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Tag: 3-Judge (Full) Bench Decision

Vinubhai Haribhai Malaviya and Ors Vs State of Gujarat and Anr on 16 Oct 2019

Posted on June 28, 2021 by ShadesOfKnife

A landmark judgment by a Full Bench of Supreme Court of India around the question,

From Para 9,

whether, after a charge-sheet is filed by the police, the Magistrate has the power to order further investigation, and if so, up to what stage of a criminal proceeding.

From Para 25,

25. Whereas it is true that Section 156(3) remains unchanged even after the 1973 Code has been brought into force, yet the 1973 Code has one very important addition, namely, Section 173(8), which did not exist under the 1898 Code. As we have noticed earlier in this judgment, Section 2(h) of the 1973 Criminal Procedure Code defines “investigation” in the same terms as the earlier definition contained in Section 2(l) of the 1898 Criminal Procedure Code with this difference – that “investigation” after the 1973 Code has come into force will now include all the proceedings under the CrPC for collection of evidence conducted by a police officer. “All” would clearly include proceedings under Section 173(8) as well. Thus, when Section 156(3) states that a Magistrate empowered under Section 190 may order “such an investigation”, such Magistrate may also order further investigation under Section 173(8), regard being had to the definition of “investigation” contained in Section 2(h).

From Para 36,

36. Despite the aforesaid judgments, some discordant notes were sounded in three recent judgments. In Amrutbhai Shambubhai Patel v. Sumanbhai Kantibai Patel (2017) 4 SCC 177, on the facts in that case, the Appellant/Informant therein sought a direction under Section 173(8) from the Trial Court for further investigation by the police long after charges were framed against the Respondents at the culminating stages of the trial. The Court in its ultimate conclusion was correct, in that, once the trial begins with the framing of charges, the stage of investigation or inquiry into the offence is over, as a result of which no further investigation into the offence should be ordered. But instead of resting its judgment on this simple fact, this Court from paragraphs 29 to 34 resuscitated some of the earlier judgments of this Court, in which a view was taken that no further investigation could be ordered by the Magistrate in cases where, after cognizance is taken, the accused had appeared in pursuance of process being issued. In particular, Devarapalli Lakshminarayana Reddy (supra) was strongly relied upon by the Court. We have already seen how this judgment was rendered without adverting to the definition of “investigation” in Section 2(h) of the CrPC, and cannot therefore be relied upon as laying down the law on this aspect correctly.

From Para 38,

38. There is no good reason given by the Court in these decisions as to why a Magistrate’s powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep Singh (supra) having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate’s nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid-way through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi (supra). Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra) have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361 and Reeta Nag v. State of West Bengal and Ors. (2009) 9 SCC 129 also stand overruled.

From Para 43,

43. We, therefore, set aside the impugned High Court judgment insofar as it states that post-cognizance the Magistrate is denuded of power to order further investigation.

Vinubhai Haribhai Malaviya and Ors Vs State of Gujarat and Anr on 16 Oct 2019

Citations : [2019 SCC ONLINE SC 1346], [(2019) 17 SCC 1], [AIR 2019 SC 5233], [2020(1) R.C.R. (Criminal) 1], [(2019) 14 SCALE 1]

Other Sources :

https://indiankanoon.org/doc/131202146/

https://www.casemine.com/judgement/in/5da99d013321bc410549721e

https://www.indianemployees.com/judgments/details/vinubhai-haribhai-malaviya-and-ors-versus-the-state-of-gujarat-and-anr

 

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 3-Judge (Full) Bench Decision Catena of Landmark Judgments Referred/Cited to CrPC 156(3) - Any Magistrate Empowered u/s 190 May Order Such an Investigation as above-mentioned CrPC 173(8) - Magistrate can Order Further Investigation Justice Rohinton Fali Nariman Landmark Case Legal Procedure Explained - Interpretation of Statutes Overruling Judgment Reportable Judgement or Order Vinubhai Haribhai Malaviya and Ors Vs State of Gujarat and Anr | Leave a comment

Gurmeet Singh Vs State of Punjab on 28 May 2021

Posted on June 18, 2021 by ShadesOfKnife

Based on Satbir Singh case here, a 3-judge bench comprising the CJI N.V. Ramana, the appellant was held liable for the offence of 304B IPC>

Gurmeet Singh Vs State of Punjab on 28 May 2021

Citations :

Other Sources :

 

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 3-Judge (Full) Bench Decision Catena of Landmark Judgments Referred/Cited to Gurmeet Singh Vs State of Punjab IPC 304B - Dowry death Reportable Judgement or Order Satbir Singh and Anr Vs State of Haryana | Leave a comment

Bhagwat Singh Vs Commissioner of Police and Anr on 25 Apr 1985

Posted on May 11, 2021 by ShadesOfKnife

Wonderful judgment clearly states how law takes care of scenarios where the Police do not investigate a complaint/FIR.

