0

Criminal proceedings can only be initiated against a public servant based on the recommendation of the administrative enquiry: Delhi High Court.

Case title: Bijendar Singh Vs State & Anr.

Case no.: CRL. A. 292/2020

Decided on: 08.02.2024

Quorum: Hon’ble Justice V. Kameswar Rao, Hon’ble Justice Saurabh Banerjee

 

FACTS OF THE CASE:

The current appeal stems from the order of a special judge of the SC/ST court. The complainant filed an application under sections 4 and 3(2) (vi) and (vii) of the SC/ST Act, as well as sections 217 and 218 of the IPC, against an investigation officer who failed to appear in court for the hearing and also for no arresting the accused. The court ordered to file an FIR against the appellant.

 LEGAL PROVISIONS:

The SC/ST Act’s Section 4 discusses the penalties for public servants who fail to perform their duties.

No inquiry or approval is necessary in order to file a First Information Report (FIR) against any individual, according to Section 18A (1) of the SC/ST Act.  

Section 15A(11)(i) of the SC/ST Act states that it is the State’s duty and responsibility to specify a scheme for providing a free copy of the chargesheet.

APPELLANTS CONTENTION:

The counsel for the appellant argued that the SC/ST Act’s proviso, which states that a public servant may only be booked based on the recommendation of an administrative inquiry, was disregarded and overlooked by the learned special court. It must be acknowledged that at the time the contested order was issued, the learned special court had not yet requested or received any such report, and the contested order was issued without it.

He argued that the complainant’s grievances in the application are completely baseless and would not constitute a violation of the SC/ST Act. The complainant’s complaint that the appellant did not provide a copy of the chargesheet to him is without merit because the non-supply of the chargesheet does not violate any of the provisions of the SC/ST Act alleged by the complainant.

RESPONDENTS CONTENTION:

They contended that the provision in Section 4(2) of the SC/ST Act requiring an administrative inquiry only applies to the stage of framing charges, not the registration of a FIR. Furthermore, Section 4 must be read in conjunction with Section 18A and the overreaching object of the SC/ST Act. As a result, the impugned order of the learned special court cannot be challenged on the basis that it did not follow the procedure outlined in Section 4 because it was for the registration of a FIR rather than the framing of charges.

The counsel further contends that the appellant did not arrest the accused persons in accordance with the law laid down in Arnesh Kumar, but that the appellant failed to consider the recent judgement passed by the Hon’ble Supreme Court in Union of India vs. State of Maharashtra, (2020) 4 SCC 761, which held that where there is no provision for anticipatory bail, arrest must be made. The appellant did not comply with Arnesh Kumar’s requirement to provide reasons for not arresting the accused, which was mandatory.

COURT ANALYSIS AND JUDGMENT:

The court held that, while it is true that the accused has no right to be heard prior to the registration of the FIR, the SC/ST Act is a special act that supersedes the general provisions of Cr.P.C, and the proviso to section 4(2) clearly mandates that charges against public servants be booked only based on the recommendations of the administrative enquiry.

Based on various judgements, the court determined that the appellant, as the IO, has the discretion to arrest or not arrest the accused individuals based on the evidence gathered and the gravity of the offences. Also, once the appellant, who is an IO, files the chargesheet, the Magistrate cannot question the decision not to arrest the accused persons.

The court made it clear that this decision is solely for the purpose of deciding the appeal and will not interfere with the complainant’s case before the learned special court.
The appeal is granted, and any pending applications are resolved in accordance with the terms outlined above.

 

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

 

Written by – Surya Venkata Sujith

 

Click here to read judgment

0

Unscrupulous Litigants Should Not Go Scot-Free: Supreme Court

Case title: Dinesh Gupta vs The state of Uttarpradesh

Case no.: S.L.P.(Crl.) No.3343 of 2022

Decided on: 11.01.2024

Quorum: Hon’ble Justice Vikram Nath, Hon’ble Justice Rajesh Bindal

FACTS OF THE CASE:

Owner of M/s D.D. Global Capital Pvt. Ltd., Karan Gambhir has filed a First Information Report (FIR) against Sushil, Rajesh, Dinesh, Baljeet Singh, and other individuals. Among the private limited companies implicated are BDR, Gulab Buildtech, and Verma Buildtech. To reverse the summons order and FIR, Dinesh and Rajesh Gupta filed a petition in High Court. According to the complaint, Karan’s business gave Gulab Buildtech and Verma Buildtech short-term loans that were later converted into debt equity with the promise of large returns.

Despite purportedly forging a share pledge agreement, the complainant was able to secure a sizeable shareholding. Unannounced approval of amalgamation plans decreased the company’s ownership stake. Lawsuit after the accused disregarded the complainant’s requests for loan repayment. IPC Sections 420, 467, and 120-B are the subject of a charge sheet that the police have filed. The appeals took place after the High Court denied the petitions to set aside the summoning order and FIR.

APPELLANTS CONTENTION:

The appellant contended that a purely civil dispute involving financial transactions between corporations is being framed as a criminal case. Despite the fact that the company has no connection to Gautam Budh Nagar and that all transactions between the parties took place in New Delhi, the complaint was filed in Gautam Budh Nagar.

