fact facts in each case, known as legal evidence.
as contemplated in section 90 IPC. Further, The ratio laid down in the judgments or the
section 375 also describes certain acts which law declared by this Court do provide the
if committed by the accused under the circum- guidelines to the judicial mind of the courts
stances mentioned therein, as the commis- to decide the cases on hand, but the courts
sion of ‘Rape’, even though committed with while applying the law also have to consider
the consent of the prosecutrix. In our opin- the evidence before them and the surround-
ion, the expression “misconception of fact” ing circumstances under which the alleged
contained in section 90 IPC is also required offences are committed by the accused.
to be appreciated in the light of the Clauses 13. A reference of some of the decisions of this
- contained in section 375 IPC, more particu- Court dealing with the different dimensions
larly the Clauses - Thirdly, Fourthly and and angles of the word ‘consent’ in the con-
Fifthly thereof, when the accused is charged text of section 90 and section 375 would be
for the offence of ‘rape’. The circumstances beneficial for deciding this appeal.
described in the said three Clauses are wider 14. In Uday Vs. State of Karnataka, the prosecutrix
than the expression “misconception of fact”, aged about 19 years had given her consent for
as contemplated in section 90 of IPC. Sec- having a sexual intercourse with the accused
tion 375 describes seven circumstances un- with whom she was deeply in love, and it was
der which the ‘rape’ could be said to have alleged by the prosecution that the prosecu-
been committed. As per the Clause - Thirdly, trix continued to meet the accused as the ac-
a rape could be said to have been commit- cused had given her a promise to marry her
ted, even with her consent, when the con- on a later date. The prosecutrix became preg-
sent of the prosecutrix is obtained by putting nant and the complaint was lodged on failure
her or any person in whom she is interested of the accused to marry her. This Court while
in fear of death or of hurt. As per the Clause holding that under the circumstances, the con-
- Fourthly, with her consent, when the man sent could not be said to have been given un-
knows that he is not her husband and that der a misconception of fact under section 90
her consent is given because she believes of IPC, held in para 21 and 23 as under: —
that he is another man to whom she is or “21. It therefore appears that the consensus of
believes herself to be lawfully married; and judicial opinion is in favour of the view that
as per the Clause - Fifthly, with her consent the consent given by the prosecutrix to sexual
when at the time of giving the consent, the intercourse with a person with whom she is
prosecutrix by reason of unsoundness of deeply in love on a promise that he would
mind or intoxication or the administration marry her on a later date, cannot be said to
of stupefying or unwholesome substance by be given under a misconception of fact. A
the accused or through another, she is unable false promise is not a fact within the mean-
to understand the nature and consequences ing of the Code. We are inclined to agree with
of that to which she gives consent. Thus, this view, but we must add that there is no
apart from the prosecutrix being under the straitjacket formula for determining whether
misconception of fact as contemplated in consent given by the prosecutrix to sexual
section 90, her consent would be treated as intercourse is voluntary, or whether it is
‘no consent’ if she had given her consent given under a misconception of fact. In the
under any of the circumstances mentioned ultimate analysis, the tests laid down by the
in section 375 of IPC. courts provide at best guidance to the judi-
cial mind while considering a question of tions made in Uday case (supra) and observed
consent, but the Court must, in each case, as under: —
consider the evidence before it and the sur- “28. The first two sentences in the above passage
rounding circumstances, before reaching a need some explanation. While we reiterate
conclusion, because each case has its own that a promise to marry without anything
peculiar facts which may have a bearing on more will not give rise to “misconception of
the question whether the consent was vol- fact” within the meaning of section 90, it
untary, or was given under a misconception needs to be clarified that a representation
of fact. It must also weigh the evidence keep- deliberately made by the accused with a view
ing in view the fact that the burden is on the to elicit the assent of the victim without hav-
prosecution to prove each and every ingre- ing the intention or inclination to marry her,
dient of the offence, absence of consent be- will vitiate the consent. If on the facts it is
ing one of them. established that at the very inception of the
22. -xxxxx making of promise, the accused did not re-
23. Keeping in view the approach that the Court ally entert0ain the intention of marrying her
must adopt in such cases, we shall now pro- and the promise to marry held out by him
ceed to consider the evidence on record. In was a mere hoax, the consent ostensibly
the instant case, the prosecutrix was a grown- given by the victim will be of no avail to the
up girl studying in a college. She was deeply accused to exculpate him from the ambit of
in love with the appellant. She was, however, section 375 Clause secondly. This is what in
aware of the fact that since they belonged to fact was stressed by the Division Bench of
different castes, marriage was not possible. the Calcutta High Court in the case of
In any event the proposal for their marriage (Jayanti Rani Panda Vs. State of West Ben-
was bound to be seriously opposed by their gal and anr.)3, 1983 DGLS(Cal.) 90 : 1984
family members. She admits having told so Cri.L.J. 1535 : (1983)2 CHN 290 (Cal.) which
to the appellant when he proposed to her was approvingly referred to in Uday case
the first time. She had sufficient intelligence (2003)4 S.C.C. 46 : 2003 S.C.C. (Cri.) 775 :
to understand the significance and moral (2003)2 Scale 329]. The Calcutta High Court
quality of the act she was consenting to. That rightly qualified the proposition which it
is why she kept it a secret as long as she stated earlier by adding the qualification at
could. Despite this, she did not resist the the end Cri.L.J. p. 1538, para 7) - “unless the
overtures of the appellant, and in fact suc- Court can be assured that from the very in-
cumbed to them. She thus freely exercised a ception the accused never really intended to
choice between resistance and assent. She marry her”. (emphasis supplied) In the next
must have known the consequences of the para, the High Court referred to the vintage
act, particularly when she was conscious of decision of the Chancery Court which laid
the fact that their marriage may not take place down that a misstatement of the intention of
at all on account of caste considerations. All the defendant in doing a particular act would
these circumstances lead us to the conclu- tantamount to a misstatement of fact and an
sion that she freely, voluntarily and con- action of deceit can be founded on it. This is
sciously consented to having sexual inter- also the view taken by the Division Bench of
course with the appellant, and her consent the Madras High Court in (Jaladu)4, case ILR
was not in consequence of any misconcep- (1913)36 Mad. 453: 15 Cri.L.J. 24 (vide pas-
tion of fact.” sage quoted supra). By making the solitary
15. In Deelip Singh alias Dilip Kumar Vs. State of observation that “a false promise is not a fact
Bihar (supra), this Court after discussing vari- within the meaning of the Code”, it cannot
ous earlier decisions of this Court and other be said that this Court has laid down the law
High courts, further explained the observa- differently. The observations following the
aforesaid sentence, are also equally impor- was unable to marry her, despite having
tant. The Court was cautious enough to add every intention to do so. Such cases must be
a qualification that no straitjacket formula treated differently. An accused can be con-
could be evolved for determining whether victed for rape only if the Court reaches a
the consent was given under a misconcep- conclusion that the intention of the accused
tion of fact. Reading the judgment in Uday was mala fide, and that he had clandestine
case (2003)4 S.C.C. 46 : 2003 S.C.C. (Cri.) 775 motives.
: (2003)2 Scale 329 as a whole, we do not 22. xxxxx
understand the Court laying down a broad 23. xxxxx
proposition that a promise to marry. could 24. Hence, it is evident that there must be ad-
never amount to a misconception of fact. That equate evidence to show that at the relevant
is not, in our understanding, the ratio of the time i.e. at the initial stage itself, the accused
decision. In fact, there was a specific finding had no intention whatsoever, of keeping his
in that case that initially the accused’s inten- promise to marry the victim. There may, of
tion to marry cannot be Ruled out.” course, be circumstances, when a person
16. In (Deepak Gulati Vs. State of Haryana)5, having the best of intentions is unable to
2013(3) S.C.C. (Cri.) 660, this Court gave one marry the victim owing to various unavoid-
more dimension of the word ‘consent’ by dis- able circumstances. The “failure to keep a
tinguishing ‘Rape’ and ‘consensual sex’ and promise made with respect to a future un-
observed as under: certain date, due to reasons that are not very
“21. Consent may be express or implied, coerced clear from the evidence available, does not
or misguided, obtained willingly or through always amount to misconception of fact. In
deceit. Consent is an act of reason, accompa- order to come within the meaning of the term
nied by deliberation, the mind weighing, as “misconception of fact”, the fact must have
in a balance, the good and evil on each side. an immediate relevance”. Section 90 IPC can-
There is a clear distinction between rape and not be called into aid in such a situation, to
consensual sex and in a case like this, the pardon the act of a girl in entirety, and fas-
Court must very carefully examine whether ten criminal liability on the other, unless the
the accused had actually wanted to marry Court is assured of the fact that from the very
the victim, or had mala fide motives, and had beginning, the accused had never really in-
made a false promise to this effect only to tended to marry her”.
satisfy his lust, as the latter falls within the 17. Again in (Dr. Dhruvaram Murlidhar Sonar
ambit of cheating or deception. There is a dis- Vs. State of Maharashtra)6, 2020(3) S.C.C.(
tinction between the mere breach of a prom- Cri.) 672 (supra), this Court interpreting the
ise, and not fulfilling a false promise. Thus, section 90 and the Clause - Secondly in sec-
the Court must examine whether there was tion 375 of IPC, observed as under: -
made, at an early stage a false promise of “23. Thus, there is a clear distinction between rape
marriage by the accused; and whether the and consensual sex. The Court, in such cases,
consent involved was given after wholly must very carefully examine whether the
understanding the nature and consequences complainant had actually wanted to marry
of sexual indulgence. There may be a case the victim or had mala fide motives and had
where the prosecutrix agrees to have sexual made a false promise to this effect only to
intercourse on account of her love and pas- satisfy his lust, as the latter falls within the
sion for the accused, and not solely on ac- ambit of cheating or deception. There is also
count of misrepresentation made to her by a distinction between mere breach of a prom-
the accused, or where an accused on account ise and not fulfilling a false promise. If the
of circumstances which he could not have accused has not made the promise with the
foreseen, or which were beyond his control, sole intention to seduce the prosecutrix to
indulge in sexual acts, such an act would not each other. The complainant, though initially
amount to rape. There may be a case where hesitated, later accepted the said proposal for
the prosecutrix agrees to have sexual inter- such a relationship. It is after the commence-
course on account of her love and passion ment of such a relationship that the applicant
for the accused and not solely on account of met the complainant on 8/9/2011 at her resi-
the misconception created by accused, or
dence when they had physical relations. It
where an accused, on account of circum-
is then the applicant told her that they could
stances which he could not have foreseen or
which were beyond his control, was unable
get married whereafter the physical rela-
to marry her despite having every intention tionship continued from time to time. The
to do. Such cases must be treated differently. complainant asked the applicant about
If the complainant had any mala fide inten- marriage which the applicant was ignoring.
tion and if he had clandestine motives, it is a Thereafter, the complainant came to know
clear case of rape. The acknowledged con- that the applicant was in a physical relation-
sensual physical relationship between the ship with another woman. When con-
parties would not constitute an offence un- fronted, the applicant in a threatening tenor
der section 376 IPC.”” asked her to refrain from making such enquir-
6. I may then refer to the observations ies and convinced her that whatever was be-
of the Supreme Court in Sheikh Arif (supra). ing spread about him was false. Even when
Their Lordships in Paragraph No. 7 ob- the complainant insisted that they get mar-
served thus: ried, the applicant started avoiding her. The
“7) Now, the question is whether a case for quash- complaint was, therefore, filed on 5/12/2013.
ing the criminal proceeding is made out. For
8. The complainant at the relevant time
that purpose, we are referring to the material
of the filing of the FIR was 30 years of age.
which forms a part of the charge sheet. In view
of the provisions of section 375 of the IPC, if Though the relationship commenced in the
the victim of the alleged offence of rape is not year 2011, the complainant did not make any
under 18 years of age, maintaining a sexual grievance about it till December 2013. It is not
relationship with her consent, is not an offence. the case of the complainant that the appli-
As held by this Court in the case of Anurag cant forced her to maintain the physical re-
Soni, if the consent of the victim is based on lationship. The complainant was in a love
misconception, such consent is immaterial as relationship with the applicant prior to the
it is not a voluntary consent. If it is established physical relationship. Even after getting
that from the inception, the consent by the vic-
knowledge that the applicant was in a rela-
tim is a result of a false promise to marry, there
will be no consent, and in such a case, the of- tionship with another woman, the com-
fence of rape will be made out.” plainant did not make any grievance. Ac-
7. In the present case, the complainant cording to the complainant, the applicant
was admittedly more than 18 years of age convinced her that the allegations are false.
when the relationship commenced. In fact, as The accusation and the materials on record
per the FIR, though the applicant was known if perused carefully and even if taken at its
to the complainant 7 years prior to its lodg- face value, it is obvious that the physical
ing, their love relationship commenced some- relationship between the applicant and the
time in the year 2011. The applicant proposed complainant was consensual. Taking the pros-
a love relationship with the complainant in ecution’s case as correct, it is not possible to
2011 after they became well acquainted with accept that the complainant maintained the
Bom.C.R.(Cri.) Ananda M. Sawant v. State of Maharashtra 929
physical relationship only because the appli- Indian Penal Code, 1860, Secs. 376(2)(i),
cant had given a promise of marriage. 376D, 452, 506 & 34 – Protection of Children
9. This is not a case where the consent from Sexual Offences Act, 2012, Sec. 6 – Rape
of the complainant is based on misconception. on minor girl – Victim and her mother, are lending
I am satisfied that the materials on record fall support to each other – They were together sleep-
short for establishing that from inception the ing when entry was forced by accused – They both
consent of the complainant was a result of the are consistent about knife being used to threaten
false promise of marriage. In my view, con- them – Mother seems to have been taken in an-
tinuing the prosecution in the present case other room and victim was raped by all three whom
will be a gross abuse of the process of law. she has named – Both, victim and her mother have
The application, therefore, deserves to be al- identified accused-appellants in Court for taking
lowed and is accordingly allowed in terms of turns in raping victim – Though they are subjected
prayer Clause (b) which reads thus: to cross, their evidence to extent of commission of
“b) The Hon’ble Court be pleased to quash and rape has remained untouched and unshaken –
set aside the order below exh. 3 dated 28.7.2016 Head-master deposed about date of birth of victim
passed by the Learned Addl. Sessions Judge, on basis of admission register in which date of birth
Pune in Session’s case No. 870/2014 arising out is recorded on basis of certificate issued by Gram
of C.R. No. 351/2013 registered at the panchayat as of practice – Medical expert has very
Vishrantwadi Police Station, Pune and the categorically stated in his examination-in-chief it-
applicant be discharged from all the charges;”.
self that on examination of victim his overall find-
10. The application stands disposed of ings were consistent with sexual intercourse/as-
in the above terms. sault – Prosecution has established that victim was
Application disposed off. a minor and was sexually ravished by accused-ap-
----- pellant – Conviction of accused appellants proper.
Rape on minor girl : Head-master de- (Paras 11, 12 & 13)
posed about date of birth of victim on Cases referred :
basis of admission register in which date 1. P. Yuvaprakash Vs. State, 2023 DGLS(S.C.) 735 : 2023
of birth is recorded on basis of certificate LiveLaw (S.C.) 538.
issued by Gram panchayat as of practice : 2. Gurucharan Singh Vs. State of Haryana, A.I.R. 1972
Reliance on deposition challenged for S.C. 2661.
3. Krishan Lal Vs. State of Haryana, A.I.R. 1980 S.C. 1252.
non-production of birth certificate : Not
4. State of Rajasthan Vs. N.K., (2000)5 S.C.C. 30.
sustainable
5. Narayanamma (Kum) Vs. State of Karnataka,
2024(1) Bom.C.R.(Cri.) 929 1994(5) S.C.C. 728.
(AURANGABAD BENCH) 6. State of Rajasthan Vs. Shri Narayan, (1992)3 S.C.C. 615.
Before : 7. Devinder Singh Vs. State of Himachal Pradesh,
(2003)11 S.C.C. 488.
Abhay S. Waghwase, J.
Ananda Mahadu Sawant & anr. ... Appellants.
A.M. Gaikwad, in Cri.A. No. 925/2019, for appellant.
Versus Ms. Rekha Choudhari, S.S. Choudhari, in Cri.A. No.
State of Maharashtra & anr. ... Respondents. 844/2019, for appellant.
Criminal Appeal Nos. 925 & 844 of 2019 S.M. Ganachari, for respondent No. 1-State in both
appeals.
with Criminal Application Nos. 937 of 2022 &
Ms. Namita P. Thole, (appointed), for respondent No.
375 of 2021, decided on 12/17-1-2024. 2 in both appeals.
59/24(1) 165.PM/IN/SG/RJ/PN
930 Ananda M. Sawant v. State of Maharashtra 2024(1)
ABHAY S. WAGHWASE, J.: – Feeling ag- cused Nos. 1 and 2, i.e. present appellants, and
grieved by the judgment and order of con- recorded guilt as stated above.
viction passed by learned Additional Sessions Said judgment is now taken excep-
Judge, Bhokar in Special Case [POCSO] No. tion to by filing instant appeals by invok-
3/2019 recording guilt for commission of of- ing section 374 of the Code of Criminal
fence punishable under sections 376(2)(i), 376- Procedure [Cr.P.C.].
D, 452, 506 read with 34 of the Indian Penal 4. Mr. A.M. Gaikwad, learned Counsel
Code [IPC], section 6 of the Protection of Chil- representing accused No. 1 Ananda would
dren from Sexual Offences Ace, 2012 [POCSO submit that at the outset prosecution had
Act], both convicts have preferred above two failed to establish that victim was child as per
separate appeals. the definition under the POCSO Act. That,
As both the appeals have been heard though it was claimed that victim was 16 years
by this Court and answered by learned A.P.P. of age, he would submit that the proof ad-
on the same day, they are decided by this com- duced by prosecution in support of age was
mon judgment. mere school extract which was prepared on
2. Umri Police Station registered crime the strength of Transfer Certificate [TC] of
bearing No. 195/2018 on the strength of re- earlier school. According to him, such docu-
port filed by victim PW1 alleging that she re- ment has no evidentiary value. According to
sides with her mother. That, on 26.11.2018 him, the Hon’ble Apex Court in the case of
when she and her mother were sleeping in (P. Yuvaprakash Vs State.)1, 2023 DGLS(S.C.)
their house, around 1.00 a.m. there was knock 735 : 2023 LiveLaw (S.C.) 538 held that pros-
on their door. The door was forcibly pushed ecution has to establish the age by adducing,
thereby breaking the chain. Three persons firstly, ‘date of birth certificate from the
entered the house, one of them placed knife school’, or ‘matriculation or equivalent cer-
on the neck of her mother and took her in tificate from concerned examination board’,
another room and accused No. 1 Ananda af- if available, and in absence of it, ‘birth certifi-
ter making her fall on the bed, forcibly raped cate issued by corporation, municipal author-
her. Then he went towards her mother and ity or Panchayat’ and only in absence of above
other one i.e. accused No. 2 came and after modes, age has to be determined by subject-
him accused No. 3 came and raped her. ing victim to ossification test. Here, accord-
Around 4.00 a.m. those persons went out of ing to him, none of the above requirements
the house. Victim and her mother approached were fulfilled and therefore, it is his submis-
police and victim lodged report Exhibit 15. sion that, prosecution has utterly failed to es-
3. Investigation was entrusted to PW7 tablish that victim was minor and hence it is
SDPO Deshpande who took all steps like ar- his submission that there cannot be convic-
resting accused, drawing various tion under the provisions of POCSO Act.
panchanamas; victim was subjected to medi- 5. He next submitted that though pros-
cal examination; medical papers were gath- ecution examined in all 8 witnesses, evidence
ered and made of part of charge-sheet. After of victim, her mother and the school Head-
gathering sufficient evidence, challan was master was relevant. He pointed out that both,
filed and all three accused were tried by victim and her mother, are inconsistent and
learned Additional Sessions Judge, who held not corroborating each other. Further accord-
case of prosecution as proved as against ac- ing to him, there is no proper identification.
Investigating machinery has confronted pho- rape. Learned A.P.P. pointed out that there
tograph of arrested accused. He pointed out was no possibility of injury as rape was com-
that accusations are made that there was mitted on knife point and victim was made
forced entry by breaking chain of the door but helpless. Further according to him, mere ab-
there is no evidence to that extent and spot sence of injuries on the person of victim
panchanama is silent in that regard. He fur- would not negate the fact of rape. He lastly
ther pointed out that in spite of alleged inci- submitted that available evidence has been
dent taking place between 1.00 a.m. to 4.00 rightly appreciated by learned trial Judge
a.m., complaint is lodged after almost 5 to 6 and conviction has been correctly recorded.
hours and the so called delay is not explained. Hence, for want of merits, he prays to dis-
He further pointed out that there is evidence miss the appeal.
suggesting mother of victim to be involved 8. Learned Counsel appointed to rep-
in prostitution and therefore possibility of resent the victim would also resist the appeal
false implication cannot be ruled out. Further by pointing out that there is cogent, reliable
he pointed out that in spite of rape being com- evidence of victim to be minor; she was raped
mitted by three persons, there are no injuries in the house and she named and identified
and even medical expert has not issued final both appellants. Therefore, according to her,
opinion. Therefore, such crucial aspects were they are rightly convicted and even she prays
fatal for prosecution. CA report is also nega- to dismiss the appeal.
tive and resultantly it is his submission that 9. It seems that prosecution in trial
learned trial Court ought not to have accepted Court has adduced evidence of following 8
the case of prosecution and further convicted witnesses:
the appellants. PW1 Victim.
6. Learned Counsel Mr. Rekha PW2 Jagdish acted as pancha to spot panchanama
Choudhari, Mr. S.S. Choudhari for appellant Exhibit 21 and seizure of clothes of accused
Kunal adopted the above submissions ad- vide panchanama Exhibits 22, 23 and 24. He
vanced by learned Counsel Mr. A.M. also acted as pancha to memorandum of dis-
closure and recovery of knife (Exhibits 25 and
Gaikwad.
26) at the instance of accused No. 1 Ananda
7. Per contra, learned A.P.P. for State
PW3 Mother of victim.
pointed out that victim was a minor. School
PW4 Dr. Chavan, who examined victim as well
authority was examined who had carried as all three accused.
original register and had placed on record its PW5 Police Naik Wanole acted as carrier.
extract. Therefore victim was proved to be a PW6 Bhimrao is pancha to seizure of clothes of
minor. Further according to him, after forced victim vide Exhibit 43.
entry, by use of knife, threats were issued to PW7 SDPO Deshpande is the Investigating Of-
mother and in her presence her daughter was ficer [IO].
raped by three men including present ac- PW8 Headmaster.
cused. That, it was a serious and heinous 10. On hearing above submissions, at
crime committed on a minor. Both, victim as the threshold this Court is required to deal
well as her mother have deposed accordingly with the issue of age raised before this Court.
and they are consistent and corroborating It seems that such issue was not at all raised
each other on material count. Their evidence in the trial Court and there is no suggestion
has remained unshaken on the actual act of even for the namesake regarding minority of
932 Ananda M. Sawant v. State of Maharashtra 2024(1)
the victim. Be it so. Here, admittedly school ments as spelt out by Hon’ble Apex Court in
authority i.e. the Headmaster has been exam- the above ruling P. Yuvaprakash (supra) not
ined as PW8. He claimed that on request from being available, it cannot be said that age of
police, he was carrying admission register and victim has been proved.
its extract in the Court. He stated that as per 12. On carefully going through the evi-
the register of admission, date of birth of vic- dence of victim PW1 at Exhibit 14, it is emerg-
tim is 8.1.2014. He further stated that date of ing that on the night when she was sleeping
birth of victim on admission register extract with her mother, around 1.00 a.m., on hear-
and the copy of school admission extract re- ing knock on the door she and her mother
flects the same age. woke up. She speaks about door being
In cross, to a suggestion he has an- pushed open by breaking the chain. She has
swered and admitted that they use to take categorically stated that three persons en-
entry of date of birth of any child after perus- tered. That, when she and her mother made
ing the date of birth recorded by attempt to shout, at that time accused kept
Grampanchayat or Nagar Parishad. He further knife on the throat of her mother and was
deposed that date of birth of victim is men- taken in another room and thereafter ac-
tioned in their register on the basis of date of cused Ananda pushed her on the cot, dis-
birth mentioned in the TC of other school. robed her and committed rape on her. There-
11. On analyzing above testimony, it is after accused Kunal and third accused took
emerging that this witness has brought only turns to rape her. She identified the accused
original admission register wherein date of Ananda and Kunal in Court.
birth was noted as 8.1.2014. His testimony In initial cross, she is questioned about
shows that he was not called upon to produce her father, maternal uncles and that they were
birth certificate tendered in the school. Inves- insisting them to come and stay at their vil-
tigating machinery is therefore to be blamed lage Narwat after she lost her father. Then she
for not asking this witness to bring the birth is questioned about locality and surrounding
certificate. Even Investigating Officer himself, houses. There are questions about railway
on he own, does not seem to have gathered track passing near their house. She flatly de-
the birth certificate issued by Grampanchayat. nied that if one talks in her house then the
It is to be noted that in cross on being ques- talk is easily heard in the neighbourhood.
tioned by accused, PW8 Headmaster has ad- Omission is brought only to the extent that
mitted that there is practice of taking entry of accused Ananda slept on her person and com-
date of birth on perusing date of birth remitted rape; that thereafter Kunal had come;
corded by the Grampanchayat. Therefore, with and lastly, Ananda had gone out of the house.
such answer, it can safely be inferred that date 13. PW3 mother has also stated that at
of birth was noted on the basis of certificate mid night around 1.00 a.m. there was knock
issued by Grampanchayat. However, the same on the door and they woke up. That, their
has not been brought because this witness has house door was broke open by applying pres-
carried only school register as requested by sure and entry was forced by three persons.
police machinery. Therefore, above submis- Further she stated that accused Ananda kept
sion by learned Counsel for the appellants knife on her neck and took her to another
cannot be straightway accepted that there is room; thereafter accused Kunal came and
no evidence about date of birth and that docu- kept knife on on her throad and thereafter
Ananda, by removing clothes of her daugh- given about three persons entering the house
ter, committed sexual intercourse; then around 1.00 a.m. on 26.11.2018 and by issu-
Ananda came to her room and accused Kunal ing threat to life with sharp object, there was
went in the adjoining room and he also com- demand of sexual intercourse. This witness
mitted sexual intercourse; thereafter third stated that after examination of victim, his
person also committed sexual intercourse overall findings are consistent with sexual
with her daughter; accused threatened to kill intercourse/assault. He further deposed
them if they report it to anyone; and those that final report was kept pending for re-
three persons left their house around 4.00 a.m. ceipt of CA report. He also examined three
She further stated that she contacted her accused on 27.11.2018 and opined that it
brother on phone. Thereafter they ap- cannot be refuted nor confirmed that ac-
proached police. Even she identified accused cused persons were unable to perform
Ananda and Kunal sitting in the Court. sexual intercourse.
On carefully going through the above In cross, medical expert has admitted
cross faced by this witness, omission is that ossification test of victim was not done.
brought to the extent that accused Ananda, That, names of accused were not disclosed
Kunal and Shubham committed forceful during recording history and that he did not
sexual intercourse with victim one after the notice injury on the body of victim. He ad-
other. Then she is questioned about locality, mitted that final report was kept pending
her acquaintances and she flatly denied about till receipt of CA report and after receiving
complaint being made to the Collector that CA report, final report has not been ob-
she is running prostitution business. She ad- tained by IO till date and he has not issued
mitted that since 4.00 a.m. to 9.00 a.m., she the final report.
did not disclose the incident to anybody. In 15. On re-analyzing the above evi-
cross at the hands of learned Counsel for ac- dence of victim and her mother, it is noticed
cused No. 2, she has answered that there is that both, victim and her mother, are lend-
police colony in front of her house and Tahsil ing support to each other. They were to-
office and Court are situated at a short dis- gether sleeping when entry was forced by
tance. That, there use to be traffic on the road. accused. They both are consistent about
That, all the families in the vicinity were hav- knife being used to threaten them. PW3
ing visiting terms with her house. Further, mother seems to have been taken in another
omissions are brought regarding accused room and victim was raped by all three
breaking chain of the door, Kunal keeping whom she has named. Both, victim and her
knife on her throat and accused Ananda com- mother have identified accused-appellants
ing and accused Kunal going to commit in the Court for taking turns in raping vic-
sexual intercourse. She admitted that alleged tim. Though they are subjected to cross,
incident of rape was committed in another their evidence to the extent of commission
room and she was present in different room of rape has remained untouched and
and that she had not actually seen the inci- unshaken.
dent with her own eyes. 16. No doubt medical expert has not
14. Medical expert who had occasion noticed any injuries, but it is fairly settled
to examine the victim is PW4 (Dr. Dhavan) legal position that in case of rape, non-appear-
and this doctor has stated that history was ance of injury is insignificant. Law to this ex-
934 Amarlal H. Lalwani v. State of Maharashtra 2024(1)
tent has been dealt and discussed in numer- II. Pending applications does not survive and the
ous judgments including (Gurucharan same also stand disposed off.
2
Singh Vs. State of Haryana) , A.I.R. 1972 III. Fees of the Counsel appointed to repre-
S.C. 2661 ; (Krishan Lal Vs. State of sent respondent No. 2 is quantified at Rs.
3
Haryana) , A.I.R. 1980 S.C. 1252 ; (State of 10,000/- to be paid by the High Court Le-
4 gal Services Sub-Committee, Aurangabad.
Rajasthan Vs. N.K.) , (2000)5 S.C.C. 30 ;
(Narayanamma (Kum) Vs. State of Appeal dismissed.
Karnataka and Others)5, 1994(5) S.C.C. 728; -----
(State of Rajasthan Vs. Shri Narayan)6 , Quashing of proceeding
(1992)3 S.C.C. 615 and (Devinder Singh and 2024(1) Bom.C.R.(Cri.) 934
others Vs. State of Himachal Pradesh)7 , Before :
(2003)11 S.C.C. 488. In Gurucharan Singh (su- Anuja Prabhudessai & N.R. Borkar, JJ.
pra) the Hon’ble Apex Court has observed
Amarlal Hasomal Lalwani & ors. ... Applicants.
that “absence of injury or mark of violence
Versus
on the private parts or elsewhere on the
State of Maharashtra & anr. ... Respondents.
person of the prosecutrix is of no conse-
quence when the prosecutrix is minor and Criminal Application No. 619 of 2019, de-
would merely suggest want of violent re- cided on 18-1-2024.
sistance on the part of the prosecutrix.” Code of Criminal Procedure, 1973, Sec.
482 – Quashing of proceeding – Allegation of cru-
Moreover, in the instant case when
elty by husband and his relatives – Apart from
victim and her mother both are categorical
making a vague statement that husband had de-
about knife being used to threaten and ter-
manded a car and cash from her parents, complain-
rorize, there is least possibility of resistance
ant wife has not given any further details, particu-
being put. Further, it is pertinent to note that
larly year in which such demand was made – This
medical expert has very categorically stated
was relevant in view of delay in lodging FIR –
in his examination-in-chief itself that on ex-
Other incidents narrated in FIR had occurred
amination of the victim his overall findings
within a period of six months from date of mar-
were consistent with sexual intercourse/as-
riage – Respondent had not lodged any FIR al-
sault. Therefore, taking into consideration
leging cruelty, and allegations made in FIR are
such evidence of medical expert coupled with
stale – Allegation leveled in FIR, even if accepted
evidence of victim and her mother as dis-
in totality, do not disclose commission of cogni-
cussed above, there is no hesitation to hold
zable offence – In such circumstances, compel-
that prosecution has established that victim
ling petitioners to face criminal trial willamount
was a minor and was sexually ravished.
to an abuse of process of Court – Hence applica-
17. Therefore there is overwhelming tion is allowed. (Para 14)
evidence against appellants. Such evidence Cases referred :
has been rightly appreciated and guilt has 1. Hasmukhlal D. Vora Vs. State of Tamil Nadu, 2022
been correctly recorded. No case is made S.C.C. Online S.C. 1732.
out on merits. No perversity is brought to 2. State of Haryana Vs. Ch. Bhajan Lal, A.I.R. 1992
the notice of this Court so as to interfere. S.C. 694.
Hence, I proceed to pass the following order: 3. Geo Verghase Vs. State of Rajasthan, A.I.R. 2021
S.C. 4764.
ORDER 4. Manju Ram Kalita Vs. State of Assam, (2009)13
I. Both the appeals are hereby dismissed. S.C.C. 330.
Bom.C.R.(Cri.) Amarlal H. Lalwani v. State of Maharashtra 935
5. Girdhar Shankar Tawade Vs. State of Maharashtra, ings in December 2015. He submits that pur-
2003 Bom.C.R.(Cri.) 575(S.C) : A.I.R. 2002 S.C. 2078. suant to the order passed by the Family Court,
Advocates appeared : Kolhapur, as well as by the learned JMFC, in
Ganesh Gole, Vivek Sharma, Virat Shelatkar,
125 proceeding, the applicant has been pay-
Ajeet Shirodkar, Bhavin Jain, Ritesh Ratnam, for
applicants. ing maintenance to respondent No. 2 as well
Ms. Heena Mistry, for respondent No. 2. as to the child. He submits that the respond-
Mrs. M.M. Deshmukh, A.P.P., for State. ent has been lodging several complaints be-
168.PM/IN/SG/RJ/PN fore various authorities. On 26.12.2018 she had
Per ANUJA PRABHUDESSAI, J.: – With the lodged a similar complaint before the Dy.
consent of parties, heard finally at the stage Superintent of Police, Kolhapur by sup-
of admission. pressing the fact that several proceedings
2. This is an application under section were pend i ng between the parti es.
482 of Cr.P.C. to quash Crime No. 100 of 2019 Learned Counsel for the petitioner further
dated 29.3.2019 registered with Gandhinagar states that the divorce decree has been
Police Station, Kolhapur for offences punish- granted in the month of January 2024. He
able under section 498A, 323, 504, 506 read has further stated that on 5.1.2019 the re-
with 34 of the Indian Penal Code. spondent No. 2 came to his shop and cre-
3. The aforesaid crime was registered ated ruckus, for which applicant No. 1 had
pursuant to the FIR lodged by respondent No. lodged a N.C. Complaint. He submits that
2. The marriage of respondent No. 2 and ap- she has roped the entire family of the appli-
plicant No. 1 was solemnized in the year 2001. cant on the basis of omnibus allegations. He
The applicant and respondent No. 2 have a submits that the allegations in the FIR even if
son from the said wedlock. Respondent No. accepted in their entirety, the same do not dis-
2 left the matrimonial home in the year 2014, close commission of any cognizable offence.
She lodged the FIR in the year 2019 alleging 5. Per contra, learned Counsel for the
that since about six months from the date respondent submits that respondent No. 2
of her marriage her husband and his fam- was thrown out of the house in the year 2014.
ily members had subjected her to physical She further submits that the applicant did not
and mental cruelty. She has also alleged that have any intention to take back respondent
her husband had forced her to get a car and No. 2, which is evident from the fact that he
cash of Rs. 1 Lakh from her parents, and had filed a suit for divorce within a few
had abused and assaulted her for not meet- months from the date of issuing notice for
ing the unlawful demand. She has stated restitution of conjugal rights. She further sub-
that she was thrown out of the house in the mits that the allegations in the FIR disclose
year 2014 at 2.00 a.m. Since then, she is re- an offence under section 498A, which is a se-
siding at her parental home. It is on the basis rious offence.
of these allegations that the aforesaid crime 6. We have perused the records and
came to be registered. considered the submissions advanced by the
4. Shri Gole, learned Counsel for the learned Counsel for the respective parties.
applicant states that there is considerable de- 7. In the instant case, the records reveal
lay in lodging the FIR. He submits that the that the marriage of petitioner No. 1 and re-
respondent left the house in the year 2014. spondent No. 2 was solemnized in the year
Hence applicant No. 1 filed divorce proceed- 2001. It is not in dispute that the respondent
936 Amarlal H. Lalwani v. State of Maharashtra 2024(1)
No. 2 is living in her parental home since the nial home. It is also on record that appli-
year 2014. The first information report is cant No. 1 had filed a divorce petition in
lodged in the year 2019 in respect of the al- the year 2015. Respondent No. 2 had also
leged incidents from 2001 to 2014. In filed an application for maintenance before
(Hasmukhlal D. Vora & anr. Vs. The State of the Family Court as well as before the Mag-
Tamil Nadu)1, 2022 S.C.C. Online S.C. 1732, istrate, and that pursuant to the orders
the Apex Court has observed that : passed by the Family Court and the Magis-
“26. While inordinate delay in itself may not be ground trate, the applicant has been paying main-
for quashing of a criminal compliant, in such tenance. In all these years, respondent No.
cases, unexplained inordinate delay o such length 2 did not lodge the report against the peti-
must be taken into consideration as a very cru- tioners alleging cruelty. The First Informa-
cial factor as grounds for quashing a criminal tion Report reveals that on 5.1.2019 re-
complaint.
spondent No. 2 had visited the shop of the
27. While this Court does not expect a full-blown
petitioner, and the petitioner had lodged a
investigtion at the stage of a criminal complaint,
however, in such cases where the accused has complaint against her for creating a ruckus.
been subject to the anxiety of a potential initia- It is only thereafter that the respondent No.
tion of criminal proceedings for such a length of 2 had lodged the FIR. The aforesaid circum-
time, it is only reasonable for the Court to ex- stances indicate that the FIR is not bonafide
pect bare-minimum evidence from the Investi- and is filed with oblique motive.
gating Authorities. 9. Be that as it may, the applicants
28. At the cost of repetition, we again state that the have invoked the powers of this Court un-
purpose of filing a complaint and initiating der section 482 of Cr.P.C. to quash the first
criminal proceedings myust exist solely to meet information report. It may be mentioned
the ends of justice, and the law must not be used
that section 482 of Cr.P.C. confers inherent
as a tool to harass the accused. The law, is meant
to exist as a shield to protect the innocent, rther powers on the Court to make such orders
than it being used as a sword to threaten them. as may be necessary to give effect to any
29. … While it is true that the quashing of a crimi- order under the Code, or to prevent the
nal complaint must be done only in the rarest of abuse of the process of any Court or other-
rare cases, it is still the duty of the High Court wise to secure the ends of justice. In (State
to look into each and every case with great detail of Haryana and others Vs. Ch. Bhajan Lal
to prevent miscarriage of justice. The law is a and others)2 A.I.R. 1992 S.C. 694 the Apex
,
sacrosanct entity that exists to serve the ends of Court has set out by way of illustration the
justice, and the courts, as protectors of the law broad categories of cases in which the in-
and servants of the law, must always ensure that
herent powers under section 482 of Cr.P.C.
frivolous cases do not pervert the sacrosanct na-
could be exercised. The illustrations rel-
ture of the law.”
evant to decide the case in hand are :
8. In the instant case respondent No. 2
“108. ... (1) where the allegations made in the First
has not offered any plausible explanation
Information Report or the complaint, even if they
for such inordinate delay in lodging the FIR. are taken at their face value and accepted in their
It is not in dispute that the applicant had entirety do not prima facie constitute any offence
by notice dated 25.6.2015 called upon re- or make out a case against the accused.
spondent No. 2 to resume the matrimonial …
ties. Respondent No. 2 neither replied to the 3. Where the uncontroverted allegations made in
said notice, nor did she join the matrimo- the FIR or complaint and the evidence collected
Bom.C.R.(Cri.) Amarlal H. Lalwani v. State of Maharashtra 937
in support of the same do not disclose the com- harassed her with a view to coercing her
mission of any offence and make out a case to satisfy unlawful demand of dowry.
against the accused. 12. In (Manju Ram Kalita Vs. State
... of Assam)4, (2009)13 S.C.C. 330 the Apex
(7) Where a criminal proceeding is manifestly at- Court while considering the meaning of
tended with mala fide and/or where the pro-
‘cruelty’ held thus:-
ceeding is maliciously instituted with an ul-
terior motive for wreaking vengeance on the “ 21. In (Girdhar Shankar Tawade Vs. State of
accused and with a view to spite him due to Maharashtra) 5 , 2003 Bom. C . R. (Cr i. )
private and personal grudge.” 575(S.C.) : A.I.R. 2002 S.C. 2078 this Court
held that ‘cruelty’ has to be understood hav-
10. In (Geo Verghase Vs State of
ing a specific statutory meaning provided in
Rajasthan and Anr)3, A.I.R. 2021 S.C. 4764, section 498A I.P.C. and there should be a case
the Apex Court has reiterated that :- of continuous state of affairs of torture by one
“ 34. … Undoubtedly, every High Court has in- to another.
herent power to act ex debito justitiae i.e., to 22. ‘Cruelty’ for the purpose of section 498-A I.P.C.
do real and substantial justice, or to prevent is to be established in the context of section 498-
abuse of the process of the Court. The powers A as it may be different from other statutory pro-
being very wide in itself imposes a solemn duty visions. It is to be determined/inferred by con-
on the courts, requiring great caution in its sidering the conduct of the man, weighing the
exercise. The Court must be careful to see that
gravity or seriousness of his acts and to find out
its decision in exercise of this power is based
as to whether it is likely to drive the woman to
on sound principles. The inherent powers
commit suicide etc. It is to be established that
vested in the Court should not be exercised to
the woman has been subjected to cruelty con-
stifle a legitimate prosecution. However, the
tinuously/persistently or at least in close prox-
inherent power or the extra-ordinary power
imity of time of lodging the complaint. Petty
conferred upon the High Court, entitles the
quarrels cannot be termed as ‘cruelty’ to attract
said Court to quash a proceeding, if it comes
the provisions of section 498-A I.P.C. Causing
to the conclusion that allowing the proceed-
mental torture to the extent that it becomes un-
ing to continue would be an abuse of the proc-
bearable may be termed as cruelty. ”
ess of the Court, or the ends of justice require
that the proceeding ought to be quashed.” 13. Reverting to the facts of the case,
11. In this backdrop, the only ques- the allegations in the FIR are that (i) at the
tion for consideration is whether the FIR time the marriage respondent No. 2 was
discloses commission of offence under informed that the applicant No. 1 was a non
section 498-A of I.P.C. It may be noted that smoker and that he did not consume alco-
cruelty is the essence of an offence under hol. However, within six months from the
section 498-A of I.P.C. The term ‘cruelty’ marriage he started consuming alcohol,
for the purpose of section 498-A of the over which there used to be altercation be-
I.P.C. has been specifically defined. In or- tween them; (ii) her sisters-in-law, respond-
der to constitute an offence under section ent Nos. 5 and 6 would compel her to cook
498-A, there must be prima facie material and do other household work during her
to prove that the applicants by their pregnancy; (iii) they would not give her
willful conduct of such a nature had adequate medical treatment and did not
driven the respondent No. 2 to commit allow her to visit her parents on festivals;
suicide or caused grave injury or danger (iv) her husband forced her to get a car and
to her life, limb or health or that they had cash of Rs. 1 lakh from her parents and
938 Mohan K. Jayebhaye v. State of Maharashtra 2024(1)
when she refused to meet the unlawful de- tions are not taken into consideration – Thus, en-
mand, he abused and assaulted her. tire exercise carried out by sanctioning authority
14. Apart from making a vague state- is without application of mind. (Para 53)
ment that her husband had demanded a car Cases referred :
and cash from her parents, she has not given 1. Ravindra Mahadeo Kothamkar Vs. State of
any further details, particularly the year in Maharashtra, 2016(1) Bom.C.R.(Cri.) 242 : 2016
All.M.R.(Cri.) 775.
which such demand was made. This was
2. Onkar Tukaram Ramteke Vs. State of
relevant in view of the delay in lodging the Maharashtra, 2022 DGLS(Bom.) 547 : 2022
FIR. The other incidents narrated in the FIR All.M.R.(Cri.) 4404.
had occurred within a period of six months 3. Sunil Hirasingh Rathod Vs. State of Maharashtra,
from the date of marriage. As noted above, 2021 DGLS(Bom.) 2367 : 2022 All.M.R.(Cri.) 647.
in all these years the respondent No. 2 had 4. State of Maharashtra Vs. Shridhar Madhavrao
Murti, 2021(1) Bom.C.R.(Cri.) 419(S.C) : 2021
not lodged any FIR alleging cruelty, and the All.M.R.(Cri.) 2829.
allegations made in the FIR are stale. The 5. Mohd. Iqbal Ahmad Vs. State of Andhra Pradesh,
allegation leveled in the FIR, even if ac- A.I.R. 1979 S.C. 677.
cepted in totality, do not disclose commis- 6. CBI Vs. Ashok Kumar Agrawal, 2014 Cri.L.J. 930.
sion of cognizable offence. In such circum- 7. State of Karnataka Vs. Ameerjan, (2007)11 S.C.C.
stances, compelling the petitioners to face 273.
8. Anand Murlidhar Salvi Vs. State of Maharashtra,
criminal trial will amount to an abuse of 2021(2) Bom.C.R.(Cri.) 396 : 2021 S.C.C. OnLine
process of the Court. Hence the application Bom. 237.
is allowed. 9. Vinod Savalaram Kanadkhedkar Vs. State of
Cri me No. 100 of 2019 dated Maharashtra, 2016(2) Bom.C.R.(Cri.) 678(S.C) : 2016
All.M.R.(Cri. 3697.
29.3.2019, registered with Gandhinagar Po-
10. K. Shanthamma Vs. State of Telangana, 2022
lice Station, Kolhapur, is hereby quashed. DGLS(S.C.) 213 : 2022 LiveLaw 192(S.C.).
Application allowed. 11. P. Satyanarayana Murthy Vs. District Inspector of
----- Police, State of Andhra Pradesh, 2015(4)
Sanction to prosecute Bom.C.R.(Cri.) 523(S.C) : (2015)10 S.C.C. 152.
12. Neerja Dutta Vs. State (Govt.of NCT of Delhi), 2022
2024(1) Bom.C.R.(Cri.) 938 LiveLaw 1029(S.C.).
(NAGPUR BENCH) 13. Subhash Parbat Sonvane Vs. State of Gujarat,
Before : (2002)5 S.CC. 86.
Urmila Joshi-Phalke, J. 14. Panalal Damodar Rathi Vs. State of Maharashtra,
(1979)4 S.C.C. 526.
Mohan Keshavrao Jayebhaye ... Appellant. 15. Mukhtiar Singh Vs. State of Punjab, 2017 S.C.C.
Versus Online S.C. 742.
State of Maharashtra ... Respondent. 16. M.O. Shamsudhin Vs. State of Kerala, (1995)3
S.C.C. 351.
Criminal Appeal No. 386 of 2012, decided
17. Bhiva Doulu Patil Vs. State of Maharashtra, 1962
on 2/16-1-2024. DGLS(SC) 251 : 1963 Mh.L.J. 273(S.C.).
Prevention of Corruption Act, 1988, 18. State of Maharashtra Vs. Ramrao Marotrao
Sec. 19 – Sanction to prosecute – Prior demand Khawale, 2017 DGLS(Bom.) 2346 : 2017
by accused is not proved by prosecution, doubt All.M.R.(Cri.) 3269.
is created as to demand of amount as independ- 19. Mohmoodkhan Mahboobkhan Pathan Vs. State
of Maharashtra, (1997)10 S.C.C. 600.
ent witness is not examined and there is no con- 20. State of Maharashtra Vs. Rashid B. Mulani,
sistency between evidence of complainant and 2006(1) Bom.C.R.(Cri.) 221(S.C) : (2006)1 S.C.C.
shadow pancha – Principles for according sanc- 407.
Bom.C.R.(Cri.) Mohan K. Jayebhaye v. State of Maharashtra 939
Advocates appeared : approached the accused, he demanded Rs.
H. Deshpande with B.H. Tekam, for appellant. 1200/- for giving favourable report. As the
S.S. Hulke, A.P.P., for State. complainant was not willing to pay the
167.PM/IN/SG/RJ/PN bribe amount, he approached the office of
URMILA JOSHI-PHALKE, J.: – By this ap- the Anti Corruption Bureau at Amravati
peal, the appellant (the accused) has chal- (the bureau) and lodged a report on
lenged judgment and order of conviction and 22.9.2004.
sentence dated 1.9.2012 passed by learned 3. After receipt of the report, office of
Additional Sessions Judge, Achalpur the bureau called two panchas. In the pres-
(learned Judge of the trial Court) in Special ence of panchas, the complainant narrated
Case (ACB) No. 4/2005 whereby the accused the incident, which was verified by panchas
is convicted for offence punishable under from the complaint. After following due
section 7 of the Prevention of Corruption procedure, it was decided to conduct a raid
Act, 1988 (the said Act) and sentenced to and panchas and the complainant were
suffer rigorous imprisonment for two years called on 23.9.2004 in the office of the bu-
and to pay fine Rs. 1000/-, in default of pay- reau. The complainant produced tainted
ment of the fine amount, to suffer further amount of nine currency notes of Rs. 100/-
rigorous imprisonment for two months. and two currency notes of Rs. 50/- denomi-
The accused is further convicted for nation and numbers of the currencies were
offence punishable under section 13(1)(b) noted. The demonstration as to anthracene
of the said Act and sentenced to suffer rig- powder and ultra violet lamp was shown.
orous imprisonment for two years and to The said powder was applied on the tainted
pay fine Rs. 1000/-, in default of payment amount and kept in shirt pocket of the com-
of the fine amount, to suffer further rigor- plainant. The instructions were given to
ous imprisonment for two months. pancha No. 1 Kishor Devrao Khandpure to
Learned Judge of the trial Court di- stay with the complainant and pancha No.
rected that both sentences shall run concur- 2 was asked to remain along with the raid-
rently. ing party members. The complainant was
2. Brief facts of the prosecution case further instructed to hand over the amount
are as under: only on demand. Accordingly, pre-trap
The accused is serving in the Revenue panchanama was drawn.
Department o f the Government of 4. After the pre-trap panchanama, the
Maharashtra as Talathi. Complainant Gopal complainant along with panchas and raid-
Mahadeo Bawane, is resident of village ing party members reached at Daryapur.
Kuksa, taluka Daryapur, district Amravati. After reaching at Daryapur, the complain-
The Revenue Department has divided “E- ant along with pancha No. 1 Kishor
Class” Land in 20 plots admeasuring 3000 Khandpure, proceeded towards Hotel
square feet each for allotment. The com- Bhawani, near bus stand of Daryapur. Af-
plainant filed an application on 16.8.2004 to ter 10-15 minutes, the accused also came at
Tahsil office at Daryapur for allotment of the said hotel. There was a communication
the said plots. The accused was assigned between the complainant and the accused.
with duty of verification and submit a re- The complainant enquired about his work
port. It is alleged that when the complainant and the accused demanded amount. On
demand, the complainant handed over the 9. I have heard learned Counsel Shri
said amount of Rs. 1000/- which is accepted Haribhau Deshpande for the accused and
by the accused and kept in the shirt pocket. learned Additional Public Prosecutor Shri S.S.
After acceptance of the amount, the complain- Hulke for the State. I have been taken through
ant has given pre-decided signal to the raid- the entire evidence so also the judgment and
ing party and the trap was laid. The amount order of conviction and sentence impugned
was recovered from the accused. Accordingly, in the appeal.
post-trap panchanama was drawn. Pancha No. 10. Learned Counsel for the accused
1 disclosed as to the demand and acceptance. submitted that the judgment and order of
The office of the bureau lodged the report conviction impugned is erroneous and with-
about the incident, seized relevant docu- out appropriate reasoning. Learned Judge of
ments, and obtained sanction to prosecute the the trial Court failed to appreciate inconsist-
accused. After completion of the investigation, encies came in the evidence and failed to ap-
charge-sheet is filed. preciate that the demand and acceptance is
5. During the trial, the prosecution ex- not proved. He further submitted that even
amined in all 5 witnesses; viz. Gopal Bawane the sanction to prosecute the accused as con-
vide Exhibit-22 (PW1), the complainant; templated under section 19 of the said Act is
Kishor Deorao Khandpure vide Exhibit-40 bad in law and, therefore, the conviction of
(PW2), the shadow pancha; Anand the accused stood vitiated on that ground it-
Sharadchandra Khedkar vide Exhibit-53 self. He submitted that pancha No. 2 PW3
(PW3), pancha No. 2; Ravindra Jalamsingh Anand Khedkar as well as the post trap
Jadhav vide Exhibit-57 (PW4), the sanctioning panchanama nowhere show that any glitter-
authority; and Dildar Balder Tadvi vide Ex- ing was found on the hands of the accused
hibit-79 (PW5). though the accused has accepted the amount
6. The accused has also examined two by hands. Learned Judge of the trial Court
defence witnesses in support the defence, viz. failed to appreciate that immediate explana-
Manoj Damodhar Raut vide Exhibit-96 tion is given by the accused that the amount
(DW1)and Anil Tulshiramji Kundalwar vide is thrusted in his shirt pocket by the complain-
Exhibit-99 (DW2). ant. The defence of the accused is supported
7. Besides the oral evidence, the pros- by circumstance as no glittering is found on
ecution further relied upon the complaint his hands though he accepted the amount by
Exhibit-34, map of the spot of the incident his own hands. Thus, the entire prosecution
Exhibit-36, pre-trap panchanama Exhibit-41, fails in the light of the said variance. For all
post-trap panchanama Exhibit-42, seizure the above reasons, the accused deserves to be
memos Exhibits-43 to 46, application filed by acquitted.
the complainant with the office of the accused 11. In support of his contentions,
Exhibit-54, sanction order Exhibit-58, report learned Counsel for the accused placed reli-
lodged by the office of the bureau Exhibit-83, ance on following decisions:
and First Information Report Exhibit-84. 1. (Ravindra Mahadeo Kothamkar Vs. The State
of Maharashtra)1, 2016(1) Bom.C.R.(Cri.) 242
8. After considering the evidence ad- : 2016 All.M.R.(Cri.) 775.
duced during the trial, learned Judge of the 2. (Onkar Tukaram Ramteke Vs. The State of
trial Court held the accused guilty and con- Maharashtra)2, 2022 DGLS(Bom.) 547 : 2022
victed and sentenced him as the aforesaid. All.M.R.(Cri.) 4404.
3. (Sunil Hirasingh Rathod Vs. The State of Gogate who was the Sub Divisional Officer
Maharashtra)3, 2021 DGLS(Bom.) 2367 : 2022 for obtaining sanction. Said Gogate has
All.M.R.(Cri.) 647. not accorded the sanction and communi-
4. (The State of Maharashtra Vs. Shridhar cated to him by letter expressing his in-
Madhavrao Murti)4, 2021(1) Bom.C.R.(Cri.) ability to accord the sanction, is neither
419 : 2021 All.M.R.(Cri.) 2829.
denied nor accepted by him. He stated
12. Per contra, learned Additional Pub- that he is unable to recollect about the said
lic Prosecutor for the State submitted the evi- communication.
dence of complainant PW1 Gopal Bawane
15. Perusal of the sanction order re-
is corroborated by shadow pancha PW2
veals that its first paragraph describes
Kishor Khandpure, who proves the de-
designation of the accused and second to
mand and acceptance. The amount recov-
forth paragraphs describe recital of the
ered from the shirt pocket of the accused is
First Information Report and the investi-
proved by pancha No. 2 PW3 Anand
gation is disclosed. Fifth paragraph shows
Khedkar. The prosecution has also proved
that upon careful reading of papers, he
that the sanction is as per the law and valid
came to conclusion that the sanction is to
and, therefore, no interference is called for
be accorded and accordingly he accorded
in the judgment and order passed by
the sanction. Thus, the entire sanction or-
learned Judge of the trial Court.
der states about allegations and perusal of
13. Since question of validity of the sanc-
the papers by sanctioning authority PW4
tion has been raised as a primary point, it is
Ravindra Jadhav.
necessary to discuss an aspect of sanction. The
sanction order was challenged on the ground 16. Whether the sanction is valid or
that the sanction was accorded without ap- not and when the sanction can be called as
plication of mind and mechanically and, valid, the same is settled by the various de-
therefore, it is not a valid sanction. cisions of the Honourable Apex Court as
well as this Court.
14. In order to prove the sanction or-
der, the prosecution placed reliance on the 17. The Honourable Apex in the case
evidence of sanctioning authority PW4 of (Mohd. Iqbal Ahmad Vs. State of Andhra
5
Ravindra Jadhav examined vide Exhibit-57. Pradesh) , A.I.R. 1979 S.C. 677 has held that
As per his evidence, at the relevant time, what the Court has to see is whether or not
he was serving as the Collector of Amravati the sanctioning authority at the time of giv-
district. He received documents pertaining ing the sanction was aware of the facts consti-
to the investigation. He is the Superior Of- tuting the offence and applied its mind for
ficer having authority of appointment of the same and any subsequent fact coming into
talathis and their removal. After studying existence after the resolution had been passed
papers, he arrived at an opinion that there is wholly irrelevant. The grant of sanction is
is a prima facie case and accorded the sanc- not an idle formality or an acrimonious exer-
tion. During his cross-examination, he ad- cise but a solemn and sacrosanct act which
mitted that the orders of appointment of affords protection to Government servants
talathis are issued by signature of the Sub- against frivolous prosecutions and must
Divisional Officer. It further came in his therefore be strictly complied with before
evidence that before communicating with any prosecution can be launched against the
him, correspondence was made with one Mr. public servant concerned.
18. The Honourable Apex Court, in same and that the sanction had been
another decision, in the case of (CBI Vs. granted in accordance with law.
Ashok Kumar Agrawal)6, 2014 Cri.L.J. 930 19. The Honourable Apex Court in the
has held that sanction lifts the bar for pros- case of (State of Karnataka Vs. Ameerjan)7,
ecution and, therefore, it is not an acrimo- (2007)11 S.C.C. 273 held that it is true that an
nious exercise but a solemn and sacrosanct order of sanction should not be construed in
act which affords protection to the Govern- a pedantic manner. But, it is also well settled
ment servant against frivolous prosecution. that the purpose for which an order of sanc-
There is an obligation on the sanctioning tion is required to be passed should always
authority to discharge its duty to give or be borne in mind. Ordinarily, the sanctioning
withhold sanction only after having full authority is the best person to Judge as to
knowledge of the material facts of the case. whether the public servant concerned should
The prosecution must send the entire rel- receive the protection under the Act by re-
evant record to the sanctioning authority fusing to accord sanction for his prosecu-
including the FIR, disclosure statements, tion or not. For the aforementioned pur-
statements of witnesses, recovery memos, pose, indisputably, application of mind on
draft charge sheet and all other relevant the part of the sanctioning authority is im-
material. It has been further held by the perative. The order granting sanction must
Honourable Apex Court that the record so be demonstrative of the fact that there had
sent should also contain the material/docu- been proper application of mind on the part
ment, if any, which may tilt the balance in of the sanctioning authority.
favour of the accused and on the basis of 20. The view in the case of State of
which, the competent authority may refuse Karnataka Vs. Ameerjan (supra) is the similar
sanction. The authority itself has to do com- view expressed by this Court in the case of
plete and conscious scrutiny of the whole (Anand Murlidhar Salvi Vs. State of
record so produced by the prosecution in- Maharashtra)8, 2021(2) Bom.C.R.(Cri.) 396 :
dependently applying its mind and taking 2021 S.C.C. OnLine Bom. 237.
into consideration all the relevant facts be- 21. This Court in the case of (Vinod
fore grant of sanction while discharging its Savalaram Kanadkhedkar Vs. The State of
duty to give or withhold the sanction. The Maharashtra)9, 2016(2) Bom.C.R.(Cri.) 678 :
power to grant sanction is to be exercised 2016 All.M.R.(Cri.) 3697 observed that absence
strictly keeping in mind the public interest of description of documents referred by sanc-
and the protection available to the accused tioning authority and only considering the
against whom the sanction is sought. The grievances made by Complainant would
order of sanction should make it evident show lack of application of mind by compe-
that the authority had been aware of all rel- tent authority while according sanction. The
evant facts/materials and had applied its documents other than complaint were taken
mind to all the relevant material. In every into consideration those documents should
individual case, the prosecution has to es- have been referred in the sanction order. The
tablish and satisfy the Court by leading evi- sanction order is illegal and invalid.
dence that the entire relevant facts had been 22. In view of the settled principles of
placed before the sanctioning authority and law, it is crystal clear that the sanctioning au-
the authority had applied its mind on the thority has to apply his own independent
mind for generation of its satisfaction for sanc- ecution against the accused. There is no find-
tion. The mind of the sanctioning authority ing by learned Judge of the trial Court as to
should not be under pressure and the said validity of the sanction.
authority has to apply his own independent 26. Besides the issue of the sanction, the
mind on the basis of the evidence which came prosecution claimed that the accused has de-
before it. An order of sanction should not be manded gratification amount and accepted
construed in a pedantic manner. The purpose the same. In order to prove the demand and
for which an order of sanction is required, the acceptance, the prosecution mainly placed
same is to be borne in mind. In fact, the sanc- reliance on the evidence of complainant PW1
tioning authority is the best person to Judge Gopal Bawane and shadow pancha PW2
as to whether public servant concerned Kishor Khandpure. The prosecution has also
should receive protection under the said Act examined pancha No. 2 PW3 Anand Khedkar,
by refusing to accord sanction for his pros- who removed the tainted amount from the
ecution or not. shirt pocket of the accused. The accused is
23. Thus, the application of mind on the prosecuted for the offence punishable under
part of the sanctioning authority is impera- section 7 and 13(1)(b) of the said Act.
tive. The orders granting sanction must dem- 27. It is now well settled that the of-
onstrate that he/she should have applied his/ fences under the said Act relating to public
her mind while according sanction. servants taking bribe require a demand of il-
24. After going through the evidence of legal gratification and the acceptance thereof.
sanctioning authority PW4 Ravindra Jadhav, The proof of demand of bribe by a public serv-
though he stated that he has applied his mind ant and its acceptance by him is sine quo non
and perused the investigation papers, the for establishing offences under the said Act.
sanction order nowhere discloses which 28. The Honourable Apex Court in the
documents he perused and on what basis case of (K. Shanthamma Vs. The State of
he satisfied himself for according the sanc- Telangana)10 , 2022 DGLS(S.C.) 213 : 2022
tion. It has to be apprised of all the relevant LiveLaw 192(S.C.) referring the judgment in
materials and on such materials the author- the case of (P. Satyanarayana Murthy Vs.
ity has to take a conscious decision as to District Inspector of Police, State of Andhra
whether the facts would show the commis- Pradesh and anr.)11, 2015(4) Bom.C.R.(Cri.)
sion of the offence under the relevant pro- 523(S.C.) : (2015)10 S.C.C. 152 held that the
visions. No doubt, elaborate discussion is proof of demand of bribe by a public servant
not required, however, the decision mak- and its acceptance by him is sine quo non for
ing on relevant materials should be re- establishing the offence under section 7 of the
flected in the order. Admittedly, the grant of said Act. The failure of the prosecution to prove
sanction is a serious exercise of powers by the the demand for illegal gratification would be fatal
competent authority. and mere recovery of the amount from the
25. After going through the evidence of person accused of the offences under sections
sanctioning authority PW4 Ravindra Jadhav, 7 and 13 of the said Act would not entail his con-
admittedly, the sanction order nowhere re- viction thereunder. The Honourable Apex
flects the material on the basis of which the Court has reproduced paragraph No. 23 of
sanctioning authority came to conclusion that its decision in the case of P. Satyanarayana
the sanction is to be accorded to launch pros- Murthy (supra), which reads thus:
“The proof of demand of illegal gratification, tage is not an offence under this provision;
thus, is the gravamen of the offence under (6) to make out an offence under this provi-
sections 7 and 13(1)(d)(i) and (ii) of the Act sion, there has to be actual obtainment, and
and in absence thereof, unmistakably the (7) since the legislature has used two differ-
charge therefor, would fail. Mere acceptance ent expressions namely “obtains” or “ac-
of any amount allegedly by way of illegal cepts”, the difference between these two
gratification or recovery thereof, dehors the have to be taken into consideration.
proof of demand, ipso facto, would thus not 30. In the light of the well settled law,
be sufficient to bring home the charge un- if the evidence of the prosecution is appre-
der these two sections of the Act. As a cor- ciated, it would that the prosecution has
ollary, failure of the prosecution to prove the
placed reliance on complainant PW1 Gopal
demand for illegal gratification would be
fatal and mere recovery of the amount from
Bawane. As per his oral evidence, the ac-
the person accused of the offence under sec- cused is serving as Talathi and one scheme
tion 7 or 13 of the Act would not entail his was implemented by the tahsil office for
conviction.” allotment of plots for construction of the
29. To prove the offence under sec- house at Kuksa. He applied for the same
tions 7 and 13(1)(d) of the said Act, follow- by preferring an application requesting him
ing are ingredients of the said sections, to allot him plot No. 176 admeasuring 3000
which require to be prove: square feet. As the accused was serving as
Under Section 7: (1) the accused must be a pub- Talathi, he approached him for submitting
lic servant or expecting to be a public serv- a report on his application and he de-
ant; (2) he should accept or obtain or agrees manded amount Rs. 1200/- for favour report
to accept or attempts to obtain from any and he paid Rs. 200/-, but he was not will-
person; (3) for himself or for any other per- ing to pay the amount and, therefore, he ap-
son; (4) any gratification other than legal proached the office of the bureau. He nar-
remuneration, and (5) as a motive or reward rated the entire procedure laid down by the
for doing or forbearing to do any official act bureau for conducting the raid. Thus, as per
or to show any favour or disfavour.
his evidence, when he approached the ac-
Under Section 13(1)(d): (1) the accused must
cused along with shadow pancha PW2
be a public servant; (2) by corrupt or illegal
Kishor Khandpure, the accused again de-
means, obtains for himself or any other per-
son any valuable thing or pecuniary advan- manded the amount and accepted the
tage; or or by abusing his position as public amount. He further stated that he gave a
servant, obtains for himself or for any other signal as instructed by the officers of the
person any valuable thing or pecuniary ad- bureau and the accused was caught and the
vantage; or while holding office as public amount was seized from him.
servant, obtains for any person any valuable To corroborate his version, the pros-
thing or pecuniary advantage without any ecution has also examined shadow pancha
public interest; (3) to make out an offence PW2 Kishor Khandpure, who has also nar-
under section 13(1)(d), there is no require- rated that he along with the another pancha
ment that the valuable thing or pecuniary was called in the office of the bureau. In
advantage should have been received as a
their presence, complainant PW1 Gopal
motive or reward; (4) an agreement to ac-
Bawane narrated his grievance and they
cept or an attempt to obtain does not fall
within section 13(1)(d); (5) mere acceptable have verified the same and, thereafter, it
of any valuable thing or pecuniary advan- was decided to conduct the raid and he has
narrated the entire procedure carried out by the accused at Bhawani Hotel and went at
the officials of the bureau during pre-trap and the same hotel and the accused came after
post-trap panchanamas. As per his evidence, he 15 minutes.
along with complainant PW1 Gopal Bawane Whereas, as per shadow pancha PW2,
went at Bhawani Hotel near bus stand of after getting down from the vehicle, he went
Daryapur where the accused came and de- along with the complainant towards the bus
manded the amount and accepted the same. stand and the complainant told him that he
31. Now, it has to be seen, whether had called the accused at Bhawani Hotel for
the evidence of complainant PW1 Gopal receiving the amount. According to him, the
Bawane and shadow pancha PW2 Kishor complainant took out the amount Rs. 1000/
Khandpure is corroborating to each other - from his left pant pocket and handed over
on every particulars. the same to the accused. The accused ac-
During cross-examination of com- cepted the same and kept in the shirt pocket.
plainant PW1 Gopal Bawane, he admitted Whereas, as per the evidence of complain-
that he has constructed the house house by ant PW1, he handed over the amount to the
committing encroachment over the Govern- accused and the accused had kept the
ment land prior to 17 years. In the year 2004, amount in his shirt pocket.
the house was allotted to him under “Indira The evidence of pancha No. 2 PW3
Awas Yojna” and he had also filed one more Anand Khedkar, also shows that the
application for allotment of the plot. His amount was removed from the shirt pocket
cross-examination further shows that even of the accused.
he was having one house at Kuksa and one The post-trap panchanama shows
house under “Indira Awas Yojna”. He filed that after getting signal, the accused was
an application and he was not a homeless. caught and the amount was removed from
It further reveals from his cross examina- his shirt pocket.
tion that he was having apprehension that It is pertinent to note that recital of
the present accused would submit a report the post-trap panchanama, shows that the
against him. It further shows that he was hands and the clothes of the accused are
having cordial relationship with predeces- examined in the light of ultra violet lamp
sor of the accused. His cross-examination and glittering was found on the shirt pocket
further reveals that village development of the accused.
officer was entrusted with the task of im- Pancha No. 2 PW3 Anand Khedkar
plementation of the Scheme and talathi has specifically admitted that in a statement
nothing to do that. given by the accused, he had explained
32. If cross-examination of complain- that complainant PW1 Gopal Bawane had
ant PW1 Gopal Bawane and shadow pancha thrusted the amount in his shirt pocket.
PW2 Kishor Khandpure is taken into con- As far as the place of the acceptance is
sideration, as far as the demand and accept- concerned, according to complainant
ance is concerned, as per complainant PW1, PW1, the amount was accepted inside the
he and pancha had gone to the house of ac- Bhawani Hotel. Whereas, as per the evi-
cused at Daryapur and the accused has dence o f panc ha No . 2 PW3 Anand
asked him about the amount and he called Khedkar, the amount was accepted out-
60/24(1) side the Bhawani Hotel.
The post-trap panchanama nowhere subsequent acceptance as a matter of fact.
refers that glittering was found on the This fact in issue can be proved either by
hands of the accused. This fact is to be ap- direct evidence which can be in the nature
preciated in the light of the defence. As per of oral evidence or documentary evidence.
the prosecution witnesses, the accused has The Honourable Apex Court, while discuss-
accepted the amount by his hands and kept ing expression “accept”, referred the judg-
it in his shirt pocket. The evidence of comment in the case of (Subhash Parbat
plainant PW1 Gopal Bawane and pancha Sonvane Vs. State of Gujarat)13 , (2002)5
No. 2 PW3 Anand Khedkar is consistent S.CC. 86. Observed that mere acceptance of
about the same. But, recital of the pretrap money without there being any other evi-
panchanama and the evidence of pancha dence would not be sufficient for convict-
No. 2 PW3 Anand Khedkar, nowhere says ing the accused under section 13(1)(d)(i). In
that any littering was found on the hands sections and 13(1) and (b) of the said Act,
of the accused. the Legislature has specifically used the
33. The defence of the accused is that words 'accepts' or 'obtains'. As against this,
the amount was thrusted in his pocket. The there is departure in the language used in
accused has given immediate explanation Clause (1)(d) of section 13 and it has omit-
as per the evidence of pancha No. 2 PW3 ted the word 'accepts' and has emphasized
Anand Khedkar as well as as per the evi- the word 'obtains'. In sub Clauses (i) and
dence of PW5 Dildar Tadvi, who is the In- (ii) (iii) of section 13(1)(d), the emphasize is
vestigating Officer. He has also examined on the word “obtains”. Therefore, there
two independent witnesses DW2 Anil must be evidence on record that accused
Tulshiramji Kundalwar, hotel owner and 'obtained' for himself or for any other per-
DW1 Manoj Damodhar Raut, the talathi, son any valuable thing or pecuniary advan-
who both have stated that the amount was tage by either corrupt or illegal means or
thrusted in the shirt pocket of the accused. by abusing his position as a public servant
Though these defence witnesses are or he obtained for any person any valuable
cross examined at length, nothing incrimi- thing or pecuniary advantage without any
nating came on record to disbelieve them. public interest.
Moreover, their evidence is also corrobo- While discussing the expression “ac-
rated by the circumstance that no glittering cept”, the Honourable Apex Court observed
is found on the hands of the accused. If the that “accepts” means to take or receive with
accused would have accepted the amount “consenting mind”. The ‘consent' can be es-
by his hands, it would have stained with tablished not only by leading evidence of
the anthracene powder and glittering ought prior agreement but also from the circum-
to have appeared on his hands. stances surrounding the transaction itself
34. The Constitution Bench of the without proof of such prior agreement. If
Honourable Apex Court in the case of an acquaintance of a public servant in ex-
(Neerja Dutta Vs. State (Govt.of NCT of pectation and with the hope that in future,
Delhi)12, 2022 LiveLaw 1029(S.C.) held that if need be, he would be able to get some
in order to bring home the guilt of the ac- official favour from him, voluntarily offers
cused, the prosecution has to first prove the any gratification and if the public servant
demand of illegal gratification and the willingly takes or receives such gratification
it would certainly amount to àcceptance' PW1 has stated that initially they went at the
and, therefore, it cannot be said that as an house of the accused and the accused de-
abstract proposition of law, that without a manded the amount. Whereas, shadow
prior demand there cannot be àcceptance'. pancha PW2 stated that complainant PW1
The position will however, be different so told him that he has called the accused at
far as an offence under section 5(1)(d) read Bhawani Hotel and the demand was made at
with section 5(2) of the 1947 Act is con- Bhawani Hotel. The evidence regarding ac-
cerned. Under the said sections, the pros- ceptance is also to be appreciated in the light
ecution has to prove that the accused òb- that as per the evidence of complainant PW1
tained' the valuable thing or pecuniary ad- and shadow pancha PW2, the accused has
vantage by corrupt or illegal means or by accepted the amount by his hands and kept
otherwise abusing his position as a public in shirt pocket. Though the shirt pocket and
servant and that too without the aid of the hands of the accused are examined, in the
statutory presumption under section 4(1) of light of ultra violet lamp, glittering was only
the 1947 Act as it is available only in respect found on the shirt pocket and not on hands
of offences under section 5(1)(a) and (b) and of the accused. Recital of the panchanama as
not under section 5(1)(c), (d) or (e) of the well as the evidence of pancha No. 2 PW3
1947 Act. According to this Court, ‘obtain' Anand Khedkar nowhere shows that glit-
means to secure or gain (something) as the tering was found on the hands of the ac-
result of request or effort. In case of obtain- cused. The admission given by pancha No.
ment the initiative vests in the person who 2 PW3 and Investigating Officer PW5 Dildar
receives and in that context a demand or Tadvi is to the extent that immediately after
request from him will be a primary requi- the trap, the accused gave one statement stat-
site for an offence under section 5(1)(d) of ing the amount was thrusted in his shirt. If
the 1947 Act unlike an offence under sec- the explanation of the accused which was
tion 161 of the Indian Penal Code, which given immediately is appreciated, recital of
can be established by proof of either àc- the post-trap panchanama does not refer any
ceptance' or ‘obtainment'. anthracene powder on the hands of the ac-
35. In the light of the above well set- cused and the evidence of the defence wit-
tled legal position, if the evidence is appreci- nesses supports the defence of the accused
ated, there is no dispute as to the fact that the that the amount was thrusted in his shirt
prosecution is under obligation to prove the pocket. The evidence of complainant PW1
demand as well as the acceptance. The evi- shows that he applied for the plot under the
dence of complainant PW1 Gopal Bawane Scheme of “Indira Awas Yojna”. He was al-
and shadow pancha PW2 Kishor Khandpure ready having house at Kuksa and another
appears to be not consistent on the aspect of house under “Indira Awas Yojna” and addi-
the place where exactly the amount was ac- tionally, he filed an application for allotment
cepted. As per complainant PW1, the amount of the plot for which the report of the accused
was accepted inside the Bhawani Hotel. was required. He further admitted that he has
Whereas, as per the evidence of shadow constructed the house by encroaching upon
pancha PW2, it was accepted outside the the Government land and task of implemen-
Bhawani Hotel. The evidence as to the de- tation of “Indiara Awas Yojna” was with vil-
mand is also not consistent as complainant lage development officer.
36. If the entire evidence is appreci- (since deceased) through his LR Vs. State
ated, it shows that illegally complainant of Punjab)15, 2017 S.C.C. Online S.C. 742 also
PW1 Gopal Bawane has constructed house it is held that the statement of complainant
on the Government land by encroaching and inspector, the shadow witness in isola-
upon the same. He is already having house tion that the accused had enquired as to
at Daryapur under the Scheme of “Indiara whether money had been brought or not,
Awas Yojna” and, thereafter, also he filed can by no mean constitute demand as en-
an application for allotment of the plot. The joined in law. Such a stray query ipso facto
possibility of thrusting the amount for get- in absence of any other cogent and persua-
ting the favourable report from the accused sive evidence on record cannot amount to
cannot be ruled out. a demand to be a constituent of the offence.
37. It is well settled that the evidence 39. While deciding the issue involv-
of complainant should be corroborated in ing the offence under the said Act, a fact
material particulars. required to be considered is that the evi-
38. The Honourable Apex Court in the dence of complainant PW1 Gopal Bawane
case of (Panalal Damodar Rathi Vs. State will have to be scrutinized meticulously.
of Maharashtra)14, (1979)4 S.C.C. 526 has The testimony of such person requires care-
held that there could be no doubt that the ful scrutiny.
evidence of the complainant should be cor- 40. In the case of (M.O. Shamsudhin
16
roborated in material particulars. After in- Vs. State of Kerala) , (1995)3 S.C.C. 351 it
troduction of section 165-A of the Indian has been held that word " accomplice" is not
Penal Code making the person who offers defined in the Evidence Act. It is used in its
bribe guilty of abetment of bribery, the com- ordinary sense, which means and signifies
plainant cannot be placed on any better a guilty partner or associate in crime. Read-
footing than that of an accomplice and cor- ing section 133 and Illustration (b) to sec-
roboration in material particulars connecting tion 114 of the Evidence Act together the
the accused with the crime has to be insisted courts in India have held that while it is not
upon. The evidence of the complainant re- illegal to act upon the uncorroborated tes-
garding the conversation between him and timony of the accomplice the Rule of pru-
the accused has been set out earlier. As the dence so universally followed has to
entire case of the prosecution depends upon amount to Rule of law that it is unsafe to
the acceptance of the evidence relating to the act on the evidence of an accomplice unless
conversation between the complainant and it is corroborated in material aspects so as
the appellant during which the appellant de- to implicate the accused.
manded the money and directed payment to 41. In the case of (Bhiva Doulu Patil
the second accused which was accepted by Vs. State of Maharashtra)17, 1962 DGLS(SC)
the complainant, we will have to see whether 251 : 1963 Mh.L.J. 273(S.C.) it has been held
this part of the evidence of the complainant that the combine effect of sections 133 and
has been corroborated. The Honourable 114, illustration (b) may be stated as follows:
Apex Court held that it should corroborate “According to the former, which is a Rule of
to each other. law, an accomplice is competent to give evi-
dence and according to the latter which is a
In the decision of the Honourable
Rule of practice it is almost always unsafe
Apex Court in the case of (Mukhtiar Singh to convict upon his testimony alone. There-
fore though the conviction of an accused on tions, favour or disfavour to any person or
the testimony of an accomplice cannot be for rendering or attempting to render any
said to be illegal yet the courts will, as a service or disservice to any person, with
matter of practice, not accept the evidence the Central Government or any State Gov-
of such a witness without corroboration in ernment or Parliament or the Legislature
material particulars.” of any State or with any local authority,
42. Thus, in catena of decisions, it is corporation or Government company re-
held that complainant himself is in the na- ferred to in Clause (c) of section 2, or with
ture of accomplice and his story prima facie any public servant, whether named or oth-
erwise, shall be punishable with imprison-
suspects for which corroboration in mate-
ment which shall be not less than three
rial particulars is necessary. years but which may extent to seven years
43. In the present case, learned Coun- and shall also be liable to 2 (2014)5 S.C.C.
sel for the accused rightly pointed out that 103 3 (2016)11 S.C.C. 357 fine.
there is a variance in the evidence of com- 13. Criminal misconduct by a public servant –
plainant PW1 Gopal Bawane and shadow (1) A public servant is said to commit the
pancha PW2 Kishor Khandpure as to the offence of criminal misconduct, ...............
demand as well as acceptance. Prior con- (2)...............”
ducting the raid, the officers of the bureau 14. The indispensability of the proof of demand
have not verified whether the allegationa and illegal gratification in establishing a
made by the complainant are genuine and charge under sections 7 and 13 of the Act,
has by now engaged the attention of this
there was a demand by the accused.
Court on umpteen occasions. In A.Subair Vs
44. It is well settled that mere posses- State of Kerala, this Court propounded that
sion and recovery of currency notes from the prosecution in order to prove the charge
accused without proof of demand would under the above provisions has to establish
not establish an offence under section 7 as by proper proof, the demand and acceptance
well as section 13(1)(d)(i)(ii) of the said Act. of the illegal gratification and till that is ac-
45. It is held by the Honourable Apex complished, the accused should be consid-
Court in paragraph Nos. 13 and 14 in the case ered to be innocent.”
of Mukhtiar Singh (since deceased) through his 46. In the c ase of (The State of
LR Vs. State of Punjab (supra) as follows: Maharashtra Vs. Ramrao Marotrao
“13. Before averting to the evidence, apt it Khawale)18, 2017 DGLS(Bom.) 2346 : 2017
would be to refer to the provisions of the All.M.R.(Cri.) 3269 this Court has held that
Act whereunder the original accused had when a trap is set for proving the charge of
been charged: corruption against a public servant, evi-
“7. Public servant taking gratification other dence about prior demand has its own im-
than legal remuneration in respect of an portance. It is further held that the reason
official act. - Whoever, being, or expecting being that the complainant is also consid-
to be a public servant, accepts or obtains ered to be an interested witness or a wit-
or agrees to accept or attempts to obtain ness who is very much interested to get his
from any person, for himself or for any
work done from a public servant at any cost
other person, any gratification whatever,
other than legal remuneration, as a motive and, therefore, whenever a public servant
or reward for doing or forbearing to do any brings to the notice of such an interested
official act or for showing or forbearing to witness certain official difficulties, the per-
show, in the exercise of his official func- son interested in work may do something
to tempt the public servant to byepass the the Court finds its existence to be so prob-
Rules by promising him some benefit. Since able that a reasonable man would act on the
the proof of demand is sine qua non for con- supposition that it exists. Unless therefore,
victing an accused, in such cases the pros- the explanation is supported by proof, the
ecution has to prove charges against accused. presumption created by the provision can-
Whereas, burden on accused is only to show not be said to be rebutted. Something more,
probability and he is not required to prove than raising a reasonable probability, is re-
facts beyond reasonable doubt. quired for rebutting a presumption of law.
47. The Honourable Apex Court in the Though, it is well-settled that the accused
case of (Mohmoodkhan Mahboobkhan is not required to establish his explanation
Pathan Vs. State of Maharashtra) 19 , by the strict standard of 'proof beyond rea-
(1997)10 S.C.C. 600 held that the primary sonable doubt', and the presumption under
condition for acting on the legal presump- section 4 of the Act would stand rebutted if
tion under section 4(1) of the Act is that the the explanation or defence offered and
prosecution should have proved that what proved by the accused is reasonable and
the accused received was gratification. The probable.
word "gratification" is not defined in the 49. In the present case, as noted above,
Act. Hence it must be understood in its lit- the evidence as to the demand of illegal
eral meaning. In the Oxford Advanced gratification is not satisfactory and convinc-
Learner's Dictionary of Current English, the ing and since the proof of demand is a sine
work "gratification" is shown to have the quo non for convicting the accused in such
meaning "to give pleasure or satisfaction cases, it cannot be said that the prosecution
to". The word "gratification" is used in sec- has been successful in proving its case be-
tion 4(1) to denote acceptance of something yond reasonable doubt.
to the pleasure or satisfaction of the recipi- 50. After appreciating the evidence on
ent. If the money paid is not for personal record, as per the prosecution case, the ac-
satisfaction or pleasure of the recipient it is cused has demanded the amount for for-
not gratification in the sense it is used in warding the report. The evidence of the
the section. In other words unless the pros- complainant PW1 Gopal Bawane shows
ecution proves that the money paid was not that he has encroached over the Govern-
towards any lawful collection or legal re- ment land and also having one house un-
muneration the Court cannot take recourse der the Scheme of “Indira Awas Yojna”.
to the presumption of law contemplated in Additionally, he wants to obtain the plot for
section 4(1) of the Act, though the Court is constructing the house and, therefore, he
not precluded from drawing appropriate approached with the application. Thus, the
presumption of fact as envisaged in section intention of the complainant can be gath-
114 of the Evidence Act at may stage. ered from the circumstances. If this evi-
48. In the case of (State of dence is taken into consideration, in the
Maharashtra Vs. Rashid B. Mulani) 20 , light of the fact that no anthracene powder
2006(1) Bom.C.R.(Cri.) 221(S.C.) : (2006)1 was found on the hands of the accused and
S.C.C. 407 it is held that a fact is said to be the defence of the accused that the amount
proved when its existence is directly estab- is thrusted in his shirt pocket, which is sup-
lished or when upon the material before it ported by the circumstance that no anthra-
Bom.C.R.(Cri.) Laxman R. Pawar v. State of Maharashtra 951
cene powder was found on his hands and ated as to the demand of the amount as the
found only on the shirt pocket, admittedly, independent witness is not examined and
the accused is not required to establish his there is no consistency between the evi-
explanation by the strict standard of proof dence of complainant and the shadow
‘beyond reasonable doubt’. The explanation pancha. I have already observed that prin-
is supported by the oral evidence of the de- ciples for according the sanctions are not
fence witnesses as well as the circumstance taken into consideration. The sanctioning
that no glittering was found on his hand and authority to exercise powers strictly keep-
the presumption would stand rebutted when ing in mind all the relevant facts and mate-
the explanation or the defence offered and rial and accord the sanction. The sanction
proved by the accused is reasonable one. order nowhere discloses that the said satis-
51. It is also well settled that while faction. Thus, the entire exercise carried out
deciding the offence under the said Act, by the sanctioning authority is without ap-
the complainant’s evidence is to be scru- plication of mind. The evidence as to the
tinized meticulously. There could be no demand and acceptance is also not satisfac-
doubt that the evidence of the complain- tory. The demand and acceptance require
ant should be corroborated in material to be proved which is sine quo non for estab-
particulars. The complainant cannot lishing the charge. As such, the appeal de-
placed on any better footing than that of serves to be allowed and, therefore, I pass
an accomplice and corroboration in ma- following order:
terial particulars connecting the accused ORDER
with the crime has to be insisted upon. (1) The criminal appeal is allowed.
52. As far as applicability of presump- (2) The judgment and order of conviction and
tion is concerned, the Honourable Apex sentence dated 1.9.2012 passed by learned
Court in the case of Neerja Dutta Vs. State Additional Sessions Judge, Achalpur in Spe-
(Govt.of NCT of Delhi) (supra) held that pre- cial Case (ACB) No. 4/2005 convicting and
sentencing the accused is hereby quashed
sumption of fact with regard to the demand
and set aside.
and acceptance or obtainment of an illegal
(3) The accused is acquitted of offences for
gratification may be made by a Court of law
which he was charged and convicted.
by way of an inference only when the
The appeal stands disposed of.
foundational facts have been proved by rel-
Appeal allowed.
evant oral and documentary evidence and
not in the absence thereof. On the basis of -----
the material on record, the Court has the There is no requirement of two charge-
discretion to raise a presumption of fact sheets when a crime is registered within
while considering whether the fact of de- meaning of Sections 3(2), 3(3) & 3(4) of
mand has been proved by the prosecution MCOC Act
or not. Of course, a presumption of fact is 2024(1) Bom.C.R.(Cri.) 951
subject to rebuttal by the accused and in the Before :
absence of rebuttal presumption stands. Prithviraj K. Chavan, J.
53. In the instant case, as observed ear- Laxman Rama Pawar @ Mahakal ... Applicant.
lier that prior demand by the accused is not Versus
proved by the prosecution, a doubt is cre- State of Maharashtra ... Respondent.
952 Laxman R. Pawar v. State of Maharashtra 2024(1)
Criminal Bail Application No. 1964 of prosecuted for the offences punishable un-
2022, decided on 10/16-1-2024. der sections 307, 120(B) of the Indian Penal
Constitution of India, Art. 226 – Code read with sections 3 and 25 of the
Maharashtra Control of Organized Crimes Arms Act and subsequently by invoking
Act, 1999, Sec. 21(4) – Writ petition – Powers stringent provisions of the Maharashtra
of writ Court to grant bail – Scope – Despite statu- Control of Organized Crimes Act (for short
tory restrictions of Section 21(4) of MCOC Act, “MCOC Act”) by the DCB, CID vide C.R.
ability of constitutional Court, per se, does not oust No. 11 of 2018, C.R. No. 19 of 2019 and C.R.
its powers to grant bail to under trials on grounds No. 99 of 2015. Initially, an offence against
of violation of part III of Constitution. (Para 26) the applicant and the rest of the accused
Cases referred : came to be registered at Vikhroli Police Sta-
1. Kavitha Lankesh Vs. State of Karnataka, 2022(1) tion vide C.R. No. 509 of 2019 on 19.12.2019.
Bom.C.R.(Cri.) 332(S.C) : (2022)12 S.C.C. 753. 2. A few facts germane for disposal of this
2. Ranjitsingh Brahmajeetsing Sharma Vs. State of application can be summarized as follows.
Maharashtra, 2005(2) Bom.C.R.(Cri.) 567(S.C) :
(2005)5 S.C.C. 294 : 2005 S.C.C.(Cri.) 1057. 3. The first informant, on 19.12.2019
3. Prasad Shrikant Purohit Vs. State of Maharashtra, after worshiping in the Sai Temple was sit-
2015(3) Bom.C.R.(Cri.) 92(S.C) : (2015)7 S.C.C. 440 ting in the office of the temple. The accused
: (2015)3 S.C.C.(Cri.) 138. No. 4 – Sagar came into the office and
4. Zakir Abdul Mirajkar Vs. State of Maharashtra, opened a fire by means of a gun. The bullet
2022 S.C.C. Online S.C. 1092.
fired from the gun pierced into his arm, re-
5. Govind Sakharam Ubhe Vs. State of Maharashtra,
2009(3) Bom.C.R.(Cri.) 144. sulting into a bleeding injury. However, the
6. Anil Shankar Patil Vs. State of Maharashtra, B.A. first informant along with his son appre-
No. 33/2022, dt. 29-7-2022. hended the assailant on the spot. Subse-
7. Union of India Vs. K.A. Najeeb, 2021(1) quently, accused Nos. 1 and 2 also came to
Bom.C.R.(Cri.) 652(S.C) : (2021)3 S.C.C. 713. be arrested on 24.12.2019.
8. Shaheen Welfare Assn. Vs. Union of India, (1996)2
S.C.C. 616 : 1996 S.C.C.(Cri.) 366. 4. During the course of investigation,
9. Kartar Singh Vs. State of Punjab, (1994)3 S.C.C. statements of the witnesses came to be re-
569 : 1994 S.C.C.(Cri.) 899. corded, a memorandum panchanama un-
10. Paramjit Singh Vs. State (NCT of Delhi), (1999)9 der section 27 of the Indian Evidence Act
S.C.C. 252 : 1999 S.C.C.(Cri.) 1156. was also drawn and when it revealed that
11. Babba Vs. State of Maharashtra, (2005)11 S.C.C.
it was an act of an organized crime syndi-
569 : (2006)2 S.C.C.(Cri.) 118.
12. Umarmia Vs. State of Gujarat, 2017(2)
cate, prior approval of the Competent Of-
Bom.C.R.(Cri.) 120(S.C) : (2017)2 S.C.C. 731 : ficer was obtained under section 23(1)(a) of
(2017)2 S.C.C.(Cri.) 114. the MCOC Act. Previous sanction came to
13. Supreme Court Legal Aid Committee (Repre- be accorded by the Commissioner of Police,
senting Undertrial Prisoners) Vs. Union of India, Mumbai under section 23(2) of the MCOC
(1994)6 S.C.C. 731 : 1995 S.C.C.(Cri.) 39.
Act against the 10 accused.
Santosh Deshpande, S.M. Deshpande & Associate,
5. After the investigation, a charge-
for applicant. sheet came to be filed. An application for
A.A. Palkar, A.P.P., for respondent – State. bail preferred by the applicant in the trial
166.PM/IN/SG/RJ/PN Court came to be rejected on 31.3.2021. The
PRITHVIRAJ K. CHAVAN, J.: – The appli- second application also came to be rejected
cant is one of the 11 accused, who are being on 29.4.2022.
6. At the outset, Mr. Deshpande, ner and under which offences he was in-
learned Counsel for the applicant in his volved in continuing unlawful activities.
elaborate arguments tried to demonstrate There is no material indicating the involve-
several lacunae in the prosecutions case in- ment of the applicant in the organized crime
dicating how the applicant has been impli- syndicate of Prasad Pujari.
cated falsely on the basis of concocted ma- 9. Mr. Palkar, learned A.P.P. while
terial sans any nexus either direct or indi- strongly objecting release of the applicant
rect in the commission of the offence as well on bail, submits that the applicant is a mem-
as a member of an organized crime syndi- ber of an organized crime syndicate who
cate. Mr. Deshpande would argue that the had indulged in continuing unlawful activi-
First Information Report came to be lodged ties which is evident from his role in pro-
against an unknown person and, subse- viding shelter to the prime accused, who
quently, the Investigating Agency had had shot at the first informant. Mr. Palkar
falsely shown his presence on the spot, would invite my attention to the confes-
when in fact, he is neither an assailant nor sional statement of the accused No. 2 –
was present at the scene on the date of inci- Umesh Shetty indicating complicity of the
dent. Mr. Deshpande would further argue applicant in this crime. According to Mr.
that neither test identification parade has Palkar, the role of the applicant is essentially
been conducted nor there is any witness is that of an abettor as provided in section
who had indicated complicity of the appli- 2(1)(a)(i)(iii) of the MCOC Act, meaning
cant in the said crime. thereby not only he harboured the assail-
7. The only material, according to the ant but also facilitated him by providing
learned Counsel, putforth by the prosecution arms. Mr. Palkar would argue that in view
is in the form of confessional statement of a of rigours of section 21(4) of the MCOC Act,
co-accused and nothing else. The Court be- the applicant is not entitled to be enlarged
low had rejected his application for bail only on bail in light of the fact that there are rea-
on the premise that he had been named by a sonable grounds for believing that he is
co-accused in his confessional statement. The guilty of said offence and even it is quite
prosecution has not shown that the applicant possible that in case of his release, he might
had indulged in continuing unlawful activi- commit any offence while on bail.
ties nor there is any shred of evidence to show 10. Indubitably, accused No. 2 Anand
that he is a member of an organized crime Phadtare and accused No. 9 – mother of the
syndicate or even for that matter, acted on kingpin of an organized crime syndicate
behalf of such syndicate. have already been released on bail and the
8. The Counsel has also questioned orders have attained finality since the pros-
the previous sanction granted by the Com- ecution has not challenged those orders in
missioner of Police, inasmuch as the king- the Supreme Court.
pin of the organized crime syndicate 11. This Court in an order granting
namely, Prasad Pujari, who is said to have bail to accused No. 2 - Anand Phadtare ob-
been charge-sheeted with more than two served that there are no criminal anteced-
charge-sheets namely; DCB, CID vide C.R. ents against him. Rather, accused No. 9 who
No. 11 of 2018, C.R. No. 19 of 2019 and C.R. is the mother of the kingpin Prasad Pujari
No. 99 of 2015 do not indicate in what man- has several crimes at her discredit not only
under the provisions of IPC but also under - Umesh had arranged a motor bike with
the provisions of MCOC Act. A prominent no license plate from his childhood friend,
role has been attributed to her in the instant accused No. 2 – Anand Phadtare by cat-
crime, in the sense, she made financial pro- egorically informing him (Anand) the pur-
visions to execute the plan of eliminating pose for which it was required and also
the first informant. promised to pay him money from the king-
12. Mr. Deshpande was at pains to pin. Accordingly, accused No. 2 – Anand
persuade me to highlight significant as- Phadtare provided a black coloured Pulsar
pects, namely absence of name of the ap- motor bike, without number plate, to the
plicant in the alleged conspiracy, absence applicant. The said motor bike was used in
of nexus with Prasad Pujari and last but not the commission of the offence on 19.12.2019.
least his absence at the scene of crime. 16. No sooner did shooter Sagar
13. Crucial material qua the applicant opened fire at the injured, he was caught
is the confessional statement of accused No. red-handed on the spot by the public. How-
3-Umesh Shetty (for short ‘Umesh’), re- ever, accused No. 3 - Umesh made his es-
corded on 11.1.2020 by DCP Zone-11, cape good on the motor bike provided by
Mumbai namely Dr. Mohan Dahikar under accused No. 2 – Anand Phadtare. It is a
section 18 of the MCOC Act. matter of record that confessional statement
14. A perusal of the same reveals that of accused No. 3 - Umesh refers only
the applicant was introduced with co-ac- “Laxman” without giving details of his fa-
cused – Umesh by the shooter accused No. ther’s name or surname. No Test Identifi-
4 - Sagar. As per the instructions of Prasad cation Parade appears to have been con-
Pujari, the applicant and accused No. 4 – ducted to confirm the identity of the appli-
Sagar had been to the house of the applicant. Be that as it may.
cant where Vijay and the applicant had 17. Role attributed to the applicant, as
shown him a silver coloured country made an abettor or a facilitator is quite apparent
weapon (which is worded as “lkeku ” – re- and the same is not lesser than the role at-
ferring to a fire arm). The applicant had tributed to accused No. 2 – Anand Phadtare.
also shown photographs of the first in- As such, on parity, his prayer for bail will
formant to Umesh by informing that Anna have to be considered.
alias Prasad Pujari (kingpin) had shooter 18. An authoritative pronouncement
to eliminate the first informant. The con- of the Hon’ble Supreme Court in case of
fessional statement further reveals that (Kavitha Lankesh Vs. State of Karnataka
1
after an overnight stay at the applicant’s & Ors.) , 2022(1) Bom.C.R.(Cri.) 332(S.C.) :
house, Umesh and Sagar followed the (2022)12 S.C.C. 753 is pressed into service
applicant on a motor bike on the follow- by Mr. Palkar, learned A.P.P. wherein the
ing day. The applicant was heading them Supreme Court expounded the scope and
towards the house of the “target” in an ambit of section 2(1)(a) of the MCOC Act.
auto rickshaw. Since they could not no- Para 29 of the judgment is extracted below
tice the first informant due to rains, they for advantage.
returned to applicant’s house. 29. We may hasten to add that the fact that the In-
vestigating Agency was unable to collect mate-
15. Meanwhile, as per the command
rial during investigation against the Writ peti-
of the kingpin Prasad Pujari, accused No. 3
tioner Mohan Nayak N. for the offence under
section 3(1) of the 2000 Act, does not mean that Abdul Mirajkar (supra) has follm owed a ra-
the information regarding commission of a crime tio laid down by the said Court in the case
by him within the meaning of sections 3(2), 3(3) of (Govind Sakharam Ubhe Vs. State of
or 3(4) of the 2000 Act cannot be recorded and Maharashtra)5, 2009(3) Bom.C.R.(Cri.) 144
investigated against him as being a member of
(Criminal Appeal No. 18 of 2009) (Coram:
the organized crime syndicate and/or having
played role of an abettor, being party to the con- Smt. Ranjana Desai & R.G. Ketkar, JJ). Para
spiracy to commit organised crime or of being a 37 of the judgment in the case of Govid Ubhe
facilitator, as the case may be. For the latter (supra) reads thus :-
category of offence, it is not essential that “37. But even otherwise, if all provisions are read
more than two charge-sheets have been filed together we reach the same conclusion section
against the person so named, before a Com- 2(1)(d) which defines `continuing unlawful ac-
petent Court within the preceding period of tivity’ sets down a period of 10 years within
ten years and that Court had taken cogni- which more than one charge-sheet have to be filed.
zance of such offence. That requirement ap- The members of the crime syndicate operate ei-
plies essentially to an offence punishable ther singly or jointly in commission of organ-
only under section 3(1) of the 2000 Act. ized crime. They operate in different modules. A
30. As regards offences punishable under sections person may be a part of the module which jointly
3(2), 3(3), 3(4) or 3(5), it can proceed against undertakes an organized crime or he may singly
any person sans such previous offence reg- as a member of the organized crime syndicate or
istered against him, if there is material to on behalf of such syndicate undertake an organ-
indicate that he happens to be a member of ized crime. In both the situations, the MCOCA
the organized crime syndicate who had com- can be applied. It is the membership of organ-
mitted the offences in question and it can ized crime syndicate which makes a person li-
be established that there is material about able under the MCOCA. This is evident from
his nexus with the accused who is a mem- section 3(4) of the MCOCA which states that
ber of the organized crime syndicate. This any person who is a member of an organized
position is expounded in the case of crime syndicate shall be punished with impris-
(Ranjitsingh Brahmajeetsing Sharma Vs. onment for a term which shall not be less than
State of Maharashtra) 2, 2005(2) five years but which may extend to imprison-
Bom.C.R.(Cri.) 567(S.C.) : (2005)5 S.C.C. 294 ment for life and shall also be liable to fine, sub-
: 2005 S.C.C.(Cri.) 1057 which has been quoted ject to a minimum of fine of Rs. 5 lakhs. The
with approval in para 85 of the judgment in charge under the MCOCA ropes in a person who
(Prasad Shrikant Purohit Vs. State of as a member of the organized crime syndicate
Maharashtra)3, 2015(3) Bom.C.R.(Cri.) commits organized crime i.e. acts of extortion
92(S.C.) : (2015)7 S.C.C. 440 : (2015)3 by giving threats, etc. to gain economic advan-
S.C.C.(Cri.) 138.” … (emphasis supplied) tage or supremacy, as a member of the crime syn-
19. Mr. Palkar would also press into dicate singly or jointly. Charge is in respect of
unlawful activities of the organized crime syn-
service another judgment of the Hon’ble Su-
dicate. Therefore, if within a period of preceding
preme Court in case of (Zakir Abdul ten years, one charge-sheet has been filed in re-
Mirajkar Vs. State of Maharashtra & spect of organized crime committed by the mem-
Ors.)4, 2022 S.C.C. Online S.C. 1092 wherein bers of a particular crime syndicate, the said
it is held that more than one charge-sheet charge-sheet can be taken against a member of
is not required to be filed with respect to the said crime syndicate for the purpose of ap-
each of the accused against whom the pro- plication of the MCOCA against him even if he
visions of MCOC Act have been invoked. is involved in one case. The organized crime com-
The Hon’ble Supreme Court in case of Zakir mitted by him will be a part of the continuing
unlawful activity of the organized crime syndi- which the applicant – Anil Patil was en-
cate. What is important is the nexus or the link larged on bail. In case of Anil Patil (supra)
of the person with organized crime syndicate. the co-ordinate bench of this Court consid-
The link with the òrganized crime syndicate’ is ered prolonged incarceration of the appli-
the crux of the term `continuing unlawful ac-
cant of five years without trial coupled with
tivity’. If this link is not established, that person
cannot be roped in.” his fundamental right to have a speedy trial
despite statutory restrictions contemplated
20. I am afraid I cannot buy the argu-
under section 21(4) of the MCOC Act. This
ment of Mr. Deshpande that no chargesheet
Court has drawn support from the ratio laid
qua the applicant has been filed by the pros-
down by the Supreme Court, apart from
ecution indicating his nexus with the king-
other precedents, in the case of (Union of
pin of the organized crime syndicate.
India Vs. K.A. Najeeb) 7 , 2021(1)
21. It can thus be seen that even
Bom.C.R.(Cri.) 652(S.C.) : (2021)3 S.C.C. 713.
though no charge-sheet has been tendered
Para 10, 11, 12, 15 and 17 of the said judg-
qua the applicant indicating any nexus with
ment read thus:-
the kingpin of the organized crime syndi-
“10. It is a fact that the High Court in the instant
cate, yet, his role as an abettor or a facilitator case has not determined the likelihood of the re-
seemed in the confessional statement of spondent being guilty or not, or whether rig-
Umesh. There is no requirement of two ours of section 43-D(5) of UAPA are alien to him.
charge-sheets when a crime is registered The High Court instead appears to have exercised
within the meaning of section 3(2), 3(3) or its power to grant bail owing to the long period of
3(4) of the MCOC Act. incarceration and the unlikelihood of the trial be-
22. Learned A.P.P. drew my attention ing completed anytime in the near future. The rea-
to a chart indicating link and connections sons assigned by the High Court are apparently
traceable back to Article 21 of our Constitution, of
between the kingpin of the organized crime
course without addressing the statutory embargo
syndicate – Prasad Pujari and the other mem-
created by section 43- D(5) of UAPA.
bers through their respective cell phones. 11. The High Court’s view draws support from a
Even if one throws a glance to the said chart, batch of decisions of this Court, including in
at this stage, it appears that there is no direct (Shaheen Welfare Assn. Vs. Union of India)8,
conversation between the kingpin and the ap- (1996)2 S.C.C. 616 : 1996 S.C.C.(Cri.) 366,
plicant. However, the applicant appears to laying down that gross delay in disposal of such
have been in touch with other co-accused. cases would justify the invocation of Article 21
This aspect in itself would not come in the of the Constitution and consequential necessity
way of considering the case of the applicant to release the undertrial on bail. It would be use-
for the purpose of granting him bail. ful to quote the following observations from the
cited case: (SCC p.622, para 10)
23. It is not necessary to multiply au-
“10. Bearing in mind the nature of the crime and
thorities relied upon by Mr. Deshpande in the need to protect the society and the nation,
support of his contention. Suffice it to say TADA has prescribed in section 20(8) stringent
that this Court in an identical case (Anil provisions for granting bail. Such stringent pro-
Shankar Patil Vs. The State of visions can be justified looking to the nature of
Maharashtra)6, Bail Application No. 33 of the crime, as was held in (Kartar Singh Vs.
2022 (Coram: A.S. Gadkari, J) dated State of Punjab)9, case (1994)3 S.C.C. 569 :
29.7.2022. drew support from various case 1994 S.C.C.(Cri.) 899, on the presumption that
laws tendered across the bar pursuant to the trial of the accused will take place without
undue delay. No one can justify gross delay in UAPA per se does not oust the ability of consti-
disposal of cases when undertrials perforce re- tutional courts to grant bail on grounds of vio-
main in jail, giving rise to possible situations lation of Part III of the Constitution. Indeed, both
that may justify invocation of Article 21.” the restrictions under a statue as well as the pow-
(emphasis supplied) ers exercisable under constitutional jurisdiction
12. Even in the case of special legislations like the can be well harmonised. Whereas at commence-
Terrorist and Disruptive Activities (Prevention) ment of proceedings, courts are expected to ap-
Act, 1987 or the Narcotic Drugs and Psycho- preciate the legislative policy against grant of
tropic Substances Act, 1985 (“the NDPS Act”) bail but the rigours of such provisions will melt
which too have somewhat rigorous conditions down where there is no likelihood of trial being
for grant of bail, this Court in (Paramjit Singh completed within a reasonable time and the pe-
Vs. State (NCT of Delhi)10, (1999)9 S.C.C. 252 riod of incarceration already undergone has ex-
: 1999 S.C.C.(Cri.) 1156 (Babba Vs. State of ceeded a substantial part of the prescribed sen-
Maharashtra)11, (2005)11 S.C.C. 569 : (2006)2 tence. Such an approach would safeguard against
S.C.C.(Cri.) 118 and (Umarmia Vs. State of the possibility of provisions like section 43-D(5)
Gujarat)12, 2017(2) Bom.C.R.(Cri.) 120(S.C.) of the UAPA being used as the sole metric for
: (2017)2 S.C.C. 731 : (2017)2 S.C.C.(Cri.) 114 denial of bail or for wholesale breach of constitu-
enlarged the accused on bail when they had been tional right to speedy trial.”
in jail for an extended period of time with little 24. There can be no second thought
possibility of early completion of trial. The con- on the rigours of section 21(4) of the MCOC
stitutionality of harsh conditions for bail in such Act, nevertheless, it is essential to observe
special enactments, has thus been primarily jus- the culpability and extent of the applicant’s
tified on the touchstone of speedy trials to en- involvement in the commission of an organ-
sure the protection of innocent civilians.”
ized crime either directly or indirectly, as
15. This Court has clarified in numerous judgments
discussed hereinabove.
that the liberty guaranteed by Part III of the Con-
stitution would cover within its protective am- 25. The applicant has already spent
bit not only due procedure and fairness but also around four years in the custody with little
access to justice and a speedy trial. In (Supreme possibility of early completion of the trial.
Court Legal Aid Committee (Representing Apart from the ground of parity, he cannot
Undertrial Prisoners) Vs. Union of India)13, be detained indefinitely as an under trial.
(1994)6 S.C.C. 731, para 15 : 1995 S.C.C. (Cri) 26. Despite statutory restrictions of
39, it was held that undertrials cannot indefi- section 21(4) of the MCOC Act, ability of
nitely be detained pending trial. Ideally, no per-
constitutional Court, per se, does not oust
son ought to suffer adverse consequences of his acts
unless the same is established before a neutral arbi- its powers to grant bail to under trials on
ter. However, owing to the practicalities of real life the grounds of violation of part III of the
where to secure an effective trial and to ameliorate Constitution.
the risk to society in case a potential criminal is left 27. Needless to state that these are
at large pending trial, the courts are tasked with prima facie observations sans merits of the
deciding whether an individual ought to be released case only to the extent of considering ap-
pending trial or not. Once it is obvious that a timely plication for bail. The trial Court shall not
trial would not be possible and the accused has get influenced with the observations made
suffered incarceration for a significant period of
hereinabove.
time, the courts would ordinarily be obligated to
enlarge them on bail.” 28. Having made a harmonious analy-
17. It is thus clear to us that the presence of statu- sis of relevant aspects, following order is
tory restrictions like section 43-D(5) of the expedient.
958 Shatrughna A. Patil v. Vinod D. Chaudhary 2024(1)
ORDER Indian Penal Code, 1860, Sec. 306 –
(i) The application is allowed. Constitution of India, Art. 227 – Code of
(ii) The applicant – Laxman Rama Pawar @ Mahakal Criminal Procedure, 1973, Sec. 482 – Com-
be released on executing a PR bond in the sum of mitment of suicide by vendor of Sale deed – Ven-
Rs. 1,00,000/- (Rupees One lac) with one or two dor of sale-deed left behind a suicide note naming
sureties in the like amount to the satisfaction of
tenants as abettors – Why police personnel have
the trial Court in C.R. No. 509 of 2019 by the
Vikhroli Police Station investigated by DCB CID
been allowed to go scot-free in a case where they
vide CR No. 230 of 2019. had an apparent roll in conspiring and in abetting
(iii) The applicant shall report Vikhroli Police crime of illegal detention of tenants, coercing them
Station on every Sunday between 3.00 p.m. to sign document against their will, and getting
to 5.00 p.m, till the conclusion of the trial. premises in question demolished without any
(iv) The applicant shall not directly or indi- order from a Competent Court – Held, continu-
rectly make any inducement, threat or prom- ance of these two criminal proceedings would
ise to any person acquainted with the facts of not be of any avail once complainant has him-
the case so as to dissuade him from disclosing self stated to withdraw complaint. Their losses
the facts to Court or any Police Officer. The having been compensated, any further investi-
applicant shall not tamper with evidence.
gation or trial would be an exercise in futility.
(v) The applicant shall furnish his cell number as
SLPs are allowed. (Paras 10 to 12)
well as residential address to the Investigating
Officer. In case, there is any change in the cell 356.PM/IN/ND/PN/TC
number or the residential address, the same shall Per VIKRAM NATH, J.: – The premises in
be informed to the Investigating Agency. question were in the possession of three ten-
(vi) The applicant shall surrender his passport ants. However, for the present, we are con-
with the Investigating Officer, if any. cerned with only two tenants, namely
(vii) Needless to state that in case of breach of any of Vijaykumar Vishwanath Dhawale and
the condition hereinabove, liberty to the pros- Vinod Dodhu Chaudhary. As the third ten-
ecution to pray for cancellation of his bail. ant had not filed any complaint and only
29. The application stands disposed of. the above two named complainants have
Application disposed off. filed the complaint, that is why the third
----- tenant is not a party to the proceedings.
Continuance of these two criminal pro- 2. The premises in dispute were
ceedings would not be of any avail once owned by one Rajeev Ramrao Chavan. He
complainant has himself stated to with- sold the property to five persons, namely
draw complaint Sanjay Nathmal Jain, Sunil Mishrilal Jain,
2024(1) Bom.C.R.(Cri.) 958 Manoj Mishrilal Jain, Ghanshyam Bansilal
(SUPREME COURT) Agrawal and Prasannachand Sobhagmal
Before : Parakh, vide registered sale-deed dated
Vikram Nath & Satish Chandra Sharma, JJ. 27.10.2021. Unfortunately, Rajeev Ramrao
Shatrughna Atmaram Patil & ors. ... Appellants. Chavan, the vendor of the sale-deed dated
Versus 27.10.2021, died allegedly having commit-
Vinod Dodhu Chaudhary & ors. ... Respondents. ted suicide on 8.3.2022 and having left be-
Special Leave Petition (Cri.) Nos. 14585, hind a suicide note, naming the tenants as
14572, 14734, 14735, 15433 & 15294 of 2023, abettors. On the strength of the same, a com-
decided on 30-1-2024. plaint was made to the local police. How-
Bom.C.R.(Cri.) Shatrughna A. Patil v. Vinod D. Chaudhary 959
ever, an accidental death was registered, but tenants/complainants before the Sessions
no FIR1 was registered under section 306 Judge. The Sessions Judge vide Order dated
of the Indian Penal Code, 18602. 23.3.2023, allowed the revision and directed
3. Soon thereafter, i.e., on 9.3.2022, that the complaint filed before the Magis-
the tenants were called to the concerned trate under section 156(3) Cr.P.C. be for-
Police Station. They 1 First Information warded to the concerned Police Station for
Report 2 ‘IPC’ were held for about 24 registration and investigation.
hours, and in the meantime, the premises 6. The order of the Revisional Court
in question were demol ished by the dated 23.3.2023 was challenged before the
bro ther o f the dec eased-vendo r, hi s High Court by all the 13 accused through
widow, and with the support of the local separate petitions titled under section 482
police. At the Police Station, the tenants Cr.P.C. and Article 227 of the Constitution
were also forced to sign some documents, of India. The High Court, while deciding
apparently giving their consent of vacat- these petitions, not only approved the or-
ing the premises voluntarily. der of the Sessions Judge but also issued
4. The two tenants, Vijaykumar further directions regarding investigation,
Vishwanath Dhawale and Vinod Dodhu by the impugned Order dated 23.10.2023.
Chaudhary lodged complaint initially with It is this order which is under challenge
the Police Station, but as the same was not before us by way of these six petitions. Spe-
acknowledged, they moved an application cial Leave Petition (Crl.) No. 15433 of 2023
before the concerned Magistrate under sec- and Special Leave Petition (Crl.) No. 15294
tion 156(3) of Code of Criminal Procedure, of 2023 have been filed by the brother of
19733. In the complaint made by the two the deceased with respect to the two com-
tenants, 13 accused were named, namely plaints made by the two tenants. Special
Dr. Sanjeev Ramrao Chavan i.e. brother of Leave Petition (Crl.) Nos. 14734-14735 of
the deceased, Smita Rajeev Chavan i.e. 2023 have been filed by the five purchas-
widow of the deceased, the five purchasers under the sale-deed dated 27.10.2021
ers mentioned above under the sale-deed again with respect to the two complaints
dated 27.10.2021, and six police person- filed by the two tenants. Special Leave
nel namely, Shatrughna Atmaram Patil, Petition (Crl.) No. 14585 of 2023 and Spe-
Jai pal Manikrao Hire, Mil ind Ashok cial Leave Petition (Crl.) No. 14572 of 2023
Bhamare, Suryakant Raghunath 3 In short, have been filed by the six police person-
“Cr.P.C.” Salunkhe, Nilesh Subhash More nel again arising out of the two complaints
and Sunil Kautik Hatkar. filed by the two tenants.
5. The learned Magistrate, dealing 7. During the pendency of the peti-
with the section 156(3) Cr.P.C. application, tions, it appears that some settlement has
instead of directing the police to register the been arrived at between the complainants
FIR and investigate, passed an order on and the 13 accused. The subsequent pur-
20.12.2022 for an inquiry under section 202 chasers have paid an amount of Rs. 10 lacs
Cr.P.C., confining it to the involvement of to each of the tenants, and in lieu thereof,
the brother of the deceased, widow of the the tenants have filed their affidavits stat-
deceased, and the five purchasers. This or- ing that they do not wish to further pros-
der of the Magistrate was challenged by the ecute their complaint. The details of the
960 Shatrughna A. Patil v. Vinod D. Chaudhary 2024(1)
bank drafts have also been mentioned in the Sub-Inspector, and one is an Inspector. They
affidavits filed by the tenants along with shall suffer a cost of Rs. 50,000/- per Con-
Criminal Miscellaneous Petition No. 8150 stable, Rs. 1,00,000/- by the Head Consta-
of 2024 in Special Leave Petition (Crl.) Nos. ble, Rs. 1.50 lacs by the Sub-Inspector, and
14734-14735 of 2023. Based on this settle- Rs. 2.0 lacs by the Inspector, totalling Rs.
ment, it is prayed that these petitions may 6.0 lacs for each case with the above dis-
be allowed, and the proceedings arising out tribution. This amount shall be deposited
of the two criminal complaints under sec- in Account No. 90552010165915 of the
tion 156(3) Cr.P.C. be quashed. Armed Forces Battle Casualties Welfare
8. From the factual matrix as recorded Fund, Canara Bank, Branch South Block,
above, we find that the continuance of these Defence Headquarters, within four weeks
two criminal proceedings would not be of from today. After depositing the said
any avail once the complainant has himself amount in the aforesaid fund, they shall
stated to withdraw the complaint. Their file proof of deposit with the Registry of this
losses having been compensated, any fur- Court within six weeks and also before the
ther investigation or trial would be an ex- Magistrate and the High Court. Upon de-
ercise in futility. posit of the said amount, the proceedings
9. The compensation for the tenants of the two complaint cases shall stand
has been given by the subsequent purchas- quashed and closed.
ers, as stated in the affidavits, apparently 11. We, however, make it clear that
for the reason that they are now the own- any observations made and also the direc-
ers of the property and they have been in- tion to suffer compensation to the tenants
strumental in carrying out the demolition by the six police personnel will not be
illegally. The widow of the deceased (al- treated as adverse to their interest in con-
though not a party before us) and the sideration of their promotions etc. that is to
brother may not be having any further in- say that this order may not be kept in their
terest inasmuch as the property had already service records.
been sold by the deceased four and half 12. It is further made clear that if the
months prior to his death. However, what proof of deposit is not filed within the stipu-
we are not satisfied with is why the police lated time, these petitions filed by the po-
personnel have been allowed to go scot-free lice personnel would stand dismissed.
in a case where they had an apparent roll 13. In light of the above, Special Leave
in conspiring and in abetting the crime of Petition (Crl.) No. 15433 of 2023, Special
the illegal detention of the tenants, coerc- Leave Petition (Crl.) No. 15294 of 2023 and
ing them to sign the document against their Special Leave Petition (Crl.) Nos. 14734-
will, and getting the premises in question 14735 of 2023 are allowed. Special Leave
demolished without any order from a Com- Petition (Crl.) No. 14572 of 2023 and Spe-
petent Court. cial Leave Petition (Crl.) No. 14585 of 2023
10. We, accordingly, direct that the six are also allowed, subject to fulfilment of the
police personnel will suffer a cost of Rs. 6.0 aforesaid condition.
lacs for each of the two complainants. Out Petition dismissed.
of the six police personnel, three are con- -----
stables, one is a Head Constable, one is a
“JAI MATA D I”
THE
(CRIMINAL)
(A LAW JOURNAL OF BOMBAY HIGH COURT ON CRIMINAL SIDE)
Citation 2024(1) Bom.C.R.(Cri.) .....

