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Registration of Criminal Case: Violating Article 21 by Absence of Prima Facie Nexus with Alleged Crime – Karnataka High Court’s Stand

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Karnataka High Court

Vipul Prakash Patil V. State Of Karnataka & ors.

CRIMINAL PETITION NO. 104152 OF 2022 

Bench- HON’BLE MR JUSTICE V.SRISHANANDA

Decided On 30-05-2023

Facts of the case-

On the 11th of November, 2022, a complaint was filed by Shivanand S/o Channappa Magadumma with the Chikkodi Police Station. The complaint was registered as Crime No. 242/2022 under Section 9 of the Karnataka Protection of Interest Depositors in Financial Establishment Act, 2004 (referred to as the ‘KPID Act’), and under Sections 406 and 420 of the Indian Penal Code (IPC).

The essence of the complaint alleges that Pankaj Namadev Patil and Santosh Gangaram Ghodake, along with the present petitioner, made an offer to return an invested sum of Rs. 1,00,000/- within ten months in installments of Rs. 15,000/-. Based on this offer, the complainant and others invested substantial amounts of money. 

Initially, the Pinomic Company, a limited liability partnership firm, repaid the amount for a few months but subsequently stopped making the payments. Efforts made by the complainant and others to recover the money proved futile, leading them to approach the Chikkodi police and file the complaint.

After registering the case, the police are currently investigating the matter. Meanwhile, the petitioner challenges the registration of the case and seeks to quash the first information report (FIR). The petitioner contends that they are not involved in the alleged fraud in any way. 

Furthermore, the petitioner questions the registration of the case by the Chikkodi police, arguing that without a preliminary satisfaction report filed by the competent authority with the State Government, the registration of the case for the offense punishable under Section 9 of the KPID Act, or any other IPC offenses, would be unwarranted. The petitioner argues that the registration of the case infringes upon their personal liberty and constitutes an abuse of the legal process. Consequently, the petitioner seeks the quashing of further proceedings.

Relevant Provisions

The KARNATAKA PROTECTION OF INTEREST OF DEPOSITORS IN FINANCIAL ESTABLISHMENTS ACT, 2004

(KPID)

 Related to
Sec. 9

Fraudulent default by Financial Establishment.

 

Judgement

Upon reviewing the case records, the bench determined that the registration of the complaint against the present petitioner lacked prima facie documentary evidence to implicate them in the alleged fraud. Consequently, the registration of the complaint against the petitioner was deemed unnecessary and an abuse of the court’s process.

Although the documents presented by Harshawardhan M Patil, the complainant’s counsel, established that money had been received by Pankaj Namadev Patil and Santosh Gangaram Ghodake, the bench held that the complainant failed to provide any documentary evidence, at least at this stage, to establish a connection between the alleged fraud and the present petitioner.

The bench rejected the complainant’s argument that it was the responsibility of the investigating agency to thoroughly investigate the matter and submit a suitable report. It deemed such an argument on behalf of the complainant as unfounded.

Furthermore, the bench stated that no individual should undergo the ordeal of a criminal investigation unless there is substantive material connecting that person to the alleged crime.

JUDGEMENT REVIEWED BY ABHAY SHUKLA

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Limitations of Determining Shares in Succession Certificate Applications: Insights from the Karnataka High Court

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Karnataka High Court

Gangamma & ANR v. Pratibha & ANR

CIVIL REVISION PETITION NO.200010/2019

Bench- HON’BLE MR. JUSTICE C.M. JOSHI 

Decided On 21-04-2023

Facts of the case-

The respondents in this case are the wife and son of the deceased, Nagappa, whereas the revisions petitioners are the father and mother of Nagappa. Nagappa was employed as a Senior Division Assistant (SDA) at Sangameshwar Hospital. The petitioners had separated from the revisions petitioners and were residing separately with Nagappa.

Nagappa passed away on 7th November 2008, and as Class-I heirs, the petitioners have claimed their entitlement to the entire service benefits of the deceased Nagappa. To obtain these benefits, they approached Nagappa’s employers, who requested a Succession Certificate. Consequently, the Petition and Succession Case No. 33/2009 was filed.

