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In the absence of prohibitory order under Section 144 of Cr.P.C. the assembly of few persons to protest would not amount to offences under Sections 143 and 120B of IPC: Madras High Court

Case title: Simon & Ors Vs State represented by the Inspector of Police

Case no.: Crl.O.P. (MD)No.8122 of 2022 and Crl.O.P.(MD)No.8164 of 2022

Decision on: February 23rd, 2024

Quoram: Justice M. Dhandapani

Facts of the case

The Petitioners on 10.04.2022 gathered to conduct the first year homage/anniversary of the deceased Silambarasan, who died following a police chase and torture on 07.04.2021. They held continuous demonstrations with a small number of people near Anna Statue without obtaining any permission which obstructed law and order. Further, they demanded to take action against the delinquent police officers for their involvement in the illegal act leading to custodial murder of Silambarasan. The Respondent, Police Inspector registered a complaint against the petitioners for the said offences.

Legal Provisions

The Petitioners were charged under Sections 143, 341, 153, 153B (1)(c), 120B of IPC and Section 7(1)(a) of the Criminal Amendment Act, 1932 for the offences of unlawful assembly, wrongful restraint, deliberate provocation to riot and criminal conspiracy.

Contentions of the Petitioners

The Counsel submitted that the deceased Silambarasan, a history sheeted rowdy was allegedly murdered by the first respondent Police by pelting stones. Aggrieved by the inaction against the erred officials, the deceased mother filed a writ petition before this Court for exhumation of the body to conduct postmorterm. Further, the petitioners held protest against the inaction of the police which led to the present criminal cases against them. However, the Counsel contended that that all the petitioners were innocents and democratically assembled near the Anna statue to make continuous demonstrations against the police officials, which did not amont to offences under the said sections.

Contentions of the Respondents

The Counsel submitted that during the pendency of these petitions, the Police Inspector had completed the investigation, filed a charge sheet before the concerned Court and also assigned C.C. number.

Court’s Analysis and Judgement

The Court observed that at the time of protests there is no prohibitory order in place which prohibited the general public to assemble in a particular area. Therefore, it ruled that in the absence of prohibitory order under Section 144 of Cr.P.C., the assembly of few persons in front of the Anna statue to make demonstration against the respondent police will not amount to commission of the offences under the said sections. In view of the above, the Madras High Court quashed the FIR against the petitioners and allowed their petitions.

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Judgement Reviewed by – Keerthi K

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Income Tax Orders cannot be a ground to discharge the accused from Corruption Charges: Supreme Court

Case title: Puneet Sabharwal Vs CBI and R.C. Sabharwal Vs CBI

Case no.: SLP (Criminal) No. 2044 OF 2021

Decision on: March 19th, 2024

Quoram: Justice Vikram Nath and Justice K.V. Viswanathan

Facts of the case

R.C. Sabharwal, an Additional Chief Architect at NDMC, owned assets disproportionate to his known sources of income. It was alleged that he was party to criminal conspiracy wherein, he amassed assets disproportionate to his income, with his son, Puneet Sabharwal who allegedly received Rs. 79 lakhs through encashment of Special Bearer Bonds and abetted the commission of the offence as a conspirator.  This act contributed to the crime, as R.C. Sabharwal managed to purchase properties in the name of entities such as the M/s Morni Devi Brij Lal Trust and M/s Morni Merchants, among others which affirmed Puneet Sabharwal as the sole beneficiary. While Puneet Sabharwal was charged under Section 109 IPC read with Section 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988, the charge against appellant R.C. Sabharwal was under Section 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988.

The appellants approached the Delhi High Court to dismiss the charges against them. The Court dismissed the petitions based on the following reasons. (i) Puneet Sabharwal being a minor, would not by itself be a reason to disregard the fact that he was a major for 7 long years of investigation; (ii) Immunities under S. 3(2) of Special Bearer Bonds (Immunities and Exemptions) Act, 1981 do not cover charges framed under the PCA; (iii) In State of Karnataka v. Selvi J. Jayalalitha & Ors., the Supreme Court held that IT orders are apropos tax liability on income and would not mandatorily establish the lawfulness of the sources of income and thereby, the Court upheld the charges framed against the appellants. The matter was preferred before the Apex Court challenging the decision of High Court.

Issue – Whether the Courts were justified in refusing to quash the charges against the appellants?

Legal Provisions

The appellants were convicted under Section 120B IPC and Section 109 IPC read with Section 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988.