Advisory Board
Former Chief Justice, Allahabad High Court, Former Judge, Andhra Pradesh,
Hon’ble Dr. Justice S. Radhakrishnan, Hon’ble Shri. Justice Ashok N. Mody
Hon’ble Shri. Justice Abhay M. Thipsay Hon’ble Shri. Justice M.L. Tahalyani
Editorial Board
Bombay High Court Bombay High Court, Bench at Nagpur.
Shri. Rajiv Chavan, Senior Advocate, Shri. Manoj S. Mohite, Senior Advocate,
Shri. Rajendra Adhik. Shirodkar, Senior Advocate, Shri. Sanjog Parab, Senior Advocate,
Shri. Niteen Pradhan, Advocate Shri. Jayant Jaybhave, Advocate,
Bombay High Court Former Chairman and Member, BCMG
Shri. Avinash Bhide, Advocate, Shri. Ashish Deshmukh, Advocate,
Former Chairman and Member, BCMG Former Chairman and Member, BCMG
Shri. Akshay Naik, Advocate, Shri. Joaquim Godinho, Advocate,
Bombay High Court, Bench at Nagpur Bombay High Court, Bench at Goa.
Shri. Menino Teles, Advocate, Shri Uday Deshmukh, Advocate, B.Sc., L.L.B.
Bombay High Court, Bench at Goa. Shri. Santosh S. Vhatkar, Advocate,
Shri. Sahebrao S. More, Advocate, B.A., L.L.B. Supreme Court Advocate, M.Com., L.L.B.
Shri. Vinay Bhausaheb Kadam, Advocate, Shri. Nilesh S. Ghanekar, Advocate,
B.S.L., L.L.B. (Spl.) B.S.L., L.L.B. (Spl.)
Chief Editor
Ms. Aarti R. Malik, Advocate, Bombay High Court
Joint Editor & Reporter
Ms. Anamika Malhotra, Ms. Jyoti Dheeraj Malhotra, Advocate,
Senior Panel Counsel, Union of India, Ph.D.(Law), L.L.M., M.Com., Dip. (Cyber Crime),
Addl. Public Prosecutor, State of Maharashtra Bombay High Court
Bombay High Court Nagpur High Court

