Tuesday, October 30, 2012

Goa-Delhi Indigo Airlines flight was on Tuesday sentenced to life imprisonment


The chartered accountant who had triggered a mid-air hijack scare in February 2009 on a  , criminal intimidation and impersonating a public servant. The jail terms for these were set off against the period spent by him behind bars since February 2, 2009.
However, the 45-year-old was acquitted for the offence under the Anti-Hijacking Act as nothing incriminating was found in his possession.
Mohla had allegedly entered the cockpit of the flight on February 1, 2009, and claimed to have hijacked the plane. He claimed links to the Kandahar hijacking and threatened to “infect” those who resisted him with needles.

Friday, October 26, 2012

It’s Legal to Jailbreak an iPhone, But Not an iPad

Jailbreaking an iOS device has been in a murky grey area legally, but it just got a lot clearer: today, the US Copyright Office issued an exemption to the Digital Millenium Copyright Act that jailbreaking a device does not violate US copyright law. However, it’s not a blanket ruling, because tablets are, according to the US Copyright Office, “difficult to define.” The Electronic Frontier Foundation, along with a host of other electronic freedom organiziations, has been appealing to the Copyright Office to make exemptions to the DMCA legalizing the customization of a device you own. Apparently, the exception was granted to allow users to use a program that’s available on one platform, but not others. And the ruling doesn’t just apply to iPhones, but perhaps to rooting the Android platform as well. According to the document:

In order to ensure that the public will have the continued ability to engage in noninfringing uses of copyrighted works…. It provides that the prohibition shall not apply to persons who are users of a copyrighted work in a particular class of works if such persons are, or in the succeeding three-year period are likely to be, adversely affected by virtue of the prohibition in their ability to make noninfringing uses of such works.

While a end-user was likely to face legal action for jailbreaking an iPhone at home, the talented hackers who open up Apple’s closed gardens were always at risk. So this is a good thing! But it doesn’t make the landscape much clearer, because now there’s legal fragmentation for the iOS jailbreaks.

Friday, October 19, 2012

MANUBHAI RATILAL PATEL TR.USHABEN v. STATE OF GUJARAT & ORS. [2012] EssenSC 562 (28 September 2012)


Judgement 
IN THE SUPREME COURT OF INDIA 
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1572 OF 2012 (Arising out of S.L.P. (Criminal) No. 6468 of 2012) 

Manubhai Ratilal Patel Tr. Ushaben ... Appellant 
Versus 
State of Gujarat & Ors. ... Respondents

 
Dipak Misra, J.