Section 13 of PCA – This provision deals with the Criminal Misconduct by a Public Servant.

Contentions of the Appellant

The Counsel for Puneet Sabharwal submitted that the Court has erred in discarding the fact that he was minor and endorsing the allegation solely on account of being named as a beneficiary in the trust deed of M/s Morni Devi Brij Lal Trust. It was contended that the criminal proceedings were saddled against appellant merely by virtue of being his father’s son. Moreover, the Court has ignored the exoneration of the appellant’s father by the ITAT. The Counsel for R.C. Sabharwal heavily relied on the ITAT order, asserting that he was not the owner of entities whose properties were wrongly added to his income. They quoted several authorities and contended that where there is exoneration on merits in a civil adjudication, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue since the underlying principle is that the standard of proof in criminal cases is higher.

Contentions of the Respondents

The Counsel submitted that at the stage of framing the charges, the availability of relevant material would suffice and the Court is not required to ascertain probative value of the evidence for convicting the accused. It was contended that the criminal prosecution does not depend upon the order of ITAT and hence, the same cannot be effectuated to nullify the order of framing charges by a criminal court. He also relied on various authorities and asserted that the findings of the IT authorities are not binding on a criminal court to readily accept the legality of the source of income.

Court’s Analysis and Judgement

The Court upon perusal of the submissions and evidence presented noted that the appellants have not made out a case for interference with the order on framing of charges. The Court observed that the decision in Selvi Jayalalitha would be fully applicable, as it examined in detail about previous rulings which laid down that the IT Returns and the Orders passed in IT Proceedings are not conclusive proof as mentioned under S.13 of Prevention of Corruption Act. The income tax returns/orders may at best be admissible as evidence, but the probative value of the same would depend on the nature of the information furnished and findings recorded. Hence, the same would not ipso facto either conclusively prove or disprove a charge.

The Court thereby held that the probative value of the Orders of the IT Authorities, including the Order of the ITAT and the subsequent Assessment Orders, are not conclusive proof which can be relied upon for discharge of the accused persons. In view of the same it upheld the decision of the High Court.

The Court, further refused accept the argument of the appellants that when there is an exoneration on merits in a civil adjudication, a criminal prosecution on the same set of facts and circumstances would not be permitted. Therefore, dismissing the appeal, the Court directed the trial to be concluded expeditiously considering its pendency for nearly 25 years.

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Judgement Reviewed by – Keerthi K

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Supreme Court holds trial proceedings being in severe violation of the Juvenile Justice Act, orders juvenile’s release.

Case title: Thirumoorthy v. State represented by the Inspector of Police

Case no.:  SLP(Crl.) No(s). 1936 of 2023.

Decided on: 22.03.2024

Quorum: Hon’ble Mr.  Justice B.R. Gavai,  Hon’ble Mr. Justice Sandeep Mehta.

FACTS OF THE CASE:

The case involves a missing 6-year-old victim, Ms. D, who is the daughter of the first informant, Mr. G (PW-1). The incident occurred on the evening of 2nd July 2016 when the victim went missing. A complaint was lodged by Mr. G (PW-1) at P.S. Kolathur, District Provision. The accused appellant, who was a CICL (Child in Conflict with Law) at the time of the incident, was convicted and sentenced by the trial court. The accused appellant’s mother filed a petition seeking a reduction in her son’s sentence and early release. The accused appellant appealed the conviction and sentencing, which was rejected by the High Court of Judicature at Madras. The legality of the trial proceedings under the Juvenile Justice Act was questioned, leading to further legal actions and appeals.

LEGAL PROVISIONS:

Section 363 IPC: The accused was sentenced to undergo 7 years of rigorous imprisonment under this section.

Section 342 IPC: The accused was sentenced to undergo 1 year of rigorous imprisonment under this section.

Section 6 POCSO Act: The accused was sentenced to undergo 10 years of rigorous imprisonment under this section.

Section 302 IPC: The accused was sentenced to undergo 10 years of rigorous imprisonment under this section.

Section 201 read with 302 IPC: The accused was sentenced to undergo 7 years of rigorous imprisonment under this section.

Juvenile Justice Act, 2015: The legal proceedings were required to be conducted in accordance with the mandatory procedures prescribed under the act.