Rule-1

If, notwithstanding the First Information Report, the officer-in-charge of a police station decides not to investigate the case on the view that there is no sufficient ground for entering on an investigation, he is required under sub-section (2) of Section 157 to notify to the informant the fact that he is not going to investigate the case because it to be investigated.

Rule-2

Then again, the officer in charge of a police station is obligated under sub-section(2)(ii) of Section 173 to communicate the action taken by him to the informant and the report forwarded by him to the magistrate under subsection (2)(i) has therefore to be supplied by him to the informant.

Rule-3

Now, when the report forwarded by the officer-in charge of a police station to the Magistrate under sub-section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things:
(1) he may accept the report and take cognizance of the offence and issue process or
(2) he may disagree with the report and drop the proceeding or
(3) he may direct further investigation under sub-section (3) of Section 156 and require the police to make a further report.

Rule-4

The report may on the other hand state that, in the opinion of the police, no offence apppears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses:
(1) he may accept the report and drop the proceeding or
(2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or
(3) he may direct further investigation to be made by the police under sub-section (3) of Section 156.

Opportunity of filing Protest Petition

We are accordingly of the view that in a case where the magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.

And finally,

It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the First Information Report has to be  communicated to the informant and a copy of the report has to be supplied to him under sub-section (2) (i) of Section 173 if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate.

Bhagwat Singh Vs Commissioner of Police and Anr on 25 Apr 1985

Citation : [1985 AIR SC 1285], [1985 SCALE 1 1194], [1985 SCC CRI 267], [1985 SCC 2 537], [1985 CRLJ SC 1179], [1985 CRIMES SC 1 994], [1985 SCR 3 942], [1986 ACR SC 10 26], [1986 AWC SC 26], [1985 BOMLR 87 421], [1985 PLJR 53], [1985 SHIMLC 260], [1985 UJ 17 820], [1985 CRI LJ 1521], [1985 UJ SC 820]

Other Sources :

https://indiankanoon.org/doc/118375/

https://www.casemine.com/judgement/in/5609ac18e4b014971140e050

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 3-Judge (Full) Bench Decision Bhagwat Singh Vs Commissioner of Police and Anr CrPC 154 - Information in Cognizable Cases CrPC 157 - Procedure for Investigation Preliminary Inquiry CrPC 173 - Report of Police Officer on Completion of Investigation Landmark Case Legal Procedure Explained - Interpretation of Statutes Reportable Judgement or Order | Leave a comment

Commissioner of Customs and Central Excise Vs Ms Hongo India (P) Ltd. and Anr on 27 Mar 2009

Posted on May 7, 2021 by ShadesOfKnife

A 3-judge bench of Apex Court held that, ‘It is well settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act.‘

From Para 20,

20) Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to High Court. It was contended before us that the words “expressly excluded” would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law here in this case is Central Excise Act. The nature of the remedy provided therein are such that the legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court. The scheme of the Central Excise Act, 1944 support the conclusion that the time limit prescribed under Section 35H(1) to make a reference to High Court is absolute and unextendable by court under Section 5 of the Limitation Act. It is well settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act.