RESPONDENTS CONTENTION:

They claimed that the accused, working together, defrauded the complainant of crores of rupees by falsely promising higher returns. The High Court’s order contains no errors. The appeals are well-deservedly dismissed.

COURT ANALYSIS AND JUDGEMENT:

The court determined that if the FIR in question is pursued further, it will constitute an absolute abuse of court process. This is a clear case of malicious prosecution. Regardless of the commercial nature of the dispute, a criminal complaint was filed and a FIR was registered. Abuse of power and legal machinery undermines public trust in the judiciary. FIR and criminal proceedings were quashed, and the complainant was fined ₹25 lakhs to prevent future abuse of judicial remedies.

The court ruled that the respondents should be subject to stringent terms and conditions, including costs. It’s time to firmly examine any lawsuits that have been started and are riddled with deceit, secrecy, and forum shopping. Even state actions or the conduct of government servants who are parties to such malicious litigation should be severely reprimanded. Turning a civil matter into a criminal case not only overburdens the criminal justice system, but also violates the principles of fairness and proper legal conduct.

 

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

 

Written by – Surya Venkata Sujith

 

Click here to read the judgement

0

Understanding the First Information Report-(FIR)

INTRODUCTION

The First Information Report, commonly referred to as FIR, which is a crucial legal document to initiate a criminal proceedings. It serves as the primary information to the law enforcement agencies to record the information about the alleged criminal activity. This article aims to clear the understanding of FIR, exploring its significance, procedure of filing FIR and role of FIR in the criminal justice system.

 

What is an FIR?

An FIR is written document which records the information about the cognizable offences like robbery, murder, theft, etc.

Procedure of filing an FIR.

In India the FIR is governed by the Code Of Criminal Procedure, 1973. Section 154. of the Cr.P.C. deals with the Information in cognizable cases. According to the section, informer will go to the officer in charge of Police Station and will give him the information about the cognizable offence. The information may be oral or in writing. If the information given to the officer is oral then Officer in Charge will write it down after that he will read out the whole complaint to the informer and will take the sign of the informer on the FIR which Officer has written down. One copy of FIR must be given to the informer free of cost and Officer has to maintain the FIR in his diary for the record as the State Government may prescribe in this behalf.

Provided that if the information is given by the women against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354c, section 354D , section 376, section 376A, section 376AB,  section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E, or section 509 of the Indian Penal Code (45 of 1860) alleged to have been committed or attempted , then such information shall be recorded by women police officer.

In the event that the person against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 354, section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E or section 509 of Indian Penal Code ( 45 of 1860),  is alleged to have been committed or attempted , is temporarily or permanently mentally or physically disabled then in such cases the such information shall be recorded at the residence of such person who seeking to report such offences or at the choice of place of such person in the presence an interpreter or a special educator as the case may be

Section 155. of the Code of Criminal Procedure, 1973 deals with FIR in non- cognizable offences, in non –cognizable offences the informer or the complainant will go to the officer in charge of the police station and will give him the information about the alleged offence in written form or orally and will write it down and seek the permission of Magistrate to investigate the matter, without the order of Magistrate there is no power to investigate in the matter.

If the information has given to the officer in charge of the police station contain the information of cognizable and non-cognizable offences then the information will be dealt as cognizable offence.

Step to be taken if the police do not register FIR

According to the sub section 3 of section 154 of The Code of Criminal Procedure, 1973. If any person aggrieved by refusal on the part of an officer in charge of a police station to record the FIR as referred in sub section 1 of the code, may send the substance of such information , in writing and by post to the Superintendent of Police concerned, who if satisfied that the information discloses the commission of cognizable offence , shall either investigate the case himself or direct an investigation made by any police officer subordinate to him.

Cases

In Lalita Kumari v. State of U.P. , (2013)

The court orders that officer in charge of police station is bound to register an FIR, and within 24 hours of time span officer has to update the copy of FIR on online portal of the State where FIR can be shown.

“  PRIME LEGAL is a full- service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best consumer lawyer, best civil lawyer.”

Written by:- Aamir Hussain

References:

The Code of Criminal Procedure, 1973 (2 OF 1974), UNIVERSAL’S BARE ACT.

The Code of Criminal Procedure , 1973 (2 of  1974), RATANLAL & DHIRAJLAL.

0

Delhi High Court Sets Guidelines on Quashing FIRs and Responsible Mediation Practices

Title: Abhishek & Ors. v. The State NCT of Delhi & Ors.

Decided on:  16th August, 2023

+  CRL.M.C. 5720/2023

CORAM: HON’BLE MS. JUSTICE SWARANA KANTASHARMA 

Introduction

In a recent case, the Delhi High Court, while addressing a petition filed under Section 482 of the CrPC seeking the quashing of an FIR, highlighted the importance of responsible mediation practices in resolving serious offenses. The court observed that non-compoundable offenses cannot be resolved solely through monetary agreements and emphasized the need for upholding lawful and principled mediation practices.

