Neeharika Infrastructure Pvt Ltd Vs State of Maharashtra and Ors on 13 Apr 2021

Posted on November 10, 2021 by ShadesOfKnife

This is a landmark judgment from the 3-judge full-bench of Supreme Court of India.

From Para 23,

23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or “no coercive steps to be adopted”, during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or “no coercive steps to be adopted” during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of “no coercive steps to be adopted” within the aforesaid parameters, the High Court must clarify what does it mean by “no coercive steps to be adopted” as the term “no coercive steps to be adopted” can be said to be too vague and/or broad which can be misunderstood and/or misapplied.

Neeharika Infrastructure Pvt Ltd Vs State of Maharashtra and Ors on 13 Apr 2021

Citations : [2021 SCC ONLINE SC 315]

Other Sources :

https://indiankanoon.org/doc/199473647/

https://www.casemine.com/judgement/in/607d22efba0bb01cbed0c0a7

https://www.indianemployees.com/judgments/details/m-s-neeharika-infrastructure-pvt-ltd-versus-state-of-maharashtra-and-others

Index of Quash judgments is here.

Amish Devgan Vs Union of India and Ors on 07 Dec 2020

Posted on October 27, 2021 by ShadesOfKnife

A division bench of Apex Court held as follows,

From Para 84,

84. Lastly, we would also like to clarify that Section 179 of the Criminal Code permits prosecution of cases in the court within whose local jurisdiction the offence has been committed or consequences have ensued. Section 186 of the Criminal Code relates to cases where two separate charge-sheets have been filed on the basis of separate FIRs and postulates that the prosecution would proceed where the first charge-sheet has been filed on the basis of the FIR that is first in point of time. Principle underlying section 186 can be applied at the pre-charge-sheet stage, that is, post registration of
FIR but before charge-sheet is submitted to the Magistrate. In such cases ordinarily the first FIR, that is, the FIR registered first in point of time, should be treated as the main FIR and others as statements under Section 162 of the Criminal Code. However, in exceptional cases and for good reasons, it will be open to the High Court or this Court, as the case may be, to treat the subsequently registered FIR as the principal FIR. However, this should not cause any prejudice, inconvenience or harassment to either the victims, witnesses or the person who is accused. We have clarified the aforesaid position to avoid any doubt or debate on the said aspect.

Amish Devgan Vs Union of India and Ors on 07 Dec 2020

Citations :

Other Sources :

https://indiankanoon.org/doc/179868451/

https://www.indianemployees.com/judgments/details/amish-devgan-versus-union-of-india-and-others

Kusum Bhatia Vs Sagar Sethi on 16 Sep 2019

Posted on October 23, 2021 by ShadesOfKnife

In a short order, the Apex Court said this,

Having heard learned counsel for both the sides on merits, we do not find any ground to interfere in the impugned order. In our considered opinion, the interest of justice would be met if the child, Kumari Preksha (aged about 16 years as of now) is awarded maintenance. Since, the petitioner is a working lady with sufficient salary, we decline to award any maintenance in her favour.

Kusum Bhatia Vs Sagar Sethi on 16 Sep 2019

Citations:

Other Sources:

https://indiankanoon.org/doc/89241961/

Here is the Lower High Court Order:

Kusum Bhatia Vs Sagar Sethi on 27 May 2016

Japani Sahoo Vs Chandra Sekhar Mohanty on 27 Jul 2007

Posted on October 16, 2021 by ShadesOfKnife

Supreme Court declared that, Limitation u/s 468 starts from the date of making the complaint and not on the date the cognizance was taken.

Reasoning

52. The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law. If that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the Court or Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalized because of the omission, default or inaction on the part of the Court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a Court of Law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of ‘litera legis’. Connecting the provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the Court may make it unsustainable and ultra vires Article 14 of the Constitution.

Conclusion

53. In view of the above, we hold that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a Court. We, therefore, overrule all decisions in which it has been held that the crucial date for computing the period of limitation is taking of cognizance by the Magistrate/Court and not of filing of complaint or initiation of criminal proceedings.