Upon issuance of notices to the respondents and publication of citations in the newspaper, only the respondents/revision petitioners failed to appear before the court. Subsequently, the respondents/revision petitioners filed their objections, acknowledging their relationship with the petitioners. 

However, they contended that the service benefits of the deceased Nagappa amounted to Rs. 3,86,349/- instead of the Rs. 2,20,000/- mentioned in the petition. Additionally, they asserted their status as Class-I heirs of the deceased, claiming their right to a share in the service benefits of Nagappa.

The petitioners, Gangamma and Gurupadappa, claimed their entitlement as Class I heirs and asserted their right over the service benefits of the deceased Nagappa, who was employed as a Senior Division Assistant (SDA) at Sangameshwar Hospital.

However, the trial court based its decision on the Supreme Court case of Banarsi Dass vs. Teeku Datta, (2005) 4 SCC 449 and granted the application filed by the wife and son. The court determined that the wife and son were entitled to the Succession Certificate and would act as representatives for receiving the service benefits from Nagappa’s employer. The appellate court upheld this decision, prompting the parents to approach the High Court.

In the High Court, the parents argued that even though an inquiry under Section 372 of the Indian Succession Act is a summary proceeding, it does not prevent the courts from determining the rightful recipient of the Succession Certificate among the parties involved in the dispute.

They contended that excluding a person from receiving the certificate and granting it to others, while forcing the excluded party to seek their rights through separate court proceedings, would amount to a failure to apply a judicious mind to the matter.

Relevant Provisions

Indian Succession Act Related to
Sec. 372 Application for certificate
Sec. 373 Procedure on application

Judgement

The bench observed that according to Section 8 of the Hindu Succession Act, the mother of the deceased is the sole Class-I heir. Consequently, the father, as the second revision petitioner, cannot claim himself to be a Class-I heir of the deceased Nagappa.

The court referred to Section 373 of the Indian Succession Act, which states that the court must be satisfied that there are grounds for considering the application made by an individual seeking to claim their rights.

The court clarified that it is not necessary for the court to delve into other related questions. Matters such as entitlement to benefits or other issues that arise as a consequence of such character cannot be litigated within an application for a Succession Certificate. Therefore, the scope for determining the shares of the parties involved would not be available in proceedings under Sections 372 and 373 of the Act.

To support this point, the court cited the example of proceedings under Section 295 of the Indian Succession Act for probates. While the proceedings adopt a form similar to a regular suit, the issues to be tried in such a suit are limited to whether the testator was of sound and disposing state of mind and whether the will was duly executed and attested.

The court emphasized that it is not the duty of the probate court to consider any issue regarding the title of the testator to the property addressed in the will or the testator’s power to dispose of such property.

JUDGEMENT REVIEWED BY ABHAY SHUKLA

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WRIT PETITION FILED IN ANDHRA PRADESH HIGH COURT TO DECLARE THE ACTION OF RESPONDENT ARBITRAY AND ILLEGAL

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Andhra Pradesh High Court – Amravati

NAGAVANI FILING STATION vs THE STATE OF ANDHRA PRADESH

BENCH – HONOURABLE SMT. JUSTICE V. SUJATHA

WRIT PETITION No. 6026 of 2023

DATE OF JUDGEMENT – 12 MAY 2023

FACTS

The present writ petition came to be filed under Article 226 of the Constitution of India seeking the to issue an order in the nature of WRIT OF MANDAMUS declaring the action of the Respondent No.6 (The Executive Engineer (R AND B) AND Highway Administrator) in issuing impugned letter dated 22.02.2023, by highhandedly directing the Respondent Authorities for the removal of the petitioners Filling Station/Petrol Bunk in total located in an extent of 6950 sq.feet situated at the right side bank of Sarvepally Canal, in Nellore Town, SPSR Nellore District, without there being any kind of obstruction or interruption caused by the petitioners Filling Station/Petrol Bunk to the Right of Way of NH 67 as illegal, arbitrary, discriminatory, against Principles of Natural Justice as well as violative of Articles 14, 21 and 300A of the Constitution of India and consequently set aside the impugned, dated 22.02.2023 issued by the 6th Respondent.