Ph. Off : 022 22690455/ 22665117/ 22630074/ 49712857
Mob. : 9819014677/ 9757042227/ 9819803383
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THE
B OM BAY CASE S RE PORTE R
(CRIMINAL)
2024(1)
SUBJECT INDEX
Arms Act, 1959 – Secs. 3, 4 & 25 – Extension of Arms Act, 1959 – Sec. 4(25) – Appeal against con-
time in filing charge-sheet – 30 days time has been viction – Appreciation of evidence – Eye-witness
granted by impugned order in filing of charge- – It is alleged that what was used in assault was a
sheet, by which Special Court has declined to grant sword having an iron hilt, whereas, what was pro-
bail in default – Prime role of Public Prosecutor duced before Court was a sword with a wooden
in seeking extension – Extension applications are hilt – Prosecution has also not proved that house
casually filed by Police Officers – Public Prosecu- from where sword and clothes of appellant – CA
tors are merely putting their endorsement and report shows that blood of deceased as well as
nothing else – Such casual approach of prosecu- that of accused was inconclusive, however, blood
tion agency has cascading effect that Police would group found on sword was that of ‘O’ blood group
lose opportunity to carry further investigation in and as such learned Judge presumed that said
deserving cases, as well as undeserving culprits blood was that of deceased – This analogy is dif-
would get bail in-default – Therefore, prosecu- ficult to comprehend, having regard to aforesaid
tion agency needs to be serious while dealing said evidence vis-a-vis recovery that has come on
aspect – Held, indefeasible right cannot be de- record – Held, prosecution has failed to prove its
feated by non-disposal or wrong disposal of ap- case as against appellants beyond reasonable
plication for default bail. Accused have availed doubt and as such benefit of doubt will have to be
their indefeasible right before filing of charge- given to appellants of same. Appeals are allowed.
sheet. Impugned order of extension being contrary Ashish Bharat Jadhav Vs. State of Maharashtra,
to requirement is quashed and set aside. Appel- 2024(1) Bom.C.R.(Cri.) 1.
lants are entitled for bail. Appeal is allowed. Arms Act, 1959 – Secs. 27 & 5 – Appeal against
Ganesh Shamrao Pendor Vs. State of Maharashtra, conviction – Murder trial – Occurrence of assault
2024(1) Bom.C.R.(Cri.) (N.B.)343. has been successfully brought on record – Held,
Arms Act, 1959 – Secs. 4 & 25 – Default bail – mere relation of witnesses with deceased itself is
Entitlement to – Bail application rejected by trial no ground to doubt or discredit their testimony,
Court – Taking cognizance is entirely different more particularly when they are natural wit-
from completing investigation – Sanction is re- nesses. Available evidence has been correctly ap-
quired only to enable Court to take cognizance of preciated, required law has been applied and most
offence – Held, to complete investigation and file logical opinion that could be derived on appre-
a final report is a duty of investigating agency, ciation of evidence has been reached at. View
but taking cognizance of offence is power of Court. taken is supported by cogent reasons and as such,
If investigation is concluded within prescribed no fault can be found to hold any non apprecia-
period, no right accrues to accused concerned to tion or perversity. Appeal is dismissed. Ranjeet
be released on bail under proviso to Section 167(2) Haribhau Jadhav Vs. State of Maharashtra, 2024(1)
of Cr.P.C. Applicants can always avail remedies Bom.C.R.(Cri.) (A.B.)568.
available in law to redress their grievance as well Bombay Forest Rules, 1942 – Rr. 66 & 129 –
as apply for regular bail. Bail applications was Quashing of criminal proceedings – On detection
rejected. Amit Madhukar Bhogale Vs. State of Ma- of illicit felling of Narkya trees offences were reg-
harashtra, 2024(1) Bom.C.R.(Cri.) 209(A). istered – Held, Camptothecin is not a forest pro-
964 SUBJECT INDEX 2024(1)
duce, hence prosecution of petitioners in im- mates of jail through accused, husband of peti-
pugned criminal cases is unwarranted. Continu- tioner – Accused involved in transmitting impor-
ation of impugned cases registered against peti- tant information from inmates of jail to relatives
tioners at instance of Respondent 2 would be and friends of inmates of jail outside jail – Chits
abuse of process of law. Petitions are allowed. received on his phone from inmates or relatives
Fresenisu Kabi Oncology Ltd. Vs. State of of inmates were forwarded through WhatsApp
Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)520. by accused – In chits, there is reference that he
Code of Criminal Procedure, 1973 – Secs. 41, 41A was paid gratification or consideration for same
& 60A – Arrest – Order of remand – Legality of – – Material on record sufficient to form reasonable
Petitioner-wife of arrested accused questioned belief as to involvement of accused in commis-
correctness of orders passed by Judicial Magis- sion of serious crime – Reasons recorded by In-
trate First Class, granting police custody remand vestigating Officer, in form of grounds of arrest,
to husband of petitioner and also for quashing satisfied basic requirements laid down in Section
order remanding husband of Petitioner to magis- 41(1)(b)(ii)(a) to (e) – Arrest of accused, held not
terial custody – Petitioner also prayed for grant illegal – Accused, Prison Constable, allegedly in-
of bail – Alleged non-production of accused volved in serious crime – Remanded to Police
within 24 hours before Magistrate – Allegation custody for five days – Magistrate passed rea-
that accused-prison constable involved in serious soned order taking into consideration remand
crime – Petitioner-wife of accused claiming that papers and case diary – Magistrate found that
her husband went missing from 29-11-2022 – Not there was material to substantiate satisfaction re-
placed on record any document or register from corded by Investigating Officer, with regard to
Central Prison to show that her husband was not prima facie involvement of accused persons in
on duty from 29-11-2022 at 8:00 p.m. to 8:00 a.m. crime – Magistrate also satisfied with grounds and
of 30-11-2022 - Petitioner not shown that her hus- reasons stated for arrest as well as for seeking
band was taken in custody on 29 -11-2022 at 23:00 Police custody – Opportunity of hearing granted
hours – General diary entry shows that all accused to accused – Held, impugned order passed by
were handed over by Crime Branch officials to Magistrate cannot be said to be flawed order. Af-
Investigating Officer at time of lodging of report ter expiry of Police custody, passing of order by
on 30-11-2022 at 18:06 hours – It admitted by pe- Magistrate for judicial custody of accused, on re-
titioner that she was given information by Inves- jection of his bail application, was proper. Peti-
tigating Officer about involvement of her husband tion dismissed. Sadhana Ajinkya Rathod Vs. State
in serious crime at 00:17 hours of 1-12-2022 – This of Maharashtra through PSO Dhantoli Police Station,
fact was supported by General diary entry, dated 2024(1) Bom.C.R.(Cri.) (N.B.)399.
1-12-2022 at 1:06 hours – Said information was Code of Criminal Procedure, 1973 – Sec. 41A(1)
given to Jail Administration as well as to relatives – Detention order – Subjective satisfaction – Held,
of accused – On satisfaction of Investigating Of- purpose of arrest in respect of crime is aimed at
ficer as to involvement of accused in said crime, conclusion of investigation, whereas, detention of
he was arrested on 1-12-2022 at 09:26 hours – This a person under preventive detention law is to
fact, supported by station diary entry as well as prevent him from indulging in certain activities.
medical examination certificate of husband of Respondent 1-detaining authority has arrived
petitioner, before effecting arrest – Accused pro- at a subjective satisfaction based on objective
duced before Magistrate, on 1-12-2022 at 3:35 p.m. material which by no stretch of imagination
– Accused made no grievance as to illegal deten- could be said to be arbitrary and capricious so
tion at that time – Plea by petitioner that her hus- that this Court could cause inference under
band was actually arrested on 29-11-2022 at 23:00 Article 226 of Constitution. None of grounds being
hrs., not tenable – Prima facie inmates of jail were put forth by petitioner to challenge impugned
communicating with relatives and erstwhile in- order is sustainable in law and on facts. Writ
Bom.C.R.(Cri.) SUBJECT INDEX 965
petition is dismissed. Vinod Dhannulal Jaiswal Vs. is to satisfaction of Court at a particular stage
District Magistrate Aurangabad, 2024(1) that such a document is necessary and desirable
Bom.C.R.(Cri.) (A.B.)862. to be produced during trial. Thus, impugned
Code of Criminal Procedure, 1973 – Secs. 41A(1) order need not interfere. Petition dismissed.
& 258 – Detention order – Subjective satisfaction Ravi Laxman Naik Vs. Police Inspector, 2024(1)
– Petitioner has been held to be indulging in Bom.C.R.(Cri.) (P.B.)915.
illegally selling liquor – Held, if detaining Code of Criminal Procedure, 1973 – Sec. 100(4)
authority is of opinion that it is necessary to detain – Persons in charge of closed place to allow
a person under Act to prevent him from indulging search – Independent witness – Held, it is a gen-
in sale of goods dangerous for human eral provision relating to search and applies to
consumption same should be based on some a closed place, as for example, a residence, of-
material and copies of such material should be fice, shop, a built-up premises etc, where a
given to detenu. Subjective satisfaction of search is required to be conducted by investi-
detaining authority is not only doubtful but gation. Section 100(4) of Cr.P.C. provides that
perverse. Material on record is not adequate to to maintain purity of process, before undertaking
take recourse to drastic provision of action under a search, a couple of independent and respectable
Act. Criminal antecedent and statements of two inhabitants of locality where place to be searched
witnesses are not sufficient to show involvement is located, be joined as witnesses to search.
of petitioner to criminal overtact under Penal Balwinder Singh (Binda) Vs. Narcotics Control Bu-
Code or other Criminal Law. Grounds of reau, 2024(1) Bom.C.R.(Cri.) (S.C.)35(B).
detention which are basis for passing impugned Code of Criminal Procedure, 1973 – Sec. 125 –
order are unsustainable. Order of detention is Maintenance from husband to wife – Grant of –
quashed. Writ petition is allowed. Dhanubai @ Judicial review – If maintenance order passed by
Dhanno Yashvant Netlekar Vs. State of Maharashtra, Magistrate Court under Section 125 of Cr.P.C.,
2024(1) Bom.C.R.(Cri.) (A.B.)819. Revision Court has no power to reassess evidence
Code of Criminal Procedure, 1973 – Secs. 91 & and substitute its own findings since questions
227 – Framing of charge – Production of document whether applicant is a married wife, children are
– Petitioner/accused filed an application Under legitimate/illegitimate, are pre-eminently ques-
Section 91 of Cr.P.C. before Special Criminal Court tions of fact – Respondent cannot be allowed to
(NDPS) at stage when matter was fixed for deny maintenance claim to petitioner, taking ad-
arguments for framing of charge – Special Court vantage of his own wrong – Held, for purpose of
rejected said application – Held, When duty is Section 125 of Cr.P.C. petitioner would be treated
cast upon Court to look into prima facie material as ‘wife’ of respondent. Issue is only with regard
and assume that such material is true on face of to petitioner, who has claimed maintenance as
it, accused cannot, by taking recourse of Section wife and not for her sons, therefore case of re-
91 of Cr.P.C. seek an order from Court directing spondent that son of petitioner was born before
production of any document which according alleged date of marriage, will not make much of a
to him proves his innocence. Under Section 91 difference. As far as maintenance claim of peti-
of Cr.P.C. Police Officer may take recourse by tioner is concerned, petitioner had submitted that
summoning any person to produce any respondent is earning around Rs. 50,000 to Rs.
document during investigation or move Court 60,000 per month. J.M.F.C. has granted only Rs.
for summoning and production of document 2,500 per month as maintenance to petitioner.
in possession of any person during trial Judgment passed by Sessions Judge is quashed
orenquiry. As far as accused is concerned, his and set aside. Judgment and order passed by
entitlement to an order Under Section 91 of JMFC is confirmed. Alka Bhausaheb Bhad @ Alka
Cr.P.C. would clearly be considered at stage of Dagadu Shelke Vs. Bhausaheb Ramrao Bhad, 2024(1)
defence but not prior to it for simple reason that it Bom.C.R.(Cri.) 572.
Code of Criminal Procedure, 1973 – Secs. 125, fence – Held, Investigating Officer should be
397 & 401 – Maintenance to divorced wife – Enti- mindful of fact that even non-cognizable offences
tlement to – Maintenance to divorced wife granted are punishable, and therefore, in appropriate
by trial Court – Fact of divorce between husband cases, he is duty-bound to investigate even such
and wife is in itself sufficient for wife to claim offences and ensure that investigation reaches
maintenance under Section 3(1)(a) of Muslim logical end. Information lodged by petitioner spelt
Women (Protection of Rights on Divorce) Act – out ingredients of offences punishable under Sec-
Held, right to a reasonable and fair provision and tions 294, 504 and 506 of Indian Penal Code. Or-
maintenance is not hampered by former-wife’s der of issuance of process was fully justified. Ses-
remarriage. Divorced Muslim woman shall be sions Court has committed patent illegality. Im-
entitled to a reasonable and fair provision and pugned order is quashed and set-aside. Writ Peti-
maintenance to be paid to her. Emphasis of Sec- tion is allowed. Nitin Shivdas Satpute Vs. State of
tion 3 is not on nature or duration of any such Maharashtra, 2024(1) Bom.C.R.(Cri.) (N.B.)227.
provision or maintenance, but on time by which Code of Criminal Procedure, 1973 – Secs. 156(3)
an arrangement for payment of maintenance & 482 – Application for investigation under Sec-
should be concluded namely, within iddat period. tion 156(3) of CrPC – Magistrate held that appli-
On date of passing of impugned order amount cation discloses allegations of cognizable offences
payable by husband got crystallized, therefore, – Therefore, thorough investigation is needed at
even in future if divorce wife re-marries, it will hands of Police – According to complainant, ac-
not make a difference if amount is payable in cused have committed criminal breach of trust,
lumsum. Difference would be only when amount forgery and cheating – Hence, by impugned or-
is payable monthly Therefore, amount of Rs. der, learned Magistrate referred said application
9,00,000, is fair and reasonable. Criminal Revision for investigation under Section 156(3) of Cr.P.C.
Application is dismissed. Khalil Abbas Fakir Vs. to Nashik Road Police Station – Held, any person
Tabbasum Khalil Fakir @ Tabbasum Gulam Husain may set criminal law in motion subject to statu-
Ghare, 2024(1) Bom.C.R.(Cri.) 166. tory interdicts. When an offence is committed, a
Code of Criminal Procedure, 1973 – Sec. 126(2) – first information report can be lodged under Sec-
Compliance of Court order – Delay in compliance tion 154 of Cr.P.C. A complaint petition may also
with Court order – Petitioner met with an accident be filed in terms of Section 200 thereof. However,
and took treatment as inpatient, for that reason in event for some reasons or other, first informa-
only, petitioner could not comply with conditional tion report is not recorded in terms of sub-section
order – Held, though there was some delay in (1) of Section 156 of Code, Magistrate is empow-
compliance with conditional order by petitioner, ered under sub-section (3) of Section 156 thereof
same is condoned. Petitioner unable to comply to order an investigation into allegations con-
with conditional order due to mistake not by tained in complaint petition. Allegations levelled
wanton which was not considered by Family in applications are general and vague in nature.
Court. Criminal Revision Case stands allowed. R. Application was not supported by bogus ‘Will
David @ Tamilvanan Vs. G. Premalatha, 2024(1) Deed’. Except vague assertion that ‘Will Deed’ is
Bom.C.R.(Cri.)(J.) (MAD.)33. bogus, there was nothing in application to prima
Code of Criminal Procedure, 1973 – Secs. 155 & facie conclude so. There is great delay in filing said
200 – Issuance of process – Order of Magistrate application, which is not satisfactorily explained
issuing process against Respondent 2 set aside by learned Magistrate, therefore, ought not to have
Sessions Court – In appropriate cases (which entertained said application and acceded to re-
should be made identifiable), Investigating quest of complainant for investigation under Sec-
Agency should approach jurisdictional Magistrate tion 156(3) of Cr.P.C. by passing impugned Or-
under sub-section (2) of Section 155 of Code, seek- der. Impugned Order is quashed and set aside.
ing permission to investigate non-cognizable of- Writ petitions are allowed. Anantrao Shankarrao
Jagtap Vs. Prakash Nivruthi Tajanpure, 2024(1) apply for bail after 60 days on ground of default
Bom.C.R.(Cri.) 603. in completing investigation within 60 days.
Code of Criminal Procedure, 1973 – Sec. 167 – Kashinath Pandurang Jadhav Vs. State of
Default bail – Entitlement to – Bail application Maharashtra, 2024(1) Bom.C.R.(Cri.) 873(B).
rejected by trial Court – Taking cognizance is en- Code of Criminal Procedure, 1973 – Secs. 190 to
tirely different from completing investigation – 193, 161, 164 & 439 – Bail application – Bail granted
Sanction is required only to enable Court to take by trial Court – FIR registered alleging gang rape,
cognizance of offence – Held, to complete inves- threat of making video of rape recorded viral and
tigation and file a final report is a duty of investi- extortion – Held, delay by itself would not be fa-
gating agency, but taking cognizance of offence is tal for all times to come and criminality attached
power of Court. If investigation is concluded to incident would not evaporate into thin air or
within prescribed period, no right accrues to ac- get extinguished by virtue of such delay. It all
cused concerned to be released on bail under pro- depends upon facts that may unfold in given cir-
viso to Section 167(2) of Cr.P.C. Applicants can cumstances and same would vary from case to
always avail remedies available in law to redress case. Impugned order granting bail is not only
their grievance as well as apply for regular bail. bereft of material particulars which would justify
Bail applications was rejected. Amit Madhukar grant of bail, but it seems that High Court has got
Bhogale Vs. State of Maharashtra, 2024(1) swayed on ground of delay and video having not
Bom.C.R.(Cri.) 209(A). been recovered during course of investigation and
Code of Criminal Procedure, 1973 – Sec. 167(1) – has given a complete go by to allegation made in
Application for police custody remand – Rejection FIR and statement recorded under Sections 161
of – No explanation is given in application filed and 164 of Cr.P.C. as also testimony of prosecu-
by State, seeking police custody remand of trix before jurisdictional Court. Impugned order
respondents-accused, belatedly – Prosecution has is set aside. Appeals are allowed. Bhagwan Singh
failed to explain delay of 55 days, in filing Vs. Dilip Kumar @ Deepu @ Depak, 2024(1)
application, as mandated by Section 21(7) of Bom.C.R.(Cri.) (S.C.)123.
MCOC Act – Rejection of application, proper. State Code of Criminal Procedure, 1973 – Secs. 202 &
of Maharashtra Vs. Sachin Dhananjay Kulkarni @ 397 – Issuance of process – Dishonour of cheques
Chingya, 2024(1) Bom.C.R.(Cri.) 813. with endorsement “payment stopped by draw-
Code of Criminal Procedure, 1973 – Sec. 167(2) – ers” – Mandate under Section 202 of Cri.P.C. has
Scope of Section 167(2) – Intention of Legislature been ignored by Magistrate while passing order
seems to be to grant no discretion to Court and to of issuance of process – Held, non-observance of
make it obligatory for it to release accused on bail aforesaid mandate would vitiates order. There-
if investigation cannot be completed within pe- fore, merely because on appearance of accused,
riod stipulated by Section 167(2) of Cr.P.C. – If in- plea is recorded, impugned order cannot be per-
vestigation is not completed within aforesaid pe- petuated. Before recording plea of accused, he had
riod, then even in serious and ghastly types of approached Sessions Judge by filing Criminal
crimes accused will be entitled to be released on Revision, thereby raising challenge to issuance of
bail. Amit Madhukar Bhogale Vs. State of process with specific objection that order is bereft
Maharashtra, 2024(1) Bom.C.R.(Cri.) 209(B). of mandate under Section 202 of Code. Criminal
Code of Criminal Procedure, 1973 – Sec. Writ Petitions are allowed. Ekveera Jewellers Anturli
167(2)(a)(i) – Application for default bail – When Vs. Shaunak Deepak Kulkarni, 2024(1)
a provision like Section 409 of IPC also prescribes Bom.C.R.(Cri.) (A.B.)492.
punishment with imprisonment for life, then to Code of Criminal Procedure, 1973 – Secs. 202 &
such an offence Section 167(2)(a)(i) is applicable 482 – Quashment of FIR – Grounds to be
and not Section 167(2)(a)(ii) – And thus applicant considered – When Order of investigation is made
against whom Section 409, IPC is invoked cannot under Section 202 of Cr.P.C., such Order is made
after taking cognizance of matter and after making found in a room with victim – Statement of victim
such order, Magistrate cannot make order under was not recorded – It does not disclose existence
Section 156(3) of Cr.P.C. – Held, Order of of ingredients necessary to constitute offence –
investigation made under Section 202 of Cr.P.C. Held, in absence of any specific penal provision,
is not of nature of further investigation as it cannot be said that he is liable for any
contemplated under Section 173(8) of Cr.P.C. prosecution for above said offences. Impugned
Without taking note of this cautious method of order is set aside qua applicant only. Revision
said learned Magistrate, subsequent learned application is allowed. Mahesh Vinayak Patil Vs.
Magistrate passed impugned Order, which finally State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 659.
led to registration of impugned F.I.R. This is Code of Criminal Procedure, 1973 – Sec. 227 –
wholly in contrast to scheme of Cr.P.C. which, Discharge Application – Offence of rape –
provides for inquiry/investigation under Section Complaint shows that victim and accused were
202 only and not investigation under Section friendly with each other and in that context they
156(3) thereof. Impugned order is quashed and developed physical relationship on promise to
set aside. Criminal Application is allowed. marry – However, it does not show that such
Nandkishor Eknath Kothawade Vs. State of promise was given before establishing sexual
Maharashtra, 2024(1) Bom.C.R.(Cri.) 668. relationship and that too with an intention not
Code of Criminal Procedure, 1973 – Sec. 202(1) – to comply with it – Victim herself disclosed that
Summoning of accused living beyond jurisdiction ac c used ac c ompanied to her and was
– Inquiry contemplated under Section 202(1) introduc ed to her family members – In
Cri.P.C. – In cheque bouncing cases – If Magistrate Statement of victim recorded under Section 164
prefers to hold an inquiry himself, it shall not be of Cr.P.C. she completely exonerate accused and
imperative for him to examine witness on oath herself admits that relationship between them
and in suitable cases, he may examine documents was consensual – Further decision to abort fetus
for satisfying himself, as to sufficiency of grounds was taken jointly by victim and accused and
for proceeding under Section 202 of Code. Bansilal both of them visited clinic – Statement of doctor
S. Kabra Vs. Global Trade Finance Limited, 2024(1) corroborate same – Ingredients of Sections 376,
Bom.C.R.(Cri.) (F.B.)815(A). 313, 201 of IPC not made out from material placed
Code of Criminal Procedure, 1973 – Sec. 202(1) on record – View which is more plausible is
– Summoning of acc used living beyond favouring accused – Discharge application liable
jurisdiction – Inquiry Contemplated under to be allowed. Clinton Fernandes Vs. State of Goa,
Sec tion 202(1) Cri.P.C. – Is restricted to, 2024(1) Bom.C.R.(Cri.) (P.B.)854(A).
ascertaining element of truth or falsehood of Code of Criminal Procedure, 1973 – Sec. 227 –
allegations in complaint, based on material Discharge application – Duty of Court while
placed by complainant before Court, and deciding same – Stated – While considering
inquiry is limited only to this extent i.e. to find provisions of Section 227 of CrPC, Court is having
out, if there is any matter which calls for a duty to sift and weigh all evidence for limited
investigation. Bansilal S. Kabra Vs. Global Trade purpose to find out whether there is any prima
Finance Limited, 2024(1) Bom.C.R.(Cri.) facie case to proceed against accused and to frame
(F.B.)815(B). charge – Test to determine prima facie case would
Code of Criminal Procedure, 1973 – Sec. 227 – always depend upon fact of each and every case –
Discharge application – Application for discharge While doing so it is duty of Court to find out as to
rejected by Trial Court – Allegation against what view could be taken – If two views are
accused for prostitution business – In this case possible and one of them giving rise to suspicion
only incriminating material relied upon by only as distinguished from grave suspicion, Court
prosecution against him is statement of police is justified in discharging accused – However
official that applicant who is a customer, was while exercising such power Court has to apply
its judicious mind and to determine as to whether as a testament to how an individual’s nonchalant
case for trial has been made out or not. It is also attitude towards financial responsibilities and
equally true that at this stage Court is not bound Court orders can undermine essence of judicial
to conduct mini trial by marshaling evidence on efficacy – High Court took a firm stance against
record. Clinton Fernandes Vs. State of Goa, 2024(1) appellant’s continued failure to fulfil his financial
Bom.C.R.(Cri.) (P.B.)854(C). obligations, culminating in cancellation of his bail
Code of Criminal Procedure, 1973 – Secs. 227 & and suspension of sentence – Held, no any ille-
228 – Framing of charge – Is only on basis of gality found in impugned order. Appeal is dis-
material available in charge sheet itself – Court missed. Satish P. Bhatt Vs. State of Maharashtra,
cannot look into any other material or even so 2024(1) Bom.C.R.(Cri.) (S.C.)593.
called affidavit and reply filed by respective Code of Criminal Procedure, 1973 – Sec. 256 –
parties in order to come to conclusion whether Exercise of power under Section 256, Cr.P.C. –
to frame charge or not – Power are limited to Whether, it was appropriate for Magistrate to
material which is appended to charge sheet. take recourse to provisions of Section 256 of
Clinton Fernandes Vs. State of Goa, 2024(1) Cr.P.C. – Complaint for offence punishable under
Bom.C.R.(Cri.) (P.B.)854(B). Section 138 of N.I. Act – Whether, it was appro-
Code of Criminal Procedure, 1973 – Secs. 227 & priate for Magistrate to take recourse to provisions
397 – Discharge application – Trial Court has of Section 256 of Cr.P.C. – It is matter of record
rejected discharge application – On promise of that accused has no respect to law – And on every
marriage, applicant had physical relationship with occasion, complainant was required to take steps
complainant on several occasions – Held, – Execution of non-bailable warrant is not an easy
acknowledged consensual physical relationship formality – At same time, unchallenged evidence
between parties would not constitute an offence could not have been used by trial Court, unless it
under Section 376 IPC. This is not a case where was put to accused under Section 313, Cr.P.C. –
consent of complainant is based on misconception. At same time, trial Court ought to have given
Materials on record fall short for establishing that weightage to fact that patience of complainant was
from inception consent of complainant was a tested every time – Trial Court could have waited
result of false promise of marriage. Continuing and could have given direction to complainant
prosecution in present case will be a gross abuse to take steps – Acquittal of accused by taking
of process of law. Application, is allowed. Anurag recourse to Section 256, Cr.P.C. – Powers under
Ravindra Umaley Vs. State of Maharashtra, 2024(1) Section 256, Cr.P.C. not to be exercised only for
Bom.C.R.(Cri.)922. purpose of disposing of cases – Held, Magis-
Code of Criminal Procedure, 1973 – Sec. 255(2) – trate hastily passed impugned order hence, set
Cancellation of bail – High Court of Judicature at aside. Complaint is restored to file. Complain-
Bombay cancelling order of suspension of sen- ant directed to appear before Judicial Magis-
tence and bail granted to appellant as they vio- trate and directed to take necessary steps. Ap-
lated undertaking given before High Court – Both peal allowed. Rel. on (1998)1 S.C.C. 687. Shabu
appellant and intervenor were Chairman and Bhimappa Dudhale Vs. Vinayak Appasaheb Padavle,
Vice-Chairman of company AGPL and, therefore, 2024(1) Bom.C.R(Cri.) 473.
were convicted by trial Court and their convic- Code of Criminal Procedure, 1973 – Sec. 313 –
tion was affirmed by Appellate Court – Total Conviction for murder – Creditability of evidence
amount agreed to be paid has not been paid and – Additional District and Sessions Judge con-
as per order of High Court revisionists being in victed appellant for offences punishable under
default in payment of agreed amount, interim Sections 498A and 304 IPC – Held, as appellant’s
protection granted by way of bail and suspension presence at time of death of victim is uncontro-
of sentence, would stand withdrawn without ref- verted and appellant has not offered any counter
erence to Court – Behaviour of Petitioner stands statement during his examination under Section
313 of Cr.P.C. regarding how victim has suffered Section 34 of IPC is set aside and instead they are
those injuries, which he should be considered to convicted under Section 304 (Part II) read with
have ‘special knowledge’ of, his presence at time Section 34 of IPC. Appeals partly allowed.
of occurrence having been proved, statutory pre- Mangesh Pandurang Bandagle Vs. State of
sumption would be available against appellant re- Maharashtra, 2024(1) Bom.C.R.(Cri.) 82.
garding commission of crime by him. Also that Code of Criminal Procedure, 1973 – Secs. 340 &
pre and post occurrence incidents narrated by 482 – Applicability of Section 195 of Cr.P.C. – Com-
neighbouring people too would add vital corrobo- plaint filed by appellant dismissed by JMFC –
ration to fact. Ingredients of offence under Sec- Main allegation made by appellant was that Re-
tion 304 IPC are proved and to standard of be- spondent 2 has filed false and forged documents
yond scope of all reasonable doubts, through evi- in criminal case – Additional Sessions Judge, how-
dence on record. Thus, judgment and order of ever, found that allegations made by revision pe-
sentence of trial Court finding appellant guilty of titioners were serious in nature, and therefore,
offence under Section 304 of IPC and convicting directed that if any application is filed by appel-
him for same, is upheld. Sentence imposed be lant under Section 340 of Cri.P.C., learned JMFC
modified with sentence of imprisonment for pe- would make a suitable preliminary enquiry and
riod already undergone by appellant incarcerated thereafter, record his finding to that effect as con-
as an under trial prisoner/convict. Appeal dis- templated under Section 340 of Cr.P.C. – Held,
missed. Debabrata Giri Vs. State of West Bengal, Section 195(1)(b)(ii) Cr.P.C. would be attracted
2024(1) Bom.C.R.(Cri.)(J.) (CAL.)1. only when offences enumerated in said provision
Code of Criminal Procedure, 1973 – Sec. 313 – have been committed with respect to a document
Grievous hurt – Conviction for Murder – Validity after it has been produced or given in evidence in
of – Trial Court convicted appellant’s for an of- a proceeding in any Court i.e. during time when
fence punishable under Section 302 read with 34 document was in custodia legis. Embargo created
of IPC and acquitted them for offence punishable by Section 195(1)(b)(ii) of Cr.P.C. would not come
under Section 120B of IPC – Held, PW 2 and 3 are into play. Court will be entitled to take cognizance
reliable witnesses and their evidence is trustwor- of offence only on basis of complaint made by
thy. Recovery panchanama of knife at instance of complainant. View taken by Revisional Court as
Accused 1 discloses that, knife was having bled well as High Court is not sustainable. Impugned
of 3 ¾th inch long i.e. relatively small sized knife. judgment and order passed by Revisional Court
From perusal of injuries suffered by deceased, it as well as High Court are quashed and set aside.
appears that, Accused 1 did not act cruelly. After Matter is remitted back to JMFC for considering
assault, deceased ran away from spot of incident complaint of appellants. Appeal is disposed of.
and then fell down in nearby lane. Evidence on Ashok Gulabrao Bondre Vs. Vilas Madhukarrao
record reveals that, Accused 2 did not chase and Deshmukh, 2024(1) Bom.C.R.(Cri.) (S.C.)57.
in fact left spot of incident along with Accused 1 Code of Criminal Procedure, 1973 – Sec. 357(1) –
immediately. Evidence on record indicates that, Appeal against conviction – Appreciation of evi-
Accused developed common intention at spur of dence – Eye-witness – It is alleged that what was
moment and then Accused 2 assaulted deceased used in assault was a sword having an iron hilt,
with knife, which he was possessing. Therefore whereas, what was produced before Court was a
Trial Court rightly acquitted both Appellants un- sword with a wooden hilt – Prosecution has also
der Section 120B of IPC. Accused 2 was not hav- not proved that house from where sword and
ing intention to commit murder of deceased, how- clothes of appellant – CA report shows that blood
ever he had knowledge that, if deceased is as- of deceased as well as that of accused was incon-
saulted with knife, he may suffer grievous hurt, clusive, however, blood group found on sword
which may lead to his death. Thus, conviction and was that of ‘O’ blood group and as such learned
sentence of appellants under Section 302 read with Judge presumed that said blood was that of de-
ceased – This analogy is difficult to comprehend, rence has been proved to have taken place, except
having regard to aforesaid evidence vis-a-vis re- DNA evidence, there is no full proof or legally
covery that has come on record – Held, prosecu- acceptable evidence – Held, mere DNA evidence
tion has failed to prove its case as against appel- cannot be made sole basis of conviction. Moral
lants beyond reasonable doubt and as such ben- conviction has no legal sanctity and what law re-
efit of doubt will have to be given to appellants quires is legally acceptable evidence ruling out
of same. Appeals are allowed. Ashish Bharat innocence of accused. Here, such quality of evi-
Jadhav Vs. State of Maharashtra, 2024(1) dence is not available. Unfortunately, case has not
Bom.C.R.(Cri.) 1. been proved beyond reasonable doubt as against
Code of Criminal Procedure, 1973 – Sec. 357(1) appellant and hence, benefit of doubt extended
– Conviction for murder – Creditability of evi- to appellant. Six years old victim was required to
dence – Appreciation of evidence – Trial Court be taken to various places for examination and
convicted accused person on basis of dying dec- treatment and resultantly suffered academic loss
laration of deceased – Held, DW-2 was person too. Compensation has to be paid under Section
who had gone to spot immediately after inci- 357A of Cri.P.C. Appeal is allowed. Parvej Khan
dent and prosecution was not come with case Rafik Khan Vs. State of Maharashtra, 2024(1)
that oral dying declaration was given to him also Bom.C.R.(Cri.) (A.B.)6.
by deceased. There is also evidence on point that Code of Criminal Procedure, 1973 – Sec. 366 –
accused persons extinguished fire and had ap- Appeal against conviction – Death sentence – A
plied aloe vera on burn injuries of deceased. Murder Reference under Section 366 Cr.P.C. was
This indicates that they had an intention to save also forwarded to High Court in view of death
deceased and not to kill her. Defence taken by sentence awarded by Special Court – Sale of con-
accused appears to be probable. Medical papers traband – Held, possession of contraband is a sine
are on record which shows that deceased was qua non to secure a conviction under Section 21 of
admitted by her brother-in-law who was now NDPS Act and that such a contraband article
made as accused. No history appears to have been should be recovered in accordance with provi-
taken by doctor who admitted deceased. It is not sions of Section 50 of NDPS Act, being a statutory
within twelve hours span prior to recording of safeguard favouring accused; otherwise recovery
dying declarations. But for reasons, both dying itself shall stand vitiated in law. Appellant in
declarations are unbelievable. As per first dying Criminal Appeal No. 1933 of 2014 has failed to
declaration Accused 5 to 8 were inside kitchen make out a case for acquittal. Appellant in Ap-
and as per second dying declaration they were peal No. 1136 of 2014 is acquitted. Balwinder Singh
outside kitchen, which was taken as variance. But (Binda) Vs. Narcotics Control Bureau, 2024(1)
Accused 5 to 7 have been acquitted by trial Judge Bom.C.R.(Cri.) (S.C.)35(A).
on ground that no role was attributed to them in Code of Criminal Procedure, 1973 – Sec. 372 –
both dying declarations. Such facts should be con- Right of victim to appeal – A right accrued to vic-
sidered at time of framing of charge itself by tim to prefer appeal in terms of proviso to Section
Courts of law. If there is inconsistency and no role 372 is supposed to be exercised against an order
is attributed then Court should not proceed with passed by Court either acquitting accused or con-
framing of charge. Thus, conviction awarded to victing for a lesser offence and none others. Aniket
Appellant 1 and Appellant 2 for offence punish- Shahadev Labade Vs. State of Maharashtra, 2024(1)
able under Sections 302, 498A & Section 34 of IPC Bom.C.R.(Cri.) (A.B.)(F.B.)155(B).
set aside. Appeal allowed. Chhaya Bhausaheb Code of Criminal Procedure, 1973 – Sec. 374 –
Bhingardive Vs. State of Maharashtra, 2024(1) Appeal against conviction – Harassment or cru-
Bom.C.R.(Cri.) (A.B.)276. elty was of such nature that deceased was forced
Code of Criminal Procedure, 1973 – Sec. 357A – to end up her life – Whether proved – There is no
Appeal against conviction – Though actual occur- iota of evidence that in proximity to harassment
or cruelty was of such nature that deceased was Code of Criminal Procedure, 1973 – Sec. 389 –
forced to end up her life by consuming poison – Suspension of sentence pending appeal –
Initially AD was Registered – Defence has come Application for – Rejection of – Legality –
with a specific case that deceased had given dy- Impugned judgment suggests that transactions
ing declaration wherein there is no whisper about are entered by applicant by violating norms of RBI
any role Attributable to any of accused – There and NABARD – Observation of Trial Court
was intense ill treatment or harassment in back- purchasing securities by keeping other directors
drop of demand of Rs. 20,000 even made on 26-7- in dark is contrary to evidence which shows that
1998 compelling deceased to consume poison – it was brought to notice of directors as well as
Accused persons should intent that deceased share holders – Secondly, observation of Trial
should end up her life – With that object in Court, that no step are taken to take action, is also
mind, if they deliberately create circumstances, contrary to evidence as applicant has lodged First
which are of such nature, that deceased is left Information Report prior to registration of crime
with no other alternative but to end up her life, – Specific admission by Investigating Officer
only then charge of abetment to commit suicide suggesting no evidence came before him showing
can be said to be successfully brought home – any transactions between applicant and broker,
Abetment is equally an essential factor to be other accused indicates that observation of Trial
proved by prosecution – Very dying declara- Court showing his involvement in conspiracy is
tion of deceased is absolutely silent either about contrary to evidence – Thus, applicant has made
demand or harassment for its non-fulfillment – out a case for suspension of sentence pointing out
Charge of abetment to commit suicide cannot that he has arguable points which are not
be applied or said to be proved – Trial Judge considered by Trial Court – In such circumstances,
has failed in properly appreciating evidence of denying relief and allowing conviction to operate
parents and friend of deceased in light of legal by executing sentence, would lead to irreparable
requirements. Criminal Appeal stands allowed. damage and convict cannot be compensated in
Ravsaheb Sahebrao Patil Vs. State of Maharashtra, any monetary terms or otherwise if he is acquitted
2024(1) Bom.C.R.(Cri.) (A.B.)177. later on. Sunil Chhatrapal Kedar Vs. State of
Code of Criminal Procedure, 1973 – Sec. 374 – Maharashtra, 2024(1) Bom.C.R.(Cri.) (N.B.)672.
Appeal against conviction – Murder trial – Mo- Code of Criminal Procedure, 1973 – Sec. 407(1)(c)
tive – Mere identification of accused on strength – Transfer of case – Power of High Court to transfer
of DNA report is itself not sufficient as there has cases and appeals – Factors which could be kept
to be incriminating evidence against appellant to in mind while considering an application for
connect him with death, but we have not noticed transfer of trial – Held, Section 406 of Cr.P.C.
any incriminating material and circumstances on contemplates that power of transfer is to be used
reappreciation and re-evaluation of evidence – when same is expedient for ends of justice.
Motive is not cogently established – So called di- Considering availability of transport facilities even
rect eye-witness has not supported prosecution, for Respondent 1, it is more convenient to attend
circumstances of last seen together, recovery and Court at Thane than at Junnar, District-Pune.
scientific evidence cannot be held to be itself suf- Application is allowed. Sonika Vishnudas Kadam
ficient to connect appellant – Held, graver offence, Vs. Vishnudas Haribhau Kadam, 2024(1)
stronger has to be proof. Here there is no strong Bom.C.R.(Cri.)894.
incriminating reliable and trustworthy evidence Code of Criminal Procedure, 1973 – Sec. 437 –
either oral or circumstantial and therefore, ben- Application for bail – Allegation that petitioner
efit of doubt ought to have been extended by knowingly has uploaded receipts with regard to
learned trial Judge. Criminal Appeal stands al- payment of Rs. 27 lakh and Rs. 8 lakhs in system,
lowed. Ganesh Bhatu Shinde (Patil) Vs. State of which were forged and in fact no such payment
Maharashtra 2024(1) Bom.C.R.(Cri.) (A.B.)321. has been made – Accused-applicant is languish-
ing in jail since 24-4-2023 and there is no any other criminal cases registered against him under Sec-
criminal antecedents of accused-applicant and tion 420 of IPC for appropriating large sum of
there is no likelihood that accused-applicant af- money in each case from different defacto com-
ter release on bail may flee from process of law or plainants allegedly promising them securing of
may misuse liberty of bail – Applicant entitled for government job, admission to MBBS college and
bail. Manish Singh Vs. State Uttar Pradesh closing of loan account respectively – In addition
Thru.Prin.Secy.Home Lko., 2024(1) to these three cases, there are seven other crimes
Bom.C.R.(Cri.)(J.) (ALLAH.)10. registered against petitioner for very same offence
Code of Criminal Procedure, 1973 – Sec. 437 – under Section 420 – Thus, in such circumstances,
Application for bail – Applicant has been in petitioner was held to be not entitled to invoke
custody for more than 2 years – Trial is likely to extra ordinary powers of this Court under Sec-
take a long time to conclude – Investigation is tion 438 of Code. Nusrath V.P. Vs. State of Kerala,
complete and charge–sheet is filed – There are no 2024(1) Bom.C.R.(Cri.)(J.) (KER.)13.
criminal antecedents reported against applicant Code of Criminal Procedure, 1973 – Sec. 438 –
for offences under provisions of NDPS Act – In Anticipatory bail – Rejection of – Validity – In-
chart showing there are as many as 6 offences formant filed complaint with allegation that ap-
against applicant registered in state of Haryana pellant-employee of Municipal Corporation,
between 2018 to 2021 – These criminal antecedents abused him by caste, assaulted him by fist and
are in respect of Indian Penal Code (IPC) offences kick blows, threatened him and attempted to
– Applicant is from state of Haryana – In such view strangulate neck of informant – Said allegations
of matter, case is made for enlargement of were vague in nature – Record further shows that
applicant on bail. Vikas Babbarsingh ItkanVs. State there was previous report lodged by appellant
of Maharashtra, 2024(1) Bom.C.R.(Cri.) 641. against informant as he has obstructed when ap-
Code of Criminal Procedure, 1973 – Secs. 437 pellant was discharging his official duty – If alle-
& 439 – Cancellation of bail – Criminal gations in FIR are taken into consideration, to at-
Application is preferred seeking quashing and tract provisions, it is alleged that appellant has
setting aside of bail Order – There is a called him on his caste – Previously appellant reg-
distinction between rejection of bail in a case of istered crime against informant under Sections
non-bailable offence at an initial stage and 353, 504 and 506 of IPC, for obstructing in con-
cancellation of bail after it has been granted – ducting survey of beneficiaries under Government
Held, bail once granted should not be cancelled Scheme – From recitals of FIR, at relevant time,
in a mechanical manner without considering informant was standing alone on road – Appel-
whether any supervening circumstances have lant produced CCTV footage to show that at rel-
rendered it unfavourable to a fair trial to allow evant time, he was not at all present at spot of
accused to retain his or her freedom by enjoying incident and false report lodged against him –
concession of bail during trial. Additional Merely calling a person by his caste, though may
Sessions Judge has provided detailed reasons amount to insult of abuse to him, same cannot be
for granting bail to Respondent 3 and therefore said to be with intent to humiliate such person –
impugned order granting bail cannot be termed There was no incriminating circumstances on
as mechanical or perverse in nature. This is not record to point out intentional insult or intimida-
a ft case for quashing and setting aside tion, with intent to humiliate informant within
impugned bail order and for cancellation of bail public view, by appellant – No embargo of statu-
granted to Respondent 3. Application is tory bar grafted under Section 18 or 18A of S.C. &
rejected. Leena Dasharath Gavkar Vs. State of S.T. Act, applicable – It is not permissible for Court
Maharashtra, 2024(1) Bom.C.R (Cri.) 850. to enter into roving enquiry, regarding
Code of Criminal Procedure, 1973 – Sec. 438 – sustainability of accusation, nurtured on behalf
Anticipatory bail – Petitioner sought bail in three of complainant – Held, impugned order rejecting
bail application liable to be quashed. Appellant of filing complaint to conclusion of trial – There-
released on bail with conditions. Appeal allowed. fore, those rights of victims have been acknowl-
1982 Cri.L.J. 872 Rel.on. Ajinkya Chandrashekhar edged and incorporated under Section 15A of
Ghogare Vs. State of Maharashtra, 2024(1) Atrocities Act – Under sub-section (3) of Sec-
Bom.C.R.(Cri.) (N.B.)49. tion 15A, reasonable and timely notice must be
Code of Criminal Procedure, 1973 – Sec. 438 – issued to victim or their dependent, at first or
Anticipatory bail – Rejection – Appeal against – earliest possible instance – No notice served on
Delay in lodging FIR – There was delay in lodg- victim nor was she heard, as is her substantive
ing FIR – FIR smacks mala fides – In past complain- right under Section 15A of Act – Impugned or-
ant filed one complainant under Atrocities Act der cannot be said to be passed by Special Judge
against another person – Statements of witnesses by adopting due procedure – Legal Aid for Vic-
were recorded under Section 164 of Cr.P.C. – Wit- tim informant, who is member of Scheduled
nesses were closely associated with complainant Caste – When victim in atrocities matters,
– No statements of independent witnesses cor- served with notice, are unable to engage Advo-
roborating version of complainant about abuses cate because of their financial constraints or oth-
on caste – No absolute bar against grant of antici- erwise – Then such Special Courts should pro-
patory bail in cases under Atrocities Act if no prima vide legal aid to those victims – Legal Services
facie case made out or where on judicial scrutiny Authorities Act provides for giving free legal
complaint was found to be prima facie mala fide – aid to members of scheduled caste or scheduled
Bar under Section 18 of Atrocities Act cannot be tribe – Held, order passed by Special Judge
invoked against appellants for depriving them under Atrocities Act stands set aside. Special
pre-arrest bail – Custodial interrogation of appel- Judge directed to issue notice to Respondent 2/
lants was not necessary – Held, impugned order original informant once again as contemplated
set aside. Appellants entitled to be released on under Section 15A(3) of Atrocities Act and af-
anticipatory bail. Appeal allowed. Jagdish ter giving opportunity of hearing to informant,
Sajjankumar Banka Vs. State of Maharashtra, 2024(1) should decide matter on its own merits. Appeal
Bom.C.R.(Cri.) 131. partly allowed. Foll. 2021 S.C.C. OnLine 1010.
Code of Criminal Procedure, 1973 – Sec. 438 – Raees Hanif Sayyed Vs. State of Maharashtra, 2024(1)
Anticipatory bail – Fact that applicant is al ready Bom.C.R.(Cri.) (A.B.)442.
in custody in one case does not preclude him from Code of Criminal Procedure, 1973 – Sec. 439 –
seeking pre-arrest bail in connection with another Regular bail – Seriousness and gravity of crime to
case in which he apprehends arrest. dis. 2022 Su- be considered – Upon searching boat, total 56
preme (All.) 1331; 2022 All.M.R.(Cri.) 61. Amar S. small packets in three polythene bags of heroin
Mulchandani Vs. State of Maharashtra, 2024(1) were found – Courts cannot lose sight of fact that
Bom.C.R.(Cri.) 350. menace of crime of smuggling of contraband
Code of Criminal Procedure, 1973 – Sec. 438 – drugs is on increase and therefore, perpetrators
Anticipatory bail – Legal Aid for victim – Alle- of crime who are destroying society and younger
gation that appellant – Accused committed for- generations rendering them incapacitated by
cible sexual intercourse on informant – Re- falling prey to drug abuse must be dealt with iron
spondent 2, married lady and having caused her hands – Held, such types of offences are to be dealt
pregnancy – Application by accused, against with severity and with heavy hands. Showing
whom complaint filed by victim informant un- leniency in such matters would be really a case of
der S.C & S.T (Prevention of Atrocities) Act – misplaced sympathy. Application is rejected.
Special Judge ought to have considered substan- Sultan Habib Lodhda Vs. State of Gujarat, 2024(1)
tive right that has been given to victim under Bom.C.R.(Cri.)(J.) (GUJ.)41.
Section 15A of Atrocities Act – Victims of crime Code of Criminal Procedure, 1973 – Sec. 439 –
often face hurdles in accessing justice from stage Bail – Abetment of suicide – Admittedly, on basis
of FIR lodged by husband of deceased, crime is and 164 of Cr.P.C. as also testimony of prosecu-
registered against N – During investigation, state- trix before jurisdictional Court. Impugned order
ment of N was recorded by Investigating Officer is set aside. Appeals are allowed. Bhagwan Singh
– On basis of statement of N, appellant/accused is Vs. Dilip Kumar @ Deepu @ Depak, 2024(1)
arrayed as an accused – In said statement, N dis- Bom.C.R.(Cri.) (S.C.)123.
closed that, when they went home together, three Code of Criminal Procedure, 1973 – Sec. 439 –
persons restrained them and one of assailants Enlargement on bail – Weapon used by applicant
asked deceased about sexual favours – Further, is knife – Sixteen stabbed injuries are received by
“N” and deceased were also allegedly assaulted deceased on vital part of body i.e. chest which
by these persons – Thereafter, deceased com- sufficiently show that repeated blows are given
mitted suicide by jumping into Well – On basis by applicant to deceased who is his brother – In-
of said statement, applicant was added as ac- juries inflicted with a force to end life of deceased
cused – I.O. recorded relevant statements of – It was certainly an act with an intention – Hence
witnesses – Now, investigation is completed this incident not covers under Section 304 Part II
and charge-sheet is filed – Considering nature of Indian Penal Code – Held, premeditation and
of evidence, all witnesses were of residents of intention to kill are two vital circumstances
Jalgaon (Jamod) – Alleged crime, registered amongst others which are to be considered by
against applicant-appellant is offence under Court before holding accused guilty of an offence
Section 306, IPC, for which punishment is up under Section 302 of IPC. Since prima facie case is
to ten years – In facts, further custody of appli- made out against applicant, application for bail is
cant not required as no purpose will be served rejected. Criminal application stands disposed of.
in keeping him behind bars – Application can Santosh Balaji Nagrale Vs. State of Maharashtra,
be considered by imposing certain conditions 2024(1) Bom.C.R.(Cri.) (N.B.)382.
on appellant as his further custody is not re- Code of Criminal Procedure, 1973 – Sec. 439 –
quired and no purpose will be served in keep- Bail application dismissed by High Court – Sched-
ing him behind bar – Held, appellant entitled ule offences – Proceedings under PMLA are con-
to be released on bail with conditions. Applica- tingent on existence of scheduled offence, and no
tion allowed. Himmatsingh Telsingh Chauhan Vs. proceedings under PMLA can be continued
State of Maharashtra, 2024(1) Bom.C.R.(Cri.) against person in absence or in isolation of sched-
(N.B.)90. uled offence – When FIR is registered under par-
Code of Criminal Procedure, 1973 – Sec. 439 – ticular offences which include offences mentioned
Bail application – Bail granted by trial Court – FIR in Schedule to PMLA, it is Court of competent
registered alleging gang rape, threat of making jurisdiction, which would decide whether Charge
video of rape recorded viral and extortion – Held, is required to be framed against accused for sched-
delay by itself would not be fatal for all times to uled offence or not – Offences mentioned in
come and criminality attached to incident would charge-sheet by I.O. could never be said to be fi-
not evaporate into thin air or get extinguished by nal conclusion as to whether offences scheduled
virtue of such delay. It all depends upon facts that in PMLA existed or not, more particularly when
may unfold in given circumstances and same same were mentioned in FIR registered against
would vary from case to case. Impugned order accused – Held, It is only in event person named
granting bail is not only bereft of material par- in criminal activity relating to a scheduled offence
ticulars which would justify grant of bail, but it is finally absolved by a Court of competent juris-
seems that High Court has got swayed on diction owing to an order of discharge, acquittal
ground of delay and video having not been re- or because of quashing of criminal case (sched-
covered during course of investigation and has uled offence) against him/her, there can be no ac-
given a complete go by to allegation made in tion for money laundering against such a person
FIR and statement recorded under Sections 161 or person claiming through him in relation to
property linked to stated scheduled offence. offences punishable offences punishable under
There is neither discharge nor acquittal nor Sections 452, 342, 376(3), 506(2), 328 of IPC and
quashing of criminal case by Court of compe- Section 8(2) of Goa Children’s Act and Sections 4,
tent jurisdiction against one in predicate/sched- 6 and 8 of POCSO Act – Application made by vic-
uled offence. Appeal is dismissed. Saumya tim through her mother under Section 439(2) of
Chaurasia Vs. Directorate of Enforcement, 2024(1) Cr.P.C., read with Section 482 of Cr.P.C., for can-
Bom.C.R.(Cri.) (S.C.)483. cellation of bail granted to Respondent No. 2 by
Code of Criminal Procedure, 1973 – Sec. 439 – Children’s Court vide order – Victim, minor girl,
Enlargement of bail – Contraband articles seized 14 years 11 months of age – Trial Court observed
– Held, prolonged incarceration, generally that accused is “youngman” of about 26/28 of
militates against most precious fundamental years and victim is 14 years of age, in love rela-
right guaranteed under Artic le 21 of tionship – Victim had sufficient knowledge and
Constitution of India and in such an eventuality, capacity to know full import of her actions, has
conditional liberty must override statutory no bearing on grant of bail – In context of a 14
embargo created under Section 37(1)(b)(ii) of years old victim, subjected to such an act by a 26/
NDPS Act. Length of period of his custody and 28 years old accused, whom she refers to as
fact that charge-sheet has been filed and trial has ‘mamu’ (maternal uncle), was factor enough for
commenced are by themselves not considerations Children’s Court to have dissuaded itself from
that can be treated as persuasive grounds for exercising discretion to grant bail to accused – Ac-
cused being young man, is not factor which will
granting relief to respondent under Section 37 of
weigh in his favour, considering his age in con-
NDPS Act. Applicant relased on bail. Application
text with that of minor victim (child) – Concur-
is allowed. Sanjat Ratan Rajput Vs. Union of India,
rent jurisdiction – Contention of defence that
2024(1) Bom.C.R.(Cri.) 696.
earlier application for cancellation of bail was
Code of Criminal Procedure, 1973 – Sec. 439 –
rejected by Trial Court – Hence, exercise of ju-
Bail – Application for – Offence under NDPS Act risdiction by High Court, being concurrent to
– Accused is 29 yrs. of age – He was in custody that of Children’s Court, such exercise of dis-
since long – Charge-sheet was also filed and 21 cretion should not be interfered – Earlier order
witnesses to be examined in matter – Bail granted. o f Children’s Court reveals that application for
Sukhwinder Singh @ Bittu Vs. State of Punjab, 2024(1) cancellation of bail was made on allegations of
Bom.C.R.(Cri.) (S.C.)893. violation of conditions imposed by Children’s
Code of Criminal Procedure, 1973 – Secs. 439 & Court, which was rejected – However, present
306 – Application for bail by accomplice – Op- application for cancellation of bail granted, be-
posed on ground of safety of accomplice and fore High Court, is made on merits – Therefore
prayed for detention till termination of trial – said application, held maintainable – Having re-
Detaining applicant for an indefinite period when gard to age of prosecutrix and nature and grav-
there is nothing on record to indicate when trial ity of crime, no case for grant of bail was estab-
will be terminated is not only be unfair to appli- lished – Held, impugned order of trial Court
cant but will be deterrent to those witnesses seek- allowing bail application set aside. Respondent
ing tender of pardon in future – This cannot be 2 shall surrender in custody. Liberty to Respond-
object of sub-section (4) of Section 306, more so ent 2 to file fresh application for bail. Ordered ac-
when legislation like Witness Protection Act is cordingly. dis. (2021)1 Bom.C.R.(Cri.) 658; 2022
now in place. Danish Ali Jamaluddin Ahmed Vs. LiveLaw (S.C.) 194. XXXX Vs. State of Goa, 2024(1)
State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 367. Bom.C.R.(Cri.) (P.B.)232.
Code of Criminal Procedure, 1973 – Secs. 439(2) Code Criminal Procedure, 1860 – Sec. 482 –
& 482 – Cancellation of bail – Concurrent juris- Quashing of criminal proceeding under Section
diction – Complaint came to be registered for 125 Cr.P.C. – Wife specifically averred in her com-
plaint that she had no income of her own – Held, eral allegations – Claim that Applicant l-Accused
this is not fit case for quashing – Petition dis- 7 is uncle of wife husband’s brother, whilst Ap-
missed. Subham Roy Choudhury Vs. State of West plicant 2-Accused 8 is son of Applicant 1 both of
Bengal, 2024(1) Bom.C.R.(Cri.)(J.) (CAL.)21. whom, cannot be termed as ‘relatives’ of husband
Code of Criminal Procedure, 1973 – Sec. 482 – of informant – Since applicants belong to differ-
Tracing missing child – Direction of Investigation ent family, they are not related with blood with
– Petitioner filed FIR for her missing son, as her husband, neither by marriage nor adoption –
missing son was not recovered and his wherea- Though there were omnibus allegations that all
bouts are still not known – Petitioner sought for accused used to harass victim, however, besides
intervention of Court for production of her son – last incident, there were no specific allegations
Held, Letter was sent to senior authorities to de- against applicants – Allegations against them are
clare/enhance suitable reward for tracing missing vague and of general nature – Thus, applicants
child. Hue and cry notices have also been circu- cannot be hauled in criminal prosecution under
lated in public including bus stands and railway Section 498A of IPC – Applicants belong to dif-
stations. WT Message was flashed to all SSP’s/ ferent family and are residing elsewhere – On
DC’sP all over India. Since all possible efforts to close scrutiny of entire material, allowing such an
trace missing boy have been made and FIR is action would result in injustice and prevent pro-
pending investigation, concerned police officials motion of justice – Continuation of such prosecu-
directed to file quarterly status report before con- tion would amount to an abuse of process of
cerned Metropolitan Magistrate and, if any, clue Court, therefore, this is fit case to invoke inherent
is found about missing son of petitioner, same powers of Court – Held, impugned FIR and final
shall be communicated to petitioner. Petition dis- report, in respect of all alleged offences, set aside,