Japani Sahoo Vs Chandra Sekhar Mohanty on 27 Jul 2007

Citations :

Other Sources :

https://indiankanoon.org/doc/1432851/

https://www.casemine.com/judgement/in/5609ae4ae4b0149711413706

Surinder Mohan Vikal Vs Ascharaj Lal Chopra on 28 Feb 1978

Posted on October 16, 2021 by ShadesOfKnife

A division bench of Supreme Court held that, the defamation has to be filed with in time limitation while also referring to 468, 469 and 470 CrPC.

It would thus appear that the appellant was entitled to the benefit of sub-section (1) of section 468 which prohibits every Court from taking cognizance of an offence of the category specified in sub-section (2) after the expiry of the period of limitation. It is hardly necessary to say that statutes of limitation have legislative policy behind them. For instance, they shut out belated and dormant claims in order to save the accused from unnecessary harassment. They also save the accused from the risk of having to face trial at a time when his evidence might have been lost because of the delay on the part of the prosecutor. As has been stated, a bar to the taking of cognizance has been prescribed under section 468 of the Code of Criminal Procedure and there is no reason why the appellant should not be entitled to it in the facts and circumstances of this case.

Surinder Mohan Vikal Vs Ascharaj Lal Chopra on 28 Feb 1978

Citations : [1978 SCC 2 403], [1978 SCR 3 434], [1978 CAR 113], [1978 CRLR SC 158], [1978 SCC CR 215], [1978 AIR SC 486], [1978 AIR SC 786], [1978 AIR SC 986], [1978 SCC CRI 215], [1978 CRLJ SC 764]

Other Sources :

https://indiankanoon.org/doc/885750/

https://www.casemine.com/judgement/in/5609abcae4b014971140d573

Balraj Khanna and Ors Vs Moti Ram on 22 Apr 1971

Posted on October 16, 2021 by ShadesOfKnife

A division bench of Apex Court passed this Judgment regd

After a consideration of the various decisions referred to above, we are of the opinion that the propositions laid down in English decisions dealing with libel that the actual words alleged to be used must be stated in the indictment cannot be applied on all fours when dealing with the cases of defamation by spoken words under Section 499 I. P. C. it will be highly desirable no doubt if the actual words stated to have been used by an accused and which are alleged to be defamatory are reproduced by the complainant. The actual words used or the statements made may be reproduced verbatim by the complainant if the words are few and the statement is very brief. But in cases where the words spoken are too many or the statements made are too long, in our opinion, it will be the height of technicality to insist that the actual words and the entire statements should be reproduced verbatim. The object of having, if possible, the actual words or the statements before the court is to enable it to consider whether those words or the statements are defamatory in nature. That purpose or object will be served if the complainant is able to reproduce in his complaint or evidence in a substantial measure the words of imputation alleged to have been uttered. If the statements or the words placed before the court by the complainant are held to be not defamatory, it will mean that the complainant will have to lose. Therefore it is to his interest to get a proper adjudication from, the court that as far as possible the words spoken or the statements actually made and which he alleges to be defamatory are before the court. But a complaint cannot be thrown out on the mere ground that the actual words spoken or the statements made have not been stated in the complaint. From the point of view of accused also it is necessary that the matters alleged to be defamatory in the complaint must be so stated as to enable them to know the nature of the allegations that they have to meet.

Balraj Khanna and Ors Vs Moti Ram on 22 Apr 1971

Other Sources :

https://indiankanoon.org/doc/1946272/

https://www.casemine.com/judgement/in/5609ab73e4b014971140c842

Citations:

Dr. Dhruvaram Murlidhar Sonar Vs State of Maharashtra and Ors on 22 Nov 2018

Posted on September 25, 2021 by ShadesOfKnife

Dr. Dhruvaram Murlidhar Sonar Vs State of Maharashtra and Ors on 22 Nov 2018

Citations:

Other Sources:

Sivasankaran Vs Santhimeenal on 13 Sep 2021

Posted on September 16, 2021 by ShadesOfKnife

A division bench of Apex Court granted divorce to a husband, on the grounds of Cruelty apart from irretrievable breakdown of marriage.