Facts

The petitioners sought the quashing of an FIR filed against them for alleged offenses under Sections 308/34 of the IPC. The parties had settled the matter amicably and signed a memorandum of understanding (MoU) for a monetary settlement of Rs. 40,000. It was revealed that Rs. 30,000 in cash was intended for the purpose of quashing the FIR.

Analysis

The court examined the principles of law related to quashing FIRs based on settlements as laid down in cases such as Gian Singh v. State of Punjab, Narinder Singh v. State of Punjab, and Parbhatbhai Aahir v. State of Gujarat. It differentiated between compounding offenses under Section 320 and quashing under Section 482 of the CrPC, emphasizing that the latter is discretionary and aimed at preventing process abuse while ensuring justice.

The court scrutinized the mediated settlement agreement, noting that the mediator had exceeded their jurisdiction by attempting to compound a non-compoundable offense. The agreement’s language suggested that serious offenses could be resolved through payments, which misled the parties involved. The court highlighted that quashing non-compoundable offenses is a discretionary decision that must adhere to established principles.

Held

The court held that serious offenses cannot be settled through monetary agreements alone. It stressed that the mediator’s role is not to compound non-compoundable offenses but to facilitate lawful and responsible mediation practices. While the court decided to quash the FIR based on unique circumstances, it imposed costs on the petitioners for misinterpreting the agreement.

The court laid down guidelines for mediators, emphasizing the importance of clarity in mediated settlement agreements. It directed mediators to specify that quashing of FIRs for non-compoundable offenses is at the court’s discretion and depends on the facts and circumstances of the case. The court urged mediators to ensure that parties understand the legal consequences and enforceability of agreements.

Conclusion

The Delhi High Court’s ruling underscores the significance of responsible mediation practices and the proper interpretation of mediated settlement agreements. The judgment establishes that serious offenses cannot be resolved through monetary agreements and encourages mediators to uphold lawful principles while facilitating settlements.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Ankit Kaushik

Clicke here to view judgement

0

Filing of a FIR or FIRs by itself cannot be connected to a violation of maintaining public order : Gujarat High court

TITLE:  Ghanshyam Derubhai Budhelia v State of Gujarat

Decided On-: August 11, 2023

12589 of 2023

CORAM: Hon’ble Justice Mr. A.S Supehia and Mr. M.R Mengdey

INTRODUCTION-  

The current petition challenges a detention order that was issued on passed by the respondent – the detaining authority – while acting within the scope of the authority granted to it by section 3(2) of the Gujarat Prevention of Anti-Social Activities Act, 1985

FACTS OF THE CASE

The order of detention challenged in this petition deserves to be quashed and overturned on the grounds that the filing of the three FIRs for violations of Sections 65(A)(E), 81, and 116(b), Sections 65(A)(E), 116(b), 81, and 98(2) of the Prohibition Act, and Sections 65(A)(E), 81, 83, 116(b), knowledgeable attorney for the petitioner further argued that any illegal activity that is likely to be committed or is alleged to have been committed cannot be connected to or have anything to do with maintaining public order; at most, it can be considered a violation of law and order. In addition, other than witness statements and the filing of the aforementioned FIRs, there is no other pertinent or convincing evidence linking the alleged anti-social behaviour of the detainee to a breach of public order.

The knowledgeable advocate further argued that it is not possible to draw a conclusion from the case’s facts that the detainee’s involvement in criminal cases had a detrimental effect on society’s social fabric and ultimately posed a threat to people’s ability to continue living their regular, everyday lives or that the detainee’s filing of criminal cases had completely upended and rendered dysfunctional the social system as a whole.

 COURT ANALYSIS AND DECISION

AGP For the respondent The detention order was legitimately issued by the detaining authority in light of the facts of the case, and this Co. should uphold it. The State defended the detention order issued by the authority and claimed that the detenu is habitually engaging in the activity as described in Section 2(b) of the Act based on the information and evidence that were amassed during the course of the investigation and provided to the detenu.

Primarily, it is determined that the subjective satisfaction reached by the detaining authority cannot be said to be legal, valid, and in accordance with law, inasmuch as the offences alleged in the FIR/s cannot have any bearing on the public order as required under the Act and other relevant penal laws are sufficient enough to take care of the given circumstances, it cannot be said that the accusations made against the detenu are relevant to bringing them within the purview of section 2(b) of the Act.

In those circumstances, it cannot be said that the detainee is a person who would fall within the meaning of section 2(b) of the Act unless and until the material is there to make out a case that the person has become a threat & menace to the Society so as to disturb the whole tempo of the society and that all social apparatus goes in peril disturbing public order at the instance of such person. There is nothing in the record, aside from general statements, that indicates the detainee is acting in a way that could endanger the peace of the community.

 simple filing of a FIR or FIRs by itself cannot be connected to a violation of maintaining public order, the authority cannot pursue a remedy under the Act, and no other pertinent and convincing evidence exists for exercising authority under section 3 (1) of the Act.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by-  Steffi Desousa

 

Click here to view judgement

1 2