posed of. Laxmi Vs. State Nct of Delhi, 2024(1) to extent of said applicants only. Application al-
Bom.C.R.(Cri.)(J.) (DEL.)30. lowed. Abdul Salim Ahmad Abdul Jabbar Vs. State
Code of Criminal Procedure, 1973 – Sec. 482 – of Maharashtra, 2024(1) Bom.C.R.(Cri.) (N.B.)60.
Quashing of FIR – Serious allegations of Code of Criminal Procedure, 1973 – Sec. 482 –
embezzlement amounting to Rs. 16,17,833.00, Harassment – Suicide – Quashing of charge-sheet
collected unlawfully from impoverished farmers – Legality of – FIR was lodged against petitioner
by Officiating Secretary of Co-operative Society – for offences punishable under Section 306 read
Registration of F.I.R. follows a conclusive with Section 34 of IPC – Held, there was sufficient
determination of embezzlement by a three- gap between incidents involving accused and de-
member committee – No substantive reasons have ceased’s act of suicide. There is no direct link be-
been offered by petitioner’s counsel to dispute tween two, as deceased had ample time to con-
findings of this committee, which serves as basis sider consequences of suicide. No direct or active
for impugned F.I.R. – Petitioner neither contends act was found that led deceased to commit sui-
that criminal proceedings against him is tainted cide. Charge sheet does not suggest any abetment
with malice nor suggests any ulterior motives in to commit suicide. There is no material of any
initiation of prosecution. Ajay Rai Vs. State of Uttar positive action taken by accused that could have
Pradesh, 2024(1) Bom.C.R.(Cri.)(J.) (ALLAH.)36. caused or forced deceased to commit suicide at
Code of Criminal Procedure, 1973 – Sec. 482 – time of incident. Simply alleging harassment of
Quashing of FIR – Cruelty and harassment by deceased is not sufficient to sustain charge under
‘relatives’ of husband of informant – Applicants Section 306 IPC. There is no material to suggest
seeking to quash FIR registered for various of- that accused intended for deceased to commit
fences, including offence of cruelty and harass- suicide, nor is there any indication that accused
ment under Section 498A of IPC – Quashing is created a situation that caused extreme mental
sought on account of inadequate, vague and gen- stress, leading deceased to take his own life. Thus,
62/24(1)
FIR registered against petitioners and proceedings
arising therefrom are quashed. Petition allowed. constitute any offence or not. There is no material
Suryakant Pandurang Holmukhe Vs. State of on record to support alleged causation of hurt.
Maharashtra, 2024(1) Bom.C.R.(Cri.) 70. Except statement that ‘they beat up me’ by com-
Code of Criminal Procedure, 1973 – Sec. 482 – plainant no material whatsoever is available on
Quashing of proceedings – Applicant, a sole ac- record in regard to commission of said offence.
cused, is facing trial arising out of crime for of- Basic ingredients to constitute an offence under
fences punishable under Sections 354, 354A, 452, Section 323, IPC is lacking in charge-sheet. No
504, 506 of IPC – Parties are closely related to each useful purpose is likely to be served by allow-
other – Accused is elder brother of informant’s ing criminal prosecution against appellant.
husband – Considering close relationship, settle- High Court has clearly fallen in error in not in-
ment was arrived at resulting in reunion of cou- voking powers under Section 482, Cr.P.C. to
ple which was unsettled due to occurrence – Dis- quash proceedings qua appellant. Appeal is al-
pute was within family members – Soon after oc- lowed. Abhishek Saxena Vs. State of Uttar Pradesh,
currence, informant started to live separately with 2024(1) Bom.C.R.(Cri.) (S.C.)100(A).
her minor child at her parental house – Only be- Code of Criminal Procedure, 1973 – Sec. 482 –
cause matter was settled, she has rejoined com- Quashing of proceeding – Abetment of suicide
pany of her husband with her child – Informant’s – Record of investigation prima facie reveals com-
matrimonial life was at stake, unfortunately with- plicity of applicant – Altercation proximate to
out any mistake on her part – In view of settle- the incident in question prima facie constitutes a
ment, not willing to continue criminal prosecu- direct act of incitement leading to commission
tion and gave her consent to quash criminal proof the offence – It cannot be stated that there is
ceeding – Case is of non-compoundable nature – no material at all to connect Applicant with al-
Trial has progressed but finding of guilt not re- leged offence – Application for quashing of pro-
corded by trial Court – Held, since even post con- ceeding dismissed. Sheezan Mohd. Khan alias
viction, inherent powers can be used due to set- Sheezan Mohd. Vs. State of Maharashtra, 2024(1)
tlement in exceptional circumstances, said pow- Bom.C.R.(Cri.) 387.
ers can be exercised at pre-conviction stage. Exer- Code of Criminal Procedure, 1973 – Sec. 482 –
cise of said powers under Section 482 cannot be Dishonour of Cheque – Independent/Professional
restricted after recording of evidence of material Directors – Proof – Petitioner challenged orders
witnesses. Considering close relationship, settle- of issuance of process against petitioners in pro-
ment arrived at resulting in reunion of couple ceedings instituted under Sections 138 & 141 of
which was unsettled due to occurrence. Very ex- N.I. Act – Cheques of accused-Company, issued
ceptional case can be said to be made out to exer- towards price of goods purchased, returned un-
cise inherent powers to do complete justice. Held, paid remarks, “ payment stopped – Non-compli-
impugned FIR against accused of alleged offences ance of statutory demand notices – Petitioners, Di-
liable to be set aside. Application allowed. Rel. on. rectors of company resigned or put in papers post
2021 ALL.M.R.(Cri.) 660(F.B.) Sheshrao Makhram issuance of cheques cannot claim relief of
Jadhav Vs. State of Maharashtra, 2024(1) quashment of proceedings in exercise of jurisdic-
Bom.C.R.(Cri.) (N.B.)74. tion under Section 482 Cr.P.C.– Petitioners, inde-
Code of Criminal Procedure, 1973 – Sec. 482 – pendent directors of accused-Company – Whether
Quashing of FIR – Powers to be exercised by High petitioners can succeed on ground of having been
Court – High Court declined to exercise power non-executive directors of Company – Petition-
under Section 482 Cr.P.C. and consequently dis- ers are not signatories of cheques in questions nor
missed petition qua appellant – Allegation for did they hold a position of Managing Director or
voluntarily causing hurt, for extortion and for Executive Director of Company, when cheques in
criminal breach of trust – Held, High Court was question were issued – Section 2(47) defines term
legally bound to see if allegations/accusations “independent director” to mean an independent
director referred to in sub-section (6) of Section Code of Criminal Procedure, 1973 – Sec. 482 –
149 of the Companies Act – Documents, in nature Quashing of proceeding – Prima facie, there are
of Minutes of Annual General Meeting of Com- averments in complaint filed by Respondent un-
pany – And copies of Form No. DIR-II der Domestic Violence Act which cannot be dis-
downloaded from website of Registrar of Com- carded at this stage – Petitioner had preferred an
panies have been placed on record – Being ster- application before Judicial Magistrate First Class
ling incontrovertible material or acceptable cir- which was purportedly an application for quash-
cumstances to substantiate claim of petitioners ing proceedings – Magistrate has no powers to
being independent-Professional Directors – Peti- invoke Section 482 of Cr.P.C. – Thus, impugned
tioners, being independent/professional directors, orders of Magistrate and sessions Court rejecting
could not be said to have been in charge of and petitioner’s application, proper. Shrinath Vijay Rao
were responsible to Company for conduct of busi- Vs. Shraddha Shrinath Rao, 2024(1) Bom.C.R.(Cri.)
ness of Company when cheques in question were (P.B.)626.
issued – Continuation of proceedings, under Sec- Code of Criminal Procedure, 1973 – Sec. 482 –
tion 138 against them would be abuse of process Quashing of FIR – At stage of deciding an ap-
of Court – Held, impugned orders of issuance of plication under Section 482 Cr.P.C., it is not per-
process, set aside. Petition allowed. Chirag missible for High Court to go into correctness
Janardan Doshi Vs. State of Maharashtra, 2024(1) or otherwise of material placed by prosecution
Bom.C.R.(Cri.) 475. in charge-sheet. Surendrakumar Bhagat Vs. State
Code of Criminal Procedure, 1973 – Sec. 482 – of Maharashtra, 2024(1) Bom.C.R.(Cri.) 628.
Quashing of criminal proceedings – On detection Code of Criminal Procedure, 1973 – Sec. 482 –
of illicit felling of Narkya trees offences were reg- Discharge from prosecution – Case is based on
istered – Held, Camptothecin is not a forest pro- circumstantial evidence as there is no eye wit-
duce, hence prosecution of petitioners in im- ness to incident – Except statement of applicant
pugned criminal cases is unwarranted. Continu- under Section 164 of Cr.P.C., which is mostly
ation of impugned cases registered against pe- exculpatory in nature, there is no evidence to
titioners at instance of Respondent 2 would be connect applicant with murder – In statement
abuse of process of law. Petitions are allowed. under Section 164 of Cr.P.C. recorded during
Fresenisu Kabi Oncology Ltd. Vs. State of investigation, applicant has stated that she is not
Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)520. involved in assaulting deceased – She tried to
Code of Criminal Procedure, 1973 – Sec. 482 – intervene in assault by other accused – There is
Quashement of FIR – Grounds to be considered no evidence to show involvement of applicant
– Equipment was hypothecated under Loan in assaulting deceased – There is no evidence
Agreement, hence it was a security for repay- of whatsoever nature to establish prima facie
ment of loan amount – Held, when a citizen applicant was conspirator in commission of
avails a loan from a financial institution, it is crime – Even to substantiate charge under Sec-
his obligation to pay back and not play truant tion 201, except statement of applicant under
or for that matter play possum. In an agreement Section 164 of Cr.P.C., there is no independent
of hire purchase, purchaser remains merely a evidence – However, at this stage, it would not
trustee/bailee on behalf of financier/financial be possible to exonerate applicant from charge
institution and ownership remains with later. under Section 201 IPC – Applicant cannot be
Registration of FIR qua Applicant 2 is nothing charged for offence under Section 120B and 302
but a clear case of abuse of process of law by of IPC. Rulasha Fernandes Vs. State, 2024 (1)
Respondent 1. F.I.R. is quashed set aside. Ap- Bom.C.R.(Cri) (P.B.)638.
plication is allowed. Tata Capital Ltd. Vs. Code of Criminal Procedure, 1973 – Sec. 482 –
Umeshkumar Hanumandas Goyal, 2024(1) Quashing of process – As per contents of
Bom.C.R.(Cri.) 587. complaint, complainant essentially wanted refund
of his money – More so, neither any amount is commission of cognizable offence – In such
paid to present applicants nor any refund is circumstances, compelling petitioners to face
sought from them – Allegation against applicants criminal trial willamount to an abuse of process
is afterthought to falsely implicate them – of Court – Hence application is allowed. Amarlal
Submission of applicants that criminal Hasomal Lalwani Vs. State of Maharashtra, 2024(1)
proceedings are resorted to against applicants for Bom.C.R.(Cri.)934.
redressing a grievance of a civil in nature is Code of Criminal Procedure, 1973 – Sec. 482 –
acceptable – Issuance of process against present Commitment of suicide by vendor of Sale deed
applicant is thus abuse of process of law – Order – Vendor of sale-deed left behind a suicide note
of issuance of process, set aside. Raosaheb naming tenants as abettors – Why police
Murlidhar Ahire Vs. State of Maharashtra, 2024(1) personnel have been allowed to go scot-free in
Bom.C.R.(Cri.) 685. a case where they had an apparent roll in
Code of Criminal Procedure, 1973 – Sec. 482 – conspiring and in abetting crime of illegal
Quashing of proceeding – Violation of detention of tenants, coercing them to sign
provisions of EPF Act – Petitioner is start-up – document against their will, and getting
For first year of setting up of Start-Ups such premises in question demolished without any
establishments may not be inspected under any order from a Competent Court – Held,
of 6 Labour laws inc luding EPF Ac t – continuance of these two criminal proceedings
Respondents could not point out from record would not be of any avail once complainant has
that, there was very credible and verifiable himself stated to withdraw complaint. Their
written complaint of violation of relevant losses having been compensated, any further
provisions of EPF Act by Petitioners and hence, investigation or trial would be an exercise in
with approval of an officer, who is one level futility. SLPs are allowed. Shatrughna Atmaram
senior to inspecting officer, inspection was held Patil Vs. Vinod Dodhu Chaudhary, 2024(1)
in this case – D.O. letter, appears to be issued to Bom.C.R.(Cri.) (S.C.)958.
encourage and promote Start-Ups – However, Constitution of India – Arts. 19(1)(a) & 21 –
way in which Respondent held inspection, it Procedure followed for police encounters –
would discourage Start-ups and thus, cause an Right of accused – Right of media – Petition filed
adverse effect on employment to be generated to determine whether police in investigating
and economy of India – Proceedings against police encounters followed procedure and pro-
petitioner start-up quashed. Edunetwork Private priety and procedure of media briefings by po-
Limited Vs. Regional Provident Fund, 2024(1) lice personnel – Held, guidelines of Union Min-
Bom.C.R.(Cri.) 778. istry of Home Affairs were prepared over dec-
Code of Criminal Procedure, 1973 – Sec. 482 – ade ago on 1-4-2010. Since then, with upsurge
Quashing of proceeding – Allegation of cruelty in reporting of crime not only in print media,
by husband and his relatives – Apart from but in electronic and social media, it becomes
making a vague statement that husband had extremely important that there should be Stand-
demanded a car and cash from her parents, ard Operating Procedure which balances out
complainant wife has not given any further considerations. There is need to have uniform
details, particularly year in which such demand policy which can be adopted for nominating
was made – This was relevant in view of delay nodal officers who would be available to share
in lodging FIR – Other incidents narrated in FIR official version at stage of investigation, con-
had occurred within a period of six months from sistent with need to ensure that disclosure it-
date of marriage – Respondent had not lodged self does not derail course of investigation.
any FIR alleging cruelty, and allegations made Nature of disclosure cannot be uniform since it
in FIR are stale – Allegation leveled in FIR, even must depend upon nature of crime and profile
if ac c epted in totality, do not disc lose of stake holders, including victims, witnesses
and accused themselves. Age and gender of against most precious fundamental right
accused as well as of victims would have sig- guaranteed under Article 21 of Constitution of
nificant bearing on nature of disclosure to be India and in such an eventuality, conditional
made. Guidelines must duly factor in need to liberty must override statutory embargo created
ensure that disclosure does not result in media under Section 37(1)(b)(ii) of NDPS Act. Length
trial so as to allow for pre-judging of guilt of of period of his custody and fact that charge-
accused. Media trials are liable to result in de- sheet has been filed and trial has commenced
railment of justice by impacting upon evidence are by themselves not considerations that can
which would be adduced and its assessment by be treated as persuasive grounds for granting
adjudicating authorities. Union Ministry of relief to respondent under Section 37 of NDPS
Home Affairs should prepare comprehensive Act. Applicant relased on bail. Application is
manual on media briefings by police person- allowed. Sanjat Ratan Rajput Vs. Union of India,
nel. Appeal disposed of. People’s Union for Civil 2024(1) Bom.C.R.(Cri.) 696.
Liberties Vs. State of Maharashtra, 2024(1) Constitution of India – Art. 22(5) – Detention
Bom.C.R.(Cri.) (S.C.)311. – Subjective satisfaction – Order of detention is
Constitution of India – Arts. 19(1)(d) & 226 – passed relying upon two in-camera statements
Order of externment – Alternate remedy – Peti- and solitary case registered against petitioner –
tioners seek to challenge order of externment There was variance in version of in-camera state-
passed by Superintendent of Police, in terms of ments, with respect to time and date of incident
provisions of Section 55 of Police Act – There referred by both witnesses, as recorded in origi-
was no explanation by Authorities for abnor- nal Marathi language, typed version and Eng-
mal delay in filing proposal for externment, lish translation of said statements – Thus,
more than year after last alleged offence – Im- detenu was unable to make representation
pugned order on face of it, suffers from arbi- against his detention effectively and was
trariness – Authority lacked jurisdictional facts thereby denied his right under Article 22(5) of
to proceed in exercising its jurisdiction under Constitution – Further solitary case relied upon
Section 55 of Police Act – No live nexus shown by Detaining Authority is not sufficient to hold
on face of record between last act allegedly com- petitioner as habitual offender – Held, order of
mitted by petitioners as part of gang and pro- detention issued under Section 3 of Act by Re-
posal or issuanc e of notic e – Order of spondent 1 be quashed and set aside and on
externment found to be arbitrary, as it infringed quashing same petitioner be ordered for release
fundamental rights of petitioners under Arti- forthwith. Ordered accordingly. foll.((1990)1
cle 19 of Constitution – Bar in form of alternate S.C.C. 606; 2013 B.C.I. (soft)1186; 2016(4)
remedy under Section 60, by way of appeal, Bom.C.R.(Cri.) 700. Harvinder @ Chinku
would not come in way of petitioners for Ajaysingh Labana Vs. Commissioner of Police,
maintainability of petition against said order – 2024(1) Bom.C.R.(Cri.) 118.
Held, impugned order of externment therefore, Constitution of India – Art. 22(5) – Delay in
violative of Section 55 of Police Act as also in consideration and disposal of representation
violation of petitioners’ fundamental rights of a detenu – Representation of detenu whose
under Article l9(1)(d) of Constitution. Petition liberty is in peril and deprived should be con-
allowed. foll. 1988(2) Bom.C.R. 724; 1991(2) sidered and disposed of as expeditiously as
Bom.C.R. 85; 2018(3) Bom.C.R.(Cri.) 353. possible – Otherwise continued detention will
Naushad Ali Shah Vs. State of Maharashtra, 2024(1) render itself, impermissible and invalid as
Bom.C.R.(Cri.) (N.B.)140. being violative of constitutional obligation en-
Constitution of India – Art. 21 – Enlargement shrined in Article 22(5) of Constitution – If
of bail – Contraband articles seized – Held, any delay is occurred in disposal of a repre-
prolonged incarceration, generally militates sentation, such delay should be explained by
appropriate authority to satisfaction of Court. whereabouts are still not known – Petitioner
Minakshi Amol Gedam Vs. District Magistrate, sought for intervention of Court for produc-
2024(1) Bom.C.R.(Cri.) (N.B.)633. tion of her son – Held, Letter was sent to sen-
Constitution of India – Arts. 105 & 194 – ior authorities to declare/enhance suitable
Bribery is not protected by parliamentary reward for tracing missing child. Hue and cry
privilege – Courts and House exercise parallel notices have also been circulated in public in-
jurisdiction over allegations of bribery – High cluding bus stands and railway stations. WT
Court declined to quash criminal proceedings Message was flashed to all SSP’s/DC’sP all
on ground that appellant had not cast her vote over India. Since all possible efforts to trace
in favour of alleged bribe giver and thus, is missing boy have been made and FIR is pend-
not entitled to protection under Article 194(2) ing investigation, concerned police officials
of Constitution – Would a legislator who directed to file quarterly status report before
receives a bribe to cast a vote in a certain concerned Metropolitan Magistrate and, if
direction or speak about certain issues be any, clue is found about missing son of peti-
protected by parliamentary privilege – Held, tioner, same shall be communicated to peti-
bribery is not rendered immune under Article tioner. Petition disposed of. Laxmi Vs. State
105(2) of Constitution and corresponding Nct o f D elhi, 2024(1) Bom .C .R. (Cr i. )( J.)
provision of Article 194 because a member (DEL.)30.
engaging in bribery commits a crime which Constitution of India – Art. 226 – Writ petition
is not essential to casting of vote or ability to – Powers of writ Court to grant bail – Scope –
decide on how vote should be cast. Same Despite statutory restrictions of Section 21(4)
principle applies to bribery in connection of MCOC Act, ability of constitutional Court,
with a speech in House or a Committee. per se, does not oust its powers to grant bail to
Corruption and bribery by members of under trials on grounds of violation of part III
legislatures erode probity in public life. of Constitution. Laxman Rama Pawar @ Mahakal
Offence of bribery is complete at point in time Vs. State of Maha ra shtra , 2024(1)
when legislator accepts bribe. Appeal stands Bom.C.R.(Cri.)951.
disposed of. Sita Soren Vs. Union of India, Constitution of India – Arts. 226 & 227 –
2024(1) Bom.C.R.(Cri.) (S.C.)699(A). Detention order – Subjective satisfaction –
Constitution of India – Arts. 105 & 194 – Held, purpose of arrest in respect of crime is
Doctrine of stare decisis – Held, doctrine of aimed at conclusion of the investigation,
stare decisis is not an inflexible rule of law. wh er eas, d et en t ion of a per s on und er
Judgment of majority in 1998 DGLS(SC) 464, preventive detention law is to prevent him
which grants immunity from prosecution to fr om in dulging in c er t ain ac tiv it ies .
a member of legislature who has allegedly Respondent 1-detaining authority has arrived
engaged in bribery for casting a vote or at a subjective satisfaction based on objective
speaking has wide ramifications on public material which by no stretch of imagination
in ter es t, p r ob it y in p ub lic life an d could be said to be arbitrary and capricious
parliamentary democracy. There is a grave so that this Court could cause inference under
danger of this Court allowing an error to be Article 226 of Constitution. None of grounds
p erp et uat ed if d ec is ion wer e n ot being put forth by petitioner to challenge
reconsidered. Sita Soren Vs. Union of India, impugned order is sustainable in law and on
2024(1) Bom.C.R.(Cri.) (S.C.)699(B). fac ts . Writ p etition is dismissed. Vi nod
Constitution of India – Art. 226 – Tracing Dhannulal Jaiswal Vs. District Magistrate
missing child – Direction of Investigation – Aurangabad, 2024(1) Bom.C.R.(Cri.) (A.B.)862.
Petitioner filed FIR for her missing son, as her Constitution of India – Art. 227 – Applica-
missing son was not rec overed and his tion for investigation under Section 156(3) of
CrPC – Magistrate held that application dis- two criminal proceedings would not be of any
closes allegations of cognizable offences – avail once complainant has himself stated to
Therefore, thorough investigation is needed withdraw complaint. Their losses having been
at hands of Police – According to complain- compensated, any further investigation or trial
ant, accused have committed criminal breach would be an exercise in futility. SLPs are
of trust, forgery and cheating – Hence, by allowed. Shatrughna Atmaram Patil Vs. Vinod
impugned order, learned Magistrate referred Dodhu Chaudhary, 2024(1) Bom.C.R.(Cri.)
said application for investigation under Sec- (S.C.)958.
tion 156(3) of Cr.P.C. to Nashik Road Police Contempt of Courts Act, 1971 – Sec. 3 – Proce-
Station – Held, any person may set criminal dure followed for police encounters – Right of
law in motion subject to statutory interdicts. accused – Right of media – Petition filed to de-
When an offence is committed, a first informa- termine whether police in investigating police
tion report can be lodged under Section 154 of encounters followed procedure and propriety
Cr.P.C. A complaint petition may also be filed and procedure of media briefings by police per-
in terms of Section 200 thereof. However, in sonnel – Held, guidelines of Union Ministry of
event for some reasons or other, first informa- Home Affairs were prepared over decade ago
tion report is not recorded in terms of sub-sec- on 1-4-2010. Since then, with upsurge in report-
tion (1) of Section 156 of Code, Magistrate is ing of crime not only in print media, but in elec-
empowered under sub-section (3) of Section 156 tronic and social media, it becomes extremely
thereof to order an investigation into allegations important that there should be Standard Oper-
contained in complaint petition. Allegations ating Procedure which balances out considera-
levelled in applications are general and vague tions. There is need to have uniform policy
in nature. Application was not supported by which can be adopted for nominating nodal
bogus ‘Will Deed’. Except vague assertion that officers who would be available to share offi-
‘Will Deed’ is bogus, there was nothing in ap- cial version at stage of investigation, consistent
plication to prima facie conclude so. There is with need to ensure that disclosure itself does
great delay in filing said application, which is not derail course of investigation. Nature of
not satisfactorily explained learned Magistrate, disclosure cannot be uniform since it must de-
therefore, ought not to have entertained said ap- pend upon nature of crime and profile of stake
plication and acceded to request of complain- holders, including victims, witnesses and ac-
ant for investigation under Section 156(3) of cused themselves. Age and gender of accused
Cr.P.C. by passing impugned Order. Impugned as well as of victims would have significant
Order is quashed and set aside. Writ petitions bearing on nature of disclosure to be made.
are allowed. Anantrao Shankarrao Jagtap Vs. Guidelines must duly factor in need to ensure
Prakash Nivruthi Tajanpure, 2024(1) that disclosure does not result in media trial so
Bom.C.R.(Cri.) 603. as to allow for pre-judging of guilt of accused.
Constitution of India – Art. 227 – Commitment Media trials are liable to result in derailment of
of suicide by vendor of Sale deed – Vendor of justice by impacting upon evidence which
sale-deed left behind a suicide note naming would be adduced and its assessment by adju-
tenants as abettors – Why police personnel have dicating authorities. Union Ministry of Home
been allowed to go scot-free in a case where they Affairs should prepare comprehensive manual
had an apparent roll in conspiring and in on media briefings by police personnel. Appeal
abetting crime of illegal detention of tenants, disposed of. People’s Union for Civil Liberties Vs.
coercing them to sign document against their State of Maharashtra, 2024(1) Bom.C.R.(Cri.)
will, and getting premises in question (S.C.)311.
demolished without any order from a Drugs and Cosmetics Act, 1940 – Sec. 34(2) –
Competent Court – Held, continuance of these Offence by Company – Complaint where com-
pany is accused of commission of crime under Application stands rejected. Sadanand Gangaram
Drugs and Cosmetics Act, complainant has to Kadam Vs. Directorate of Enforcement, 2024(1)
show, by averments in complaint that directors Bom.C.R.(Cri.) 497(A).
concerned were either in-charge of or responsi- Evidence Act, 1872 – Sec. 3 – Attempt to murder
ble to company for its day to day management or – Proof – Accused hit victim with stone causing
were responsible for conduct of its business. grievous injuries to her eye and head – Allega-
Rajnikant Gulabdas Patel Vs. State of Maharashtra, tion that accused attempted to kill her – Admit-
2024(1) Bom.C.R.(Cri.) (N.B.)248. tedly, accused was not armed with any weapon
Employees’ Provident Funds & Miscellaneous to show that he had any intention to kill victim –
Provisions Act, 1952 – Sec. 14 – Quashing of Secondly, it was found that head of victim had
proceeding – Violation of provisions of EPF Act – banged on stone – Sole prosecution eye-witness
Petitioner is start-up – For first year of setting up turned hostile and did not support prosecution
of Start-Ups such establishments may not be case – There was single injury and that too by
inspected under any of 6 Labour laws including banging of head on stone – There was no inten-
EPF Act – Respondents could not point out from tion or knowledge on part of accused to cause
record that, there was very credible and verifiable death – Injuries caused to victim by stone were
written complaint of violation of relevant no doubt grievous in nature but they cannot be
provisions of EPF Act by Petitioners and hence, considered to be caused by dangerous weapon
with approval of an officer, who is one level that is likely to cause death – Provisions of Sec-
senior to inspecting officer, inspection was held tion 325 could be invoked for voluntarily causing
in this case – D.O. letter, appears to be issued to grievous hurt – Conviction under Section 307 was
encourage and promote Start-Ups – However, modified to one under Section 325 of Penal Code.
way in which Respondent held inspection, it Sanjay Gaonkar Vs. State of Goa, 2024(1)
would discourage Start-ups and thus, cause an Bom.C.R.(Cri.) (P.B.)110(A).
adverse effect on employment to be generated Evidence Act, 1872 – Sec. 3 – Attempt to murder
and economy of India – Proceedings against – Proof – Allegation that Appellant-accused hit
petitioner start-up quashed. Edunetwork Private victim with stone causing grievous injuries to her
Limited Vs. Regional Provident Fund, 2024(1) eye and head and attempted to kill her – Injuries
Bom.C.R.(Cri.) 778. were admittedly grievous in nature and treatment
Environment (Protection) Act, 1986 – Secs. 5, 7 given to victim further shows that her right eye
& 15 – Enlargement on bail – Twin condition un- was affected – There were fractures on front skull
der Section 45 of PMLA Act – Bail application re- bone – This itself proves fact about use of force by
jected by trial Court – Notice under MRTP Act which such assault took place on victim – There
was issued to construction made on land which was no doubt about involvement of accused in
was in nature of twin bungalows converted into a said offence – Accused was not armed with any
resort – Held, conditions specified under Section weapon to show that he had any intention to kill
45 are mandatory. They need to be complied with. victim – It was found that head of victim had
Court is required to be satisfied that there are rea- banged on stone – Sole prosecution eye-witness
sonable grounds for believing that accused is not turned hostile and did not support prosecution
guilty of such offence and he is not likely to com- case – There was single injury and that too by
mit any offence while on bail. High Court while banging of head on stone – No intention or knowl-
considering twin test of Section 45 of PMLA has edge on part of accused to cause death – Injuries
to consider broad probabilities of case, however, caused to victim by stone were no doubt griev-
having regard to nature of accusations and mate- ous in nature but they cannot be considered to be
rials on record, it is not possible to record a satis- caused by dangerous weapon that is likely to
faction that there are reasonable grounds for because death – Provisions of Section 325 could be
lieving that applicant is not guilty of such offence. invoked for voluntarily causing grievous hurt –
Held, conviction of accused under Section 307 of Shelke Vs. State of Maharashtra, 2024(1)
IPC modified to one under Section 325 of IPC. Bom.C.R.(Cri.) (A.B.)361.
Accused was acquitted for offence under Section Evidence Act, 1872 – Sec. 118 – Child witness – A
307 of IPC. Appeal partly allowed. Sanjay Gaonkar mere answer of child that he is deposing as per
Vs. State of Goa, 2024(1) Bom.C.R.(Cri.) (P.B.)110(B). say of prosecution itself would not be a ground
Evidence Act, 1872 – Sec. 25 – Appeal against to doubt his testimony – There is nothing unusual
conviction – Admissibility of confessional state- in prosecutor appraising witness prior to his
ment – Allegation against accused for hunting evidence, more particularly, when witness is of
panther, a wild animal specified in Schedule I, Part tender age of 7 years. Harischandra Damu Baldhye
I(16-B) in contravention of Section 9 of Evidence Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.)
Act – These two accused have allegedly removed (A.B.)784(B).
skin and two teeth of Panther – Held, confessional Evidence Act, 1872 – Secs. 123 & 124 – Framing
statement of accused recorded by Deputy Range of charge – Production of document – Petitioner/
Forest Officer is not admissible. Officer not be- accused filed an application Under Section 91 of
low rank mentioned in provision cannot have Cr.P.C. before Special Criminal Court (NDPS) at
power to do any acts provided under Clauses (a) stage when matter was fixed for arguments for
to (d) and anything done by Officer below rank is framing of charge – Special Court rejected said
a nullity and has no legal effect. Confession re- application – Held, When duty is cast upon Court
corded by Forest Ranger is a nullity and same has to look into prima facie material and assume that
no legal effect. There is no linking evidence to such material is true on face of it, accused cannot,
prove that skin seized was sent to FSL. FSL re- by taking recourse of Section 91 of Cr.P.C. seek an
port, which show skin to be of Panther is there- order from Court directing production of any
fore of no relevance in absence of evidence on fact document which according to him proves his
that skin seized from possession of Applicants 1 innocence. Under Section 91 of Cr.P.C. Police
& 2 was same as was sent to FSL. Applicants are Officer may take recourse by summoning any
acquitted. Revision application is allowed. Firoz person to produce any document during
Shah Babbu Shah Vs. State of Maharashtra, 2024(1) investigation or move Court for summoning and
Bom.C.R.(Cri.) (N.B.)316. production of document in possession of any
Evidence Act, 1872 – Sec. 106 – Appeal against person during trial orenquiry. As far as accused is
conviction – Appreciation of evidence – Murder concerned, his entitlement to an order Under
of wife of appellant – Merely because appellant Section 91 of Cr.P.C. would clearly be considered
was husband of deceased and she was found at stage of defence but not prior to it for simple
murdered in her house, Court cannot presume, reason that it is to satisfaction of Court at a
by invoking Section 106 of Evidence Act that particular stage that such a document is necessary
murder might have been committed by husband and desirable to be produced during trial. Thus,
– Held, unless presence of appellant would have impugned order need not interfere. Petition
been proved, question of plea of alibi cannot be dismissed. Ravi Laxman Naik Vs. Police Inspector,
touched. Chain of circumstances has not been 2024(1) Bom.C.R.(Cri.) (P.B.)915.
proved beyond reasonable doubt and whatever Explosive Substances Act, 1908 – Secs. 4, 5 & 6 –
segments of chain have been proved, those are Bail on ground of long incarceration – It is alleged
not pin-pointedly establishing that appellant is by said two witnesses that appellant incited and
culprit. An intention to kill has not been proved instigated them to go to Pakistan for Hijrat i.e.
and therefore, it cannot be said that basic ingredi- training for Jihad – Held, delay of trial is a rel-
ents of offence have been proved beyond reason- evant factor while examining plea for bail of ac-
able doubt, though it can be certainly said that cused. A bail restricting clause cannot denude ju-
death of wife of appellant was homicidal in na- risdiction of a Constitutional Court in testing if
ture. Appeal stands allowed. Ramesh Bhanudas continued detention in a given case would breach
concept of liberty enshrined in Article 21 of Con- who is landlord. None of conditions enumerated
stitution of India. Appellant is incarcerated on in Clauses (a) and (b) mentioned in sub-section
basis of evidence for more than 13 years. Appeal (2A) of Section 3 are satisfied to attract
is allowed. Mirza Himayat Beig @ Umar Vs. State of presumption that applicant had knowledge about
Maharashtra, 2024(1) Bom.C.R.(Cri.) 198. premises or any part thereof was being used as a
Foreigners Act, 1946 – Sec. 14 – Discharge brothel. Applicant stands discharged. Application
application – Application rejected by Trial Court is allowed. Mahesh Panjabrao Andhale Vs. State of
– Premises that belong to applicant was used as a Maharashtra, 2024(1) Bom.C.R.(Cri.) 828.
brothel – Held, merely because applicant’s Forest Act, 1927 – Secs. 26(1)(a), (c), (d), (f), 41 &
premises was in occupation of co-accused who 42(e), (h) – Quashing of criminal proceedings –
were indulging in activities which constitute On detection of illicit felling of Narkya trees of-
aforesaid offence will not be sufficient to proceed fences were registered – Held, Camptothecin is
against applicant unless requirements of Section not a forest produce, hence prosecution of peti-
3 of PITA Act necessary to constitute an offence tioners in impugned criminal cases is unwar-
qua applicant-are satisfied. Merely because ranted. Continuation of impugned cases regis-
applicant failed to inform local police about tered against petitioners at instance of Respond-
execution of registered leave and license ent 2 would be abuse of process of law. Petitions
agreement will not take prosecution case any are allowed. Fresenisu Kabi Oncology Ltd. Vs. State
further as this does not constitute an offence under of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)520.
PITA Act. It cannot be said that ingredients Goa Children’s Act, 2003 – Sec. 8 – Applicability
necessary to constitute alleged offence under – Discharge – Alleged by aggrieved complainant
Section 3 of PITA Act are made out qua applicant that Applicants invaded their privacy and video
who is landlord. None of conditions enumerated graphed house of complainant – There were alle-
in Clauses (a) and (b) mentioned in sub-section gations of wrongful restraint and outraging mod-
(2A) of Section 3 are satisfied to attract esty of complainant – Incident mentioned in com-
presumption that applicant had knowledge about plaint, as whole, has to be considered and not
premises or any part thereof was being used as a just some part of allegations, incidental to overall
brothel. Applicant stands discharged. Application incident – Offence alleged was mainly targeted
is allowed. Mahesh Panjabrao Andhale Vs. State of against complainant – Child incidentally hap-
Maharashtra, 2024(1) Bom.C.R.(Cri.) 828. pened to be present there – Merely because some
Foreigners Order, 1998 – Secs. 3 & 6 – Discharge threatening words are used against child would
application – Application rejected by Trial Court not by itself make these utterances sufficient to
– Premises that belong to applicant was used as a attract provisions of Children’s Act – Held, im-
brothel – Held, merely because applicant’s pugned order liable to be quashed. Applicants
premises was in occupation of co-accused who discharged of offence punishable under Section 8
were indulging in activities which constitute of Goa Children’s Act. Application allowed.
aforesaid offence will not be sufficient to proceed Sarvesh Vernekar Vs. State of Goa, 2024(1)
against applicant unless requirements of Section Bom.C.R.(Cri.) (P.B.)205.
3 of PITA Act necessary to constitute an offence Government of India Act, 1935 – Sec. 28(1) –
qua applicant-are satisfied. Merely because Bribery is not protected by parliamentary
applicant failed to inform local police about privilege – Courts and House exercise parallel
execution of registered leave and license jurisdiction over allegations of bribery – High
agreement will not take prosecution case any Court declined to quash criminal proceedings on
further as this does not constitute an offence under ground that appellant had not cast her vote in
PITA Act. It cannot be said that ingredients favour of alleged bribe giver and thus, is not
necessary to constitute alleged offence under entitled to protection under Article 194(2) of
Section 3 of PITA Act are made out qua applicant Constitution – Would a legislator who receives a
bribe to cast a vote in a certain direction or speak ceedings qua appellant. Appeal is allowed.
about certain issues be protected by parliamentary Abhishek Saxena Vs. State of Uttar Pradesh, 2024(1)
privilege – Held, bribery is not rendered immune Bom.C.R.(Cri.) (S.C.)100(A).
under Article 105(2) of Constitution and Guardianship and Wards Act, 1890 – Sec. 9 –
corresponding provision of Article 194 because a Custody of child – Petition is filed by father of
member engaging in bribery commits a crime minor girl child aged 3 years, sought a writ of
which is not essential to casting of vote or ability habeas corpus for directing Respondent 2 to pro-
to decide on how vote should be cast. Same duce child before this Court – Respondent 2 is
principle applies to bribery in connection with a mother of child and wife of petitioner – Respond-
speech in House or a Committee. Corruption and ents 3 and 4 are parents of Respondent 2 – Peti-
bribery by members of legislatures erode probity tioner has also prayed for custody of child together
in public life. Offence of bribery is complete at with child’s original passport, birth certificate and
point in time when legislator accepts bribe. Appeal other immigration and health documents from
stands disposed of. Sita Soren Vs. Union of India, Respondent 2 and for permission to take child to
2024(1) Bom.C.R.(Cri.) (S.C.)699(A). Singapore – Held, doctrines of comity of Courts,
Government of India Act, 1935 – Sec. 28(1) – intimate connect, orders passed by Courts in mat-
Doctrine of stare decisis – Held, doctrine of stare ter regarding custody of minor child, citizenship
decisis is not an inflexible rule of law. Judgment of parents and child, etc. cannot override consid-
of majority in 1998 DGLS(SC) 464, which grants eration of best interest and welfare of child and
immunity from prosecution to a member of that direction to return child to foreign jurisdic-
legislature who has allegedly engaged in tion must not result in any physical, mental, psy-
bribery for casting a vote or speaking has wide chological, or other harm to child. Courts should
ramifications on public interest, probity in decide issue of custody only based on what is in
public life and parliamentary democracy. There best interest of child. Keeping welfare of child in
is a grave danger of this Court allowing an error mind, we find that it is in best interest of child to
to be perpetuated if dec ision were not live with her mother, i.e. respondent in India. Writ
reconsidered. Sita Soren Vs. Union of India, petition is dismissed. Richard Alexander Nicholas
2024(1) Bom.C.R.(Cri.) (S.C.)699(B). Geary Vs. State of Maharashtra, 2024(1)
Guardians and Wards Act, 1890 – Secs. 7, 10 & Bom.C.R.(Cri.) 549(A).
17 – Quashing of FIR – Powers to be exercised by Guardianship and Wards Act, 1890 – Sec. 9 –
High Court – High Court declined to exercise Welfare of child – Child has developed roots
power under Section 482 Cr.P.C. and consequently in either of three countries i.e. USA, Singapore
dismissed petition qua appellant – Allegation for or India – Though for maximum period of time
voluntarily causing hurt, for extortion and for child has lived in USA, considering age of child
criminal breach of trust – Held, High Court was it cannot be said she developed roots in USA –
legally bound to see if allegations/accusations So far as Singapore is concerned, child lived
constitute any offence or not. There is no material there for around seven months, which is again
on record to support alleged causation of hurt. a very short time for developing any roots there
Except statement that ‘they beat up me’ by com- – So far as India is concerned, child is brought
plainant no material whatsoever is available on to India in view of differences and disputes be-
record in regard to commission of said offence. tween parties and has been living here for last
Basic ingredients to constitute an offence under more than eleven months – Held, only welfare
Section 323, IPC is lacking in charge-sheet. No of child is of paramount importance. It will be
useful purpose is likely to be served by allowing in best interest of child to stay in India with
criminal prosecution against appellant. High her mother, i.e. respondent. Richard Alexander
Court has clearly fallen in error in not invoking Nicholas Geary Vs. State of Maharashtra, 2024(1)
powers under Section 482, Cr.P.C. to quash pro- Bom.C.R.(Cri.) 549(B).
Hindu Marriage Act, 1955 – Secs. 10 & 24 – because she has decided that she does not want
Transfer of case – Power of High Court to transfer to go back to USA, where parties are permanently
cases and appeals – Factors which could be kept settled – Held, rights of parents are irrelevant
in mind while considering an application for when a Court decides custody issue. Sanil
transfer of trial – Held, Section 406 of Cr.P.C. Sreekumar K. Vs. Union of India, 2024(1)
contemplates that power of transfer is to be used Bom.C.R.(Cri.) 790(B).
when same is expedient for ends of justice. Immoral Traffic (Prevention) Act, 1956 – Secs. 3,
Considering availability of transport facilities even 4 & 5 – Discharge application – Application for
for Respondent 1, it is more convenient to attend discharge rejected by trial Court – Allegation
Court at Thane than at Junnar, District-Pune. against accused for prostitution business – In this
Application is allowed. Sonika Vishnudas Kadam case only incriminating material relied upon by
Vs. Vishnudas Haribhau Kadam, 2024(1) prosecution against him is statement of police
Bom.C.R.(Cri.)894. official that applicant who is a customer, was
Hindu Minority and Guardianship Act, 1956 – found in a room with victim – Statement of victim
Sec. 6 – Custody of minor child – Welfare of child was not recorded – It does not disclose existence
is paramount – Petition is filed, seeking a writ of of ingredients necessary to constitute offence –
Habeas Corpus directing Respondents 1, 2 and 3 Held, in absence of any specific penal provision,
to produce his minor daughter aged about 4 and it cannot be said that he is liable for any
½ years, now 5 years old, before this Court and prosecution for above said offences. Impugned
direct respondents to facilitate safe return of minor order is set aside qua applicant only. Revision
daughter to USA – Respondent 6 is petitioner’s application is allowed. Mahesh Vinayak Patil Vs.
wife and mother of minor daughter – All State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 659.
apprehensions expressed by Respondent 6 are Immoral Traffic (Prevention) Act, 1956 – Secs. 3,
taken care of by petitioner and he has agreed to 4, 5 & 6 – Discharge application – Application
provide all required care and protection to rejected by Trial Court – Premises that belong to
daughter – Respondent 6’s decision not to return applicant was used as a brothel – Held, merely
to USA is not justified – Proceedings for divorce because applicant’s premises was in occupation
and custody of daughter initiated by Respondent of co-accused who were indulging in activities
6 is a valid ground for not granting reliefs prayed which constitute aforesaid offence will not be
in this petition – Held, welfare and best interest sufficient to proceed against applicant unless
of daughter lies in her living in USA and that there requirements of Section 3 of PITA Act necessary
is no valid ground to detain her in India. To ensure to constitute an offence qua applicant-are satisfied.
fulfilment of daughter’s basic rights and needs, Merely because applicant failed to inform local
identity, social well-being and physical, emotional police about execution of registered leave and
and intellectual development, it is necessary for license agreement will not take prosecution case
her to go back to USA. Writ petition is allowed. any further as this does not constitute an offence
Sanil Sreekumar K. Vs. Union of India, 2024(1) under PITA Act. It cannot be said that ingredients
Bom.C.R.(Cri.) 790(A). necessary to constitute alleged offence under
Hindu Minority and Guardianship Act, 1956 – Section 3 of PITA Act are made out qua applicant
Sec. 6 – Custody of minor child – Respondents 7 who is landlord. None of conditions enumerated
and 8 are parents of Respondent 6 – Daughter is in Clauses (a) and (b) mentioned in sub-section
also entitled to have company of both parents – It (2A) of Section 3 are satisfied to attract
is her basic human right to have care and presumption that applicant had knowledge about
protection of both parents – Respondent 6 is not premises or any part thereof was being used as a
justified in unreasonably depriving daughter of brothel. Applicant stands discharged. Application
company of her father – Respondent 6 cannot is allowed. Mahesh Panjabrao Andhale Vs. State of
deprive daughter of her basic human rights only Maharashtra, 2024(1) Bom.C.R.(Cri.) 828.
Immoral Traffic (Prevention) Act, 1956 – Sec. 5 – petitioners at instance of Respondent 2 would be
Appeal against acquittal – Appreciation of evi- abuse of process of law. Petitions are allowed.
dences – Offences committed by respondent – Fresenisu Kabi Oncology Ltd. Vs. State of
Accused are indeed serious and have it’s impact Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)520.
on society – He took victim under garb of buying Indian Penal Code, 1860 – Secs. 107, 306 & 34 –
clothes and chappals for her in red light area of Harassment – Suicide – Quashing of charge-sheet
Nashik and made an attempt to put her into busi- – Legality of – FIR was lodged against petitioner
ness of prostitution – There is a rise in cases unfor offences punishable under Section 306 read
der Immoral Traffic (Prevention) Act – Said Act is with Section 34 of IPC – Held, there was suffi-
a stringent legislation in order to curb menace of cient gap between incidents involving accused
human trafficking, especially, when a child or and deceased’s act of suicide. There is no direct
minor is induced or carried for purpose of prosti- link between two, as deceased had ample time
tution – There respondent-accused had indeed to consider consequences of suicide. No direct
committed offences and, therefore, he does not or active act was found that led deceased to
deserve sympathy – Held, in order to curb such commit suicide. Charge sheet does not suggest
social evil, some deterrence is required. Appeal is any abetment to commit suicide. There is no
allowed. State of Maharashtra Vs. Vijay Bhika Dive, material of any positive action taken by accused
2024(1) Bom.C.R.(Cri.) 301. that could have caused or forced deceased to
Income Tax Act, 1961 – Secs. 269SS & 271D – commit suicide at time of incident. Simply al-
Appeal against acquittal – Dishonoured of cheque leging harassment of deceased is not sufficient
due to insufficiency of funds – Held, no person to sustain charge under Section 306 IPC. There
should accept any loan or deposit of a sum of Rs. is no material to suggest that accused intended
20,000 or more otherwise than by an account for deceased to commit suicide, nor is there any
payee cheque or account payee bank draft. Provi- indication that accused created a situation that
sion does not say that a person cannot advance caused extreme mental stress, leading deceased
more than Rs. 20,000 in cash to another person. to take his own life. Thus, FIR registered against
Restriction on cash advances was, in fact, on taker petitioners and proceedings arising therefrom
and not on person who makes an advance. Pen- are quashed. Petition allowed. Suryakant Pan-
alty for taking such advance or deposit in contra- durang Holmukhe Vs. State of Maharashtra, 2024(1)
vention of provisions of Section 269SS of IT Act Bom.C.R.(Cri.) 70.
was to be suffered by taker who accepts advance. Indian Penal Code, 1860 – Secs. 120B, 115, 121,
Magistrate has wrongly invoked aforesaid provi- 121A, 124A, 505(1)(b) & 34 – Enlargement on bail
sions while dismissing complaint. Provisions of – Application for bail of appellant rejected by trial
Sections 269SS and 271D of I.T. Act have abso- Court – Constitutional right to speedy trial – Held,
lutely no bearing over case in hand and, there- presence of statutory restrictions like Section
fore, impugned judgment and order of acquittal 43D(5) of UAPA per-se does not oust ability of
rendered by Magistrate is unsustainable. Im- constitutional Courts to grant bail on grounds of
pugned judgment is quashed and set aside. Ap- violation of Part III of Constitution. Appellant is
peal is allowed. Arti Rajesh Karangutkar Vs. Anna entitled to have parity with co-accused. Appel-
Rocky Fernandes, 2024(1) Bom.C.R.(Cri.) 616. lant is in pre-trial incarceration for more than three
Indian Penal Code, 1860 – Secs. 107, 117 & 120- years and eight months. Charge-sheet consists of
A – Quashing of criminal proceedings – On de- about 20,000 pages in 54 Volumes and prosecu-
tection of illicit felling of Narkya trees offences tion has cited 370 witnesses in it. Till date trial
were registered – Held, Camptothecin is not a Court has not framed charge. Possibility of trial
forest produce, hence prosecution of petitioners of appellant being concluded in near future is very
in impugned criminal cases is unwarranted. Con- bleak. A case for grant of bail to appellant has been
tinuation of impugned cases registered against made out. Appeal is allowed. Gautam P. Navlakha
Vs. National Investigating Agency, 2024(1) mentioned in Schedule to PMLA, it is Court of
Bom.C.R.(Cri.) 527. competent jurisdiction, which would decide
Indian Penal Code, 1860 – Secs. 120B, 206, 409, whether Charge is required to be framed against
411, 420, 424, 465, 468 & 477A – Cancellation of accused for scheduled offence or not – Offences
default bail – Respondents 1 and 2 have been mentioned in charge-sheet by I.O. could never be
granted default bail under Section 167(2) Cr.P.C. said to be final conclusion as to whether offences
– Chairman and Managing Director, DHFL, along scheduled in PMLA existed or not, more particu-
with 12 other accused persons entered into a larly when same were mentioned in FIR registered
criminal conspiracy to cheat consortium of 17 against accused – Held, It is only in event person
banks led by Union Bank of India, and in named in criminal activity relating to a scheduled
pursuance to said criminal conspiracy, said offence is finally absolved by a Court of compe-
accused persons/entities induced consortium tent jurisdiction owing to an order of discharge,
banks to sanction huge loans aggregating to Rs. acquittal or because of quashing of criminal case
42,000 crores approx. and thereafter they siphoned (scheduled offence) against him/her, there can be
off and misappropriated a significant portion of no action for money laundering against such a
funds by falsifying books of account of DHFL and person or person claiming through him in rela-
deliberately and dishonestly defaulted on tion to property linked to stated scheduled of-
repayment of legitimate dues of said consortium fence. There is neither discharge nor acquittal nor
banks, and thereby caused a wrongful loss of Rs. quashing of criminal case by Court of competent
34,000 crores to consortium lenders – Held, Only jurisdiction against one in predicate/scheduled
when a charge-sheet is not filed and investigation offence. Appeal is dismissed. Saumya Chaurasia
is kept pending, benefit of proviso appended to Vs. Directorate of Enforcement, 2024(1)
sub-section (2) of Section 167 of Code would be Bom.C.R.(Cri.) (S.C.)483.
available to an offender; once, however, a charge- Indian Penal Code, 1860 – Secs. 188, 376, 344,
sheet is filed, said right ceases. Such a right does 366B, 370A(2), 372, 373 & 34 – Discharge
not revive only because a further investigation application – Application rejected by Trial Court
remains pending within meaning of sub-section – Premises that belong to applicant was used as a
(8) of Section 173 of Code. Charge-sheet having brothel – Held, merely because applicant’s
been filed against respondents-accused within premises was in occupation of co-accused who
prescribed time limit and cognizance having been were indulging in activities which constitute
taken by Special Court of offences allegedly aforesaid offence will not be sufficient to proceed
committed by them, respondents could not have against applicant unless requirements of Section
claimed statutory right of default bail under 3 of PITA Act necessary to constitute an offence
Section 167(2) on ground that investigation qua qua applicant-are satisfied. Merely because
other accused was pending. Both, Special Court applicant failed to inform local police about
as well as High Court having committed serious execution of registered leave and license
error of law. Impugned orders is set aside. Appeal agreement will not take prosecution case any
stands allowed. Central Bureau of Investigation Vs. further as this does not constitute an offence under
Kapil Wadhawan, 2024(1) Bom.C.R.(Cri.) (S.C.)905. PITA Act. It cannot be said that ingredients
Indian Penal Code, 1860 – Secs. 186, 204, 353, necessary to constitute alleged offence under
384 & 120B – Bail application dismissed by High Section 3 of PITA Act are made out qua applicant
Court – Schedule offences – Proceedings under who is landlord. None of conditions enumerated
PMLA are contingent on existence of scheduled in Clauses (a) and (b) mentioned in sub-section
offence, and no proceedings under PMLA can be (2A) of Section 3 are satisfied to attract
continued against person in absence or in isola- presumption that applicant had knowledge about
tion of scheduled offence – When FIR is registered premises or any part thereof was being used as a
under particular offences which include offences brothel. Applicant stands discharged. Application
is allowed. Mahesh Panjabrao Andhale Vs. State of objections which comes under definition of plead-
Maharashtra, 2024(1) Bom.C.R.(Cri.) 828. ings as stated above, question of committing of-
Indian Penal Code, 1860 – Secs. 191, 192, 196, fence under Sections 193 and 209 of I.P.C., does
463, 464, 465, 467, 470, 471 & 34 – Applicability of not arise – There are no essential ingredients to
Section 195 of Cr.P.C. – Complaint filed by appel- attract offence punishable under Sections 193 and
lant dismissed by JMFC – Main allegation made 209 of Indian Penal Code. A.M.J. Dayalraj Vs. Par-
by appellant was that Respondent 2 has filed false ish Priest, 2024(1) Bom.C.R.(Cri.)(J.) (KARNT.)26.
and forged documents in criminal case – Addi- Indian Penal Code, 1860 – Secs. 201, 302 & 34 –
tional Sessions Judge, however, found that alle- Appeal against conviction – Extra-judicial confes-
gations made by revision petitioners were seri- sion – Prosecution has proved its case as against
ous in nature, and therefore, directed that if any appellant beyond reasonable doubt – There is no
application is filed by appellant under Section 340 explanation offered by prosecution as to how
of Cri.P.C., learned JMFC would make a suitable hand gloves were found on both feet of deceased
preliminary enquiry and thereafter, record his and on his one hand – Extra-judicial confession
finding to that effect as contemplated under Sec- allegedly made by appellant to said witness also
tion 340 of Cr.P.C. – Held, Section 195(1)(b)(ii) does not inspire confidence – Held, extra-judicial
Cr.P.C. would be attracted only when offences confession is a weak piece of evidence and is not
enumerated in said provision have been commit- corroborated by any other evidence. Appellant is
ted with respect to a document after it has been entitled to benefit of doubt. Appeal is allowed.
produced or given in evidence in a proceeding in Sameerkumar Prakash Awasare Vs. State of
any Court i.e. during time when document was Maharashtra, 2024(1) Bom.C.R.(Cri.) 183.
in custodia legis. Embargo created by Section Indian Penal Code, 1860 – Secs. 294, 504 & 506 –
195(1)(b)(ii) of Cr.P.C. would not come into play. Issuance of process – Order of Magistrate issuing
Court will be entitled to take cognizance of of- process against Respondent 2 set aside by Sessions
fence only on basis of complaint made by com- Court – In appropriate cases (which should be
plainant. View taken by Revisional Court as well made identifiable), Investigating Agency should
as High Court is not sustainable. Impugned judg- approach jurisdictional Magistrate under sub-sec-
ment and order passed by Revisional Court as well tion (2) of Section 155 of Code, seeking permis-
as High Court are quashed and set aside. Matter sion to investigate non-cognizable offence – Held,
is remitted back to JMFC for considering com- Investigating Officer should be mindful of fact that
plaint of appellants. Appeal is disposed of. Ashok even non-cognizable offences are punishable, and
Gulabrao Bondre Vs. Vilas Madhukarrao Deshmukh, therefore, in appropriate cases, he is duty-bound
2024(1) Bom.C.R.(Cri.) (S.C.)57. to investigate even such offences and ensure that
Indian Penal Code, 1860 – Secs. 193 & 209 – Dis- investigation reaches logical end. Information
honest and false claim before Court of law – Alle- lodged by petitioner spelt out ingredients of of-
gation that in spite of having received entire rent, fences punishable under Sections 294, 504 and 506
plaintiff, knowingly made a dishonest and false of Indian Penal Code. Order of issuance of proc-
claim of arrears of rent of Rs. 5,135 for 79 months ess was fully justified. Sessions Court has com-
in plaint – Sub-rule (2) of Rule 3 of Chapter-I of mitted patent illegality. Impugned order is
Karnataka Civil Rules of Practice, contemplates quashed and set-aside. Writ Petition is allowed.
that, “Pleadings” shall include plaints, written Nitin Shivdas Satpute Vs. State of Maharashtra,
statements, memoranda of appeals, cross objec- 2024(1) Bom.C.R.(Cri.) (N.B.)227.
tions, original petitions, applications, counter Indian Penal Code, 1860 – Secs. 300, Exception
statement, replies, rejoinders and every statement 4, 299, Cl. (c) – Murder – Sudden quarrel –
setting out case of a party in matter to which plead- Accused inflicted fatal axe blows at head of
ings relate – Since plaintiff has admitted as to deceased real brother – Given facts nowhere
amount paid by the defendant in his statement of suggest that either accused intended to cause
death or intended to cause such bodily injury Indian Penal Code, 1860 – Sec. 302 – Appeal
coupled with knowledge it could likely to cause against conviction – Appreciation of evidence –
death or even intentionally caused said bodily Eye-witness – It is alleged that what was used in