From Paras 4 and 5,

4. Insofar as irretrievable breakdown of marriage is concerned, no doubt, it does not exist as a ground of divorce under the Act. The issue has been debated by the Law Commission in its various reports. Breakdown of marriage was incidentally considered by the Law Commission in its 59th report (1974), but the Commission made no specific recommendations in this regard. Thereafter in its 71st report (1978), the Law Commission departed from the fault theory of divorce to recognise situations where a marriage has completely broken down and there is no possibility of reconciliation. Neither party need individually be at fault for such a breakdown of the marriage – it may be the result of prolonged separation, clash of personalities, or incompatibility of the couple. As the Law Commission pithily noted, such marriages are ‘merely a shell out of which the substance is gone’. For such situations, the Commission recommended that the law be amended to provide for ‘irretrievable breakdown of marriage’ as an additional ground of divorce. This recommendation was reiterated by the Law Commission in its 217th Report in 2010, after undertaking a suo moto study of the legal issues involved. So far, the Law Commission’s recommendations have not been implemented. In 2010, the government introduced the Marriage Laws (Amendment) Bill, 2010, which inter alia proposed to add irretrievable breakdown of marriage as a new ground for divorce in both the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. After receiving suggestions from relevant stakeholders, the bill was amended and re- introduced as the Marriage Laws (Amendment) Bill, 2013. This bill was never passed.
5. The result is that, in appropriate cases, this court has granted decrees of divorce exercising its unique jurisdiction under Article 142 of the Constitution of India, to do complete justice between the parties. Such a course is being followed in varied kinds of cases, for instance where there are inter se allegations between the parties, in order to put a quietus to the matter, the parties withdraw these allegations and by mutual consent, this court itself grants divorce. There are also cases where the parties accept that there is an irretrievable breakdown of marriage and themselves request for a decree of divorce. One of the more difficult situations is where, in the opinion of the court, there is irretrievable breakdown of marriage but only one of the parties is willing to acknowledge the same and accept divorce on that account, while the other side seeks to oppose it even if it means carrying on with the marriage.

From Para 7,

7. A marriage is more than a seemingly simple union between two individuals. As a social institution, all marriages have legal, economic, cultural, and religious ramifications. The norms of a marriage and the varying degrees of legitimacy it may acquire are dictated by factors such as marriage and divorce laws, prevailing social norms, and religious dictates. Functionally, marriages are seen as a site for the propagation of social and cultural capital as they help in identifying kinship ties, regulating sexual behaviour, and consolidating property and social prestige. Families are arranged on the idea of a mutual expectation of support and amity which is meant to be experienced and acknowledged amongst its members. Once this amity breaks apart, the results can be highly devastating and stigmatizing. The primary effects of such breakdown are felt especially by women, who may find it hard to guarantee the same degree of social adjustment and support that they enjoyed while they were married.

From Para 14,

14. We are conscious that the Constitution Bench is examining the larger issue but that reference has been pending for the last five years. Living together is not a compulsory exercise. But marriage is a tie between two parties. If this tie is not working under any circumstances, we see no purpose in postponing the inevitability of the situation merely because of the pendency of the reference.

From Paras 17-19,

17. There are episodes of further harassment by the respondent even at the place of work of the appellant including insulting the appellant in front of students and professors, as is apparent from the judgment of the Trial Court. She is stated to have threatened the appellant of physical harm in front of his colleagues as per the testimony of PW.3 and complained to the appellant’s employer threatening to file a criminal complaint against him (PW.3). The first appellate court somehow brushed aside these incidents as having not been fully established on a perception of wear and tear of marriage. The moot point is that the marriage has not taken of from its inception. There can hardly be any ‘wear and tear of marriage’ where parties have not been living together for a long period of time. The parties, undisputedly, never lived together even for a day.
18. We are, thus, faced with a marriage which never took of from the first day. The marriage was never consummated and the parties have been living separately from the date of marriage for almost 20 years. The appellant remarried after 6 years of the marriage, 5 years of which were spent in Trial Court proceedings. The marriage took place soon after the decree of divorce was granted. All mediation efforts have failed.
19. In view of the legal position which we have referred to aforesaid, these continuing acts of the respondent would amount to cruelty even if the same had not arisen as a cause prior to the institution of the petition, as was found by the Trial Court. This conduct shows disintegration of marital unity and thus disintegration of the marriage.10 In fact, there was no initial integration itself which would allow disintegration afterwards. The fact that there have been continued allegations and litigative proceedings and that can amount to cruelty is an aspect taken note of by this court. 11 The marriage having not taken of from its inception and 5 years having been spent in the Trial Court, it is difficult to accept that the marriage soon after the decree of divorce, within 6 days, albeit 6 years after the initial inception of marriage, amounts to conduct which can be held against the appellant.