Commissioner of Customs and Central Excise Vs Ms Hongo India (P) Ltd. and Anr on 27 Mar 2009

Citations : [2009 SCC 5 791], [2009 JT 7 83], [2009 AIR SC 2325], [2009 LW 2 495], [2009 AIOL 407], [2009 ELT SC 315 449], [2009 SCALE 4 374], [2009 SCR 4 1197], [2009 SUPREME 3 120], [2009 ITR SC 315 449], [2009 ELT SC 236 417], [2009 VST SC 24 298]

Other Sources :

https://indiankanoon.org/doc/1046996/

 

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 3-Judge (Full) Bench Decision Commissioner of Customs and Central Excise Vs Ms Hongo India (P) Ltd. and Anr Doctrine of Colourable Legislation - Exceeding the Power Entrusted with Legislative Intent must be Respect while Interpreting Statutes Reportable Judgement or Order | Leave a comment

Tata Consultancy Services Limited Vs Cyrus Investments Pvt Ltd and Ors on 26 Mar 2021

Posted on March 29, 2021 by ShadesOfKnife

 

Tata Consultancy Services Limited Vs Cyrus Investments Pvt Ltd and Ors on 26 Mar 2021

 

Cyrus Investments Pvt. Ltd. Vs Tata Sons Ltd. Ors on 06 Jan 2020

 

Cyrus Investments Pvt. Ltd. Vs Tata Sons Ltd. Ors on 18 Dec 2019
Posted in Supreme Court of India Judgment or Order or Notification | Tagged 3-Judge (Full) Bench Decision Catena of Landmark Judgments Referred/Cited to Landmark Case Reportable Judgement or Order Tata Consultancy Services Limited Vs Cyrus Investments Pvt Ltd and Ors | Leave a comment

Rakesh Kumar Paul Vs State of Assam on 16 Aug 2017

Posted on March 18, 2021 by ShadesOfKnife

A 3-judge bench of Apex Court held as follows regards to default bail u/s 167 CrPC,

From Para 4,

Therefore, the question before us is whether, pending investigation, the petitioner could be kept in custody for a maximum period of 60 days in terms of clause (ii) of proviso (a) to Section 167(2) of the Cr.P.C. or for 90 days in terms of clause (i) of proviso (a) to Section 167(2) of the Cr.P.C. without a charge sheet being filed.

From Para 25,

25. While it is true that merely because a minimum sentence is provided for in the statute it does not mean that only the minimum sentence is imposable. Equally, there is also nothing to suggest that only the maximum sentence is imposable. Either punishment can be imposed and even something in between. Where does one strike a balance? It was held that it is eventually for the court to decide what sentence should be imposed given the range available. Undoubtedly, the Legislature can bind the sentencing court by laying down the minimum sentence (not less than) and it can also lay down the maximum sentence. If the minimum is laid down, the sentencing judge has no option but to give a sentence “not less than” that sentence provided for. Therefore, thewords “not less than” occurring in Clause (i) to proviso (a) of Section 167(2) of the Cr.P.C. (and in other provisions) must be given their natural and obvious meaning which is to say, not below a minimum threshold and in the case of Section 167 of the Cr.P.C. these words must relate to an offence punishable witha minimum of 10 years imprisonment.

From Para 31,

31. In the 154th Report, the Law Commission noted that the unanimous opinion of members of the Bench and the Bar, prosecuting agencies and senior police officers during legal workshops held at various places was that the investigation of serious offences punishable with a sentence of 7 years or more should invariably be undertaken by senior officers. The Law Commission concluded, as a result of these extensive discussions, that it was desirable toseparate the investigating police from the law and order police and as many as seven reasons were given for arriving at this conclusion in Chapter II of the Report.

From Paras 40 and 41,

40. In the present case, it was also argued by learned counsel for the State that the petitioner did not apply for ‘default bail’ on or after 4th January, 2017 till 24th January, 2017 on which date his indefeasible right got extinguished on the filing of the charge sheet. Strictly speaking this is correct since the petitioner applied for regular bail on 11th January, 2017 in the Gauhati High Court – he made no specific application for grant of ‘default bail’. However, the application for regular bail filed by the accused on 11th January, 2017 did advert to the statutory period for filing a charge sheet having expired and that perhaps no charge sheet had in fact being filed. In any event, this issue was argued by learned counsel for the petitioner in the High Court and it was considered but not accepted by the High Court. The High Court did not reject the submission on the ground of maintainability but on merits. Therefore it is not as if the petitioner did not make any application for default bail – such an application was definitely made (if not in writing) then at least orally before the High Court. In our opinion, in matters of personal liberty, we cannot and  should not be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for ‘default bail’ or an oral application for ‘default bail’ is of no consequence. The concerned court must deal with such an application by considering the statutory requirements namely, whether the statutory period for filing a charge sheet or challan has expired, whether the charge sheet or challan has been filed and whether the accused is prepared to and does furnish bail.
41. We take this view keeping in mind that in matters of personal liberty and Article 21 of the Constitution, it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of this Court and other constitutional courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court.