injury which is sufficient in ordinary course of assault was a sword having an iron hilt, whereas,
nature to cause death – No sooner deceased what was produced before Court was a sword
spitted, accused got annoyed and suddenly while with a wooden hilt – Prosecution has also not
cutting wood diverted to deceased and by same proved that house from where sword and clothes
axe gave blows – There was total absence of of appellant – CA report shows that blood of de-
prearranged plan nor evidence suggests so – Thus ceased as well as that of accused was inconclu-
in heat of passion upon sudden occurrence, sive, however, blood group found on sword was
accused reacted in shape of inflicting axe blows – that of ‘O’ blood group and as such learned Judge
There is total absence of intention on part of presumed that said blood was that of deceased –
accused – However, act of inflicting axe blow at This analogy is difficult to comprehend, having
head of deceased in sudden occurrence would regard to aforesaid evidence vis-a-vis recovery that
definitely attracts knowledge that his act is likely has come on record – Held, prosecution has failed
to cause death and it would squarely fall within to prove its case as against appellants beyond rea-
Clause (c) to Section 299 of IPC. Ramesh @ Shyam sonable doubt and as such the benefit of doubt
Pandharinath Gawande Vs. State of Maharashtra, will have to be given to appellants of same. Ap-
2024(1) Bom.C.R.(Cri.) (N.B.)688. peals are allowed. Ashish Bharat Jadhav Vs. State of
Indian Penal Code, 1860 – Secs. 300 Exception 4, Maharashtra, 2024(1) Bom.C.R.(Cri.) 1.
304, Part II, 302, 149 & 147 – Appeal against Indian Penal Code, 1860 – Sec. 302 – Murder –
conviction – Culpable homicide not amounting Benefit of doubt – Accused allegedly along with
to murder – Held, to avail benefit of Exception 4 three other set deceased on fire and as a result of
defence is required to probabilise that offence was which deceased died – There are three statements,
committed without premeditation in a sudden one is to Doctor, another is to police and third
fight, in heat of passion upon a sudden quarrel one is to Magistrate – Each time statement has
and offender had not taken any undue advantage got improved – There is a complete self contra-
and offender had not acted in a cruel or unusual diction in version of prosecution with regard to
manner. Exception is based upon principle that time of receipt of information, time of visiting
in absence of premeditation and on account of hospital, time of recording statement and time of
total deprivation of self control but on account recording FIR – Deceased has stated that, it is not
of heat of passion, offence was committed only appellant but other three persons who are
which, normally a man of sober urges would friends of appellant who also jointly acted upon
not resort to. Time gap between quarrel and by pouring petrol and set him on fire – But pros-
fight is an important consideration to decide ecution failed to explain why investigation has
applicability of incident. If there intervenes a not extended to investigate about involvement of
sufficient time for passion to subside, giving other three persons also – This is clear lacuna on
accused time to come to normalcy and fight part of prosecution side – Appellant entitled to
takes place thereafter, killing would be murder benefit of doubt. Isaack @ Jeyakaran Issack Vs. State
but if time gap is not sufficient, accused may be represented by Inspector of Police, Vellore, 2024(1)
held entitled to benefit of this exception. Act Bom.C.R.(Cri.)(J.) (MAD.)17.
committed by appellant squarely falls within Indian Penal Code, 1860 – Sec. 302 – Murder –
purview of Exception 4 Section 300 of I.P.C. and Accused persons allegedly assaulted deceased
offence committed by him would attract Section with knife – There is no direct evidence to inci-
304, Part II of I.P.C. Appeal is partly allowed. dent – Motive is not proved – Presence of accused
Santosh Kantilal Kharva Vs. State of Maharashtra, on place of incident is not proved – Contradic-
2024(1) Bom.C.R.(Cri.) (A.B.)644. tion between oral dying declarations given to dif-
ferent witnesses – Testimony of witnesses is un- on being convinced about quality of statements
trustworthy – Prosecution failed to prove that dis- and its reliability, base conviction by accepting
covery of knife and clothes is voluntary – Pros- statement of child witness – If child witness is
ecution failed prove its case against accused be- shown to have stood test of cross-examination and
yond reasonable doubt – Conviction set aside. there is no infirmity in her evidence, prosecution
Babasaheb Deoram Arane Vs. State of Maharashtra, can rightly claim a conviction based upon her tes-
2024(1) Bom.C.R.(Cri.) (A.B.)64. timony alone – Held, some discrepancies in state-
Indian Penal Code, 1860 – Sec. 302 – Murder – ment of a child witness cannot be made basis for
Accused allegedly assaulted his wife with knife discarding testimony. There are strong incrimi-
and she succumbed to injuries – There is evidence nating circumstances coupled with child witness
of witnesses, i.e. brother, cousin brother and sis- testimony confirming culpability of appellant.
ter-in-law of deceased – These witnesses were Criminal appeal stands dismissed. Kailash Vithal
occupying adjoining rooms of same house – These Waghmare Vs. State of Maharashtra, 2024(1)
three witnesses have heard shouts and cries Bom.C.R.(Cri.) (A.B.)543.
around 3.45 a.m. and thereafter, accused fled from Indian Penal Code, 1860 – Sec. 302 – Appeal
spot and deceased was noticed with throat cut against conviction – Appreciation of evidence –
injury to which she succumbed – Therefore, none Murder trial – Motive – Informant has resiled and
but appellant is author of injury and consequently was apparently won over, still there was evidence
responsible for death – Conviction of accused, of PW8 and which was inspiring confidence –
proper. Nandu @ Santosh Pandit Thakre Vs. State of Evidence of informant, PW3 and PW5 though
Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)192. hostile – Held, it need not be discarded in its en-
Indian Penal Code, 1860 – Sec. 302 – Enlarge- tirety and so much part of it, which is corroborat-
ment on bail – Weapon used by applicant is knife ing prosecution story can be relied and same has
– Sixteen stabbed injuries are received by deceased been rightly applied by learned trial Judge. Death
on vital part of body i.e. chest which sufficiently is shown to be homicidal one. There being direct
show that repeated blows are given by applicant evidence, story of prosecution is rightly accepted
to deceased who is his brother – Injuries inflicted by learned trial Judge and so she would submit
with a force to end life of deceased – It was cer- that, no fault can be found in appreciation and
tainly an act with an intention – Hence this inci- conclusion drawn by trial Court. There cannot be
dent not covers under Section 304 Part II of In- any perversity or illegality in appreciation of evi-
dian Penal Code – Held, premeditation and in- dence of witness, like informant. Criminal appeal
tention to kill are two vital circumstances amongst stands dismissed. Santosh Gunaji Dudhmal Vs. State
others which are to be considered by Court be- of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)581.
fore holding accused guilty of an offence under Indian Penal Code, 1860 – Sec. 302 – Appeal
Section 302 of IPC. Since prima facie case is made against conviction – Appreciation of evidence –
out against applicant, application for bail is re- Oral dying declaration – Appellant-husband of
jected. Criminal application stands disposed of. deceased was an agriculturist and in spite of their
Santosh Balaji Nagrale Vs. State of Maharashtra, marriage to be many years old, he suspected her
2024(1) Bom.C.R.(Cri.) (N.B.)382. chastity and harassed her – Her parents, relatives
Indian Penal Code, 1860 – Sec. 302 – Appeal and neighbours were all aware of it – Appellant
against conviction – Murder trial – Evidentiary guilty for homicidal death of his wife – Deceased
value of child witness, effects of its discrepancies, suffered only and only homicidal death – There
and duty of Court and corroboration – Evidence is recovery discovery of weapon at instance of
of child witness cannot be rejected per se, but appellant himself – There are no lapses on
Court, as a rule of prudence, is require to con- investigation part – Guilt of appellant is cogently
sider such evidence with close scrutiny and only proved – Sound reasons are assigned for accepting
63/24(1) prosecution case – There is direct eye-witness –
Held, motive is clearly established by examining Indian Penal Code, 1860 – Secs. 302 & 34 – Ap-
PW1 and PW6. Medical evidence corroborates peal against conviction – Murder trial – Occur-
ocular account. Criminal appeal is dismissed. rence of assault has been successfully brought on
Udhav Punjaram Nawsagre Vs. State of Maharashtra, record – Held, mere relation of witnesses with
2024(1) Bom.C.R.(Cri.) (A.B.)655. deceased itself is no ground to doubt or discredit
Indian Penal Code, 1860 – Sec. 302 – Murder – their testimony, more particularly when they are
Felicide – Accused allegedly sat on his 11 years natural witnesses. Available evidence has been
old daughter and strangulated her to death – correctly appreciated, required law has been ap-
Father of accuse set law into motion but he turned plied and most logical opinion that could be de-
hostile – However, 7 years old son of accused who rived on appreciation of evidence has been
witnessed incident supported prosecution case – reached at. View taken is supported by cogent rea-
His evidence is found creditworthy and reliable sons and as such, no fault can be found to hold
– Conviction of accused proper. Harischandra any non appreciation or perversity. Appeal is dis-
Damu Baldhye Vs. State of Maharashtra, 2024(1) missed. Ranjeet Haribhau Jadhav Vs. State of
Bom.C.R.(Cri.) (A.B.)784(A). Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)568.
Indian Penal Code, 1860 – Secs. 302 & 34 – Griev- Indian Penal Code, 1860 – Secs. 302, 109, 114 &
ous hurt – Conviction for Murder – Validity of – 34 – Bail to child in conflict with law (CCL) –
Trial Court convicted appellant’s for an offence Release on bail from custody of Observation
punishable under Section 302 read with 34 of IPC Home – Held, Juvenile Justice (Care and
and acquitted them for offence punishable under Protection of Children) Act, is under obligation
Section 120B of IPC – Held, PW 2 and 3 are reli- to release CCL on bail with or without surety
able witnesses and their evidence is trustworthy. subject to reservations underlined under proviso.
Recovery panchanama of knife at instance of Ac- Grant of bail to CCL shall not be impeded by
cused 1 discloses that, knife was having bled of 3 nature of gravity of offence alleged to have been
¾th inch long i.e. relatively small sized knife. From committed by him. Order impugned sans
perusal of injuries suffered by deceased, it appears requisite reasons for denial of bail to CCL. CCL is
that, Accused 1 did not act cruelly. After assault, languishing in Observation Home since 15-12-
deceased ran away from spot of incident and then 2021. Period of 2 years has been already lapse.
fell down in nearby lane. Evidence on record re- Social investigation report has been called from
veals that, Accused 2 did not chase and in fact left Probation Officer. Father of CCL expressed his
spot of incident along with Accused 1 immedi- willingness to take him in custody and give an
ately. Evidence on record indicates that, Accused undertaking that in case of release of CCL on bail,
developed common intention at spur of moment he would be trained for painting work i.e. business
and then Accused 2 assaulted deceased with knife, of father. There is nothing on record to indicate
which he was possessing. Therefore Trial Court that CCL is likely to come in association with
rightly acquitted both appellants under Section known criminals or get exposed to moral, physical
120B of IPC. Accused 2 was not having intention or sociological danger or his release would defeat
to commit murder of deceased, however he had ends of justice. Revision Application is allowed.
knowledge that, if deceased is assaulted with XYZ Vs. State of Maharashtra, 2024(1)
knife, he may suffer grievous hurt, which may lead Bom.C.R.(Cri.) (A.B.)665.
to his death. Thus, conviction and sentence of Indian Penal Code, 1860 – Secs. 302 & 201 – Ap-
appellants under Section 302 read with Section peal against conviction – Allegation that appel-
34 of IPC is set aside and instead they are con- lant committed murder of his wife – Circumstan-
victed under Section 304 (Part II) read with Sec- tial evidence – If assault by raising suspicion over
tion 34 of IPC. Appeals partly allowed. Mangesh character was a frequent act, then informant ought
Pandurang Bandagle Vs. State of Maharashtra, to have helped his paternal aunt – Testimony of
2024(1) Bom.C.R.(Cri.) 82. informant is therefore, not sufficient to connect
accused to crime – Held, circumstances from case attracting Section 302 of IPC as held by
which conclusion of guilt is to be drawn should learned trial Judge. Criminal Appeal is partly al-
be fully established. Circumstances should be of lowed. Digambar @ Digu Baburao Shirole Vs. State
a conclusive nature and tendency. They should of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)393.
exclude every possible hypothesis except one to Indian Penal Code, 1860 – Secs. 302, 307 & 498A
be proved. Findings of trial Court were based on – Appeal against conviction – Dying declaration
whims and imagination. Basic legal principles – Deceased sustained burn injuries – Competency
were not considered while assessing or scrutiniz- of deceased to make or give statement at time of
ing evidence and therefore, such Judgment and admission in hospital – Sometimes contents of a
order cannot be allowed to sustain. Impugned document proved may amount to incriminating
judgment is quashed and set aside. Appeal stands circumstances and, therefore, that should also be
allowed. Vijay Bubasaheb Kakade Vs. State of put to accused if conviction can be based or it can
Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)597. be taken as a linking piece of evidence – Held,
Indian Penal Code, 1860 – Secs. 302, 201 & 34 – definitely, it has caused prejudice to accused/ap-
Appeal against conviction – Murder trial – Mo- pellant when an opportunity has been withheld
tive – Mere identification of accused on strength from him to explain those circumstances. There
of DNA report is itself not sufficient as there has is non-compliance with Section 313 of Code of
to be incriminating evidence against appellant to Criminal Procedure and appellant is willing to
connect him with death, but we have not noticed offer his explanation. Accused/appellant is not
any incriminating material and circumstances on entitled to acquittal on ground of non compliance
reappreciation and re-evaluation of evidence – with mandatory provisions under Section 313 of
Motive is not cogently established – So called di- Cr.P.C. as it has not vitiated trial, but definitely, a
rect eye-witness has not supported prosecution, prejudice has been caused due to not putting said
circumstances of last seen together, recovery and incriminating circumstance and giving an oppor-
scientific evidence cannot be held to be itself suf- tunity of explanation to him. Matter is remanded
ficient to connect appellant – Held, graver offence, back to trial Court. This order of sending matter
stronger has to be proof. Here there is no strong for re-trial has arisen only because of failure on
incriminating reliable and trustworthy evidence part of trial Judge to put mandatory questions. It
either oral or circumstantial and therefore, ben- could have been avoided if proper procedure
efit of doubt ought to have been extended by would have been adopted. Criminal appeal stands
learned trial Judge. Criminal Appeal stands al- disposed of. Nasib Osman Pathan Vs. State of
lowed. Ganesh Bhatu Shinde (Patil) Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)255.
Maharashtra 2024(1) Bom.C.R.(Cri.) (A.B.)321. Indian Penal Code, 1860 – Secs. 302, 323, 504 &
Indian Penal Code, 1860 – Secs. 302, 304 Part I & 34 – Appeal against conviction – Murder trial –
II – Appeal against conviction – Applicability and Whether it is a murder or culpable homicide not
attractability of Section 304 Part I /Part II – Held, amounting to murder – Difference between two
to derive benefit of Exception 4 to Section 300 of parts of Section 304 of IPC is that under first part,
IPC, it has to be satisfied that firstly it was a sud- crime of murder is first established and accused
den fight, secondly there was no premeditation, is then given benefit of one of exceptions to Section
thirdly act was done in a heat of passion, fourthly 300 of IPC, while under second part, crime of
assailant had not taken any undue advantage or murder is never established at all – Therefore, for
acted in a cruel manner. There was no motive, in- purpose of holding an accused guilty of offence
tention or premeditation. Incident has taken place punishable under second part of Section 304 of
all of a sudden only on refusal to comply with IPC, accused need not bring his case within one
demand of extra saplings. Hence, occurrence hav- of exceptions to Section 300 of IPC – Held,
ing taken place suddenly, Exception 4 to Section Culpable homicide is not murder if it is committed
300 of IPC comes into play and it is not at all a without premeditation in a sudden fight in heat
of passion upon a sudden quarrel and without whole or would have to be discarded as a whole.
offender having taken undue advantage or acted Impugned judgment is set aside. Criminal Ap-
in a cruel or unusual manner. There is nothing to peal stands allowed. Vishnu Jagganath Gund Vs.
indicate offence to have been committed with State of Maharashtra, 2024(1) Bom.C.R.(Cri.)
premeditation. Incident was preceded by a quarrel (A.B.)608.
and even manhandling between parties. Indian Penal Code, 1860 – Secs. 302, 326, 342,
Appellant fished out a knife like weapon and gave 143, 144, 148, 149, 506, 120-B & 34 – Default bail
its two blows. Incident took place in a spur of – Entitlement to – Bail application rejected by
moment. Appellant cannot be said to have had trial Court – Taking cognizance is entirely dif-
intended to commit murder. All of them had been ferent from completing investigation – Sanction
to Masjid to offer prayers. Appellant’s case gets is required only to enable Court to take cogni-
covered by Exception 4 to Section 302 of Indian zance of offence – Held, to complete investiga-
Penal Code. Nature of injuries suffered and it tion and file a final report is a duty of investi-
being a case of two blows, case falls in Part I of gating agency, but taking cognizance of offence
Section 304 of IPC since intention to kill is there. is power of Court. If investigation is concluded
Criminal Appeal is partly allowed. Aslam Babulal within prescribed period, no right accrues to
Shaikh Vs. State of Maharashtra, 2024(1) accused concerned to be released on bail under
Bom.C.R.(Cri.) (A.B.)842. proviso to Section 167(2) of Cr.P.C. Applicants
Indian Penal Code, 1860 – Secs. 302, 324 & 34 can always avail remedies available in law to
– Appeal against conviction – Appreciation of redress their grievance as well as apply for regu-
evidence – There is trustworthy, reliable direct lar bail. Bail applications was rejected. Amit
eye-witness account – Held, on account of mere Madhukar Bhogale Vs. State of Maharashtra,
lapse on part of investigating machinery, ben- 2024(1) Bom.C.R.(Cri.) 209(A).
efit would not go to accused. Several witnesses, Indian Penal Code, 1860 – Secs. 302 & 498A –
who too are injured, are consistent and lending Appeal against conviction – Appreciation of evi-
support to each other on part of motive and dence – Murder of wife of appellant – Merely
actual assault. Independent panchas to recovery because appellant was husband of deceased and
have also supported prosecution. Medical ex- she was found murdered in her house, Court
perts have confirmed cause of death and regard- cannot presume, by invoking Section 106 of
ing injuries to injured witnesses. Therefore, Evidence Act that murder might have been com-
there is full-proof evidence and as such, we do mitted by husband – Held, unless presence of
not hesitate to hold that case of prosecution is appellant would have been proved, question of
proved beyond reasonable doubt. There is no plea of alibi cannot be touched. Chain of cir-
perversity or illegality in appreciation of evi- cumstances has not been proved beyond rea-
dence or conclusion drawn by Sessions Judge. sonable doubt and whatever segments of chain
Criminal Appeal stands dismissed. Satish Bansi have been proved, those are not pin-pointedly
Lagad Vs . State of Maharashtra, 2024(1) establishing that appellant is culprit. An inten-
Bom.C.R.(Cri.) (A.B.)420. tion to kill has not been proved and therefore,
Indian Penal Code, 1860 – Secs. 302 & 326 – it cannot be said that basic ingredients of of-
Appeal against conviction – Murder trial – Oral fence have been proved beyond reasonable
dying declarations – There is total perversity in doubt, though it can be certainly said that death
appreciation of evidence by learned trial Judge of wife of appellant was homicidal in nature.
– Trial Judge had failed to consider different Appeal stands allowed. Ramesh Bhanudas Shelke
versions of oral dying declaration – Trial Judge Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.)
was not justified in considering only role attrib- (A.B.)361.
uted to present appellant – Held, oral dying Indian Penal Code, 1860 – Secs. 302, 498A &
declaration would have to be considered as a 34 – Conviction for murder – Creditability of
evidence – Appreciation of evidence – Trial aware that their suc h overt ac t would
Court convicted accused person on basis of unfortunately turn out to be fatal – Held, when
dying declaration of deceased – Held, DW-2 was there was no premeditated act and there is mere
person who had gone to spot immediately af- use of hands and legs, it is difficult to accept
ter incident and prosecution was not come with that, both accused had intention or even
case that oral dying declaration was given to knowledge that death could be outcome of their
him also by deceased. There is also evidence on beating. Impugned judgment and order is
point that accused persons extinguished fire quashed and set aside. Criminal Appeal is partly
and had applied aloe vera on burn injuries of allowed. Rahibai Arjun Pawar Vs. State of
deceased. This indicates that they had an inten- Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)832.
tion to save deceased and not to kill her. De- Indian Penal Code, 1860 – Secs. 304A, 308 & 34 –
fence taken by accused appears to be probable. Quashment of FIR – Grounds to be considered –
Medical papers are on record which shows that An old dilapidated building consisting of ground
deceased was admitted by her brother-in-law plus two floors collapsed claiming life of five in-
who was now made as accused. No history ap- nocent labourer – Applicant was Executing Au-
pears to have been taken by doctor who admit- thority of Administrative orders passed by Mu-
ted deceased. It is not within twelve hours span nicipal Commissioner – He owns a responsibility
prior to recording of dying declarations. But for of regulating construction and other related ac-
reasons, both dying declarations are unbeliev- tivities within jurisdiction of Amravati Munici-
able. As per first dying declaration Accused 5 pal Corporation – Municipal Authority who are
to 8 were inside kitchen and as per second dy- obliged to perform its statutory duties and func-
ing declaration they were outside kitchen, tions have not done their duty assiduously – If
which was taken as variance. But Accused 5 to done, could have saved lives – Owner of 1st and
7 have been acquitted by trial Judge on ground 2nd floor by non removal of debris contributed
that no role was attributed to them in both dy- cause of collapsed – There is no material to hold
ing declarations. Such facts should be consid- that said owner has fully complied statutory no-
ered at time of framing of charge itself by Courts tice – Prima facie case exists against all applicants
of law. If there is inconsistency and no role is to put them on trial – Held, when structure is dan-
attributed then Court should not proceed with gerous strict enforcement of provisions of law is
framing of charge. Thus, conviction awarded to expected from every Quarter. Violation of laws
Appellant 1 and Appellant 2 for offence pun- cannot take place without active connivance. Pe-
ishable under Sections 302, 498A & Section 34 tition stands dismissed. Rahul Rajendra Jain Vs.
of IPC set aside. Appeal allowed. Chhaya State of Maharashtra, 2024(1) Bom.C.R.(Cri.)
Bhausaheb Bhingardive Vs. State of Maharashtra, (N.B.)237.
2024(1) Bom.C.R.(Cri.) (A.B.)276. Indian Penal Code, 1860 – Sec. 306 –
Indian Penal Code, 1860 – Secs. 304 Part II & Commitment of suicide by vendor of Sale deed –
34 – Appeal against conviction – Culpable Vendor of sale-deed left behind a suicide note
homicide not amounting to murder – It is naming tenants as abettors – Why police personnel
definitely not a case of homicide, or even have been allowed to go scot-free in a case where
culpable homicide not amounting to murder – they had an apparent roll in conspiring and in
It is a case of voluntarily causing hurt, thereby abetting crime of illegal detention of tenants,
attracting offence under Section 323 of IPC – coercing them to sign document against their will,
Occurrence have developed all of a sudden – It and getting premises in question demolished
is not intended and targeted assault that too without any order from a Competent Court –
with particular knowledge of its outcome – Both Held, continuance of these two criminal
ladies were unarmed and there is no previous proceedings would not be of any avail once
animosity or grudge – Both ladies might not be complainant has himself stated to withdraw
complaint. Their losses having been compensated, approach of prosecution agency has cascading
any further investigation or trial would be an effect that Police would lose opportunity to carry
exercise in futility. SLPs are allowed. Shatrughna further investigation in deserving cases, as well
Atmaram Patil Vs. Vinod Dodhu Chaudhary, 2024(1) as undeserving culprits would get bail in-default
Bom.C.R.(Cri.) (S.C.)958. – Therefore, prosecution agency needs to be seri-
Indian Penal Code, 1860 – Secs. 306, 498A & 34 – ous while dealing said aspect – Held, indefeasi-
Appeal against conviction – Harassment or cru- ble right cannot be defeated by non-disposal or
elty was of such nature that deceased was forced wrong disposal of application for default bail.
to end up her life – Whether proved – There is no Accused have availed their indefeasible right be-
iota of evidence that in proximity to harassment fore filing of charge-sheet. Impugned order of ex-
or cruelty was of such nature that deceased was tension being contrary to requirement is quashed
forced to end up her life by consuming poison – and set aside. Appellants are entitled for bail.
Initially AD was Registered – Defence has come Appeal is allowed. Ganesh Shamrao Pendor Vs. State
with a specific case that deceased had given dy- of Maharashtra, 2024(1) Bom.C.R.(Cri.) (N.B.)343.
ing declaration wherein there is no whisper Indian Penal Code, 1860 – Secs. 307 & 325 – At-
about any role Attributable to any of accused – tempt to murder – Proof – Accused hit victim with
There was intense ill treatment or harassment stone causing grievous injuries to her eye and head
in backdrop of demand of Rs. 20,000 even made – Allegation that accused attempted to kill her –
on 26-7-1998 compelling deceased to consume Admittedly, accused was not armed with any
poison – Accused persons should intent that weapon to show that he had any intention to kill
deceased should end up her life – With that victim – Secondly, it was found that head of vic-
object in mind, if they deliberately create cir- tim had banged on stone – Sole prosecution eye-
cumstances, which are of such nature, that de- witness turned hostile and did not support pros-
ceased is left with no other alternative but to ecution case – There was single injury and that
end up her life, only then charge of abetment to too by banging of head on stone – There was no
commit suicide can be said to be successfully intention or knowledge on part of accused to cause
brought home – Abetment is equally an essen- death – Injuries caused to victim by stone were
tial factor to be proved by prosecution – Very no doubt grievous in nature but they cannot be
dying declaration of deceased is absolutely si- considered to be caused by dangerous weapon
lent either about demand or harassment for its that is likely to cause death – Provisions of Sec-
non-fulfillment – Charge of abetment to com- tion 325 could be invoked for voluntarily causing
mit suicide cannot be applied or said to be grievous hurt – Conviction under Section 307 was
proved – Trial Judge has failed in properly ap- modified to one under Section 325 of Penal Code.
preciating evidence of parents and friend of de- Sanjay Gaonkar Vs. State of Goa, 2024(1)
ceased in light of legal requirements. Criminal Bom.C.R.(Cri.) (P.B.)110(A).
Appeal stands allowed. Ravsaheb Sahebrao Patil Vs. Indian Penal Code, 1860 – Secs. 307 & 325 – At-
State of Maharashtra, 2024(1) Bom.C.R.(Cri.) tempt to murder – Proof – Allegation that Appel-
(A.B.)177. lant-accused hit victim with stone causing griev-
Indian Penal Code, 1860 – Secs. 307, 143, 147 & ous injuries to her eye and head and attempted to
149 – Extension of time in filing charge-sheet – 30 kill her – Injuries were admittedly grievous in
days time has been granted by impugned order nature and treatment given to victim further
in filing of charge-sheet, by which Special Court shows that her right eye was affected – There were
has declined to grant bail in default – Prime role fractures on front skull bone – This itself proves
of Public Prosecutor in seeking extension – Ex- fact about use of force by which such assault took
tension applications are casually filed by Police place on victim – There was no doubt about in-
Officers – Public Prosecutors are merely putting volvement of accused in said offence – Accused
their endorsement and nothing else – Such casual was not armed with any weapon to show that he
had any intention to kill victim – It was found cry notices have also been circulated in public in-
that head of victim had banged on stone – Sole cluding bus stands and railway stations. WT Mes-
prosecution eye-witness turned hostile and did sage was flashed to all SSP’s/DC’sP all over India.
not support prosecution case – There was single Since all possible efforts to trace missing boy have
injury and that too by banging of head on stone – been made and FIR is pending investigation, con-
No intention or knowledge on part of accused to cerned police officials directed to file quarterly
cause death – Injuries caused to victim by stone status report before concerned Metropolitan Mag-
were no doubt grievous in nature but they cannot istrate and, if any, clue is found about missing son
be considered to be caused by dangerous weapon of petitioner, same shall be communicated to pe-
that is likely to cause death – Provisions of Sec- titioner. Petition disposed of. Laxmi Vs. State Nct
tion 325 could be invoked for voluntarily causing of Delhi, 2024(1) Bom.C.R.(Cri.)(J.) (DEL.)30.
grievous hurt – Held, conviction of accused un- Indian Penal Code, 1860 – Secs. 363 & 366A –
der Section 307 of IPC modified to one under Sec- Appeal against acquittal – Appreciation of evi-
tion 325 of IPC. Accused was acquitted for offence dences – Offences committed by respondent –
under Section 307 of IPC. Appeal partly Accused are indeed serious and have it’s impact
allowed. Sanjay Gaonkar Vs. State of Goa, 2024(1) on society – He took victim under garb of buying
Bom.C.R.(Cri.) (P.B.)110(B). clothes and chappals for her in red light area of
Indian Penal Code, 1860 – Secs. 323, 363, 384 & Nashik and made an attempt to put her into busi-
406 – Quashing of FIR – Powers to be exercised ness of prostitution – There is a rise in cases un-
by High Court – High Court declined to exercise der Immoral Traffic (Prevention) Act – Said Act is
power under Section 482 Cr.P.C. and consequently a stringent legislation in order to curb menace of
dismissed petition qua appellant – Allegation for human trafficking, especially, when a child or
voluntarily causing hurt, for extortion and for minor is induced or carried for purpose of prosti-
criminal breach of trust – Held, High Court was tution – There respondent-accused had indeed
legally bound to see if allegations/accusations committed offences and, therefore, he does not
constitute any offence or not. There is no material deserve sympathy – Held, in order to curb such
on record to support alleged causation of hurt. social evil, some deterrence is required. Appeal is
Except statement that ‘they beat up me’ by com- allowed. State of Maharashtra Vs. Vijay Bhika Dive,
plainant no material whatsoever is available on 2024(1) Bom.C.R.(Cri.) 301.
record in regard to commission of said offence. Indian Penal Code, 1860 – Secs. 367 & 34 – Appeal
Basic ingredients to constitute an offence under against conviction – Common intention – Whether
Section 323, IPC is lacking in charge-sheet. No proved – Held, common intention contemplated
useful purpose is likely to be served by allowing by Section 34 of IPC pre-supposes prior concert –
criminal prosecution against appellant. High It requires meeting of minds. It requires a
Court has clearly fallen in error in not invoking prearranged plan before a man can be vicariously
powers under Section 482, Cr.P.C. to quash pro- convicted for criminal act of another. Criminal act
ceedings qua appellant – Appeal is allowed. must have been done in furtherance of common
Abhishek Saxena Vs. State of Uttar Pradesh, 2024(1) intention of all accused. There is absolutely no
Bom.C.R.(Cri.) (S.C.)100(A). material on record to indicate that co- accused
Indian Penal Code, 1860 – Sec. 363 – Tracing miss- shared a common intention with appellant to
ing child – Direction of Investigation – Petitioner commit offence. In absence of any cogent materials
filed FIR for her missing son, as her missing son against appellant, impugned judgment and order
was not recovered and his whereabouts are still is set aside. Criminal Appeal is allowed.
not known – Petitioner sought for intervention of Mohammed Iqbql Mangu Ismail Vs. State of
Court for production of her son – Held, Letter was Maharashtra, 2024(1) Bom.C.R.(Cri.) 859.
sent to senior authorities to declare/enhance suit- Indian Penal Code, 1860 – Sec. 370(3) – Discharge
able reward for tracing missing child. Hue and application – Application for discharge rejected
by trial Court – Allegation against accused for comply with it – Victim herself disclosed that
prostitution business – In this case only accused accompanied to her and was introduced
incriminating material relied upon by prosecution to her family members – In Statement of victim
against him is statement of police official that recorded under Section 164 of Cr.P.C. she
applicant who is a customer, was found in a room completely exonerate accused and herself admits
with victim – Statement of victim was not that relationship between them was consensual –
recorded – It does not disclose existence of Further decision to abort fetus was taken jointly
ingredients necessary to constitute offence – Held, by victim and accused and both of them visited
in absence of any specific penal provision, it clinic – Statement of doctor corroborate same –
cannot be said that he is liable for any prosecution Ingredients of Sections 376, 313, 201 of IPC not
for above said offences. Impugned order is set made out from material placed on record – View
aside qua applicant only. Revision application is which is more plausible is favouring accused –
allowed. Mahesh Vinayak Patil Vs. State of Discharge application liable to be allowed. Clinton
Maharashtra, 2024(1) Bom.C.R.(Cri.) 659. Fernandes Vs. State of Goa, 2024(1) Bom.C.R.(Cri.)
Indian Penal Code, 1860 – Sec. 376 – Rape on (P.B.)854(A).
minor – Accused allegedly manipulated a minor Indian Penal Code, 1860 – Secs. 376 & 506 –
girl, established physical relationship with her and Discharge application – Trial Court has rejected
made her pregnant – Victim is proved to be mi- discharge application – On promise of marriage,
nor – DNA analysis of baby which established that applicant had physic al relationship with
accused and the victim are biological parents of complainant on several occasions – Held,
child – Held, is a ft case where accused deserve to acknowledged consensual physical relationship
be treated with stern hand. Omkar Dattatraya between parties would not constitute an offence
Dangat Vs. State of Maharashtra, 2024(1) under Section 376 IPC. This is not a case where
Bom.C.R.(Cri.) 331. consent of complainant is based on misconception.
Indian Penal Code, 1860 – Sec. 376 – Rape – When Materials on record fall short for establishing that
alleged forceful sexual act was committed on from inception consent of complainant was a
prosecutrix has not come on record – She has result of false promise of marriage. Continuing
accompanied accused to another district without prosecution in present case will be a gross abuse
resisting or raising alarm – Her testimony about of process of law. Application, is allowed. Anurag
she being lifted and taken is unbelievable – There Ravindra Umaley Vs. State of Maharashtra, 2024(1)
is material omission about alleged occurrence Bom.C.R.(Cri.)922.
taking place at place alleged by her – Therefore, it Indian Penal Code, 1860 – Secs. 376(2)(i), 376D,
is unsafe to rely on her sole testimony – Medical 452, 506 & 34 – Rape on minor girl – Victim and
evidence is also not full proof regarding her mother, are lending support to each other –
commission of offence – Conviction for offence They were together sleeping when entry was
of rape under Section 376, and for charges like forced by accused – They both are consistent about
363, 366A and 506 IPC is set aside. Munja Jijabhau knife being used to threaten them – Mother seems
Bhange Vs. State of Maharashtra, 2024(1) to have been taken in another room and victim
Bom.C.R.(Cri.) (A.B.)773. was raped by all three whom she has named –
Indian Penal Code, 1860 – Secs. 376, 313 & 201 – Both, victim and her mother have identified
Discharge Application – Offence of rape – accused-appellants in Court for taking turns in
Complaint shows that victim and accused were raping victim – Though they are subjected to cross,
friendly with each other and in that context they their evidence to extent of commission of rape has
developed physical relationship on promise to remained untouched and unshaken – Head-
marry – However, it does not show that such master deposed about date of birth of victim on
promise was given before establishing sexual basis of admission register in which date of birth
relationship and that too with an intention not to is recorded on basis of certificate issued by Gram
panchayat as of practice – Medical expert has very Parvej Khan Rafik Khan Vs. State of Maharashtra,
categorically stated in his examination-in-chief 2024(1) Bom.C.R.(Cri.) (A.B.)6.
itself that on examination of victim his overall Indian Penal Code, 1860 – Secs. 376D, 384 & 506
findings were consistent with sexual intercourse/ – Bail application – Bail granted by trial Court –
assault – Prosecution has established that victim FIR registered alleging gang rape, threat of mak-
was a minor and was sexually ravished by ing video of rape recorded viral and extortion –
accused-appellant – Conviction of accused Held, delay by itself would not be fatal for all times
appellants proper. Ananda Mahadu Sawant Vs. State to come and criminality attached to incident
of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)929. would not evaporate into thin air or get extin-
Indian Penal Code, 1860 – Secs. 376(2)(n), 377 & guished by virtue of such delay. It all depends
504 – Cancellation of bail – Criminal Application upon facts that may unfold in given circumstances
is preferred seeking quashing and setting aside and same would vary from case to case. Impugned
of bail Order – There is a distinction between order granting bail is not only bereft of material
rejection of bail in a case of non-bailable offence particulars which would justify grant of bail, but
at an initial stage and cancellation of bail after it it seems that High Court has got swayed on
has been granted – Held, bail once granted should ground of delay and video having not been re-
not be cancelled in a mechanical manner without covered during course of investigation and has
considering whether any supervening given a complete go by to allegation made in FIR
circumstances have rendered it unfavourable to a and statement recorded under Sections 161 and
fair trial to allow accused to retain his or her 164 of Cr.P.C. as also testimony of prosecutrix be-
freedom by enjoying concession of bail during fore jurisdictional Court. Impugned order is set
trial. Additional Sessions Judge has provided aside. Appeals are allowed. Bhagwan Singh Vs.
detailed reasons for granting bail to Respondent Dilip Kumar @ Deepu @ Depak, 2024(1)
3 and therefore impugned order granting bail Bom.C.R.(Cri.) (S.C.)123.
cannot be termed as mechanical or perverse in Indian Penal Code, 1860 – Secs. 379 & 34 –
nature. This is not a ft case for quashing and setting Quashement of FIR – Grounds to be considered –
aside impugned bail order and for cancellation of Equipment was hypothecated under Loan Agree-
bail granted to Respondent 3. Application is ment, hence it was a security for repayment of
rejected. Leena Dasharath Gavkar Vs. State of loan amount – Held, when a citizen avails a loan
Maharashtra, 2024(1) Bom.C.R (Cri.) 850. from a financial institution, it is his obligation to
Indian Penal Code, 1860 – Secs. 376AB, 506 & pay back and not play truant or for that matter
323 – Appeal against conviction – Though actual play possum. In an agreement of hire purchase,
occurrence has been proved to have taken place, purchaser remains merely a trustee/bailee on be-
except DNA evidence, there is no full proof or half of financier/financial institution and owner-
legally acceptable evidence – Held, mere DNA ship remains with later. Registration of FIR qua
evidence cannot be made sole basis of conviction. Applicant 2 is nothing but a clear case of abuse of
Moral conviction has no legal sanctity and what process of law by Respondent 1. F.I.R. is quashed
law requires is legally acceptable evidence ruling set aside. Application is allowed. Tata Capital Ltd.
out innocence of accused. Here, such quality of Vs. Umeshkumar Hanumandas Goyal, 2024(1)
evidence is not available. Unfortunately, case has Bom.C.R.(Cri.) 587.
not been proved beyond reasonable doubt as Indian Penal Code, 1860 – Sec. 384 – Extortion –
against appellant and hence, benefit of doubt ex- Ingredients of – Held, twin ingredients are to be
tended to appellant. Six years old victim was re- satisfied: (i) Intentionally putting a person in fear
quired to be taken to various places for examina- of injury to himself or another; (ii) Dishonestly
tion and treatment and resultantly suffered aca- inducing person so put to deliver to any person
demic loss too. Compensation has to be paid un- any property or valuable security. In absence of
der Section 357A of Cri.P.C. Appeal is allowed. such ingredients/accusations in charge-sheet to
constitute said offence it cannot be said a prima Indian Penal Code, 1860 – Secs. 406 & 409 –
facie case of commission of offence under Section Quashing of proceeding – Violation of provisions
384 of I.P.C. is made out therein. Abhishek Saxena of EPF Act – Petitioner is start-up – For first year
Vs. State of Uttar Pradesh, 2024(1) Bom.C.R.(Cri.) of setting up of Start-Ups such establishments may
(S.C.)100(B). not be inspected under any of 6 Labour laws
Indian Penal Code, 1860 – Secs. 392, 394, 366, including EPF Act – Respondents could not point
341, 354, 376(2)(g) & 34 – Appeal against convic- out from record that, there was very credible and
tion – Appreciation of evidence – Gravity of of- verifiable written complaint of violation of
fence – Rape case – Record gathered and main- relevant provisions of EPF Act by Petitioners and
tained by police authorities finds names and in- hence, with approval of an officer, who is one level
volvement of present appellants in various griev- senior to inspecting officer, inspection was held
ous offences of similar nature which clearly sug- in this case – D.O. letter, appears to be issued to
gests that modus operandi is well planned and in encourage and promote Start-Ups – However,
organized manner – Therefore, provisions of way in which Respondent held inspection, it
MCOC Act are rightly attracted and applied – would discourage Start-ups and thus, cause an
Held, sentence always commensurate with grav- adverse effect on employment to be generated and
ity of offence. Offences of highway dacoity, rob- economy of India – Proceedings against petitioner
bery, rape has been committed and as such, grave start-up quashed. Edunetwork Private Limited Vs.
offences have been committed. Only in deserv- Regional Provident Fund, 2024(1) Bom.C.R.(Cri.)
ing cases, considering nature of crimes, age and 778.
mitigating circumstances, powers can be exercised Indian Penal Code, 1860 – Secs. 406, 418, 420,
by Appellate Courts to lower sentence. Appellants 468, 471 & 34 – Application for investigation un-
are hardened criminals. Repeatedly they have der Section 156(3) of CrPC – Magistrate held that
committed grave offences of which record has application discloses allegations of cognizable
been accumulated. Multi-layered enquiry con- offences – Therefore, thorough investigation is
firms their involvement. Appeals are partly al- needed at hands of Police – According to com-
lowed. Abhay @ Abhi @ Abhya Bhaskar Pore Vs. State plainant, accused have committed criminal breach
of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)451. of trust, forgery and cheating – Hence, by im-
Indian Penal Code, 1860 – Sec. 406 – Criminal pugned order, learned Magistrate referred said
breach of trust – Held, essential ingredients to con- application for investigation under Section 156(3)
stitute an offence under Section 406, IPC are as: of Cr.P.C. to Nashik Road Police Station – Held,
(i) Entrusting any person with property or with any person may set criminal law in motion sub-
any dominion over property; (ii) person entrusted ject to statutory interdicts. When an offence is com-
(a) dishonestly misappropriating or converting to mitted, a first information report can be lodged
his own use that property; or (b) dishonestly us- under Section 154 of Cr.P.C. A complaint petition
ing or disposing of that property or willfully suf- may also be filed in terms of Section 200 thereof.
fering any other person so to do in violation. (i) of However, in event for some reasons or other, first
any direction of law prescribing mode in which information report is not recorded in terms of sub-
such trust is to be discharge, or; (ii) of any legal section (1) of Section 156 of Code, Magistrate is
contract made touching discharge of such trust. empowered under sub-section (3) of Section 156
In absence of basic ingredient of entrustment of thereof to order an investigation into allegations
property and dishonest usage or disposal of any contained in complaint petition. Allegations lev-
such property to satisfy offence punishable un- elled in applications are general and vague in na-
der Section 406, IPC in present case, charge of ture. Application was not supported by bogus
commission of offence thereunder also cannot be ‘Will Deed’. Except vague assertion that ‘Will
attracted. Abhishek Saxena Vs. State of Uttar Pradesh, Deed’ is bogus, there was nothing in application
2024(1) Bom.C.R.(Cri.) (S.C.)100(C). to prima facie conclude so. There is great delay in
filing said application, which is not satisfactorily respondent. There were no fresh materials placed
explained learned Magistrate, therefore, ought not for consideration before Competent Authority
to have entertained said application and acceded when sanction was granted on fourth occasion
to request of complainant for investigation under having earlier refused sanction on as many as
Section 156(3) of Cr.P.C. by passing impugned three occasions. Writ Petitions are allowed. Cen-
Order. Impugned Order is quashed and set aside. tral Bureau of Investigation Vs. R. Bhuvaneswari C.N.
Writ petitions are allowed. Anantrao Shankarrao Venkataraman, 2024(1) Bom.C.R.(Cri.) 23(A).
Jagtap Vs. Prakash Nivruthi Tajanpure, 2024(1) Indian Penal Code, 1860 – Sec. 409 – Criminal
Bom.C.R.(Cri.) 603. breach of trust – Facts clearly reveal that
Indian Penal Code, 1860 – Secs. 406 & 420 – admittedly amount of USD 3 million was paid by
Quashment of FIR – Grounds to be considered – first informant company to accused company –
When Order of investigation is made under There was thus an entrustment of property by
Section 202 of Cr.P.C., such Order is made after informant to accused who represented that
taking cognizance of matter and after making such company would procure and sell sugar as per
order, Magistrate cannot make order under agreement – Invoking Section 409 of IPC is
Section 156(3) of Cr.P.C. – Held, Order of justified. Kashinath Pandurang Jadhav Vs. State of
investigation made under Section 202 of Cr.P.C. Maharashtra, 2024(1) Bom.C.R.(Cri.) 873(A).
is not of nature of further investigation as Indian Penal Code, 1860 – Secs. 419, 420, 465,
contemplated under Section 173(8) of Cr.P.C. 467, 468, 471, 153A, 109 & 120B & 34 – Bail on
Without taking note of this cautious method of ground of long incarceration – It is alleged by said
said learned Magistrate, subsequent learned two witnesses that appellant incited and instigated
Magistrate passed impugned Order, which finally them to go to Pakistan for Hijrat i.e. training for
led to registration of impugned F.I.R. This is Jihad – Held, delay of trial is a relevant factor while
wholly in contrast to scheme of Cr.P.C. which, examining plea for bail of accused. A bail restrict-
provides for inquiry/investigation under Section ing clause cannot denude jurisdiction of a Con-
202 only and not investigation under Section stitutional Court in testing if continued detention
156(3) thereof. Impugned order is quashed and in a given case would breach concept of liberty
set aside. Criminal Application is allowed. enshrined in Article 21 of Constitution of India.
Nandkishor Eknath Kothawade Vs. State of Appellant is incarcerated on basis of evidence for
Maharashtra, 2024(1) Bom.C.R.(Cri.) 668. more than 13 years. Appeal is allowed. Mirza
Indian Penal Code, 1860 – Secs. 406, 420, 467, Himayat Beig @ Umar Vs. State of Maharashtra,
468, 471 & 120B – Discharge application – Fram- 2024(1) Bom.C.R.(Cri.) 198.
ing of charge – Grounds to be considered – Alle- Indian Penal Code, 1860 – Secs. 420 & 34 – En-
gation against accused persons in these matters is largement on bail – Twin condition under Section
that they have conspired to cheat and defraud 45 of PMLA Act – Bail application rejected by trial
Syndicate Bank, to tune of Rs. 54.68 crores during Court – Notice under MRTP Act was issued to
year from 2004 to 2007 in respect of cash credit construction made on land which was in nature
account of SIPL as well as several sanctions and of twin bungalows converted into a resort – Held,
in respect of release of various credit facilities to conditions specified under Section 45 are manda-
said company and thereby committed offences – tory. They need to be complied with. Court is re-
Held, at stage of framing of charge Court is required to be satisfied that there are reasonable
quired to evaluate material and documents on grounds for believing that accused is not guilty
record with a view to finding out if facts emerg- of such offence and he is not likely to commit any
ing there from, taken at their face value, disclosed offence while on bail. High Court while consid-
existence of all ingredients constituting alleged ering twin test of Section 45 of PMLA has to con-
offence. No any error found warranting interfer- sider broad probabilities of case, however, hav-
ence in order passed by trial Court discharging ing regard to nature of accusations and materials
on record, it is not possible to record a satisfac- those injuries, which he should be considered to
tion that there are reasonable grounds for believ- have ‘special knowledge’ of, his presence at time
ing that applicant is not guilty of such offence. of occurrence having been proved, statutory pre-
Application stands rejected. Sadanand Gangaram sumption would be available against appellant re-
Kadam Vs. Directorate of Enforcement, 2024(1) garding commission of crime by him. Also that
Bom.C.R.(Cri.) 497(A). pre and post occurrence incidents narrated by
Indian Penal Code, 1860 – Sec. 498A – Quashing neighbouring people too would add vital corrobo-
of FIR – Cruelty and harassment by ‘relatives’ of ration to fact. Ingredients of offence under Sec-
husband of informant – Applicants seeking to tion 304 IPC are proved and to standard of be-
quash FIR registered for various offences, includ- yond scope of all reasonable doubts, through evi-
ing offence of cruelty and harassment under Sec- dence on record. Thus, judgment and order of
tion 498A of IPC – Quashing is sought on account sentence of trial Court finding appellant guilty of
of inadequate, vague and general allegations – offence under Section 304 of IPC and convicting
Claim that Applicant l-Accused 7 is uncle of wife him for same, is upheld. Sentence imposed be
husband’s brother, whilst Applicant 2-Accused 8 modified with sentence of imprisonment for pe-
is son of Applicant 1 both of whom, cannot be riod already undergone by appellant incarcerated
termed as ‘relatives’ of husband of informant – as an under trial prisoner/convict. Appeal dis-
Since applicants belong to different family, they missed. Debabrata Giri Vs. State of West Bengal,
are not related with blood with husband, neither 2024(1) Bom.C.R.(Cri.)(J.) (CAL.)1.
by marriage nor adoption – Though there were Information Technology Act, 2000 – Sec. 66 – Bail
omnibus allegations that all accused used to har- application – Bail granted by trial Court – FIR reg-
ass victim, however, besides last incident, there istered alleging gang rape, threat of making video
were no specific allegations against applicants – of rape recorded viral and extortion – Held, de-
Allegations against them are vague and of gen- lay by itself would not be fatal for all times to come
eral nature – Thus, applicants cannot be hauled and criminality attached to incident would not
in criminal prosecution under Section 498A of IPC evaporate into thin air or get extinguished by vir-
– Applicants belong to different family and are tue of such delay. It all depends upon facts that
residing elsewhere – On close scrutiny of entire may unfold in given circumstances and same
material, allowing such an action would result in would vary from case to case. Impugned order
injustice and prevent promotion of justice – Con- granting bail is not only bereft of material par-
tinuation of such prosecution would amount to ticulars which would justify grant of bail, but it
an abuse of process of Court, therefore, this is fit seems that High Court has got swayed on ground
case to invoke inherent powers of Court – Held, of delay and video having not been recovered
impugned FIR and final report, in respect of all during course of investigation and has given a
alleged offences, set aside, to extent of said appli- complete go by to allegation made in FIR and
cants only. Application allowed. Abdul Salim statement recorded under Sections 161 and 164
Ahmad Abdul Jabbar Vs. State of Maharashtra, of Cr.P.C. as also testimony of prosecutrix before
2024(1) Bom.C.R.(Cri.) (N.B.)60. jurisdictional Court. Impugned order is set aside.
Indian Penal Code, 1860 – Secs. 498A & 304 – Appeals are allowed. Bhagwan Singh Vs. Dilip
Conviction for murder – Creditability of evidence Kumar @ Deepu @ Depak, 2024(1) Bom.C.R.(Cri.)
– Additional District and Sessions Judge con- (S.C.)123.
victed appellant for offences punishable under Juvenile Justice (Care and Protection of
Sections 498A and 304 IPC – Held, as appellant’s Children) Act, 2015 – Secs. 12, 13(2) & 102 – Bail
presence at time of death of victim is uncontro- to child in conflict with law (CCL) – Release on
verted and appellant has not offered any counter bail from custody of Observation Home – Held,
statement during his examination under Section Juvenile Justice (Care and Protection of Children)
313 of Cr.P.C. regarding how victim has suffered Act, 2015 is under obligation to release CCL on
bail with or without surety subject to reservations to grant bail in default – Prime role of Public Pros-
underlined under proviso. Grant of bail to CCL ecutor in seeking extension – Extension applica-
shall not be impeded by nature of gravity of tions are casually filed by Police Officers – Public
offence alleged to have been committed by him. Prosecutors are merely putting their endorsement
Order impugned sans requisite reasons for denial and nothing else – Such casual approach of pros-
of bail to CCL. CCL is languishing in Observation ecution agency has cascading effect that Police
Home since 15.12.2021. Period of 2 years has been would lose opportunity to carry further investi-
already lapse. Social investigation report has been gation in deserving cases, as well as undeserving
called from Probation Officer. Father of CCL culprits would get bail in-default – Therefore,
expressed his willingness to take him in custody prosecution agency needs to be serious while deal-
and give an undertaking that in case of release of ing said aspect – Held, indefeasible right cannot
CCL on bail, he would be trained for painting be defeated by non-disposal or wrong disposal
work i.e. business of father. There is nothing on of application for default bail. Accused have
record to indicate that CCL is likely to come in availed their indefeasible right before filing of
association with known criminals or get exposed charge-sheet. Impugned order of extension being
to moral, physical or sociological danger or his contrary to requirement is quashed and set aside.
release would defeat ends of justice. Revision Appellants are entitled for bail. Appeal is allowed.
Applic ation is allowed. XYZ Vs. State of Ganesh Shamrao Pendor Vs. State of Maharashtra,
Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)665. 2024(1) Bom.C.R.(Cri.) (N.B.)343.
Maharashtra Control of Organized Crimes Act, Maharashtra Control of Organized Crimes Act,
1999 – Sec. 3(1)(ii) & (2) – Appeal against convic- 1999 – Sec. 21(4) – Writ petition – Powers of writ
tion – Appreciation of evidence – Gravity of of- Court to grant bail – Scope – Despite statutory
fence – Rape case – Record gathered and main- restrictions of Section 21(4) of MCOC Act, ability
tained by police authorities finds names and in- of constitutional Court, per se, does not oust its
volvement of present appellants in various griev- powers to grant bail to under trials on grounds of
ous offences of similar nature which clearly sug- violation of part III of Constitution. Laxman Rama
gests that modus operandi is well planned and in Pawar @ Mahakal Vs. State of Maharashtra, 2024(1)
organized manner – Therefore, provisions of Bom.C.R.(Cri.)951.
MCOC Act are rightly attracted and applied – Maharashtra Control of Organised Crimes Act,
Held, sentence always commensurate with grav- 1999 – Sec. 23(1)(a) – Default bail – Entitlement to
ity of offence. Offences of highway dacoity, rob- – Bail application rejected by trial Court – Taking
bery, rape has been committed and as such, grave cognizance is entirely different from completing
offences have been committed. Only in deserv- investigation – Sanction is required only to en-
ing cases, considering nature of crimes, age and able Court to take cognizance of offence – Held,
mitigating circumstances, powers can be exercised to complete investigation and file a final report is
by Appellate Courts to lower sentence. Appellants a duty of investigating agency, but taking cogni-
are hardened criminals. Repeatedly they have zance of offence is power of Court. If investiga-
committed grave offences of which record has tion is concluded within prescribed period, no
been accumulated. Multi-layered enquiry con- right accrues to accused concerned to be released
firms their involvement. Appeals are partly al- on bail under proviso to Section 167(2) of Cr.P.C.
lowed. Abhay @ Abhi @ Abhya Bhaskar Pore Vs. State Applicants can always avail remedies available
of Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)451. in law to redress their grievance as well as apply
Maharashtra Control of Organized Crimes Act, for regular bail. Bail applications was rejected.
1999 – Secs. 3(1)(ii), (2), (4) & 21(2)(b) – Exten- Amit Madhukar Bhogale Vs. State of Maharashtra,
sion of time in filing charge-sheet – 30 days time 2024(1) Bom.C.R.(Cri.) 209(A).
has been granted by impugned order in filing of Maharashtra Money Lending (Regulation) Act,
charge-sheet, by which Special Court has declined 2014 – Sec. 39 – Harassment – Suicide – Quash-
ing of charge-sheet – Legality of – FIR was lodged Maharashtra Police Act, 1951 – Secs. 31(1)(a) &
against petitioner for offences punishable under 135 – Default bail – Entitlement to – Bail applica-
Section 306 read with Section 34 of IPC – Held, tion rejected by trial Court – Taking cognizance is
there was sufficient gap between incidents involv- entirely different from completing investigation
ing accused and deceased’s act of suicide. There – Sanction is required only to enable Court to take
is no direct link between two, as deceased had cognizance of offence – Held, to complete inves-
ample time to consider consequences of suicide. tigation and file a final report is a duty of investi-
No direct or active act was found that led deceased gating agency, but taking cognizance of offence is
to commit suicide. Charge sheet does not suggest power of Court. If investigation is concluded
any abetment to commit suicide. There is no ma- within prescribed period, no right accrues to ac-
terial of any positive action taken by accused that cused concerned to be released on bail under pro-
could have caused or forced deceased to commit viso to Section 167(2) of Cr.P.C. Applicants can
suicide at time of incident. Simply alleging har- always avail remedies available in law to redress
assment of deceased is not sufficient to sustain their grievance as well as apply for regular bail.
charge under Section 306 IPC. There is no mate- Bail applications was rejected. Amit Madhukar
rial to suggest that accused intended for deceased Bhogale Vs. State of Maharashtra, 2024(1)
to commit suicide, nor is there any indication that Bom.C.R.(Cri.) 209(A).
accused created a situation that caused extreme Maharashtra Police Act, 1951 – Sec. 55 – Order
mental stress, leading deceased to take his own of externment – Alternate remedy – Petitioners