APPELLANTS CONTENTION:

The learned counsel for the appellant implored the Court to accept the appeal, set aside the impugned judgment, and sought acquittal for the accused appellant. It was argued that the witnesses relied upon were unreliable, and the recovery of the dead body and disclosure statement were not proven by reliable evidence. The appellant’s counsel emphasized the accused’s status as a Child in Conflict with Law (CICL) at the time of the incident and raised concerns about the trial’s adherence to the Juvenile Justice Act.

RESPONDENTS CONTENTION:

The learned counsel representing the State vehemently opposed the submissions made by the appellant’s counsel. The State contended that the nature of the crime was gruesome and cited judgments from previous cases to support their arguments. The State emphasized the legality of the trial proceedings and opposed the appellant’s plea for acquittal based on the evidence presented during the trial.

COURT ANALYSIS AND JUDGMENT:

The Court examined the legality of the trial proceedings under the Juvenile Justice Act and the adherence to mandatory procedures. It considered the status of the accused as a Child in Conflict with Law (CICL) at the time of the incident. The Court reviewed the evidence presented during the trial and assessed the arguments put forth by both the appellant and the State.

The Court upheld the trial court’s decision and dismissed the appeal filed by the appellant. It found that the trial court’s actions were in violation of the mandatory requirements of the Juvenile Justice Act. The Court emphasized the importance of following proper procedures in cases involving CICL and highlighted the need for adherence to legal provisions. The appeal for acquittal was rejected, and the trial court’s judgment convicting the accused appellant was upheld.

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Judgement reviewed by – Ayush Shrivastava

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Supreme Court quashes proceedings ruling that the cognizance order based on a police inspector’s complaint was legally invalid.

Case title: Rakesh Kumar V. The State Of Bihar & Anr.

Case no.: SLP (Criminal) No. 10373 of 2018

Decided on: 19.03.2024

Quorum: Hon’ble Mr. Justice Hrishikesh Roy,  Hon’ble Mr. Justice Prashant Kumar Mishra.

FACTS OF THE CASE:

The case involves an appeal by Rakesh Kumar against an order dated 22.11.2016 under the Drugs and Cosmetics Act, 1940. The High Court dismissed a petition filed under Section 482 of Cr.P.C challenging the order. The appellant sought to quash the proceedings initiated by the Judicial Magistrate First Class, Jamui, in connection with the Lakshmipur P.S. Case No. 11 of 2016. The High Court found a prima facie case against the appellant but determined that the interference was unmerited with the cognizance order.

LEGAL PROVISIONS:

Drugs and Cosmetics Act, 1940:

Section 32(1)(a): Specifies that proceedings under this Act can only be initiated based on a complaint by a Drug Inspector.

Essential Commodities Act, 1955, Section 7: Offenses under this Act are triable by a Special Court.

Code of Criminal Procedure (CrPC): Section 482: Deals with the inherent powers of the High Court to quash proceedings.

APPELLANTS CONTENTION:

The appellant challenged the order dated 22.11.2016 under various sections of the Drugs and Cosmetics Act, 1940. The appellant sought quashing of the proceedings initiated against them in connection with the Lakshmipur P.S. Case No. 11 of 2016. The appellant argued that the police officer was not empowered to register an FIR beyond the jurisdiction of the Court of the JMFC.

RESPONDENTS CONTENTION:

The State of Bihar, represented by Mr. Samir Ali Khan, opposed the appellant’s challenge. The High Court found a prima facie case against the appellant and dismissed the petition filed under Section 482 of Cr.P.C. The respondent argued that the proceedings against the appellant were legally valid and justified.

COURT ANALYSIS AND JUDGMENT:

The Court analyzed the appellant’s challenge against the order dated 22.11.2016 under various sections of the Drugs and Cosmetics Act, 1940. It considered the role of the police officer in registering an FIR under Section 32 of the Act and the limitations based on the scheme of CrPC and the powers of the Drugs Inspector. The Court noted that the proceedings initiated against the appellant on the basis of the complaint of the Police Inspector were legally invalid.

In its judgment, the Court found the proceedings under the Drugs and Cosmetics Act, 1940 initiated against the appellant to be legally invalid. The cognizance order dated 22.11.2016 was deemed unjustified and set aside. Consequently, the Court quashed the proceedings initiated against the appellant in connection with the Lakshmipur P.S. Case No. 11 of 2016. The appeal was allowed, and any pending applications were disposed of.