Then finally in Paras 46 and 47,

46. It was submitted that as of today, a charge sheet having been filed against the petitioner, he is not entitled to ‘default bail’ but must apply for regular bail – the ‘default bail’ chapter being now closed. We cannot agree for the simple reason that we are concerned with the interregnum between 4th January, 2017 and 24th January, 2017 when no charge sheet had been filed, during which period he had availed of his indefeasible right of ‘default bail’. It would have been another matter altogether if the petitioner had not applied for ‘default bail’ for whatever reason during this interregnum. There could be a situation (however rare) where an accused is not prepared to be bailed out perhaps for his personal security since he or she might be facing some threat outside the correction home or for any other reason. But then in such an event, the accused voluntarily gives up the indefeasible right for default bail and having forfeited that right the accused cannot, after the charge sheet or challan has been filed, claim a resuscitation of the indefeasible right. But that is not the case insofar as the petitioner is concerned, since he did not give up his indefeasible right for ‘default bail’ during the interregnum between 4th January, 2017 and 24th January, 2017 as is evident from the decision of the High Court rendered on 11th January, 2017. On the contrary, he had availed of his right to ‘default bail’ which could not have been defeated on 11th January, 2017 and which we are today compelled to acknowledge and enforce.
47. Consequently, we are of opinion that the petitioner had satisfied all the requirements of obtaining ‘default bail’ which is that on 11th January, 2017 he had put in more than 60 days in custody pending investigations into an alleged offence not punishable with imprisonment for a minimum period of 10 years, no charge sheet had been filed against him and he was prepared to furnish bail for his release, as such, he ought to have been released by the High Court on reasonable terms and conditions of bail.

Rakesh Kumar Paul Vs State of Assam on 16 Aug 2017

Citations : [2017 SCC ONLINE SC 924], [2017 ALLCC 101 287], [2017 ACR 3 2474], [2017 ALT CRL AP 3 141], [2017 CCR SC 3 371], [2017 DLT 242 79], [2017 ILR KER 3 673], [2017 JLJR 4 37], [2017 KHC 4 470], [2017 KLT 4 284], [2017 MLJ CRL 4 62], [2017 PLJR 4 53], [2017 RCR CRIMINAL 3 996], [2017 SCALE 9 24], [2017 UC 3 1756], [2017 SCC 15 67], [2018 SCC CRI 1 401], [2017 AIR SC 3948], [2017 AIC 178 75], [2018 CRI LJ 155]

Other Sources :

https://indiankanoon.org/doc/194334432/

https://www.casemine.com/judgement/in/599a9dfd4a93262f6c14fba6

https://www.indianemployees.com/judgments/details/rakesh-kumar-paul-versus-state-of-assam

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 3-Judge (Full) Bench Decision Catena of Landmark Judgments Referred/Cited to CrPC 167 - Default Bail CrPC 167 - Default Bail on Oral request or application CrPC 439 - Special powers of High Court or Court of Session regarding bail Landmark Case Legal Procedure Explained - Interpretation of Statutes Prakash Singh and Ors Vs Union of India and Ors Rakesh Kumar Paul Vs State of Assam Reportable Judgement or Order | Leave a comment

State of Goa Vs Fouziya Shaikh on 12 Mar 2021

Posted on March 17, 2021 by ShadesOfKnife

Supreme Court said, State Election Commissioner cannot be a Government functionary as this Constitutional body is supposed to be independent body.

From Para 52,

52. Given the fact that the scheme contained in Part XV is bodily lifted into the provisions contained in Part IX-A, the powers exercised by the SEC under Article 243ZA(1) are the same as those vested in the Election Commission of India under Article 324 of the Constitution of India. As has been pointed out in Mohinder Singh Gill (supra) and the aforesaid decisions, the entire supervision and conduct of elections to municipalities is vested in a constitutional authority that is the SEC which is to supervise and conduct elections by giving orders and directions to the State Government as well as authorities that are set up under State statutes for the purpose of supervision and conduct of elections. The power thus conferred by the Constitution is a power given to the SEC not only to carry out the constitutional mandate but also to fill in gaps where there is no law or rule governing a particular
situation during the conduct of an election. The SEC, being anindependent constitutional functionary, is not only to be obeyed by the State Government and the other authorities under local State statutes,but can also approach the writ court under Articles 226 and 227 of the Constitution of India to either enforce directions or orders issued by itor to ask for appropriate orders from High Courts in that behalf.