life. Thus, FIR registered against petitioners and seek to challenge order of externment passed by
proceedings arising therefrom are quashed. Peti- Superintendent of Police, in terms of provisions
tion allowed. Suryakant Pandurang Holmukhe Vs. of Section 55 of Police Act – There was no expla-
State of Maharashtra, 2024(1) Bom.C.R.(Cri.) 70. nation by Authorities for abnormal delay in filing
Maharashtra Municipal Corporation Act, 1949 proposal for externment, more than year after last
– Secs. 264, 268 & 397A – Quashment of FIR – alleged offence – Impugned order on face of it,
Grounds to be considered – An old dilapidated suffers from arbitrariness – Authority lacked ju-
building consisting of ground plus two floors col- risdictional facts to proceed in exercising its juris-
lapsed claiming life of five innocent labourer – diction under Section 55 of Police Act – No live
Applicant was Executing Authority of Adminis- nexus shown on face of record between last act
trative orders passed by Municipal Commissioner allegedly committed by petitioners as part of gang
– He owns a responsibility of regulating construc- and proposal or issuance of notice – Order of
tion and other related activities within jurisdic- externment found to be arbitrary, as it infringed
tion of Amravati Municipal Corporation – Mu- fundamental rights of petitioners under Article
nicipal Authority who are obliged to perform its 19 of Constitution – Bar in form of alternate rem-
statutory duties and functions have not done their edy under Section 60, by way of appeal, would
duty assiduously – If done, could have saved lives not come in way of petitioners for maintainability
– Owner of 1st and 2nd floor by non removal of of petition against said order – Held, impugned
debris contributed cause of collapsed – There is order of externment therefore, violative of Sec-
no material to hold that said owner has fully com- tion 55 of Police Act as also in violation of peti-
plied statutory notice – Prima facie case exists tioners’ fundamental rights under Article l9(1)(d)
against all applicants to put them on trial – Held, of Constitution. Petition allowed. foll. 1988(2)
when structure is dangerous strict enforcement Bom.C.R. 724; 1991(2) Bom.C.R. 85; 2018(3)
of provisions of law is expected from every Quar- Bom.C.R.(Cri.) 353. Naushad Ali Shah Vs. State of
ter. Violation of laws cannot take place without Maharashtra, 2024(1) Bom.C.R.(Cri.) (N.B.)140.
active connivance. Petition stands dismissed. Maharashtra Prevention of Dangerous Activi-
Rahul Rajendra Jain Vs. State of Maharashtra, 2024(1) ties of Slumlords, Bootleggers, Drug-offenders,
Bom.C.R.(Cri.) (N.B.)237. Dangerous Persons, Video Pirates, Sand Smug-
glers and Persons Engaged in Black Marketing same petitioner’s son ordered to be released
of Essential Commodities Act, 1981 – Sec. 3 – forthwith. Petition allowed. Foll. 2013
Detention – Subjective satisfaction – Order of de- DGLS(Bom.) 195; (1990)1 S.C.C. 606. Vilas Ashok
tention is passed relying upon two in-camera Aawale Vs. State of Maharashtra, 2024(1)
statements and solitary case registered against pe- Bom.C.R.(Cri.) 447.
titioner – There was variance in version of in-cam- Maharashtra Prevention of Dangerous Activities
era statements, with respect to time and date of of Slumlords, Bootleggers, Drug Offenders and
incident referred by both witnesses, as recorded Dangerous Persons and Video Pirates Act, 1981
in original Marathi language, typed version and – Secs. 3(1) & 2(b) – Preventive detention – On
English translation of said statements – Thus, basis of five offences – Validity – Petitioner
detenu was unable to make representation against involved in five offences which was in relation to
his detention effectively and was thereby denied possession of illicit liquor and selling it – In camera
his right under Article 22(5) of Constitution – statements of witnesses shows that petitioner has
Further solitary case relied upon by Detaining illicit liquor den at various places – Young
Authority is not sufficient to hold petitioner as generation is victim of activities of petitioner
habitual offender – Held, order of detention is- which is affecting peace and tranquility – Two
sued under Section 3 of Act by Respondent 1 be offences out of five have been registered against
quashed and set aside and on quashing same pe- petitioner after preventive action taken against
titioner be ordered for release forthwith. Ordered petitioner – Preventive action has not deterred
accordingly. foll.((1990)1 S.C.C. 606; 2013 B.C.I. petitioner from continuing with his notoriety –
(soft)1186; 2016(4) Bom.C.R.(Cri.) 700 . Harvinder Petitioner is aggressive and has tendency to
@ Chinku Ajaysingh Labana Vs. Commissioner of terrorize people – Nobody dares to complain
Police, 2024(1) Bom.C.R.(Cri.) 118. against him or depose against him – Activities of
Maharashtra Prevention of Dangerous Activi- petitioner falls under definition of bootlegger and
ties of Slumlords, Bootleggers, Drug Offenders, detrimental to public order – Order of detention,
Dangerous Persons, Video Pirates, Sand Smug- proper. Santosh Subhash Koli Vs. State of
glers and persons engaged in Black Marketing Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)880(A).
of Essential Commodities Act, 1981 – Sec. 3 – Maharashtra Prevention of Dangerous Activities
Order of detention – Detaining authority does not of Slumlords Bootleggers, Drug-Offenders,
explain reason for variance in contents of Marathi Dangerous Persons and Video Pirates Act, 1981
and English versions of detention order – A pe- – Sec. 3(2) – Detention order – Subjective
rusal of Marathi, as well as English version of satisfaction – Petitioner has been held to be
detention order, shows that there is material in- indulging in illegally selling liquor – Held, if
consistency in both versions, which goes to root detaining authority is of opinion that it is
of matter – Therefore, there is complete non-ap- necessary to detain a person under Act to prevent
plication of mind in passing detention order – him from indulging in sale of goods dangerous
Thus, variance in Marathi as well as English ver- for human consumption same should be based
sion of ground of detention recorded in deten- on some material and copies of such material
tion order, left detenu confused and deprived should be given to detenu. Subjective satisfaction
detenu of making an effective representation of detaining authority is not only doubtful but
against his detention – Any non-application of perverse. Material on record is not adequate to
mind by detaining authority would amount to a take recourse to drastic provision of action under
breach of constitutional imperative and would Act. Criminal antecedent and statements of two
render continued detention impermissible and witnesses are not sufficient to show involvement
illegal – Held, impugned order of Detention is- of petitioner to criminal overtact under Penal
sued under Section 3 of M.P.D.A. Act, by Respond- Code or other Criminal Law. Grounds of
ent 2 be quashed and set aside and on quashing detention which are basis for passing impugned
order are unsustainable. Order of detention is Subjective satisfaction of detaining authority is not
quashed. Writ petition is allowed. Dhanubai @ only doubtful but perverse. Material on record is
Dhanno Yashvant Netlekar Vs. State of Maharashtra, not adequate to take recourse to drastic provision
2024(1) Bom.C.R.(Cri.) (A.B.)819. of action under Act. Criminal antecedent and
Maharashtra Prevention of Dangerous Activities statements of two witnesses are not sufficient to
of Slumlords, void Bootleggers, Drug- show involvement of petitioner to criminal
Offenders, Dangerous Persons and Video overtact under Penal Code or other Criminal Law.
Pirates Act, 1981 – Sec. 3(2) – Detention order – Grounds of detention which are basis for passing
Subjective satisfaction – Held, purpose of arrest impugned order are unsustainable. Order of
in respect of crime is aimed at conclusion of detention is quashed. Writ petition is allowed.
investigation, whereas, detention of a person Dhanubai @ Dhanno Yashvant Netlekar Vs. State of
under preventive detention law is to prevent him Maharashtra, 2024(1) Bom.C.R.(Cri.) (A.B.)819.
from indulging in certain activities. Respondent Maharashtra Prohibition Act, 1949 – Secs. 65(e)
1-detaining authority has arrived at a subjective & 93 – Detention order – Subjective satisfaction –
satisfaction based on objective material which by Held, purpose of arrest in respect of crime is aimed
no stretch of imagination could be said to be at conclusion of investigation, whereas, detention
arbitrary and capricious so that this Court could of a person under preventive detention law is to
cause inference under Article 226 of Constitution. prevent him from indulging in certain activities.
None of grounds being put forth by petitioner to Respondent 1-detaining authority has arrived at
challenge impugned order is sustainable in law a subjective satisfaction based on objective
and on facts. Writ petition is dismissed. Vinod material which by no stretch of imagination could
Dhannulal Jaiswal Vs. District Magistrate be said to be arbitrary and capricious so that this
Aurangabad, 2024(1) Bom.C.R.(Cri.) (A.B.)862. Court could cause inference under Article 226 of
Maharashtra Prevention of Dangerous Activities Constitution. None of grounds being put forth by
of Slumlords, Bootleggers, Drug Offenders and petitioner to challenge impugned order is
Dangerous Persons and Video Pirates Act, 1981 sustainable in law and on facts. Writ petition is
– Sec. 5A – Order of detention – Challenge to – dismissed. Vinod Dhannulal Jaiswal Vs. District
Applicability of Section 5A – Section 5A has no Magistrate Aurangabad, 2024(1) Bom.C.R.(Cri.)
application if challenge on ground of delay, (A.B.)862.
violation of principal of natural justice or violation Maharashtra Scheduled Castes, Scheduled
of Article 22(5) of Constitution – If grounds of Tribes, De-notified Tribes (Vimukta Jatis), No-
challenge are based on subjective satisfaction, madic Tribes, Other Backward Classes and Spe-
propriety, sufficiency of incriminating material, cial Backward Category (Regulation of Issuance
Section 5A of Act steps in – In such situation, entire and Verification of) Caste Certificate Act, 2000 –
order of detention would not get vitiated, even if Sec. 11 – False caste certificate – Forgery – Allega-
one or more grounds of challenge would have tion of submission of false caste certificate and
merit. Santosh Subhash Koli Vs. State of Maharashtra, securing job on that basis – Alleged offence, if any,
2024(1) Bom.C.R.(Cri.) (A.B.)880(B). did take place before Act came into force – There
Maharashtra Prohibition Act, 1949 – Secs. 65(e) can never be ex post facto criminal legislation –
& 93 – Detention order – Subjective satisfaction – Therefore, applicant should not have been tried
Petitioner has been held to be indulging in illegally and convicted for offence punishable under Sec-
selling liquor – Held, if detaining authority is of tion 11 of Act – By virtue of Section 11(2) of Act,
opinion that it is necessary to detain a person cognizance of offence punishable under Section
under Act to prevent him from indulging in sale 11 of Act, could only be taken upon complaint, in
of goods dangerous for human consumption same writing, made by Scrutiny Committee or by any
should be based on some material and copies of other officer duly authorized by it – Cognizance
such material should be given to detenu. has been taken on police report submitted under
Section 173 of Cr.P.C. – Applicant’s conviction and maintenance should be concluded namely, within
consequential sentence for offence punishable iddat period. On date of passing of impugned
under Section 11 of Act needs to be set aside – order amount payable by husband got crystal-
Informant simply gave his evidence consistent lized, therefore, even in future if divorce wife re-
with averments in F.I.R. – Certificate allegedly marries, it will not make a difference if amount is
been issued by Tahsildar – None of official from payable in lumsum. Difference would be only
office of Tahsildar was examined as witness in case when amount is payable monthly Therefore,
– Certificate was unsigned – Authorities con- amount of Rs. 9,00,000, is fair and reasonable.
cerned at relevant time, way back in 1979, acted Criminal Revision Application is dismissed. Khalil
upon it – Only in year 2001, applicant submitted Abbas Fakir Vs. Tabbasum Khalil Fakir @ Tabbasum
same on being called upon to submit said certifi- Gulam Husain Ghare, 2024(1) Bom.C.R.(Cri.) 166.
cate for verification by Scrutiny Committee – Mens Narcotic Drugs and Psychotropic Substances
rea, thus ruled out – Scrutiny Committee declined Act, 1985 – Secs. 8, 21, 27A, 50, 60 & 67 – Appeal
to give him benefit of GR. dt. 15.6.1995 – Seal and against conviction – Death sentence – A Murder
stamp, appearing on certificate, not examined nor Reference under Section 366 Cr.P.C. was also for-
verified as to whether same really was of Tahsildar warded to High Court in view of death sentence
Office or fabricated one – No efforts made to find awarded by Special Court – Sale of contraband –
out in whose handwriting certificate was – Fur- Held, possession of contraband is a sine qua non
ther record pertaining to issue of caste certificates to secure a conviction under Section 21 of NDPS
in year 1979 and before, found not available – It Act and that such a contraband article should be
would be fatal blow to case of prosecution – recovered in accordance with provisions of Sec-
Merely because applicant failed to prove to have tion 50 of NDPS Act, being a statutory safeguard
belonged to Scheduled Tribe, no conclusion can favouring accused; otherwise recovery itself shall
be drawn that tribe certificate was false, fabricated stand vitiated in law. Appellant in Criminal Ap-
and forged one – Concurrent findings that since peal No. 1933 of 2014 has failed to make out a
caste certificate was unsigned and applicant’s case for acquittal. Appellant in Appeal No. 1136
claim to have belonged to S.T., being negative, cer- of 2014 is acquitted. Balwinder Singh (Binda) Vs.
tificate was necessarily forged one and illegal – Narcotics Control Bureau, 2024(1) Bom.C.R.(Cri.)
Applicant acquitted of offences charged – Appli- (S.C.)35(A).
cation allowed. Vilas Gunda Shirolkar Vs. State of Narcotic Drugs and Psychotropic Substances
Maharashtra, 2024(1) Bom.C.R.(Cri.) 435. Act, 1985 – Secs. 8(c), 20(b)(ii)C, 27A, 29 & 37 –
Muslim Women (Protection of Rights on Di- Enlargement of applicant on bail – Grounds to
vorce) Act, 1986 – Sec. 3(1)(a) – Maintenance to be considered – Contraband was seized under
divorced wife – Entitlement to – Maintenance to panchanama – Held, recording of finding
divorced wife granted by trial Court – Fact of di- mandated under Section 37 of NDPS Act is a
vorce between husband and wife is in itself suffi- sine qua non for granting bail to an accused
cient for wife to claim maintenance under Sec- under NDPS Act. There are reasonable grounds
tion 3(1)(a) of Muslim Women (Protection of for believing that applicant is not guilty of
Rights on Divorce) Act – Held, right to a reason- offences with which she has been charged and
able and fair provision and maintenance is not is unlikely to commit any offence while on bail.
hampered by former-wife’s remarriage. Divorced Applicant has been incarcerated for more than
Muslim woman shall be entitled to a reasonable 3 years ever since her arrest on 13-12-2020.
and fair provision and maintenance to be paid to Charge has not yet been framed There is no
her. Emphasis of Section 3 is not on nature or du- likelihood of trial being concluded within a
ration of any such provision or maintenance, but reasonable period. Application is allowed.
on time by which an arrangement for payment of Shameem Bano Gulam Kureshi Vs. Union of India,
64/24(1) 2024(2) Bom.C.R.(Cri.) 899.
Narcotic Drugs and Psychotropic Substances Ganja – Considering nature and quantity of con-
Act, 1985 – Secs. 8(c), 20b(ii)C, 29 & 67 – traband recovered from possession of applicants,
Enlargement of bail – Contraband articles seized bail may not be granted to them in view of Sec-
– Held, prolonged incarceration, generally tion 37 of NDPS Act. Nijil Raj Vs. Union of India
militates against most precious fundamental right Narcotics Control Bureau, 2024(1) Bom.C.R.(Cri)
guaranteed under Article 21 of Constitution of (P.B.)631.
India and in such an eventuality, conditional Narcotic Drugs and Psychotropic Substances
liberty must override statutory embargo created Act, 1985 – Sec. 37 – Offence of possession of con-
under Section 37(1)(b)(ii) of NDPS Act. Length of traband – Statement of witness owner of vehicle
period of his custody and fact that charge-sheet shows that vehicle in which contraband was
has been filed and trial has commenced are by found, was in possession of Applicant – Quantity
themselves not considerations that can be treated of MDMA found from scooter which was in pos-
as persuasive grounds for granting relief to session of Applicant is commercial – There is suf-
respondent under Section 37 of NDPS Act. ficient evidence to show involvement of Appli-
Applicant relased on bail. Application is allowed. cant – In view of restrictions under Section 37 of
Sanjat Ratan Rajput Vs. Union of India, 2024(1) NDPS Act, Applicant is not entitled for bail.
Bom.C.R.(Cri.) 696. Waseem Ahmad Bhat Vs. State of Goa, 2024(1)
Narcotics Drugs and Psychotropic Substances Bom.C.R.(Cri.) (P.B.)636.
Act, 1985 – Secs. 8(c), 21(c), 23(c), 25 & 29 – National Investigation Agency Act, 2008 – Sec.
Regular bail – Seriousness and gravity of crime to 21(4) – Enlargement on bail – Application for bail
be considered – Upon searching boat, total 56 of appellant rejected by trial Court – Constitu-
small packets in three polythene bags of heroin tional right to speedy trial – Held, presence of
were found – Courts cannot lose sight of fact that statutory restrictions like Section 43D(5) of UAPA
menace of crime of smuggling of contraband per-se does not oust ability of constitutional
drugs is on increase and therefore, perpetrators Courts to grant bail on grounds of violation of
of crime who are destroying society and younger Part III of Constitution. Appellant is entitled to
generations rendering them incapacitated by have parity with co-accused. Appellant is in pre-
falling prey to drug abuse must be dealt with iron trial incarceration for more than three years and
hands – Held, such types of offences are to be dealt eight months. Charge-sheet consists of about
with severity and with heavy hands. Showing 20,000 pages in 54 Volumes and prosecution has
leniency in such matters would be really a case of cited 370 witnesses in it. Till date trial Court has
misplaced sympathy. Application is rejected. not framed charge. Possibility of trial of appel-
Sultan Habib Lodhda Vs. State of Gujarat, 2024(1) lant being concluded in near future is very bleak.
Bom.C.R.(Cri.)(J.) (GUJ.)41. A case for grant of bail to appellant has been made
Narcotic Drugs and Psychotropic Substances out. Appeal is allowed. Gautam P. Navlakha Vs.
Act, 1985 – Secs. 15, 15C, 22, 22C & 29 – Bail – National Investigating Agency, 2024(1)
Application for – Offence under NDPS Act – Bom.C.R.(Cri.) 527.
Accused is 29 yrs. of age – He was in custody since Negotiable Instruments Act, 1881 – Sec. 138 –
long – Charge-sheet was also filed and 21 Issuance of process – Dishonour of cheques with
witnesses to be examined in matter – Bail granted. endorsement “payment stopped by drawers” –
Sukhwinder Singh @ Bittu Vs. State of Punjab, 2024(1) Mandate under Section 202 of Cri.P.C. has been
Bom.C.R.(Cri.) (S.C.)893. ignored by Magistrate while passing order of is-
Narcotic Drugs and Psychotropic Substances suance of process – Held, non-observance of afore-
Act, 1985 – Sec. 37 – Bail application – Offence of said mandate would vitiates order. Therefore,
possession of contraband – Applicants were found merely because on appearance of accused, plea is
in possession of commercial quantity of contra- recorded, impugned order cannot be perpetuated.
band – Applicants were found in possession of Before recording plea of accused, he had ap-
proached Sessions Judge by fling Criminal Revi- Sections 269SS and 271D of I.T. Act have abso-
sion, thereby raising challenge to issuance of lutely no bearing over case in hand and, there-
process with specific objection that order is fore, impugned judgment and order of acquittal
bereft of mandate under Section 202 of Code. rendered by Magistrate is unsustainable. Im-
Criminal Writ Petitions are allowed. Ekveera pugned judgment is quashed and set aside. Ap-
Jewellers Anturli Vs. Shaunak Deepak Kulkarni, peal is allowed. Arti Rajesh Karangutkar Vs. Anna
2024(1) Bom.C.R.(Cri.) (A.B.)492. Rocky Fernandes, 2024(1) Bom.C.R.(Cri.) 616.
Negotiable Instruments Act, 1881 – Sec. 138 – Negotiable Instruments Act, 1881 – Secs. 138 &
Cancellation of bail – High Court of Judicature at 141 – Dishonour of Cheque –Independent/Profes-
Bombay cancelling order of suspension of sen- sional Directors – Proof – Petitioner challenged
tence and bail granted to appellant as they vio- orders of issuance of process against petitioners
lated undertaking given before High Court – Both in proceedings instituted under Sections 138 &
appellant and intervenor were Chairman and 141 of N.I. Act – Cheques of accused-Company,
Vice-Chairman of company AGPL and, therefore, issued towards price of goods purchased, re-
were convicted by trial Court and their convic- turned unpaid remarks, “ payment stopped –
tion was affirmed by Appellate Court – Total Non-compliance of statutory demand notices –
amount agreed to be paid has not been paid and Petitioners, Directors of company resigned or put
as per order of High Court revisionists being in in papers post issuance of cheques cannot claim
default in payment of agreed amount, interim relief of quashment of proceedings in exercise of
protection granted by way of bail and suspension jurisdiction under Section 482 Cr.P.C.– Petition-
of sentence, would stand withdrawn without refers, independent directors of accused-Company
erence to Court – Behaviour of Petitioner stands – Whether petitioners can succeed on ground of
as a testament to how an individual’s nonchalant having been non-executive directors of Company
attitude towards financial responsibilities and – Petitioners are not signatories of cheques in ques-
Court orders can undermine essence of judicial tions nor did they hold a position of Managing
efficacy – High Court took a firm stance against Director or Executive Director of Company, when
appellant’s continued failure to fulfil his financial cheques in question were issued – Section 2(47)
obligations, culminating in cancellation of his bail defines term “independent director” to mean an
and suspension of sentence – Held, no any ille- independent director referred to in sub-section (6)
gality found in impugned order. Appeal is dis- of Section 149 of Companies Act – Documents, in
missed. Satish P. Bhatt Vs. State of Maharashtra, nature of Minutes of Annual General Meeting of
2024(1) Bom.C.R.(Cri.) (S.C.)593. Company – And copies of Form No. DIR-II
Negotiable Instruments Act, 1881 – Sec. 138 – downloaded from website of Registrar of Com-
Appeal against acquittal – Dishonoured of cheque panies have been placed on record – Being ster-
due to insufficiency of funds – Held, no person ling incontrovertible material or acceptable cir-
should accept any loan or deposit of a sum of Rs. cumstances to substantiate claim of petitioners
20,000 or more otherwise than by an account being independent-Professional Directors – Peti-
payee cheque or account payee bank draft. Provi- tioners, being independent/professional directors,
sion does not say that a person cannot advance could not be said to have been in charge of and
more than Rs. 20,000 in cash to another person. were responsible to Company for conduct of busi-
Restriction on cash advances was, in fact, on taker ness of Company when cheques in question were
and not on person who makes an advance. Pen- issued – Continuation of proceedings, under Sec-
alty for taking such advance or deposit in contra- tion 138 against them would be abuse of process
vention of provisions of Section 269SS of IT Act of Court – Held, impugned orders of issuance of
was to be suffered by taker who accepts advance. process, set aside. Petition allowed. Chirag
Magistrate has wrongly invoked aforesaid provi- Janardan Doshi Vs. State of Maharashtra, 2024(1)
sions while dismissing complaint. Provisions of Bom.C.R.(Cri.) 475.
Negotiable Instruments Act, 1881 – Secs. 138 & Jihad – Held, delay of trial is a relevant factor while
145(2) – Dishonour of Cheque – Cross-examina- examining plea for bail of accused. A bail restrict-
tion of complainant – Trial Court vide order re- ing clause cannot denude jurisdiction of a Con-
jected applications under Section 145(2) of Act stitutional Court in testing if continued detention
made by Petitioner-original accused for cross-ex- in a given case would breach concept of liberty
amination of Respondent 1-complainant – Ac- enshrined in Article 21 of Constitution of India.
cused denied case set up by Respondent 1 in ap- Appellant is incarcerated on basis of evidence for
plication filed by him under Section 145(2) of NI more than 13 years. Appeal is allowed. Mirza
Act – Trial Court, committed error in observing Himayat Beig @ Umar Vs. State of Maharashtra,
that Petitioner is silent on specific ground of de- 2024(1) Bom.C.R.(Cri.) 198.
fence or point on which he wishes to cross-exam- Prevention of Corruption Act, 1988 – Secs. 7, 12
ine complainant – Averments made in applica- & 13 – Demand and acceptance of bribe – Acquit-
tion are sufficient to bring case of Petitioner within tal – Allegation that appellant-accused attempted
ambit of expression ‘setting up specific defence’ – to obtain illegal gratification for showing favour
Application for cross-examination of complain- to complainant by not demolishing unauthorized
ant under Section 145(2) is to be normally allowed structure in his premises – Since it has come on
– Trial Court has to be satisfied that specific de- record that after one month, when alleged de-
fence disclosed is not sham or illusory taken up mand was made, construction of complainant
only for purpose of protracting trial – Not neces- which was unauthorized was already demolished
sary for Trial Court to delve deep into merits of – No verification of demand, as alleged by com-
defence which is set up by accused – Order of Trial plainant – There was inconsistency in version of
Court, on an application under Section 145(2), complainant and panch witness about demand –
cannot in any manner have effect of defeating Incident of acceptance of bribe, witnessed by com-
absolute and unqualified right of accused to cross- plainant and panch witness, vary on several as-
examine complainant – Held, impugned order of pects and inconsistency of two versions makes
rejection of application of accused under Section prosecution case doubtful – Prosecution failed to
145(2), for cross examination of complainant not establish that demand was raised by accused for
proper hence, set aside. Petitions allowed. Rakesh not carrying demolition of unauthorized structure
Anand Singh Vs. Anil Madanmohan Gulati, 2024(1) – Further demolition is carried out by Ward Of-
Bom.C.R.(Cri.) (P.B.)263. ficer and accused was only Member of squad – It
Negotiable Instruments Act, 1881 – Sec. 139 – was not within his powers either to regularize or
Cheque dishonour complaint – Cheque was to demolish unauthorized construction – Accused,
allegedly issued by accused towards discharge of private person allegedly accepted amount on be-
liability of debt of other person owed by him to half of main accused, public servant could not be
complainant – However, complainant failed to convicted under Section 13(l)(d) read with Sec-
show assignment of liability of that other person tion 13(2) of Act – As said section can be invoked
unto accused and there being no nexus between only against public servant, who is alleged to have
issuance of said cheque and liability of accused to committed an offence of criminal misconduct –
repay outstanding amount to complainant – Thus, Admittedly, accused 2, appellant is not public
complainant failed to prove that dishonoured servant and therefore, he could not have been con-
cheque was issued by accused for discharge of victed under Section 13(1)(d) read with Section
liability. IVY Jewellery Pvt. Ltd. Vs. Chandresh 13(2) of P.C. Act and his conviction and sentence
Sampat, 2024(1) Bom.C.R.(Cri.) 651. imposed must necessarily be set aside – Neces-
Passport Act, 1950 – Sec. 12(1)(c) – Bail on ground sary ingredients of abetting offence, not proved
of long incarceration – It is alleged by said two as demand, essential feature of Section 7 of Act,
witnesses that appellant incited and instigated by public servant, itself has not been proved by
them to go to Pakistan for Hijrat i.e. training for prosecution – Conviction of accused under Sec-
tion 12 of P.C. Act, set aside – Held, impugned witness does not disclose that there was specific
judgment set aside. Both appellants stand acquit- demand by accused from complainant for per-
ted of charges levelled against them. Appeals al- forming work on day of trap – However, evidence
lowed. Anilkumar Uttareshwar Nilakhe Vs. State of of complainant mentions that he questioned ac-
Maharashtra, 2024(1) Bom.C.R.(Cri.) 148. cused as to what happened about his work – Com-
Prevention of Corruption Act, 1988 – Secs. 7 & plainant did not obtain original or certified copy
13 – Demand and acceptance of bribe – Appeal of order, passed by Assistant Charity Commis-
against conviction – Allegation that appellant-ac- sioner, even till date of trap and till his evidence
cused demanded Rs. 5,000 for not initiating ac- was recorded – Hence, question of completing
tion of seizure of tractor – Panch witness, who had work, without compliance by complainant, did
accompanied complainant at time when bribe not arise – Thus, prosecution failed to establish
amount was demanded and accepted by accused that accused demanded bribe amount and same
could not be examined by prosecution – It was was accepted by him, as bribe amount – In mat-
contended that said panch witness had expired ter of trap cases, particularly when initial part
before deposing in trial – Thus, case of prosecu- of genesis of that story of demand and negotia-
tion about demand of bribe and acceptance of tions is found to be untrustworthy – Entire pros-
amount is based on version of complainant – It ecution case must fail for simple reason that
alleged that accused folded handkerchief and told testimony of complainant by itself can never be
complainant to put amount in handkerchief – No accepted – Held, impugned judgment and or-
identification that it belongs to accused – There der of conviction set aside and appellant acquit-
was no verification of demand – Panch witness ted of all charges. Appeal allowed. Govind
was with raiding party but not with complainant Yeshwant Adsule Vs. State of Maharashtra, 2024(1)
– He was not witness to conversation between Bom.C.R.(Cri.) 104.
complainant and accused on day of trap, regard- Prevention of Corruption Act, 1988 – Secs. 7 &
ing demand and acceptance of bribe – Accused 13 – Demand and acceptance of bribe – Appeal
did not demand any documents relating to trac- against conviction – Allegation that appellant –
tor from complainant – Said circumstances create Accused, Junior Clerk in Court cases section at
doubt about prosecution case – Thus, prosecution RTO Office demanded money from complainant
failed to establish beyond doubt that accused had for return of papers of his vehicle – If application
demanded bribe amount and accepted – Held, for return of documents was prepared by com-
impugned judgment of conviction set aside and plainant, it is expected that appropriate orders
appellant acquitted of all charges. Appeal allowed. were required to be passed by concerned Officer
Bhagwan Nivrutti Wagh Vs. State of Maharashtra, for returning document to complainant – Hence,
2024(1) Bom.C.R.(Cri.) 93. question of returning document by accused to
Prevention of Corruption Act, 1988 – Secs. 7 & complainant does not arise – Accused had no au-
13 – Demand and acceptance of bribe – Appeal thority to return document to complainant at stage
against conviction – Accused was working as when he approached accused – Defence of ac-
Maintenance Surveyor and posted at Solapur – cused that complainant thrusted notes in his
Complainant is Trustee made application for en- pocket, found probable – Evidence on record
tering their names to Trust Property – Accused suffers from serious discrepancies – Evidence of
told complainant about his charges for such type complainant and panch witnesses as to demand
of work – Accused reduced amount to Rs. 1,000 – and acceptance of bribe, not inspiring confidence
Evidence of panch witness and complainant, does – Investigating Officer did not verify contents of
not inspire confidence to establish that appellant complaint before laying trap – Sanction order
had demanded bribe amount and same was ac- shows non application of mind – Evidence on
cepted by him as bribe amount – Their evidence record does not inspire confidence – It suffers from
is contradictory to each other – Evidence of panch serious discrepancies – Demand and acceptance
not established beyond reasonable doubt – Held, Prevention of Corruption Act, 1988 – Secs. 7,
impugned judgment and order convicting appel- 13(1)(d), (2) & 20 – Illegal gratification – Sanction
lant for offence punishable under Section 13(2), of prosecution – Validity of conviction – Special
read with 13(1)(d) and Section 7 of Act, set aside. Judge convicted appellant for offence punishable
Appellant acquitted of all charges. Appeal al- under Section 7 of Act and under Section 13(1)(d)
lowed. Foll. 2013(3) Bom.C.R.(Cri.) (S.C.)352; & 13(2) of Act – Held, there is variance in evidence
2015(4) Bom.C.R.(Cri.) (S.C.)523; (2014)13 S.C.C. of complainant PW1 and PW2 on material par-
55. Shafi Abdul Rahiman Kudale Vs. State of ticulars as far communication between complain-
Maharashtra, 2024(1) Bom.C.R.(Cri.) 463. ant and Accused 1 is concerned. Evidence of In-
Prevention of Corruption Act, 1988 – Secs. 7 & vestigating Officer PW4 is formal in nature. PW4
13 – Bribery is not protected by parliamentary has not verified demand prior to trap. So, he is
privilege – Courts and House exercise parallel not witness as far as demand is concerned. Prior
jurisdiction over allegations of bribery – High demand is not proved by prosecution and de-
Court declined to quash criminal proceedings mand on day of trap is also falsified by complaint
on ground that appellant had not cast her vote and evidence of shadow pancha PW2. There is
in favour of alleged bribe giver and thus, is not no valid sanction to prosecute accused persons.
entitled to protection under Article 194(2) of Granting of sanction is solemn sacrosanct act
Constitution – Would a legislator who receives which affords protection to Government servants
a bribe to cast a vote in a certain direction or against frivolous prosecutions, there is an obliga-
speak about certain issues be protected by tion on sanctioning authority to discharge its duty
parliamentary privilege – Held, bribery is not to give or withhold sanction only after having full
rendered immune under Article 105(2) of knowledge of material facts of case. Entire exer-
Constitution and corresponding provision of cise carried out, as far as sanction by sanctioning
Article 194 because a member engaging in authority PW5 is concerned, is in secrecy and it is
bribery commits a crime which is not essential not known as to who has applied his/her mind
to casting of vote or ability to decide on how and accorded sanction. On ground of sanction
vote should be cast. Same principle applies to also, prosecution fails. Evidence as to demand is
bribery in connection with a speech in House not satisfactory and proof of demand is sine qua
or a Committee. Corruption and bribery by non to prove charge. Thus, judgment and order of
members of legislatures erode probity in public conviction and sentence passed Special Judge,
life. Offence of bribery is complete at point in convicting and sentencing accused is set aside.
time when legislator accepts bribe. Appeal Appeals allowed. Prabhat Ram Ambhurkar Vs. State
stands disposed of. Sita Soren Vs. Union of India, of Maharashtra, 2024(1) Bom.C.R(Cri.) (N.B.)288.
2024(1) Bom.C.R.(Cri.) (S.C.)699(A). Prevention of Corruption Act, 1988 – Sec. 13(2)
Prevention of Corruption Act, 1988 – Secs. 7 & & (1)(d) – Discharge application – Framing of
13 – Doctrine of stare decisis – Held, doctrine of charge – Grounds to be considered – Allegation
stare decisis is not an inflexible rule of law. against accused persons in these matters is that
Judgment of majority in 1998 DGLS(SC) 464, they have conspired to cheat and defraud Syndi-
which grants immunity from prosecution to a cate Bank, to tune of Rs. 54.68 crores during year
member of legislature who has allegedly from 2004 to 2007 in respect of cash credit account
engaged in bribery for casting a vote or speaking of SIPL as well as several sanctions and in respect
has wide ramifications on public interest, of release of various credit facilities to said com-
probity in public life and parliamentary pany and thereby committed offences – Held, at
democracy. There is a grave danger of this Court stage of framing of charge Court is required to
allowing an error to be perpetuated if decision evaluate material and documents on record with
were not reconsidered. Sita Soren Vs. Union of a view to finding out if facts emerging there from,
India, 2024(1) Bom.C.R.(Cri.) (S.C.)699(B). taken at their face value, disclosed existence of all
ingredients constituting alleged offence. No any Prevention of Corruption Act, 1988 – Sec. 17 –
error found warranting interference in order Offence of bribery – Legality of investigation –
passed by trial Court discharging respondent. Competency of Investigating Officer to carry out
There were no fresh materials placed for consid- investigation was specific case of appellant before
eration before Competent Authority when sanc- Trial Court – Appellant had during course of cross-
tion was granted on fourth occasion having ear- examination of Investigating Officer clearly
lier refused sanction on as many as three occa- elicited admission from Investigation Officer that
sions. Writ Petitions are allowed. Central Bureau he did not obtain any permission from Deputy
of Investigation Vs. R. Bhuvaneswari C.N. Superintendent of Police to arrange a trap nor was
Venkataraman, 2024(1) Bom.C.R.(Cri.) 23(A). any permission was obtained from Magistrate to
Prevention of Corruption Act, 1988 – Sec. 13(2) arrange trap – Investigation is illegal as it was
& (1)(d) – Cancellation of default bail – carried by an officer not authorised to investigate
Respondents 1 and 2 have been granted default offence – Thus, conviction of appellant is liable to
bail under Section 167(2) Cr.P.C. – Chairman and be set aside. Rajaram Banderao Kulkarni Vs. State of
Managing Director, DHFL, along with 12 other Maharashtra, 2024(1) Bom.C.R.(Cri.) 767.
accused persons entered into a criminal Prevention of Corruption Act, 1988 – Sec. 19 –
conspiracy to cheat consortium of 17 banks led Previous sanction necessary for prosecution –
by Union Bank of India, and in pursuance to said Power of review can be exercised – Whether in
criminal conspiracy, said accused persons/entities absence of any new or fresh materials, Compe-
induced consortium banks to sanction huge loans tent Authority can review its earlier decision re-
aggregating to Rs. 42,000 crores approx. and fusing grant of sanction – Held, once sanction has
thereafter they siphoned off and misappropriated been granted, appropriate course for trial Court
a significant portion of funds by falsifying books would have been to test validity of sanction dur-
of account of DHFL and deliberately and ing trial and not at this stage. Present is not a case
dishonestly defaulted on repayment of legitimate where fresh materials have been collected and
dues of said consortium banks, and thereby were placed before sanctioning authority for re-
caused a wrongful loss of Rs. 34,000 crores to consideration. Sanction was earlier refused on
consortium lenders – Held, Only when a charge- three occasions by Competent Authority. Com-
sheet is not filed and investigation is kept pending, petent Authority having declined sanction to pros-
benefit of proviso appended to sub-section (2) of ecute these accused, reviewing such an order on
Section 167 of Code would be available to an basis of same materials only because investigat-
offender; once, however, a charge-sheet is filed, ing agency has its own view of materials cannot
said right ceases. Such a right does not revive only be a reason to review sanction earlier refused. No
because a further investigation remains pending circumstances exists for sustaining order reviewed
within meaning of sub-section (8) of Section 173 even within limited permissible parameters. There
of Code. Charge-sheet having been filed against were no fresh materials produced before Compe-
respondents-accused within prescribed time limit tent Authority for reconsideration. Central Bureau
and cognizance having been taken by Special of Investigation Vs. R. Bhuvaneswari C.N.
Court of offences allegedly committed by them, Venkataraman, 2024(1) Bom.C.R.(Cri.) 23(B).
respondents could not have claimed statutory Prevention of Corruption Act, 1988 – Sec. 19 –
right of default bail under Section 167(2) on Sanction to prosecute – Prior demand by accused
ground that investigation qua other accused was is not proved by prosecution, doubt is created as
pending. Both, Special Court as well as High to demand of amount as independent witness is
Court having committed serious error of law. not examined and there is no consistency between
Impugned orders is set aside. Appeal stands evidence of complainant and shadow pancha –
allowed. Central Bureau of Investigation Vs. Kapil Principles for according sanctions are not taken
Wadhawan, 2024(1) Bom.C.R.(Cri.) (S.C.)905. into consideration – Thus, entire exercise carried
out by sanctioning authority is without Prevention of Money Laundering Act, 2002 –
application of mind. Mohan Keshavrao Jayebhaye Secs. 3, 4 & 45 – Enlargement on bail – Twin con-
Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) dition under Section 45 of PMLA Act – Bail appli-
(N.B.)938. cation rejected by trial Court – Notice under MRTP
Prevention of Money Laundering Act, 2002 – Act was issued to construction made on land
Secs. 3 & 4 – Scheduled offence – Conditions prec- which was in nature of twin bungalows converted
edents to attract offences – Held, it is not neces- into a resort – Held, conditions specified under
sary that a person against whom offence under Section 45 are mandatory. They need to be com-
Section 3 is alleged must have been shown as an plied with. Court is required to be satisfied that
accused in scheduled offence. Conditions prec- there are reasonable grounds for believing that
edent for attracting offence under Section 3 of accused is not guilty of such offence and he is not
PMLA are that there must be proceeds of crime likely to commit any offence while on bail. High
in relation to scheduled offence as defined in Court while considering twin test of Section 45 of
Clause (u) of sub-section (1) of Section 3 of PMLA. PMLA has to consider broad probabilities of case,
Sadanand Gangaram Kadam Vs. Directorate of En- however, having regard to nature of accusations
forcement, 2024(1) Bom.C.R.(Cri.) 497(B). and materials on record, it is not possible to record
Prevention of Money Laundering Act, 2002 – a satisfaction that there are reasonable grounds
Secs. 3, 4 & 45 – Bail application dismissed by for believing that applicant is not guilty of such
High Court – Schedule offences – Proceedings offence. Application stands rejected. Sadanand
under PMLA are contingent on existence of sched- Gangaram Kadam Vs. Directorate of Enforcement,
uled offence, and no proceedings under PMLA 2024(1) Bom.C.R.(Cri.) 497(A).
can be continued against person in absence or in Protection of Children from Sexual Offences Act,
isolation of scheduled offence – When FIR is reg- 2012 – Sec. 4 – Appeal against conviction – Though
istered under particular offences which include actual occurrence has been proved to have taken
offences mentioned in Schedule to PMLA, it is place, except DNA evidence, there is no full proof
Court of competent jurisdiction, which would or legally acceptable evidence – Held, mere DNA
decide whether Charge is required to be framed evidence cannot be made sole basis of conviction.
against accused for scheduled offence or not – Moral conviction has no legal sanctity and what
Offences mentioned in charge-sheet by I.O. could law requires is legally acceptable evidence ruling
never be said to be final conclusion as to whether out innocence of accused. Here, such quality of
offences scheduled in PMLA existed or not, more evidence is not available. Unfortunately, case has
particularly when same were mentioned in FIR not been proved beyond reasonable doubt as
registered against accused – Held, It is only in against appellant and hence, benefit of doubt ex-
event person named in criminal activity relating tended to appellant. Six years old victim was re-
to a scheduled offence is finally absolved by a quired to be taken to various places for examina-
Court of competent jurisdiction owing to an or- tion and treatment and resultantly suffered aca-
der of discharge, acquittal or because of quashing demic loss too. Compensation has to be paid un-
of criminal case (scheduled offence) against him/ der Section 357A of Cri.P.C. Appeal is allowed.
her, there can be no action for money laundering Parvej Khan Rafik Khan Vs. State of Maharashtra,
against such a person or person claiming through 2024(1) Bom.C.R.(Cri.) (A.B.)6.
him in relation to property linked to stated sched- Protection of Children from Sexual Offences Act,
uled offence. There is neither discharge nor ac- 2012 – Secs. 4 & 6 – Rape on minor – Accused
quittal nor quashing of criminal case by Court of allegedly manipulated a minor girl, established
competent jurisdiction against one in predicate/ physical relationship with her and made her preg-
scheduled offence. Appeal is dismissed. Saumya nant – Victim is proved to be minor – DNA analy-
Chaurasia Vs. Directorate of Enforcement, 2024(1) sis of baby which established that accused and
Bom.C.R.(Cri.) (S.C.)483. victim are biological parents of child – Held, is a
ft case where accused deserve to be treated with Protection of Children from Sexual Offences
stern hand. Omkar Dattatraya Dangat Vs. State of Act, 2012 – Sec. 326 – Bail application – Bail
Maharashtra, 2024(1) Bom.C.R.(Cri.) 331. granted by trial Court – FIR registered alleging
Protection of Children from Sexual Offences gang rape, threat of making video of rape recorded
Act, 2012 – Sec. 6 – Rape on minor girl – Victim viral and extortion – Held, delay by itself would
and her mother, are lending support to each not be fatal for all times to come and criminality
other – They were together sleeping when entry attached to incident would not evaporate into thin
was forc ed by ac cused – They both are air or get extinguished by virtue of such delay. It
consistent about knife being used to threaten all depends upon facts that may unfold in given
them – Mother seems to have been taken in circumstances and same would vary from case to
another room and victim was raped by all three case. Impugned order granting bail is not only
whom she has named – Both, victim and her bereft of material particulars which would justify
mother have identified accused-appellants in grant of bail, but it seems that High Court has got
Court for taking turns in raping victim – Though swayed on ground of delay and video having not
they are subjected to cross, their evidence to extent been recovered during course of investigation and
of commission of rape has remained untouched has given a complete go by to allegation made in
and unshaken – Head-master deposed about date FIR and statement recorded under Sections 161
of birth of victim on basis of admission register in and 164 of Cr.P.C. as also testimony of prosecu-
which date of birth is recorded on basis of trix before jurisdictional Court. Impugned order
certificate issued by Gram panchayat as of practice is set aside. Appeals are allowed. Bhagwan Singh
– Medical expert has very categorically stated in Vs. Dilip Kumar @ Deepu @ Depak, 2024(1)
his examination-in-chief itself that on examination Bom.C.R.(Cri.) (S.C.)123.
of victim his overall findings were consistent with Protection of Women From Domestic Violence
sexual intercourse/assault – Prosecution has Act, 2005 – Secs. 2(a) & 22 – Claim for maintenance
established that victim was a minor and was after divorce – Maintainability – There is no
sexually ravished by accused-appellant – prohibition under D.V. Act for an aggrieved
Conviction of accused appellants proper. person against filing an Application for
Ananda Mahadu Sawant Vs. State of Maharashtra, maintenance after dissolution of marriage.
2024(1) Bom.C.R.(Cri.) (A.B.)929. Madhura Milind Gadgil Vs. Milind Neelkant Gadgil,
Protection of Children from Sexual Offences 2024(1) Bom.C.R.(Cri.) 837.
Act, 2012 – Sec. 31 – Proceeding before special Protection of Women from Domestic Violence
Court under POCSO – Applicability of Cr.P.C. Act, 2005 – Secs. 2(s), 12, 17 & 29 – Right to reside
– Provisions of Cri.P.C. including provisions as in shared household – Applicants discharged by
to bail and bonds shall apply to proceedings be- trial Court – Order of trial Court set aside by First
fore a Special Court inquiring into or trying an Appellate Court – Held, in view of sub-section
offence under POCSO Act and under any other (1) of Section 17 of DV Act, aggrieved person had
Statute including S.C. & S.T. Act. Aniket Shahadev a right to reside in shared household and as such
Labade Vs. State of Maharashtra, 2024(1) continued to have a subsisting domestic
Bom.C.R.(Cri.) (A.B.)(F.B.)155(A). relationship owning to her marriage and she being
Protection of Children from Sexual Offences daughter in law had a right to reside in shared
Act, 2012 – Sec. 31 – Right of victim to prefer ap- household. Appellate Court rightly considered
peal – In a case involving offences under both, pleadings in application and held that specific
Atrocities Act and POCSO Act, a victim thereof contentions have been made about living in a joint
does not have a right to prefer appeal under Sec- family alongwith respondents and all of them
tion 14A of Atrocities Act. Aniket Shahadev Labade having subjected aggrieved person to domestic
Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.) violence of different kinds on various occasions.
(A.B.)(F.B.)155(C). Appellate Court observed that though one person
cannot live at different places at same time he/she rights of victims have been acknowledged and in-
can certainly live in two houses situated in same corporated under Section 15A of Atrocities Act –
city. There is no infirmity in view taken by Under sub-section (3) of Section 15A, reasonable
Appellate Court. Revision application stands and timely notice must be issued to victim or their
dismissed. Rashmi Mehrotra Vs. Manvi Sheth, dependent, at first or earliest possible instance –
2024(1) Bom.C.R. (Cri.)884. No notice served on victim nor was she heard, as
Protection of Women from Domestic Violence is her substantive right under Section 15A of Act
Act, 2005 – Sec. 12 – Quashing of proceeding – – Impugned order cannot be said to be passed by
Prima facie, there are averments in complaint filed Special Judge by adopting due procedure – Le-
by Respondent under Domestic Violence Act gal Aid for Victim informant, who is member of
which cannot be discarded at this stage – Petitioner Scheduled Caste – When victim in atrocities mat-
had preferred an application before Judicial Mag- ters, served with notice, are unable to engage Ad-
istrate First Class which was purportedly an ap- vocate because of their financial constraints or oth-
plication for quashing proceedings – Magistrate erwise – Then such Special Courts should pro-
has no powers to invoke Section 482 of Cr.P.C. – vide legal aid to those victims – Legal Services
Thus, impugned orders of Magistrate and sessions Authorities Act provides for giving free legal aid
Court rejecting petitioner’s application, proper. to members of scheduled caste or scheduled tribe
Shrinath Vijay Rao Vs. Shraddha Shrinath Rao, – Held, order passed by Special Judge under
2024(1) Bom.C.R.(Cri.) (P.B.)626. Atrocities Act stands set aside. Special Judge di-
Protection of Women from Domestic Violence rected to issue notice to Respondent 2/original
Act, 2005 – Secs. 12, 18, 19, 20, 21, & 22 – Transfer informant once again as contemplated under Sec-
of case – Power of High Court to transfer cases tion 15A(3) of Atrocities Act and after giving op-
and appeals – Factors which could be kept in mind portunity of hearing to informant, should decide
while considering an application for transfer of matter on its own merits. Appeal partly allowed.
trial – Held, Section 406 of Cr.P.C. contemplates Foll. 2021 S.C.C. OnLine 1010. Raees Hanif Sayyed
that power of transfer is to be used when same is Vs. State of Maharashtra, 2024(1) Bom.C.R.(Cri.)
expedient for ends of justice. Considering (A.B.)442.
availability of transport facilities even for Scheduled Castes and Scheduled Tribes (Pre-
Respondent 1, it is more convenient to attend vention of Atrocities) Act, 1989 – Sec. 3(i) & (v) –
Court at Thane than at Junnar, District-Pune. Appeal against conviction – Though actual occur-
Application is allowed. Sonika Vishnudas Kadam rence has been proved to have taken place, except
Vs. Vishnudas Haribhau Kadam, 2024(1) DNA evidence, there is no full proof or legally
Bom.C.R.(Cri.)894. acceptable evidence – Held, mere DNA evidence
Scheduled Castes and Scheduled Tribes (Pre- cannot be made sole basis of conviction. Moral
vention of Atrocities) Act, 1989 – Secs. 3 & 15A – conviction has no legal sanctity and what law re-
Anticipatory bail – Legal Aid for victim – Allega- quires is legally acceptable evidence ruling out
tion that appellant – Accused committed forcible innocence of accused. Here, such quality of evi-
sexual intercourse on informant – Respondent 2, dence is not available. Unfortunately, case has not
married lady and having caused her pregnancy – been proved beyond reasonable doubt as against
Application by accused, against whom complaint appellant and hence, benefit of doubt extended
filed by victim informant under S.C & S.T to appellant. Six years old victim was required to
(Prevention of Atrocities) Act – Special Judge be taken to various places for examination and
ought to have considered substantive right that treatment and resultantly suffered academic loss
has been given to victim under Section 15A of too. Compensation has to be paid under Section
Atrocities Act – Victims of crime often face hur- 357A of Cri.P.C. Appeal is allowed. Parvej Khan
dles in accessing justice from stage of filing com- Rafik Khan Vs. State of Maharashtra, 2024(1)
plaint to conclusion of trial – Therefore, those Bom.C.R.(Cri.) (A.B.)6.
Scheduled Castes and Scheduled Tribes (Pre- ously appellant registered crime against inform-
vention of Atrocities) Act, 1989 – Sec. 3(2)(v) – ant under Sections 353, 504 and 506 of IPC, for
Bail application – Bail granted by trial Court – FIR obstructing in conducting survey of beneficiaries
registered alleging gang rape, threat of making under Government Scheme – From recitals of
video of rape recorded viral and extortion – Held, FIR, at relevant time, informant was standing
delay by itself would not be fatal for all times to alone on road – Appellant produced CCTV foot-
come and criminality attached to incident would age to show that at relevant time, he was not at
not evaporate into thin air or get extinguished by all present at spot of incident and false report
virtue of such delay. It all depends upon facts that lodged against him – Merely calling a person
may unfold in given circumstances and same by his caste, though may amount to insult of
would vary from case to case. Impugned order abuse to him, same cannot be said to be with
granting bail is not only bereft of material par- intent to humiliate such person – There was no
ticulars which would justify grant of bail, but it incriminating circumstances on record to point
seems that High Court has got swayed on ground out intentional insult or intimidation, with in-
of delay and video having not been recovered tent to humiliate informant within public view,
during course of investigation and has given a by appellant – No embargo of statutory bar
complete go by to allegation made in FIR and grafted under Section 18 or 18A of S.C. & S.T.
statement recorded under Sections 161 and 164 Act, applicable – It is not permissible for Court
of Cr.P.C. as also testimony of prosecutrix before to enter into roving enquiry, regarding
jurisdictional Court. Impugned order is set aside. sustainability of accusation, nurtured on behalf
Appeals are allowed. Bhagwan Singh Vs. Dilip Ku- of complainant – Held, impugned order reject-
mar @ Deepu @ Depak, 2024(1) Bom.C.R.(Cri.) ing bail applic ation liable to be
(S.C.)123. quashed. Appellant released on bail with con-
Scheduled Castes and Scheduled Tribes (Pre- ditions. Appeal allowed. 1982 Cri.L.J. 872
vention of Atrocities) Act, 1989 – Sec. 14A – Right Rel.on. Ajinkya Chandrashekhar Ghogare Vs. State
of victim to prefer appeal – In a case involving of Maharashtra, 2024(1) Bom.C.R.(Cri.) (N.B.)49.
offences under both, Atrocities Act and POCSO Scheduled Castes and Scheduled Tribes (Pre-
Act, a victim thereof does not have a right to vention of Atrocities) Act, 1989 – Secs. 18
prefer appeal under Section 14A of Atrocities & 3(1)(r) & (s) – Anticipatory bail – Rejection –
Act. Aniket Shahadev Labade Vs. State of Appeal against – Delay in lodging FIR – There
Maharashtra, 2024(1) Bom.C.R.(Cri.) was delay in lodging FIR – FIR smacks mala fides
(A.B.)(F.B.)155(C). – In past complainant filed one complainant
Scheduled Castes and Scheduled Tribes (Pre- under Atrocities Act against another person –
vention of Atrocities) Act, 1989 – Secs. 18 & Statements of witnesses were recorded under
3(1)(r) & (s) – Anticipatory bail – Rejection of – Section 164 of Cr.P.C. – Witnesses were closely
Validity – Informant filed complaint with alle- associated with complainant – No statements
gation that appellant-employee of Municipal of independent witnesses corroborating version
Corporation, abused him by caste, assaulted of complainant about abuses on caste – No ab-
him by fist and kick blows, threatened him and solute bar against grant of anticipatory bail in
attempted to strangulate neck of informant – cases under Atrocities Act if no prima facie case
Said allegations were vague in nature – Record made out or where on judicial scrutiny com-
further shows that there was previous report plaint was found to be prima facie mala fide – Bar
lodged by appellant against informant as he has under Section 18 of Atrocities Act cannot be
obstructed when appellant was discharging his invoked against appellants for depriving them
official duty – If allegations in FIR are taken into pre-arrest bail – Custodial interrogation of ap-
consideration, to attract provisions, it is alleged pellants was not necessary – Held, impugned
that appellant has called him on his caste – Previ- order set aside. Appellants entitled to be re-
leased on anticipatory bail. Appeal allowed. pugned cases registered against petitioners at
Jagdish Sajjankumar Banka Vs. State of Maharashtra, instance of Respondent 2 would be abuse of
2024(1) Bom.C.R.(Cri.) 131. process of law. Petitions are allowed. Fresenisu
Unlawful Activities (Prevention) Act, 1967 – Kabi Oncology Ltd. Vs. State of Maharashtra,
Secs. 10, 13, 15, 16, 18, 18A, 18B & 20 – Bail on 2024(1) Bom.C.R.(Cri.) (A.B.)520.
ground of long incarceration – It is alleged by Wild Life (Protection) Act, 1972 – Secs. 40(1),
said two witnesses that appellant incited and (2), 48A, 44, 49B, 51 & 51(1-A) – Appeal against
instigated them to go to Pakistan for Hijrat i.e. conviction – Admissibility of confessional state-
training for Jihad – Held, delay of trial is a rel- ment – Allegation against accused for hunting
evant factor while examining plea for bail of panther, a wild animal specified in Schedule I,
accused. A bail restricting clause cannot denude Part I(16-B) in contravention of Section 9 of Evi-
jurisdiction of a Constitutional Court in testing dence Act – These two accused have allegedly
if continued detention in a given case would removed skin and two teeth of Panther – Held,
breach concept of liberty enshrined in Article confessional statement of accused recorded by
21 of Constitution of India. Appellant is incar- Deputy Range Forest Officer is not admissible.
cerated on basis of evidence for more than 13 Officer not below rank mentioned in provision
years. Appeal is allowed. Mirza Himayat Beig @ cannot have power to do any acts provided
Umar Vs . State of Maharashtra, 2024(1) under Clauses (a) to (d) and anything done by
Bom.C.R.(Cri.) 198. Officer below rank is a nullity and has no legal
Unlawful Activities (Prevention) Act, 1967 – effect. Confession recorded by Forest Ranger is
Secs. 13, 16, 18, 20, 38, 39 & 43D(5) – Enlarge- a nullity and same has no legal effect. There is
ment on bail – Application for bail of appellant no linking evidence to prove that skin seized
rejected by trial Court – Constitutional right to was sent to FSL. FSL report, which show skin
speedy trial – Held, presence of statutory re- to be of Panther is therefore of no relevance in
strictions like Section 43D(5) of UAPA per se absence of evidence on fact that skin seized from
does not oust ability of constitutional Courts to possession of Applicants 1 & 2 was same as was
grant bail on grounds of violation of Part III of sent to FSL. Applicants are acquitted. Revision
Constitution. Appellant is entitled to have par- application is allowed. Firoz Shah Babbu Shah Vs.
ity with co-accused. Appellant is in pre-trial State of Maharashtra, 2024(1) Bom.C.R.(Cri.)
incarceration for more than three years and (N.B.)316.
eight months. Charge-sheet consists of about -----
20,000 pages in 54 Volumes and prosecution has
cited 370 witnesses in it. Till date trial Court
has not framed charge. Possibility of trial of
appellant being concluded in near future is very
bleak. A case for grant of bail to appellant has
been made out. Appeal is allowed. Gautam P.
Navlakha Vs. National Investigating Agency,
2024(1) Bom.C.R.(Cri.) 527.
Wildlife Protection Act, 1972 – Secs. 27, 29, 30,
31, 35, 39, 50, 51 & 52 – Quashing of criminal
proceedings – On detection of illicit felling of
Narkya trees offences were registered – Held,
Camptothecin is not a forest produce, hence
prosecution of petitioners in impugned crimi-
nal cases is unwarranted. Continuation of im-
DIGEST ON SUPREME COURT-CRIMINAL
NOMINAL INDEX-MARCH-24
1. State of Jharkhand Vs. Sandeep Kumar, 2024 DGLS(SC) 221, dt.6-3-2024. 35