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Judgement reviewed by – Ayush Shrivastava

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The Procedures under Sections 15 and 19 of Juvenile Justice Act mandatory to try the Accused as an Adult: Supreme Court

Case title: Thirumoorthy Vs State represented by the Inspector of Police

Case no.: Criminal Appeal – Arising out of SLP(Crl.) No(s). 1936 of 2023)

Decision on: March 22nd, 2024

Quoram: Justice B R Gavai and Justice Sandeep Mehta

Facts of the case

The victim, daughter of the first informant went missing when he had taken her to a shop. He registered a complaint and the investigation was undertaken by the Inspector of Police. Two of the prosecution witnesses stated that they had seen the accused appellant going with the child victim. The police, based on this suspicion apprehended him from his house. It is alleged that the accused confessed of his guilt and his admission was recorded in memo and furthermore, the dead body of Ms. D was found concealed in a wide-mouthed aluminium vessel lying in the prayer room of the house of the accused. The Post-mortem report indicated that the death of the victim was homicidal in nature having being caused by asphyxiation due to compression of neck along with injuries to genitalia.

The Police Inspector noted that the accused was a juvenile at the time of commission of offence and hence a Child in Conflict of Law (CICL) as provided under Section 2(13) of the Juvenile Justice Act, 2015. The police instead of treating him under the JJ Act directly filed a charge sheet before the Sessions Court, which was later portrayed as Children’s Court by the prosecution. The trial Court convicted and sentenced the accused for the said offences. Further, the High Court of Madras affirmed the decision of trial court. Hence, this appeal was preferred by SLP.

Legal Provisions

The accused-appellant was convicted and sentenced under the following provisions – Section 363 IPC, Section 342 IPC, Section 6 POCSO Act, Section 302 IPC Sentenced to undergo 10 years rigorous imprisonment and Section 201 read with 302 IPC.

Section 15 of JJ Act – This provision deals with the preliminary assessment into heinous crimes.

Section 19 of JJ Act – This provision deals with the removal of disqualification attaching to conviction.

Issue – Whether the trial is vitiated on the account of non-adherence to the mandatory requirements of the JJ Act?

Submission on behalf of the Appellant

The Counsel based on the school documents of the accused strongly urged that the accused was a CICL on the date of the incident. It was contended that the entire series of events from the arrest to conviction of the accused had vitiated the mandatory procedure under JJ Act. She submitted that the police who filed the charge sheet was not authorized to conduct the investigation and as such the Special Juvenile Police Unit (SJPU) constituted under the JJ Act had to investigate into the matter involving the question of CICL. In the same line, it was also submitted that the Sessions Court which conducted the trial was not designated as a Children’s Court and thus, the trial of the accused appellant was vitiated.

She further submitted that in the cases involving CICL, the Children’s Court is required find out whether there is a genuine need for trial of the CICL as an adult as provided by Section 19(1)(i) of the JJ Act, which was flouted in the instant case. The Counsel also criticized the investigation process and implored the Court to accept the appeal and sought for the acquittal of the accused appellant.

Submission on behalf of the State

The Counsel vehemently opposed the submissions made by the appellant and submitted that looking to the gruesome nature of the crime, the entire investigation and trial cannot be held to be vitiated simply on account of irregularity in the procedure of conducting investigation and trial. It was contended that the Sessions Court which conducted the trial had been designated as a Children’s Court. He relied on various authorities to support his contentions. Therefore, submitted that the Trial Court and High Court were right in convicting and sentencing the accused for the said offences and hence, the impugned judgment does not warrant any interference by this Court.

Court’s Analysis and Judgement

The Court on perusal of the reports and judgement noted that the Investigating Officer, the prosecution and the trial Court were well aware of the fact that the accused was a CICL. It delved into the relevant provisions of JJ Act and noted the according to Section 9, if a Magistrate is not empowered to exercise the powers of the Juvenile Board and notices that the accused before him is a child, then it shall conduct tests to ascertain the age of the accused and forward the same to the Board. The Court delved into Sections 15 and 19 of the JJ Act and noted that as per the sections it is mandatory to conduct preliminary assessment and decide as to whether there is a need for trial of the child as an adult or not.

In the present case, the Court however noted that the Charge sheet was accepted without following any such mandates under the said sections leading to its gross violation. Further, it noted the violation of the mandate by the Sessions Court in conducting trial of the CICL and ruled the entire proceedings to be vitiated. In light of the above analysis, the Court quashed the impugned judgement and directed the authorities to release the appellant.

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Judgement Reviewed by – Keerthi K

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