From Para 63 (Final observations)

63. A conspectus of the aforesaid judgments in the context of municipal elections would yield the following results.
I. Under Article 243 ZG(b), no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the Legislature of a State. This would mean that from the date of notification of the election till the date of the declaration of result a judicial hands-off is mandated by the non-obstante clause contained in Article 243ZG debarring the writ court under Articles
226 and 227 from interfering once the election process has begun until it is over. The constitutional bar operates only during this period. It is therefore a matter of discretion exercisable by a writ court as to whether an interference is called for when the electoral process is “imminent” i.e, the notification for elections is yet to be announced.
II. If, however, the assistance of a writ court is required in subserving the progress of the election and facilitating its completion, the writ court may issue orders provided that the election process, once begun, cannot be postponed or protracted in any manner.
III. The non-obstante clause contained in Article 243ZG does not operate as a bar after the election tribunal decides an election dispute before it. Thus, the jurisdiction of the High Courts under Articles 226 and 227 and that of the Supreme Court under Article 136 of the Constitution of India is not affected as the non-obstante clause in Article 243ZG operates only during the process of election.
IV. Under Article 243ZA(1), the SEC is in overall charge of the superintendence, direction and control of the preparation of electoral rolls, and the conduct of all municipal elections. If there is a constitutional or statutory infraction by any authority including the State Government either before or during the election process, the SEC by virtue of its power under Article 243ZA(1) can set right such infraction. For this purpose, it can direct the State
Government or other authority to follow the Constitution or legislative enactment or direct such authority to correct an order which infracts the constitutional or statutory mandate. For this purpose, it can also approach a writ court to issue necessary directions in this behalf. It is entirely upto the SEC to set the election process in motion or, in cases where a constitutional or statutory provision is not followed or infracted, to postpone the
election process until such illegal action is remedied. This the SEC will do taking into account the constitutional mandate of holding elections before the term of a municipality or municipal council is over. In extraordinary cases, the SEC may conduct elections after such term is over, only for good reason.
V. Judicial review of a State Election Commission’s order is available on grounds of review of administrative orders. Here again, the writ court must adopt a hands-off policy while the election process is on and interfere either before the process commences or after such process is completed unless interfering with such order subserves and facilitates the progress of the election.
VI. Article 243ZA(2) makes it clear that the law made by the legislature of a State, making provision with respect to matters relating to or in connection with elections to municipalities, is subject to the provisions of the Constitution, and in particular Article 243T, which deals with reservation of seats.
VII. The bar contained in Article 243ZG(a) mandates that there be a judicial hands-off of the writ court or any court in questioning the validity of any law relating to delimitation of constituency or allotment of seats to such constituency made or purporting to be made under Article 243ZA. This is by virtue of the non-obstante clause contained in Article 243ZG. The statutory provisions dealing with delimitation and allotment of seats cannot therefore be questioned in any court. However, orders made under such statutory provisions can be questioned in courts provided the concerned statute does not give such orders the status of a statutory provision.
VIII. Any challenge to orders relating to delimitation or allotment of seats including preparation of electoral rolls, not being part of the election process as delineated above, can also be challenged in the manner provided by the statutory provisions dealing with delimitation of constituencies and allotment of seats to such constituencies.
IX. The constitutional bar of Article 243ZG(a) applies only to courts and not the State Election Commission, which is to supervise, direct and control preparation of electoral rolls and conduct elections to municipalities.
X. The result of this position is that it is the duty of the SEC to countermand illegal orders made by any authority including the State Government which delimit constituencies or allot seats to such constituencies, as is provided in proposition (IV) above. This may be done by the SEC either before or during the electoral process, bearing in mind its constitutional duty as delineated in the said proposition.