2. XXX Vs. State of Madhya Pradesh, 2024 DGLS(SC) 219, dt. 6-3-2024. 35
3. Naeem Vs. State of Uttar Pradesh, 2024 DGLS(SC) 203, dt.5-3-2024. 35
4. Prabhat Kumar Mishra @ Prabhat Mishra Vs.
State of Uttar Pradesh, 2024 DGLS(SC) 201, dt. 5-3-2024. 36
5. Vinod Katara Vs. State of Uttar Pradesh,2024 DGLS(SC) 204, dt. 5-3-2024.36
6. Murari Lal Chhari Vs. Munishwar Singh Tomar,
2024 DGLS(SC) 191, dt. 4-3-2024. 37
7. Shazia Aman Khan Vs. State of Orissa, 2024 DGLS(SC) 188, dt. 4-3-2024. 37
8. Naresh Kumar Vs. State of Haryana, 2024 DGLS(SC) 224, dt. 22-2-2024. 37
9. Ram Singh Vs. State of Uttar Pradesh,
2024 DGLS(SC) 132 : 2024 (3) JT 37,dt. 21-2-2024. 38
10. William Stephen Vs. State of Tamil Nadu,
2024 DGLS(SC) 166 : 2024 (3) JT 32, dt. 21-2-2024. 38
11. Kalinga @ Kushal Vs. State of Karnataka By Police Inspector Hubli,
2024 DGLS(SC) 118, dt. 20-2-2024. 39
12. Mohd. Abaad Ali Vs. Directorate of Revenue Prosecution Intelligence,
2024 DGLS(SC) 119, dt. 20-2-2024. 39
13. Himanshu Sharma Vs. State of Madhya Pradesh,
2024 DGLS(SC) 141 : 2024 (3) JT 49, dt. 20-2-2024. 40
14. Farhana Vs. State of Uttar Pradesh,
2024 DGLS(SC) 122, dt. 19-2-2024. 40
15. Deepak Kumar Shrivas Vs. State of Chhattisgarh,
2024 DGLS(SC) 121, dt. 19-2-2024. 41
16. N. Manogar Vs. Inspector of Police,
2024 DGLS(SC) 140 : 2024 (3) JT 55, dt. 16-2-2024. 41
17. Navin Kumar Rai Vs. Surendra Singh,
2024 DGLS(SC) 108, dt. 14-2-2024. 41
18. Rajesh Viren Shah Vs. Redington (India) Limited, 2024 DGLS(SC) 94 :
2024 (2) JT 487, dt. 14-2-2024. 42
19. Palani Vs. State of Tamil Nadu,
2024 DGLS(SC) 93 : 2024 (2) JT 503, dt. 14-2-2024. 42
20. State through Inspector of Police, CBI - Chennai Vs.
Naresh Prasad Agarwal, 2024 DGLS(SC) 124, dt. 13-2-2024. 43
34 DIGEST ON SUPREME COURT-CRIMINAL 2024(1)
21. Tejashwi Prasad Yadav Vs. Hareshbhai Pranshankar Mehta,
2024 DGLS(SC) 87 : 2024 (2) JT 506, dt. 13-2-2024. 43
22. Directorate of Enforcement Vs. Niraj Tyagi,
2024 DGLS(SC) 88, dt. 13-2-2024. 43
23. Mallappa Vs. State of Karnataka,
2024 DGLS(SC) 78 : 2024 (2) JT 433, dt. 12-2-2024. 44
24. Directorate of Enforcement Vs. Bablu Sonkar,
2024 DGLS(SC) 109, dt. 9-2-2024. 44
25. Mamidi Anil Kumar Reddy Vs. State of Andhra Pradesh,
2024 DGLS(SC) 110, dt. 5-2-2024. 45
26. Rajasekar Vs. State represented by Inspector of Police,
2024 DGLS(SC) 72, dt. 5-2-2024. 45
27. Gulshan Bajwa Vs. Registrar, High Court of Delhi,
2024 DGLS(SC) 60 : 2024 (2) JT 91, dt. 30-1-2024. 45
28. Ramalingam Vs. N. Viswanathan,
2024 DGLS(SC) 14 : 2024 (1) JT 284, dt. 18-1-2024. 46
29. Shadakshari Vs. State of Karnataka,
2024 DGLS(SC) 13, dt. 17-1-2024. 46
30. Nara Chandrababu Naidu Vs. State of Andhra Pradesh,
2024 DGLS(SC) 12 : 2024 (2) JT 163, dt. 16-1-2024. 46
31. Bilkis Yakub Rasool Vs. Union of India,
2024 DGLS(SC) 6 : 2024 (1) JT 418, dt. 8-1-2024. 47
32. Pradeep Kumar Vs. State of Haryana,
2024 DGLS(SC) 4, dt. 5-1-2024. 48
=================================================================================
*****
****
***
**
*
Bom.C.R.(Cri.) DIGEST ON SUPREME COURT-CRIMINAL 35
DIGEST ON SUPREME COURT-CRIMNINAL- MARCH- 24
1. State of Jharkhand Vs. Sandeep Kumar, 2024 DGLS(SC) 221, dt.6-3-2024.