Sivasankaran Vs Santhimeenal on 13 Sep 2021

Citations :

Other Sources :

https://indiankanoon.org/doc/48424234/

https://www.casemine.com/judgement/in/613f760f9e99febca989f9ba

https://www.indianemployees.com/judgments/details/sivasankaran-versus-santhimeenal

Rakesh and Anr Vs State of UP and Anr on 13 Aug 2014

Posted on August 30, 2021 by ShadesOfKnife

A division bench of Apex Court held as follows

From Para 2, Issue was fixed.

2. Whether a Magistrate after accepting a negative final report submitted by the Police can take action on the basis of the protest petition filed by the complainant/first informant? The above question having been answered in the affirmative by the Allahabad High Court, this appeal has been filed by the accused.

From Para 7, issue was answered.

7. If we are to go back to trace the genesis of the views expressed by this Court in Gopal Vijay Verma (supra), notice must be had of the decision of this Court in H.S. Bains vs. State (Union Territory of Chandigarh) 3 wherein it was held that after receipt of the police report under Section 173, the Magistrate has three options –
“(1) he may decide that there is no sufficient ground for proceeding further and drop action;
(2) he may take cognizance of the offence under Section 190 (1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report;
(3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.”
8. The second and third options available to the Magistrate as laid down in H.S. Bains (supra) has been referred to and relied upon in subsequent decisions of this Court to approve the action of the Magistrate in accepting the final report and at the same time in proceeding to treat either the police report or the initial complaint as the basis for further action/enquiry in the matter of the allegations levelled therein.

Rakesh and Anr Vs State of UP and Anr on 13 Aug 2014

Citations : [2014 RCR CRIMINAL SC 4 52], [2014 MPWN SC 3 73], [2014 AIR SC 3509], [2014 SCALE 9 347], [2014 AIOL 490], [2014 CRIMES SC 4 183], [2014 CRLJ SC 4195], [2014 JLJR SC 4 16], [2014 BOMCR CRI SC 4 643], [2014 SUPREME 7 286], [2014 SLT 7 183], [2014 SCC 13 133], [2014 SCC CRI 5 611], [2014 SCC ONLINE SC 619], [2014 AIC 142 75], [2014 ACR SC 3 3091], [2014 UC 3 1651], [2014 ALLCC 87 299], [2014 SCJ 9 159], [2014 ALT CRL AP 3 531], [2014 ALLMR CRI SC 3782], [2014 AJR 4 387], [2015 LW CRL 1 229], [2014 CCR SC 3 577], [2014 PLJR 4 176], [2014 MLJ CRL SC 4 113], [2014 ALL LJ 6 82]

Other Sources :

https://indiankanoon.org/doc/118305084/

https://www.casemine.com/judgement/in/5609af4be4b0149711416134

Shades of Knife

True Colors of a Vile Wife

Category: Supreme Court of India Judgment or Order or Notification

Neeharika Infrastructure Pvt Ltd Vs State of Maharashtra and Ors on 13 Apr 2021

Amish Devgan Vs Union of India and Ors on 07 Dec 2020

Kusum Bhatia Vs Sagar Sethi on 16 Sep 2019

Japani Sahoo Vs Chandra Sekhar Mohanty on 27 Jul 2007

Surinder Mohan Vikal Vs Ascharaj Lal Chopra on 28 Feb 1978

Balraj Khanna and Ors Vs Moti Ram on 22 Apr 1971

Dr. Dhruvaram Murlidhar Sonar Vs State of Maharashtra and Ors on 22 Nov 2018

Sivasankaran Vs Santhimeenal on 13 Sep 2021

Rakesh and Anr Vs State of UP and Anr on 13 Aug 2014