From Para 68,

68. The most disturbing feature of these cases is the subversion of the constitutional mandate contained in Article 243K of the Constitution of India. The State Election Commissioner has to be a person who is independent of the State Government as he is an important constitutional functionary who is to oversee the entire election process in the state qua panchayats and municipalities. The importance given to the independence of a State Election Commissioner is explicit from the provision for removal from his office made in the proviso to clause (2) of Article 243K. Insofar as the manner and the ground for his removal from the office is concerned, he has been equated with a Judge of a High Court. Giving an additional charge of such an
important and independent constitutional office to an officer who is directly under the control of the State Government is, in our view, a mockery of the constitutional mandate. We therefore declare that the additional charge given to a Law Secretary to the government of the state flouts the constitutional mandate of Article 243K. The State Government is directed to remedy this position by appointing an
independent person to be the State Election Commissioner at the earliest. Such person cannot be a person who holds any office or post in the Central or any State Government. It is also made clear that henceforth, all State Election Commissioners appointed under Article 243K in the length and breadth of India have to be independent persons who cannot be persons who are occupying a post or office under the Central or any State Government. If there are any such persons holding the post of State Election Commissioner in any other state, such persons must be asked forthwith to step down from such office and the State Government concerned be bound to fulfil the constitutional mandate of Article 243K by appointing only independent persons to this high constitutional office. The directions contained in this paragraph are issued under Article 142 of the Constitution of India so as to ensure that the constitutional mandate of an independent
State Election Commission which is to conduct elections under Part IX and IXA of the Constitution be strictly followed in the future.

State of Goa Vs Fouziya Shaikh on 12 Mar 2021

Citations :

Other Sources :

https://indiankanoon.org/doc/68534005/

https://www.indianemployees.com/judgments/details/state-of-goa-anr-versus-fouziya-imtiaz-shaikh-anr

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 3-Judge (Full) Bench Decision Catena of Landmark Judgments Referred/Cited to Election Matter Landmark Case Reportable Judgement or Order State Government must obey State Election Commission State of Goa Vs Fouziya Shaikh | Leave a comment

Dr. Rajesh Pratap Giri Vs State of U.P. and Anr on 05 Mar 2021

Posted on March 15, 2021 by ShadesOfKnife

A bench of three-judges categorically held that, once an Anticipatory Bail is granted it protected the grantee/accused until the end of trial and there is no need to obtain Regular Bail, after Charge sheet is filed by Police into the Court. This cites the 5-judge constitution bench decision in Sushila Aggarwal here.

From Para 2,

2. The present Criminal Appeals by way of Special Leave arise out of the impugned orders dated 11.12.2019 and 20.12.2019 passed by the Allahabad High Court. By order dated 11.12.2019, the High Court, on an application made by the complainant/respondent no. 2, indicated that the anticipatory bail granted to the appellant/accused by the Trial Court vide order dated 21.10.2019 had come to an end with the filing of a chargesheet, and directed him to surrender and apply for regular bail. The appellant subsequently filed an application for recall/modification of the order dated 11.12.2019 passed by the High Court, which was dismissed by the second impugned order dated 20.12.2019.

From Para 8,

8. In view of the above, we are of the opinion that the High Court wrongly held that the anticipatory bail granted to the appellant by the Trial Court vide order dated 21.10.2019 had come to an end with the filing of the charge­sheet. We therefore set aside the impugned orders passed by the High Court and restore the anticipatory bail granted to the appellant by the Trial Court vide order dated 21.10.2019.

Dr. Rajesh Pratap Giri Vs State of U.P. and Anr on 05 Mar 2021

Citations : [2021 LawSuit(SC) 166], [MANU/SC/0305/2021]

Other Sources :

https://indiankanoon.org/doc/161262593/

 

https://lawsuitcasefinder.com/casedetail?id=U2FsdGVkX1plo2tUxa2cMAz7KRvWCQqG8B12T11THz0P2wMgs5


Index of all Anticipatory Bail Matters is here

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 3-Judge (Full) Bench Decision CrPC 438 - Valid Duration For Anticipatory Bail Dr. Rajesh Pratap Giri Vs State of U.P. and Anr Landmark Case Legal Procedure Explained - Interpretation of Statutes No Need for Converting Anticipatory Bail into Regular Bail Reportable Judgement or Order Sushila Aggarwal and Ors Vs State (NCT of Delhi) | Leave a comment

Upkar Singh Vs Ved Prakash and Ors on 10 Sep 2004

Posted on March 11, 2021 by ShadesOfKnife

A landmark judgment from a 3-judge bench of Supreme Court, categorically declares as follows:

From Para 17,

17. It is clear from the words emphasised hereinabove in the above quotation, this Court in the case of T.T Antony v. State of Kerala has not excluded the registration of a complaint in the nature of a counter-case from the purview of the Code. In our opinion, this Court in that case only held that any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the Code because an investigation in this regard would have already started and further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence will be prohibited under section 162 of the code. This prohibition noticed by this Court, in our opinion, does not apply to counter-complaint by the accused in the first complaint or on his behalf alleging a different version of the said incident.