The petitioner, along with one Sri. D. Sugunakar Reddy are running a Petrol Bunk under the name and style of M/s. Nagavani Filling Station. The said filling station was established in an extent of 6950 sq. feet, situated at the right-side bank of Sarvepally Canal in Nellore Town, Nellore District. The schedule property was leased out by the Government in the year 1964 in favour of the 8th respondent (M/s. Indian Oil Corporation Limited) and the same was extended from time to time.

The Ministry of Road Transport and Highways sanctioned works pertaining to constructions of two-lane major bridge across Penna River at Km.739.234 of NH-67 including approaches parallel to existing two-lane bridge in SPS Nellore District in the State of Andhra Pradesh through EPC Contract under Annual Plan 2021-22. Subsequently, the 6th respondent issued impugned letter dated 2.02.2023 directing the petitioner to clear the site as the petrol bunk is falling in the approaches of subject work, entrusted to the Executive Engineer (R&B) and requested to clear it in order to execute the above subject work i.e., construction of two-lane major bridge across Penna River. Challenging which, the present writ petition was filed.

The learned Government Pleader for Roads and Buildings has filed a detailed counter stating that the petitioner’s petrol bunk named as M/s. Nagavani Filling Station (IOCL Dealers) is located in Nellore Bit-I village, and falls partly in NH-67 Road land and partly in canal poramboke land. Out of total extent of 586.276 sq.mts of this Petrol Bunk, 285.814 sq.mts is covered under NH-67 Right of Way (ROW) and the remaining extent of 300.462 sq. mts is on Canal poramboke land. It is further stated that the petitioner is running the petrol bunk without obtaining access permission from the National Highways epartment, which is mandatory as per “The Control of National Highways (Land and Traffic Act). 2002”. Also, on enquiry with Water resources Department, the Executive Engineer, Nellore Central Division has addressed a letter to the petitioner dated 25.10.2021 to pay the arrears of lease amount Rs.59,29,362/- for a period of 21 years from 2000 to 2021 and vacate the said premises, as canal modernization work is under progress.

It is further stated that the statement of the petitioner i.e., the Lease being extended from time to time by the government is not correct. The Superintending Engineer, Irrigation Circle, Nellore has informed that no Lease is in force by the Water resources department with IOCL or with any individual Firm or person for the petrol bunk located in Canal Poramboke land in Nellore village and also informed that their department has no objection for the Highway bridge project. It has also been stated that 48% of the petitioner’s petrol bunk is falling in NH-67 road land, which was obstructing the ongoing Highway project and it is required to be removed to the encroachment portion of NH land for widening and this stretch was identified as accident-prone Zone by the “District Road Safety Committee” in which removal of this Petrol bunk is also included.

It is further submitted that the Ministry of Road Transport & Highways, New Delhi has sanctioned the work “Construction of Two Lane Major Bridge across Penna River at Km.739.234 of NH-67 including approaches parallel to existing 2 lane bridge in SPS Nellore District in the State of Andhra Pradesh through EPC contract under Annual Plan 2021-22” and appointed Revenue Divisional Officer, Nellore as Competent Authority of Land Acquisition (CALA) for the subject work vide Notification under section 3(a) of NH Act, and was published in Gazette of India. Thereafter, the Land Acquisition procedure was strictly followed as per National Highways Act 1956 and accordingly notification under Section 3A of NG Act, was published on 15.02.2022 in the “Andhra Prabha” Telugu daily and “The Hindu” English daily dated 09.03.2022, calling for any objections from the interested persons before the competent authority i.e., Revenue Divisional Officer, Nellore within 21 days from the date of publications in news Papers as per 3C of NH Act. In spite of the same, the petitioner has failed to submit any objections thereafter.