Headline : Though grant of bail is discretionary, it calls for exercise of such discretion in
a judicious manner and not as a matter of course.
Indian Penal Code, 1860 – Secs. 419, 466, 221, 205, 109 & 120-B/34 - Copyright Act, 1957
– Secs. 65 & 68 – Code of Criminal Procedure, 1973 – Secs. 41A & 438 (2) – Cancellation of
pre-arrest bail granted by High Court – Allegation against investigating Officer in relation
to alteration in FIR - Accused is the Investigating Officer, a police officer charged with the
fiduciary duty of carrying forward investigation to its rightful conclusion so as to punish
the guilty - Respondent is alleged to have failed in this fundamental duty as a police
officer - This consideration must necessarily weigh in with the nature of the offences and
the possible punishment therefor - Presumptions and other considerations applicable to
a layperson facing criminal charges may not carry the same weight while dealing with a
police officer who is alleged to have abused his office – Held, though grant of bail is
discretionary, it calls for exercise of such discretion in a judicious manner and not as a
matter of course - In the light of these serious allegations made against no less than a
senior police officer, an essential cog in the machinery of law enforcement, the High Court
ought not to have taken a liberal view in the matter for the mere asking - Considering the
position held by the respondent, even if he was suspended from service and the
chargesheet had already been filed against him, the possibility of his tampering with the
witnesses and the evidence was sufficiently high - That apart, grant of such relief to a
police officer facing allegations of manipulating the investigation so as to favour an accused
would send out a wrong signal in society - It would be against public interest - Impugned
bail order is set aside – Appeal is allowed.
Result : In favour of appellant.
=================================================================================
2. XXX Vs. State of Madhya Pradesh, 2024 DGLS(SC) 219, dt. 6-3-2024.
Headline : Prosecutrix had given her consent for sexual relationship under
misconception, hence accused was not held to be guilty.
Code of Criminal Procedure, 1973 – Sec. 482 – Indian Penal Code, 1860 – Sec. 376(2)(n)
& 506 – Quashement of FIR – Grounds to be considered – Consensual physical relations between
parties – It is not only the consent of the complainant which is clearly evident but also of the
parents and daughter of the complainant as they were living in the same house, where allegedly
the appellant and complainant were having physical relations - Held, prosecutrix had given her
consent for sexual relationship under misconception, hence accused was not held to be guilty –
Impugned order is quashed and set aside – Appeal is allowed.
===============================================================================
3. Naeem Vs. State of Uttar Pradesh, 2024 DGLS(SC) 203, dt.5-3-2024.
Headline : Dying declaration can be the sole basis of the conviction if it inspires the full
confidence of the Court.
Indian Penal Code, 1860 – Secs. 302 & 34 – Appeal against conviction - Dying declaration
- Accused No.1 poured kerosene on the deceased and set her ablaze – Held, dying declaration
can be the sole basis of the conviction if it inspires the full confidence of the court - Court is
required to satisfy itself that the deceased was in a fit state of mind at the time of making the
statement and that it was not the result of tutoring, prompting or imagination - Where the
Court is satisfied about dying declaration being true and voluntary, it can base its conviction
without any further corroboration - There cannot be an absolute rule of law that the dying
declaration cannot form the sole basis of conviction unless it is corroborated – Rule requiring
corroboration is merely a rule of prudence - if after careful scrutiny, the court is satisfied that
it is true and free from any effort to induce the deceased to make a false statement and if it is
coherent and consistent, there shall be no legal impediment to make it basis of conviction,
even if there is no corroboration – Appeal qua accused no. 1 is dismissed.
Result : Against the accused No. 1.
========================================================================================================
4. Prabhat Kumar Mishra @ Prabhat Mishra Vs. State of Uttar Pradesh,
2024 DGLS(SC) 201, dt. 5-3-2024.
Headline : Necessary ingredients of the offence of abetment to commit suicide are not
made out from chargesheet and hence allowing prosecution of the appellant is grossly illegal.
Indian Penal Code, 1860 – Secs. 107, 306 – Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 – Sec. 3(2)(v) – Code of Criminal Procedure, 1973 – Sec.
482 – quashing of proceeding of the Criminal Case - Abetment of suicide - Deceased was
frustrated on account of work pressure and was apprehensive of various random factors
unconnected to his official duties – Held, necessary ingredients of the offence of abetment to
commit suicide are not made out from chargesheet and hence allowing prosecution of the
appellant is grossly illegal for the offences punishable under Section 306 IPC and Section
3(2)(v) of the SC/ST Act tantamounts to gross abuse of process to law - There do not exist any
justifiable ground so as to permit the prosecution of the appellant for the offences u/s 306 IPC
and Section 3(2)(v) of the SC/ST Act – Impugned orders are quashed and set aside - Appeal is
allowed.
================================================================================
5. Vinod Katara Vs. State of Uttar Pradesh,2024 DGLS(SC) 204, dt. 5-3-2024.
Headline : In the order of priorities, the date of birth certificate from the school stands
at the highest pedestal.
Juvenile Justice (Care and Protection of Children) Act, 2015 – Sec. 94 – Indian
Penal Code, 1860 – Secs. 302 & 34 – Appeal against conviction – Murder trial - Actual date
of birth of the accused petitioner is 2nd July, 1960 and the opinion of the Medical Board
that estimation of age based on X-ray examination becomes uncertain after 25 years is
apropos - Section 94(2) of the JJ Act provides for the mode of determination of age -
Held, in the order of priorities, the date of birth certificate from the school stands at the
highest pedestal whereas ossification test has been kept at the last rung to be considered,
only in the absence of the criteria Nos. 1 and 2, i.e. in absence of both certificate from
school and birth certificate issued by a Corporation/Municipal Authority/Panchayat –
Writ petition is dismissed.
Result : Against the petitioner.
==================================================================================
6. Murari Lal Chhari Vs. Munishwar Singh Tomar, 2024 DGLS(SC) 191, dt. 4-3-2024.
Headline : Cognizance was taken after the dismissal of the Contempt Petition by a
detailed order was purely an abuse of process of law.
Indian Penal Code, 1860 – Secs. 107, 141, 323, 294, 427, 341, 447, 506B & 34 – Code of
Criminal Procedure, 1973 – Secs. 200 & 202 – Cognizance of complaint – Abuse of process of
law - Allegation was that the first appellant attempted to violate the decree of the High Court in
the Second Appeal and trespass upon the suit property - High Court dismissed the Contempt
Petition - High Court held that the demarcation of the suit property was carried out exparte by
the first respondent in the absence of a representative of SAF - Magistrate passed an order
directing the cognizance to be taken under Sections 294,323, 427, 447, and 506II of IPC - Magistrate
did not record any finding on the issue of sanction – Held, cognizance was taken after the
dismissal of the Contempt Petition by a detailed order was purely an abuse of process of law -
Further prosecution of complaint was itself an abuse of the process of law, and therefore, the
High Court ought to have quashed the complaint – Appeal is allowed.
======================================================================================================
7. Shazia Aman Khan Vs. State of Orissa, 2024 DGLS(SC) 188, dt. 4-3-2024.
Headline : Welfare of the child is the focal point.
Indian Penal Code, 1860 - Secs. 363, 346, 120-B - Custody of a minor child in parens
patriae jurisdiction - Child at present is 14 years of age, living since birth with the appellants
and respondent No.10 - Respondent No.2, who is biological father of child, for restoration of
her custody – Appellant No. 1, when custody of the child was handed over to her, was un-
married and is now married having two children will also not be a deterrent for this Court to
come to conclusion that best interest of the child still remains with the appellant No. 2 as the
child is living with her ever since she was 3-4 months old and is now about 14 years of age
having no doubt in her mind that she wishes to live with them – Welfare of the child lies with
her custody with the appellants and respondent No. 10 - Even she also wishes to live there -
Keeping in view her age at present, she is capable of forming an opinion in that regard – She
cannot be treated as a chattel at the age of 14 years to hand over her custody to the respondent
No.2, where she has not lived ever since her birth – Held, stability of the child is also of
paramount consideration – Impugned order is set aside - Appeal is allowed.
================================================================================
8. Naresh Kumar Vs. State of Haryana, 2024 DGLS(SC) 224, dt. 22-2-2024.
Headline : Mere demand of money from wife or her parents for running a business
without anything more would not constitute cruelty or harassment.
Indian Penal Code,1860 – Secs. 306, 34 – Indian Evidence Act,1872 – Secs. 113A – Abet-
ment of suicide - Legality of conviction - Creditability of evidence - Deceased/wife committed
suicide on account of incessant harassment at end of her husband i.e., appellant and in such
circumstances, appellant-convict was charged with offence of abetting commission of suicide
by his wife punishable under Section 306 of IPC - High Court dismissed appeal filed by appel-
lant and thereby affirmed judgment and order of conviction passed by Additional Sessions
Judge holding appellant guilty of offence punishable under Section 306 of IPC - Whether
High Court committed any error in passing impugned judgment - Held, in order to convict a
person under Section 306 of IPC there has to be a clear mens rea to commit offence. Mere
harassment is not sufficient to hold an accused guilty of abetting commission of suicide. It
also requires an active act or direct act which led deceased to commit suicide. Legislative
mandate is that where a woman commits suicide within seven years of her marriage and it is
shown that her husband or any relative of her husband had subjected her to cruelty, pre-
sumption under Section 113A of Evidence Act may be raised, having regard to all other cir-
cumstances of case, that such suicide had been abetted by her husband or by such relative of
her husband. In absence of any cogent evidence of harassment or cruelty, an accused cannot
be held guilty for offence under Section 306 of IPC by raising presumption under Section
113A. Prosecution was not able to establish guilt of accused beyond reasonable doubt. Thus,
judgment and order of conviction passed by Trial Court as affirmed by High Court is set
aside. Appeal allowed.
=================================================================================
9. Ram Singh Vs. State of Uttar Pradesh, 2024 DGLS(SC) 132 : 2024 (3) JT 37, dt. 21-2-
2024.
Headline : When there is similar or identical evidence of eyewitnesses against two
accused by ascribing them same or similar role, court cannot convict one accused and ac-
quit other.
Indian Penal Code, 1860 – Secs. 301, 302 & 307 – Conviction for murder - Creditability
of evidence – Benefit of doubt - High Court confirmed conviction and sentence imposed on
appellant by Additional Sessions Judge, whereby appellant was convicted under Section 301
r/w S. 302 of IPC he was also convicted under Section 307 IPC - Held, evidence tendered by
eyewitnesses suffer from serious lacunae their evidence cannot be said to be credible. Mate-
rial witnesses have not been examined. Evidence tendered on behalf of the prosecution can-
not be said to be full proof so much so that non-recovery of the weapon of offence, non-
obtaining of ballistic opinion and nonexamination of ballistic expert would be immaterial. On
a careful analysis of evidence on record, appellant should be given benefit of doubt, prosecu-
tion could not prove his guilt beyond all reasonable doubt. Any lingering doubt about in-
volvement of an accused in crime he is accused of committing, must weigh on mind of court
and in such situation, benefit of doubt must be given to accused. This is more so when co-
accused is acquitted by trial court on same set of evidence. Thus, judgment and order of High
Court set aside. Appeal allowed.
=================================================================================
10. William Stephen Vs. State of Tamil Nadu, 2024 DGLS(SC) 166 : 2024 (3) JT 32,
dt. 21-2-2024.
Headline : Ingredients of Section 364A of IPC were not proved by prosecution, if pros-
ecution failed to lead cogent evidence to establish second part of Section 364A about threats
given by accused to cause death or hurt to such person.
Indian Penal Code, 1860 – Secs. 364A,34 – Indian Evidence Act, 1872 – Sec. 65B –
Kidnapping - Demand and threat - Legality of Conviction - High Court confirmed conviction
and sentence of appellants-accused for offence punishable under Section 364A r/w S. 34 of
IPC - Held, It is not brought on record by accused that there was a prior enmity or animosity
between parents of victim child and accused. There was no reason for father of victim to
falsely implicate appellants and tutor child to depose against them. Case sought to be made
out that child was tutored by his father was not rightly accepted by Courts below. It can be
said that ‘kidnapping’ within meaning of Section 361 of IPC was established by prosecution.
Hence, appellants are guilty of offence punishable under Section 363 of IPC. Demand and
threat by accused have not been established by prosecution. Thus, conviction and sentence of
appellants for offence punishable under Section 364A of IPC is set aside and it is held that
appellants are guilty of offence punishable under Section 363 of IPC. Appeals partly allowed.
Result : Partly favour of Appellants.
=================================================================================
11. Kalinga @ Kushal Vs. State of Karnataka By Police Inspector Hubli,
2024 DGLS(SC) 118, dt. 20-2-2024.
Headline : Purpose of criminal trial is not only to ensure that an innocent person is not
punished, but it is also to ensure that the guilty does not escape unpunished.
Indian Penal Code, 1860 – Secs. 201, 302, 363, 364 & 34 – Appeal against conviction -
High Court reversed the order of acquittal and convicted the appellant - A reasonable doubt
is essentially a serious doubt in the case of the prosecution and minor inconsistencies are
not to be elevated to the status of a reasonable doubt - A reasonable doubt is one which
renders the possibility of guilt as highly doubtful – Held, purpose of criminal trial is not
only to ensure that an innocent person is not punished, but it is also to ensure that the
guilty does not escape unpunished - A judge owes this duty to the society and effective
performance of this duty plays a crucial role in securing the faith of the common public in
rule of law - Every case, wherein a guilty person goes unpunished due to any lacuna on
the part of the investigating agency, prosecution or otherwise, shakes the conscience of
the society at large and diminishes the value of the rule of law - Inconsistencies in the case
of the prosecution are not minor inconsistencies - Prosecution has miserably failed to establish
a coherent chain of circumstances - Present case does not fall in the category of a light-hearted
acquittal, which is shunned upon in law - High Court has erred in reversing the decision of
acquittal - Appeal stands disposed of.
=======================================================================================
12. Mohd. Abaad Ali Vs. Directorate of Revenue Prosecution Intelligence,
2024 DGLS(SC) 119, dt. 20-2-2024.
Headline : Benefit of Section 5 read with Sections 2 and 3 of the Limitation Act, 1963 can
be availed in an appeal against acquittal.
Limitation Act, 1963 – Secs. 2 to 5 – Customs Act, 1962 - Sec. 135(1)(b) – Code of Criminal
Procedure, 1973 - Secs. 378 & 482 - Belated appeal against acquittal filed by public servant - An
application was then moved by the present appellant before the High Court under Section 482
of CrPC for recalling of the said order on grounds that Section 5 of the Limitation Act would not
apply in case of an appeal against acquittal since the period of filing an appeal against acquittal,
has been prescribed under Section 378(5) of CrPC itself, where there is no provision for
condonation of delay - By order Delhi High Court nonetheless dismissed the application for
recall filed by the appellant, although no reasons were assigned while dismissing the application
under Section 482 – Where a special law prescribes a period of limitation, Section 5 of the
Limitation Act would have no application, subject only to the language used in the special
statute - In the present case, there is no such exclusionary provision under Section 378 of CrPC,
or at any other place in the Code – Held, benefit of Section 5 read with Sections 2 and 3 of the
Limitation Act, 1963 can therefore be availed in an appeal against acquittal - There is no force in
the contentions raised by the appellants as regards the non-application of Section 5 of the
Limitation Act in the present case – Appeal is dismissed.
Result : Against the appellant.
=================================================================================
13. Himanshu Sharma Vs. State of Madhya Pradesh, 2024 DGLS(SC) 141 :
2024 (3) JT 49, dt. 20-2-2024.
Headline : Order granting bail can only be set aside on grounds of being illegal or
contrary to law by court superior to Court which granted bail and not by same Court.
Indian Penal Code, 1960 – Secs. 419, 420, 467, 468, 470 471 – Code of Criminal Proce-
dure, 1973 – Sec. 439(2) – Arms Act, 1959 – Secs. 25,27 – Cheating - Cancellation of bail -
Jurisdiction - Single Judge cancelled bail gated to appellants who were arrested for offences
punishable under SS. 419, 420, 467, 468, 470 and 471 of IPC and under S. 25 27 of Arms Act -
Held, under normal circumstances, application for cancellation of bail filed on merits as op-
posed to violation of condition of bail order should have been placed before same Single
Judge who granted bail to accused. Single Judge while passing impugned orders has virtually
reviewed order granting bail to appellant by another single judge of same High Court. Such
exercise of jurisdiction tantamount to gross impropriety. Single Judge while cancelling bail
granted to appellants did not even consider fact that charges was framed against appellants
and trial had commenced and there could not have been any requirement of appellants for
further investigation. Seven witnesses have been examined at trial. Thus, impugned orders
whereby bail granted to appellants by Single judge of High Court was cancelled, are grossly
illegal and do no stand to scrutiny. Appeals allowed.
======================================================================================
14. Farhana Vs. State of Uttar Pradesh, 2024 DGLS(SC) 122, dt. 19-2-2024.
Headline : Prosecution under Gangsters Act can be initiated even against person who
is involved in a single offence/FIR/charge-sheet for any of antisocial activities mentioned in
Section 2(b) of Gangsters Act.
Code of Criminal Procedure, 1973 – Secs. 482,7 – Uttar Pradesh Gangsters and Anti-
Social Activities(Prevention) Act, 1986 – Sec. 3(1) – Anti-social activities - Framing of charges
- Quashing of complaint - High Court rejected Criminal Miscellaneous Petition filed by appel-
lants under S. 3(1) of Act - Whether proceedings of FIR under provisions of Gangsters Act and
prosecution of accused can be continued in spite of exoneration in predicate offences covered
by Section 2(b)(i) of Gangsters Act - Held, for framing a charge for offence under Gangsters
Act and for continuing prosecution of accused under provisions, prosecution would be re-
quired to clearly state that appellants are being prosecuted for any one or more offences
covered by anti-social activities as defined under Section 2(b) of Act . There being no dispute
that in proceedings of sole FIR registered against appellants for offences under Chapter XVII
IPC being Crime Case appellants stand exonerated with quashing of said FIR by High Court
by exercising powers under Section 7, and S. 482 of Crpc. Hence, very foundation for continu-
ing prosecution of appellants under provisions of Gangsters Act stands struck off and as
consequence, continued prosecution of appellants for said offence is unjustified and
tantamounts to abuse of process of Court. Thus, impugned orders passed by High Court set
aside. Appeals allowed.
================================================================================
15. Deepak Kumar Shrivas Vs. State of Chhattisgarh, 2024 DGLS(SC) 121,
dt. 19-2-2024.
Headline : Criminal prosecution should not be allowed to continue where the object to
lodge the FIR is not for criminal prosecution.
Code of Criminal Procedure, 1973 – Secs. 173(2) & 482 – Quashement of criminal
Proceedings – Grounds to be considered – Petition for quashing criminal proceedings arising out
of FIR has dismissed by High Court – Held, criminal prosecution should not be allowed to continue
where the object to lodge the FIR is not for criminal prosecution and for punishing the offender for
the offence committed but for recovery of money under coercion – Appeal is allowed.
==========================================================================================
16. N. Manogar Vs. Inspector of Police, 2024 DGLS(SC) 140 : 2024 (3) JT 55, dt. 16-2-2024.
Headline : Only where strong and cogent evidence occurs against a person from evi-
dence laid before court that such power under Section 319 of CrPC exercised and not in casual
and cavalier manner.
Indian Penal Code, 1860 – Secs. 452, 294(b), 323 & 506(1) – Code of Criminal Proce-
dure, 1973 – Secs. 216, 319 – Impledament of parties - Framing of charges - Compliance of
provision - High Court set aside order passed by Trial Court whereunder, Trial Court re-
jected application instituted by Complainant under Section 216 & 319 of CrPC seeking sum-
moning of; and impleadment of Appellant(s) accused person(s) in connection with Case
Crime under Section(s) 452, 294(b), 323 and 506(1) of IPC - Held, High Court failed to ap-
preciate that discretionary powers under Section 319 of CrPC ought to have been used
sparingly where circumstances of case so warrant. Trial Court Order was well reasoned
and did not suffer from any perversity. Materials on record could not be said to have satis-
fied threshold more than prima facie case, as exercised at time of framing of charge but
short of evidence that if left unrebutted would lead to conviction. Thus, Impugned order
set aside. Appeal allowed.
Result : In favour of Appellant.
======================================================================================
17. Navin Kumar Rai Vs. Surendra Singh, 2024 DGLS(SC) 108, dt. 14-2-2024.
Headline : While exercising such inherent powers what is required to be examined is
only the prima facie existence of the offence sought to be quashed.
Indian Penal Code, 1860 - Secs. 420, 467, 468, & 471 – Criminal Procedure Code, 1973 –
Sec. 482 - Quashing of FIR - Initiation of criminal proceedings – Allegation of cheating against
accused persons - Penalty for making false statements, delivering false copies or translations,
false personation, and abetment - Held, while exercising such inherent powers what is required
to be examined is only the prima facie existence of the offence sought to be quashed - Exercise
of power under Section 482 Cr.P.C., in the attending facts and circumstances, was unjustified
and entirely unsustainable - FIR and the consequent case, quashed vide the impugned judgment
stand restored to the file of the concerned district Court – Criminal Appeals are allowed.
Result : In favour of appellants.
===================================================================================
18. Rajesh Viren Shah Vs. Redington (India) Limited, 2024 DGLS(SC) 94 :
2024 (2) JT 487, dt. 14-2-2024.
Headline : For fastening criminal liability, there is no presumption that every partner
knows about transaction.
Code of Criminal Procedure, 1973 – Secs. 200 & 191A – Negotiable Instruments
Act, 1881 – Sec. 138 – Companies Act, 1956 – Secs. 303(2), 264(2), 266(1)(a), & 266(1)(b)(iii)
– Dishonouring of cheque - Determination of liability - Respondent Company resigned
appellants from Directorship for offence of dishonouring of cheque - Appellant(s) filed
petition under Section 482 of CrPC which was dismissed by High Court - Whether Direc-
tor who has resigned from Directorship position as per relevant rules and statutory pro-
visions, can be held liable for certain negotiable instruments, failing realization - Held,
complainant has not placed any materials on record indicating complicity of present
appellant(s) in alleged crime. When appellant(s) had no role in issuance of instrument,
which is evident from Form 32 (Exh.P.59) issued much prior to date on which cheque was
drawn and presented for realisation. Veracity of Form-32 has neither been disputed by
Respondent nor has act of resignation simpliciter been questioned. As such, basis on which
liability is sought to be fastened upon instant appellant(s) is rendered questionable. Record
reveals resignations to have taken place. After appellant(s) have severed their ties with
RespondentCompany and, therefore, can in no way be responsible for conduct of busi-
ness at relevant time. Appellant ought to be then entitled to be discharged from prosecu-
tion. Thus, judgments of High Court set aside. Appeals allowed.
Result : In favour of Appellants.
====================================================================================
19. Palani Vs. State of Tamil Nadu, 2024 DGLS(SC) 93 : 2024 (2) JT 503, dt. 14-2-2024.
Headline : It has been proved that drugs recovered were in possession of appellant for
purpose of sale/distribution.
Drugs and Cosmetics Act, 1940 – Secs. 18 (c), 27 (b)(ii),28 – Unlicensed medicines -
Conviction - Proving of offence - Drug Inspector filed complaint as in inspection found 29
types of allopathic medicines meant for distribution without proper paperwork (license)
for sale - Trial Court convicted and sentence Appellant/Doctor under Sec. 18(A) & 28 of
Act - Lower Appellate Court had modified order of Trial Court and set aside appellant’s
conviction - High Court confirmed findings of Lower Appellate Court - Held, there is not
serious challenge to conviction itself. However, it is submitted that appellant, being doc-
tor, had no ill intention (mens rea) to contravene law and undertake any action which
may be scuttling statutory provisions. It In such a situation, non-disclosure of name of
manufacturer/person from whom said medicines were acquired, cannot be said to be
endangering public interest (which obviously, is primary object of prohibition in law) by
allowing circulation of such substances unauthorizedly. Appellant is a doctor and impos-
ing a sentence of imprisonment would be unjustified, particularly when intent to sell/
distribute under Section 18(c) of Act was held unproven. Therefore, impugned judgment
modified and, set aside sentence of imprisonment as awarded, and instead thereof, im-
pose fine of Rs.1,00,000/- on Appellant. Appeal Partly allowed.
Result : Partly in favour of appellant.
=================================================================================
20. State through Inspector of Police, CBI - Chennai Vs. Naresh Prasad Agarwal,
2024 DGLS(SC) 124, dt. 13-2-2024.
Headline : Retaining file of a case for a period of 5 months after demitting the office is
an act of gross impropriety on the part of the learned Judge.
Code of Criminal Procedure, 1973 - Sec. 482 – Exercise of inherent power by High
Court - Single Judge of the Madras High Court decided two proceedings by the impugned
judgment - First was a petition u/s 482 of CrPC for quashing the charge sheet - Second was a
Criminal Revision Application challenging the order by which an application for discharge
made by the respondents in the same case was rejected by the impugned judgment - Held,
retaining file of a case for a period of 5 months after demitting the office is an act of gross
impropriety on the part of the learned Judge – Justice must not only be done, but must also be
seen to be done - Impugned judgment is set aside – Matter remitted to High Court for fresh
decision - Appeals are partly allowed.
Result : Partly in favour of appellants.
=================================================================================
21. Tejashwi Prasad Yadav Vs. Hareshbhai Pranshankar Mehta, 2024 DGLS(SC) 87 :
2024 (2) JT 506, dt. 13-2-2024.
Headline : Every prosecution for defamation cannot be quashed on the ground that the
offending allegations have been withdrawn.
Indian Penal Code, 1860 – Secs. 499 & 500 – Quashement of FIR - Complaint is based on
the utterances of the petitioner, which formed part of a public statement made by the petitioner
which was reported by both electronic and print media – Held, every prosecution for
defamation for offence under Section 499, which is punishable under Section 500 of the IPC,
cannot be quashed on the ground that the offending allegations have been withdrawn -
However, in this case, not only that statements have been unconditionally withdrawn, but the
petitioner has also explained the circumstances and context in which the statements were
made - Under Article 142 of the Constitution of India, Supreme Court possesses extraordinary
Constitutional powers to pass any decree or order which is necessary for doing complete
justice between the parties - In this case, the respondent appears to have been hurt in view of
the statements made by the petitioner generally about Gujarati people - Now, after the petitioner
has explained the context in which he made the statements and after withdrawal of those
statements, in the facts of the case, it is unjust to continue the prosecution – Complaint is
quashed - Petition is disposed of .
Result : In favour of petitioner .
====================================================================================
22. Directorate of Enforcement Vs. Niraj Tyagi, 2024 DGLS(SC) 88, dt. 13-2-2024.
Headline : Judicial comity and judicial discipline demands that higher courts should
follow the law.
Code of Criminal Procedure, 1973 – Secs. 438 & 482 – Indian Penal Code, 1860 - Secs.
420, 467, 468, 471, 120-B IPC, 323, 504 & 506 – Exercise of power by High Court u/s 482 of CrPC
– Investigation stayed by High Court and directing not to take coercive action against
the accused pending petitions under Section 482 of Cr.PC – Held, judicial comity and
judicial discipline demands that higher courts should follow the law - Extraordinary
and inherent powers of the court do not confer any arbitrary jurisdiction on the court to
act according to its whims and caprice – Impugned orders passed by the High Court
being not in consonance with the settled legal position - Impugned orders passed by
the High Court are in utter disregard and in the teeth of the said guidelines issued by
Supreme Court - Appeals stand allowed.
=================================================================================
23. Mallappa Vs. State of Karnataka, 2024 DGLS(SC) 78 : 2024 (2) JT 433, dt. 12-2-2024.
Headline : To sustain a conviction, Court must form view that accused “must have”
committed the offence, and not “may have”.
Indian Penal Code, 1860 – Secs. 147, 148, 149, 302, 307 & 504 – Appeal against
conviction –Appreciation of evidences – Exercise of power by High Court - High Court
reversed the order of acquittal and held the appellants guilty of the commission of murder
of deceased – Distinction between “may have” and “must have” is a legal distinction and
not merely a grammatical one – Held, to sustain a conviction, the Court must form the view
that the accused “must have” committed the offence, and not “may have” - High Court had
erred in reversing the decision of acquittal, without arriving at any finding of illegality or
perversity or error in the reasoning of the Trial Court - Impugned order and judgment are
set aside - Appellants are acquitted from all the charges levelled upon them – Appeal
stands disposed of .
===================================================================================
24. Directorate of Enforcement Vs. Bablu Sonkar, 2024 DGLS(SC) 109, dt. 9-2-2024.
Headline : No Bench can hear a case, unless as per the prevailing roster, the
particular case is assigned to the Bench or that the case is specially assigned to the
Bench by the Chief Justice.
Constitution of India – Arts. 32, 132 to 136, 226 & 227 – Quashement of a complaint
- Moment the Bench directed that the case was released and it should be heard afresh, the
propriety required that the Bench should not have passed any order on merits, as the
roster of the writ petition was with another Bench on that day - After releasing the case,
when admittedly there was no prayer made by the first respondent for grant of bail, the
Bench granted bail for releasing the first respondent - Even during the pendency of writ
petition, bail was not granted to the first respondent though a prayer for interim relief of
grant of bail was made in the petition - Even if such a prayer would have been made on
26.06.2023, the Bench could not have heard the prayer for bail - Only the roster Bench
could have heard the same - Held, no Bench can hear a case, unless as per the prevailing
roster, the particular case is assigned to the Bench or that the case is specially assigned to
the Bench by the Chief Justice – Impugned order by which bail was granted is set aside –
Appeal is partly allowed .
Result : Partly in favour of appellant .
================================================================================
25. Mamidi Anil Kumar Reddy Vs. State of Andhra Pradesh, 2024 DGLS(SC) 110,
dt. 5-2-2024.
Headline : High Court has a duty to consider the allegations with great care and
circumspection so as to protect against the danger of unjust prosecution.
Code of Criminal Procedure, 1973 – Sec. 482 - Dowry Prohibition Act, 1961 – Secs. 3 &
4 – Indian Penal Code, 1860 – Secs. 420, 498A, 506 - Exercise of jurisdiction u/s. 482 CrPC -
High Court refused to quash the Docket Order dated 20.07.2021 which reinitiated criminal
proceedings against Appellants – Held, in frivolous or vexatious proceedings, the Court owes
a duty to look into many other attending circumstances emerging from the record of the case
over and above the averments and, if need be, with due care and circumspection try to read in
between the lines - High Court in this case has failed to exercise due care and has mechanically
permitted the criminal proceedings to continue despite specifically finding that the allegations
are general and omnibus in nature - Appellants approached the High Court on inter alia
grounds that the proceedings were re-initiated on vexatious grounds and even highlighted
the commencement of divorce proceedings by Respondent No. 2 - High Court had a duty to
consider the allegations with great care and circumspection so as to protect against the danger
of unjust prosecution – Impugned Orders and the Docket Order are set aside - Criminal
proceedings against the Appellants are consequently quashed - Appeals stand allowed.
=================================================================================
26. Rajasekar Vs. State represented by Inspector of Police, 2024 DGLS(SC) 72, dt. 5-2-2024.
Headline - Court shall show leniency to accused, if he has served more than seven
years of his sentence.
Protection of Children from Sexual Offences (‘POCSO’) Act, 2012 – Secs. 3(a), 4 - Rape
on minor - Conviction - Legality of - High Court confirmed conviction of appellant for offences
u/S. 3(a) r/w Sec. 4 of POCSO Act - Held, at time of conviction, minimum sentence prescribed
u/Sec. 4 of POCSO Act was seven years and as on date, Appellant has already served more
than seven years of his sentence. Appellant is providing for day-to-day expenses of victim
and her child and therefore, further imprisonment will impact not only his family but also
victim’s. Thus, conviction of Appellant u/s. u/S. 3(a) & Sec. 4 of POCSO Act, 2012 is confirmed.
However, sentence imposed by Sessions Court and confirmed by High Court is modified and
reduced to period already undergone by Appellant. Appeal partly allowed.
Result : Partly In favour of Appellant.
======================================================================================
27. Gulshan Bajwa Vs. Registrar, High Court of Delhi, 2024 DGLS(SC) 60 :
2024 (2) JT 91, dt. 30-1-2024.
Headline : An apology lacking in sincerity and not evidencing contriteness, cannot
be accepted.
Contempt of Court Act, 1971 – Sec. 12 – Appeal against conviction – Practicing advocate
convicted by High Court in its suo motu contempt jurisdiction - It is unfair for any Counsel to
give any threats to the Counsel appearing on the other side, as all of them appear as officers of
the Court and assist the Court or their respective clients – He also made reckless and
unsubstantiated allegations against the judges of the High Court – Held, an apology lacking
in sincerity and not evidencing contriteness, cannot be accepted - Appellant’s conduct before
the High Court and for that matter, even before this Court, amounts to undermining system
of the law and interfering with the course of justice administration - High Court observed a
pattern in the behaviour of the appellant - He has had a habit of misbehaving with a Bench
which is not agreeing with him - Misbehaviour goes to the extent of casting aspersions and
threatening the Judges hearing the matters - Finding of conviction against the appellant
warrants no interference - Appeal is dismissed.
Result : Against appellant.
===================================================================================
28. Ramalingam Vs. N. Viswanathan, 2024 DGLS(SC) 14 : 2024 (1) JT 284,
dt. 18-1-2024.
Headline : There was no material to proceed against the appellants in the private
complaint filed by the respondent’s father, hence conviction cannot be sustained.
Code of Criminal Procedure, 1973 – Sec. 227 – Indian Penal Code, 1860 – Secs. 341, 323
& 302 – Discharge of appellants by trial court - High Court was of the view that learned Additional
District and Sessions Judge had conducted a mini-trial – Initially Judicial Magistrate had dismissed
the complaint by exercising the power under Section 203 of CrPC on the ground that the death
was not proved to be homicidal - A mini-trial was not conducted - Court has considered case
within four corners of its limited jurisdiction under Section 227 of the CrPC – Held, there was no
material to proceed against the appellants in the private complaint filed by the respondent’s
father - There was a dispute between him and the appellants over the property, and the incident
occurred when, as per the order of the Civil Court, an attempt was made to survey the property
through a government surveyor - High Court, even after referring to the post-mortem certificate,
has completely ignored the doctor's evidence - Impugned judgment and order cannot be
sustained, and same is set aside - Appeal is allowed.
=========================================================================================
29. Shadakshari Vs. State of Karnataka, 2024 DGLS(SC) 13, dt. 17-1-2024.
Headline : Section 197 Cr.PC does not extend its protective cover to every act or omission
of a public servant while in service.
Indian Penal Code, 1860 - Secs. 409, 419, 420, 423, 465, 466, 467, 468, 471, 473 , 149 & 34
– Code of Criminal Procedure, 1973 – Secs. 197 & 482 – Quashement of FIR – High Court has
quashed the complaint – Held, Section 197 Cr.PC does not extend its protective cover to every
act or omission of a public servant while in service - It is restricted to only those acts or omissions
which are done by public servants in the discharge of official duties - High Court had erred in
quashing the complaint as well as the chargesheet in its entirety – Impugned order is set aside
- Appeal is allowed.
====================================================================================================
30. Nara Chandrababu Naidu Vs. State of Andhra Pradesh, 2024 DGLS(SC) 12 :
2024 (2) JT 163, dt. 16-1-2024.
Headline : Unless a different intention is disclosed in new Act or repealing Act, a repeal
of an Act would not affect the right of the investigating agency to investigate the offences
which were covered under the repealed Act.
(A) Indian Penal Code,1860 – Secs. 120(B), 34 & 37 – Code of Criminal Procedure, 1973
– Sec. 482 – Prevention of Corruption Act, 1988 – Secs. 13(1)(c) (d) & 17A – Detention of
appellant – Rights of the investigating agency - Primarily allegation against the appellant is
facilitating diversion of public money in the approximate range of Rs.370/crores, which was
to be used for setting up of six clusters of skill development centres in Andhra Pradesh - In
this case, offences under Section 13(1)(c) and 13(1)(d) were in force when the same were
allegedly committed by the appellant - Hence, the deletion of the said provisions and the
substitution of the new offence under Section 13 by the Amendment Act, 2018 would not
affect the right of the investigating agency to investigate nor would vitiate or invalidate any
proceedings initiated against the appellant – Held, unless a different intention is disclosed in
the new Act or repealing Act, a repeal of an Act would not affect the right of the investigating
agency to investigate the offences which were covered under the repealed Act – Section 17A
would be applicable to the offences under the PC Act as amended by the Amendment Act,
2018, and not to the offences existing prior to the said amendment - Even otherwise, absence
of an approval as contemplated in Section 17A for conducting enquiry, inquiry or investigation
of the offences alleged to have been committed by a public servant in purported exercise of
his official functions or duties, would neither vitiate the proceedings nor would be a ground
to quash the proceedings or the FIR registered against such public servant – Appellant having
been implicated for the other offences under IPC also, the Special Court was completely within
its jurisdiction to pass the remand order in view of the powers conferred upon it under Section
4 and 5 of the PC Act - There was no jurisdictional error committed by the Special Court in
passing the impugned order of remand - Impugned judgment and order passed by the High
Court also does not suffer from any illegality or infirmity which would warrant interference
of this Court - Appeal is dismissed.
(B) Indian Penal Code,1860 – Secs. 120(B), 34 & 37 – Code of Criminal Procedure, 1973
– Sec. 482 –Prevention of Corruption Act, 1988 - Secs. 13(1)(c) (d) & 17A – In case of two
possible constructions of a provision in the PC Act, it would be the duty of the court to accept
the one that seeks to eradicate corruption to the one which seeks to perpetuate it - protection
against malicious prosecution which is extended in public interest, cannot become a shield to
protect corrupt officials.
Result : Against the appellant.
=================================================================================
31. Bilkis Yakub Rasool Vs. Union of India, 2024 DGLS(SC) 6 : 2024 (1) JT 418,
dt. 8-1-2024.
Headline : It is the primary duty and the highest responsibility of Court to correct
arbitrary orders at the earliest.
(A) Indian Penal Code, 1860 – Secs. 143, 147, 302, 376(2)(e), 376(2)(g) - Code of Criminal
Procedure, 1973 – Secs. 433 & 433(A) – Constitution of India – Art. 32 – Curative theory of
punishment - Remission and early release of respondent Nos.3 to 13 – Convict persons having
been found guilty of committing heinous crimes during the large-scale riots in Gujarat on
28.02.2002 and a few days thereafter which occurred in the aftermath of the burning of the
train incident in Godhra in the State of Gujarat on 27.02.2002 - Perpetrators of the crime,
including the police personnel were convicted and sentenced, the petitioner, who was aged
twenty-one years and pregnant at that time, having lost all members of her family in the
diabolical and brutal attacks, has once again approached this Court seeking justice by
challenging the en-masse remission granted to respondent Nos.3 to 13 - Respondents were all
in prison for a little over fourteen years – They had lost their right to liberty once they were
convicted and were imprisoned – But, they were released pursuant to the impugned remission
orders which have been quashed – Plea of ‘protection of the liberty’ of respondent Nos.3 to 13
cannot be accepted – Held, it is the primary duty and the highest responsibility of Court to
correct arbitrary orders at the earliest and maintain the confidence of the litigant public in the
purity of the fountain of justice and thereby respect rule of law - Rule of law must prevail. If
ultimately rule of law is to prevail and the impugned orders of remission are set-aside – Writ
petition is allowed.
(B) Indian Penal Code, 1860 – Secs. 143, 147, 302, 376(2)(e), 376(2)(g) – Code of Criminal
Procedure, 1973 – Secs. 433 & 433(A) - Constitution of India – Art. 32 – Justice cannot be done
without adherence to rule of law - Principle of justice is an inbuilt requirement of justice
delivery system and indulgence and laxity on the part of the law courts would be an
unauthorized exercise of jurisdiction and thereby, put a premium on illegal acts - Courts have
to be mindful of not only the spelling of the word “justice” but also the content of the concept
– Held, courts have to dispense justice and not justice being dispensed with. In fact, the strength
and authority of courts in India are because they are involved in dispensing justice - It should
be their life aim.
Result : In favour of petitioner.
================================================================================
32. Pradeep Kumar Vs. State of Haryana, 2024 DGLS(SC) 4, dt. 5-1-2024.
Headline : Circumstances from which conclusion of guilt is to be drawn should be fully
established.
Indian Penal Code, 1860 – Secs. 302, 34 – Conviction for murder - Circumstantial evidence
- Validity of - Trial Court convicted appellant for murder - High Court confirmed said conviction
- Held, there are no eyewitnesses, and entire case of prosecution depends upon circumstantial
evidence. There is yawning gap between charge against Appellant and evidence that
prosecution has adduced. Circumstances do not establish guilt of Appellant at all. While
principle applicable to circumstantial evidence requires that facts must be consistent with
hypothesis of guilt of accused, evidence adduced gives rise to doubts, improbabilities and
inconsistencies. Thus, prosecution has not established its case beyond reasonable doubt.
Appellant is entitled to be acquitted. Appeal allowed.
=================================================================================
*****
From 1984 to 2024(1)
1984(1) (2)
1985(1) (2) 2005(1) (2) (3) (4) (5) (6) Supp.
Mr. Abhishek Yadav 1986(1) (2) (3) 2006(1) (2) (3) (4) (5) (6) Supp.
Vice President (Sales & Marketing) 1987(1) (2) (3) 2007(1) (2) (3) (4) (5) (6) Supp.
1988(1) (2) (3) (4) 2008(1) (2) (3) (4) (5) (6) Supp.
9819809983 1989(1) (2) (3) 2009(1) (2) (3) (4) (5) (6) Supp.
1990(1) (2) (3) 2010(1) (2) (3) (4) (5) (6) Supp.
Mr. H. M. Bohra Mr. Pravin Patil Mr. Madan Rajora 1991(1) (2) (3) (4) 2011(1) (2) (3) (4) (5) (6) Supp.
Mumbai & Goa Pune, Ahmednagar, Nagpur, Akola, 1992(1) (2) (3) 2012(1) (2) (3) (4) (5) (6) Supp.
9324902994 Nandurbar & Dhule Washim & Mumbai 1993(1) (2) (3) 2013(1) (2) (3) (4) (5) (6) (7)
8419944744 9004831024 1994(1) (2) (3) (4) 2014(1) (2) (3) (4) (5) (6) (7)
1995(1) (2) (3) (4) 2015(1) (2) (3) (4) (5) (6) (7)
Mr. Rihan Shaikh Mr. Deepak Gaud Mr. Rahul Dheriya 1996(1) (2) (3) (4) (5) 2016(1) (2) (3) (4) (5) (6) (7)
Goa, Solapr & Beed Mumbai Wardha, Chandrapur, Gondia, 1997(1) (2) (3) (4) (5) (6) Supp. 2017(1) (2) (3) (4) (5) (6) (7)
9967522622 8424964674 Bhandara & Gadchiroli 1998(1) (2) (3) (4) (5) 2018(1) (2) (3) (4) (5) (6) (7)
7509958018 1999(1) (2) (3) (4) (5) 2019(1) (2) (3) (4) (5) (6)
2000(1) (2) (3) (4) (5) (6) Supp. 2020(1) (2) (3) (4) (5) (6)
Mr. Santosh Gade Mr. Amrut Khimoria Mr. Santosh Chikne 2001(1) (2) (3) (4) (5) (6) Supp. 2021(1) (2) (3) (4) (5) (6)
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Yavatmal Amravati 9819088452 2003(1) (2) (3) (4) (5) (6) Supp. 2023(1) (2) (3) (4) (5) (6)
8655537432 8108295578 2004(1) (2) (3) (4) (5) (6) Supp. 2024(1)
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Advisory Board

Hon’ble Dr. Justice S. Radhakrishnan, Hon’ble Shri. Justice Ashok N. Mody,

BOMBAY CASES REPORTER (CRIMINAL)

MARCH PART 2024(1)

3. Printer’s name : Sai Printopack Pvt. Ltd.

Address : Sai Printopack Pvt. Ltd., A-102/4,

4. Publisher’s Name : Mr. Naveen S. Malhotra

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Number of Judgments Reported

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BOMBAY CASES REPORTER (CRIMINAL)

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Citation 2024(1) Bom.C.R.(Cri.) .....

BOMBAY CASES REPORTER

Rights of copyright including the right of translation

Appeal allowed. 169.PM/IN/SG/RJ/PN

---- Per SHYAM C. CHANDAK, J.: – Present

1191. eration for taking action under the provi-

Citation 2024(1) Bom.C.R.(Cri.) .....

BOMBAY CASES REPORTER

1. State of Jharkhand Vs. Sandeep Kumar, 2024 DGLS(SC) 221, dt.6-3-2024. 35

1. State of Jharkhand Vs. Sandeep Kumar, 2024 DGLS(SC) 221, dt.6-3-2024.

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