From Para 23,

23. Be that as it may, if the law laid down by this Court in T.T Antony case is to be accepted as holding that a second complaint in regard to the same incident filed as a counter-complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given hereinbelow i.e if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question, consequently he will be deprived of his legitimated right to bring the real accused to book. This cannot be the purport of the Code.

 

Upkar Singh Vs Ved Prakash and Ors on 10 Sep 2004

Citations : [2004 AIR SC 4320], [2004 ALD CRI 2 906], [2004 CRI LJ 4219], [2004 JCR SC 4 158], [2004 JT SC 7 488], [2004 KLT SC 3 444], [2005 OLR SC 1 43], [2004 PLJR 4 157], [2004 SCALE 7 563], [2004 CRLJ 0 4219], [2004 SCC 13 2922004 ACR 3 2450], [2005 SCC CR 0 211], [2004 SCC 1 292], [2004 JT 7 4881], [2005 JIC 1 1092005 ACC 51 673], [2004 AIR SC 3240], [2004 AIR SC 0 4320], [2004 RCR CRIMINAL 4 294], [2004 SCC 22 292], [2004 SCC 6 528], [2004 AIR SC 5017], [2005 BOMCR CRI SC 1 199], [2004 CRIMES SC 4 20], [2005 SCC CRI 211], [2004 SUPREME 6 528], [2004 ALLLJ 3436], [2004 CRLJ SC 4219], [2004 RCR CRL 4 2942004 ALL LJ 3436], [2004 CRILJ 42192004 JT 7 488], [2004 AIR SCW 5017], [2004 AIR SCW 0 4320]

Other Sources :

https://indiankanoon.org/doc/1054183/

https://www.casemine.com/judgement/in/5609adefe4b0149711412948

 

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 3-Judge (Full) Bench Decision Absurd Or After Thought Or Baseless Or False Or General Or Inherently Improbable Or Improved Or UnSpecific Or Omnibus Or Vague Allegations Abuse Or Misuse of Process of Court Article 21 - Protection of life and personal liberty Catena of Landmark Judgments Referred/Cited to Landmark Case Legal Procedure Explained - Interpretation of Statutes Reportable Judgement or Order Upkar Singh Vs Ved Prakash and Ors | Leave a comment

Krishna Lal Chawla and Ors Vs State of UP and Anr on 08 Mar 2021

Posted on March 11, 2021 by ShadesOfKnife

A division bench of Apex Court held that a second complaint/FIR against same accused person by same complaint is impermissible in law and is also violative of Article 21 of Constitution.

It is the aforementioned part of the holding in Upkar Singh that bears directly and strongly upon the present case. This Court in Upkar Singh has clearly stated that any further complaint by the same complainant against the same accused, after the case has already been registered, will be deemed to be an improvement from the original complaint. Though Upkar Singh was rendered in the context of a case involving cognizable offences, the same principle would also apply where a person gives information of a non-cognizable offence and subsequently lodges a private complaint with respect to the same offence against the same accused person. Even in a non-cognizable case, the police officer after the order of the Magistrate, is empowered to investigate the offence in the same manner as a cognizable case, except the power to arrest without a warrant. Therefore, the complainant cannot subject the accused to a double whammy of investigation by the police and inquiry before the Magistrate.

Krishna Lal Chawla and Ors Vs State of UP and Anr on 08 Mar 2021

Citations :

Other Sources :

 

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 3-Judge (Full) Bench Decision Absurd Or After Thought Or Baseless Or False Or General Or Inherently Improbable Or Improved Or UnSpecific Or Omnibus Or Vague Allegations Catena of Landmark Judgments Referred/Cited to CrPC 162 - Statements To Police Not To Be Signed - Use Of Statements In Evidence Krishna Lal Chawla and Ors Vs State of UP and Anr Landmark Case Reportable Judgement or Order Upkar Singh Vs Ved Prakash and Ors | Leave a comment

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