Thereafter, a notification under Section 3D of NH Act, dated 08.09.2022 was also published in the Official Gazette, the land specified in the said schedule shall vest absolutely in the Central Government, free from all encumbrances. Subsequently, CALA has published notification under section 3G(3) of NH Act 1956 in two local newspapers i.e., Andhra Prabha Telugu Daily and the Deccan Chronicle English Daily on 01.10.2022, calling the persons whose lands were proposed for acquisition, to attend for award enquiry on 10.10.2022, before CALA and Revenue Divisional officer, Nellore dated 06.01.2023, duly following the Land Acquisition procedure as per NH Act.

It is further stated that the above project includes Construction of two new Bridges, one is Major Bridge and the other is a Minor and also includes formation of new approach roads for improving the Highway geometrics at both ends of these structures, which is very important for highway traffic entering and leaving the Nellore city and also from road safety point of view. Along with the counter, the letter dated 14.04.2023 has also been filed wherein the Superintending Engineer, Irrigation Circle, Nellore has given No Objection for the extent of 300.462 sq.mts which is on the Canal poramboke land. But, however, only because of the land occupied by the petitioner in 285.814 sq.mts, which is covered under NH-67, the respondents are unable to proceed further with the said project, which is seriously objected by the counsel for the petitioner.

JUDGEMENT

This Court feels it appropriate to order for a survey as follows:

  1. The respondents, with the assistance of the Mandal Surveyor, shall conduct a survey to demarcate the road margins in survey No.95 in an extent of 6950 sq. feet, situated at the right side bank of Sarvepally Canal in Nellore Town, SPSR Nellore District. This survey shall be conducted in the presence of the petitioner or their representatives and also in the presence of the respondent No.8 along with the Superintending Engineer, Irrigation Circle, Nellore has given No Objection for the extent of 300.462 sq. mts which is on the Canal poramboke land.

2. For the purpose of enabling these persons to be present at the time of the survey, notices shall be given to the petitioner, the 8th respondent and as well as the Superintending Engineer, Irrigation Circle, Nellore.

3. After the survey is conducted, if it is found, that the petitioner has encroached theroad margin, it would be open to the respondents to take appropriate action in accordance with law. This survey shall be completed within a period of six weeks from today.

4. Till such survey is completed, the respondents shall not interfere with the petitioner’s possession over the subject land, without following due process of law.

Accordingly, with the above directions, this Writ Petition was disposed of.

JUDGEMENT REVIEWED BY HARSHIT JAIN

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WRIT PETITION FILED IN ANDHRA PRADESH HIGH COURT TO CHALLENGING THE ORDER OF DETENTION OF MOTHER OF THE PETITIONER

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Andhra Pradesh High Court – Amravati

Manupati Sai Teja vs THE STATE OF ANDHRA PRADESH

BENCH – THE HON’BLE SRI JUSTICE D.V.S.S. SOMAYAJULU AND THE HON’BLE SRI JUSTICE V. SRINIVAS

WRIT PETITION No. 2067 of 2023

DATE OF JUDGEMENT – 12 MAY 2023

FACTS

In this writ petition, the petitioner is challenging the order of detention of his mother by name Manupati Eswari, W/o Suresh, aged 34 years, dated 17.08.2022 passed by the 2nd respondent (The Collector and District Magistrate), Bapatla District, which was confirmed by the 1st respondent  General Administration (SC.I) Department, dated 18.10.2022 and prays to direct the respondent authorities to set the detenue at liberty forthwith.

The 2nd respondent District Collector, Bapatla District, while categorizing the detenue as a “Bootlegger” within the definition of Section 3(1) and (2) r/w.2(B) of the A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short, ‘the Act 1 of 1986’) passed the impugned order of detention. The same was confirmed by the 1st Respondent (State).

Learned counsel for the petitioner submits that the impugned order of detention was passed basing on vague, irrelevant and non-existing grounds; that the offences alleged against the detenue is under Section 7(A) r/w.8(e) of Andhra Pradesh Prohibition Act, 1995 and they can be dealt under general laws. It is also stated that out of five crimes, in four cases investigation is completed, charge sheet filed and the detenue was already granted bail in said four cases and among one is bind-over case; that the detenue was not supplied with relevant material by the detaining authorities; that the sponsoring authority did not place the copies of bail orders along with grounds of detention before the detaining authority to come to the right conclusion and that the detention authority erred in passing the impugned order without considering the bail orders.

In the present case also the detenue was already enlarged on bail even prior to detention order and the said fact is not disputed by the respondents. A perusal of the detention order and grounds of detention would show the detaining authority as well sponsoring authority has not taken into consideration.

JUDGEMENT

Having regard to the facts of this case, this Court held that the order impugned was made without proper application of mind and there is a serious procedural violation. The detenue will not fall under the category of Section 3(1) and (2) r/w.2(B) of the Act and this Court could not find that the order of detention has any material to either substantiate or justify the said allegation that the detenue is a ‘Bootlegger’ whose activities would be actually prejudicial to public order. For the reasons recorded, this Writ Petition is allowed, setting aside the order of detention passed by the 2nd respondent which was confirmed by the State Government. Consequently, the detenue namely Manupati Eswari, W/o Suresh, aged 34 years, was directed to be released forthwith by the respondents if the detenue is not required in any other cases.

JUDGEMENT REVIEWED BY HARSHIT JAIN

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THE KERALA HIGH COURT ALLOWS FOR THE JOINDER OF CHARGES OF OFFENCES COMMITTED BY THE SAME PERSON

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Case Title : JITHIN P V STATE OF KERALA

Bench : THE HONOURABLE MR.JUSTICE K. BABU

Case No : CRL.MC NO. 6346 OF 2022

Date : 24/05/2023

FACTS OF THE CASE –

  1. The petitioner is the accused in two separate cases: S.C.No.547 of 2021 and S.C.No.595 of 2021.
  2. In S.C.No.595 of 2021, the petitioner faces charges under Sections 450 and 376(2)(n) of IPC, Section 4 r/w Section 3(a), Section 6 r/w Section 5(l), Section 12 r/w Sections 11(iv), 11(v) and 11(vi) of the POCSO Act, Section 67-B of the Information Technology Act, 2000, and Sections 3(1)(w)(i) & 3(2)(v) of the SC/ST (POA) Act.
  3. In S.C. No. 547 of 2021, the petitioner faces charges under Section 305 of IPC and Section 3(2)(v) of the SC/ST (POA) Act.
  4. The petitioner has filed petitions seeking to quash the Final Reports in both cases and alternatively requesting that both cases be tried together.
  5. On 09.06.2021, a 17-year-old girl was found hanging in her family house. The petitioner was accused of abetting the minor girl’s suicide.
  6. The petitioner has been accused in both cases related to the sexual assault of the girl, with different charges and provisions applied.
  7. The petitioner’s counsel argues that the acts alleged in both cases constitute the same transaction and that trying them separately would cause prejudice to the accused. They rely on the case of State of Karnataka v. M. Balakrishna [1980 CRL. L.J. 1145] to support their argument.
  8. The prosecution and the counsel for the respondents argue that the alleged acts are distinct and different, and therefore, separate trials are justified.

JUDGEMENT –

  1. Section 220 of the Criminal Procedure Code (Cr.P.C.) allows for the joinder of charges of offences committed by the same person, provided they form part of the same transaction.
  2. The determination of whether acts constitute the same transaction depends on factors such as commonality of purpose or design, continuity of action, proximity of time, and unity of place.
  3. The Supreme Court has held that there cannot be a universal formula for determining the same transaction, and each case must be decided based on its specific circumstances.
  4. In the present case, the acts alleged in Crime No.114/2021 (sexual assault and rape) were committed between December 2020 and February 2021, while the acts alleged in Crime No.111/2021 (threats and harassment leading to suicide) were committed in June 2021.
  5. The acts were not proximate in time, lacked continuity, and did not demonstrate a community of purpose or design. Therefore, they do not constitute the same transaction.
  6. The accused does not have a vested right to seek joinder of charges, and the court has the discretion to try the offences separately.
  7. The petitioner’s request to quash the Final Reports or try both cases together is not supported based on the facts and principles discussed

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WRITTEN BY – ANVITHA RAO

 

 

 

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