Leave granted.
2. The appellant was an accused in FIR No. I-CR No. 56/12 registered at Pethapur Police Station on 20th of June, 2012 for offences punishable under Sections 467, 468, 471, 409 and 114 of the Indian Penal Code (for short ‘the IPC’). Challenging the registration of the FIR and the investigation, the accused-appellant (hereinafter referred to as “the accused”) preferred Criminal Miscellaneous Application No. 10303 of 2012 on 11.7.2012 under Section 482 of the Code of Criminal Procedure (for brevity “the Code”) in the High Court of Gujarat at Ahmedabad for quashing of the FIR. A prayer was also made for stay of further proceedings in respect of the investigation of I-CR No. 56/12.
3. The unfurling of factual scenario further shows that the matter was taken up on 17.7.2012 and the High Court issued notice and fixed the returnable date on 7.8.2012 and allowed the interim relief in terms of prayer No. (C) which pertained to stay of further proceedings in respect of the investigation.
4. The exposition of facts reveals that the accused was arrested on 16.7.2012 and produced before the learned Judicial Magistrate First Class, Gandhinagar at 4.00 p.m. on 17.7.2012. The police prayed for remand of the accused to police custody which was granted by the learned Magistrate upto 2.00 p.m. on 19.7.2012. On 18.7.2012, it was brought to the notice of the concerned investigation agency about the stay order passed by the High Court on 17.7.2012 and prayer was made not to proceed further with the investigation in obedience to the order passed by the High Court. It is pertinent to note that an application for regular bail under Section 439 of the Code was filed on 19.7.2012 before the learned Magistrate. Apart from other grounds, it was highlighted that when a petition was pending before the High Court for quashment of the First Information Report and a stay order had been passed pertaining to further investigation, the detention was illegal and hence, the accused was entitled to be admitted to bail.
5. The learned Magistrate dwelled upon the allegations made against the accused and declined to release him on bail regard being had to the nature of offences. Dealing with the order passed by the High Court, he observed that the order passed by the Hon’ble High Court pertained to stay of further investigation although no investigation was required to be carried out during judicial custody and, as the accused was involved in commission of grievous offences, it would not be just to enlarge him on bail.
6. Being aggrieved by the aforesaid order, the accused preferred Criminal Miscellaneous Application No. 539 of 2012 in the Court of learned Sessions Judge, Gandhinagar and also prayed for grant of interim bail. The learned Sessions Judge rejected the prayer for grant of interim bail and fixed the main application for hearing on 24.7.2012.
7. Dissatisfied with the aforesaid orders, the accused preferred a habeas corpus petition before the High Court of Gujarat forming the subject matter of Special Criminal Application No. 2207 of 2012. It was contended before the High Court that since the investigation was stayed by the High Court in exercise of power under Section 482 of the Code, the learned Magistrate could not have exercised power under Section 167(2) of the Code remanding the accused either to police or judicial custody. It was submitted that the power of the Magistrate remanding the accused to custody during the course of investigation stood eclipsed by the order of stay passed by the High Court and, therefore, the detention was absolutely illegal and non est in law. It was also urged that as the detention of the accused was unlawful, a writ of habeas corpus would lie and he deserved to be set at liberty forthwith as long as the stay order was operative.
8. The aforesaid stand put forth by the learned counsel was combated by the State contending, inter alia, that it could not be said that there had been no investigation as arrest had already taken place and hence, stay of further investigation would not nullify the order of remand, be it a remand to police custody or judicial custody. Highlighting the said stance, it was propounded that the order of remand could not be treated as impermissible warranting interference by the High Court in exercise of jurisdiction of writ of habeas corpus.
9. The High Court adverted to the chronology of events and held thus: - “From the chronology of events as emerging from the petition as well as affidavit-in-reply, it is not in dispute that the arrest of the petitioner was effected on 16/07/2012. Whereas the quashing petition came to be filed on 17/07/2012 and the stay order was granted on 17/07/2012 at about 04.30 p.m. and the remand of the accused – petitioner to police custody was granted on 17/07/2012 till 02.00 p.m. of 19/07/2012. It is also required to be noted that order passed by learned JMFC has not been challenged anywhere and has attained finality. Thereafter, the order passed by this Court in CRMA No. 10303 of 2012 has been served on the Police authority on 17/07/2012 at 09.30 p.m.
On the next day i.e. on 18/07/2012, the Investigating Officer seems to have informed learned JMFC about the stay granted by the High Court and has attended High Court in connection with anticipatory bail application preferred by the petitioner. It is also not the case of the petitioner that after the service of order of stay, any other investigation has been carried by the Investigating Officer. On 19/07/2012 itself the applicant preferred an application for bail under Section 437 of the Code, which came to be rejected and the accused was remanded to judicial custody and as such the petitioner – accused is in judicial custody as on now. It is pertinent to note that the learned JMFC has rightly observed in his order upon bail application that the High Court has stayed further investigation only.”
10. After so stating, the High Court dealt with the issue whether the custody of the accused could be said to be illegal. It was opined by the High Court that it was not possible to accept the stand that once the investigation was stayed, there could not have been exercise of jurisdiction under Section 167(2) of the Code, for stay of investigation would not eradicate the FIR or the investigation that had been already carried out pursuant to lodging of FIR. It was further opined that it was only an ad-interim order and if the stay order would eventually be vacated or the quashing petition would not be entertained, the investigation would be continued. The High Court further observed that solely because the investigation was stayed, it would not be apposite to say that there was no investigation and the order passed by the learned Magistrate was flawed.
11. Addressing to the issue of remand, the High Court opined that the order of remand of the accused to custody could not be said to be a part of the investigation and hence, the said order was not in conflict with the order passed under Section 482 of the Code of Criminal Procedure in Criminal Miscellaneous Application No. 10303 of 2012. Reference was made to Section 2(h) of the Code which defines ‘investigation’ and it was ruled that the order passed by the learned Magistrate could not be termed as a part of the investigation. Eventually, the High Court opined that it could not be held that when the order was passed by the learned JMFC, there was no investigation and, therefore, there was no force in the argument that the learned JMFC could not have remanded the accused in such a situation in exercise of powers under Section 167 of the Code, and secondly, the act of the learned JMFC remanding the accused to custody is a judicial act which cannot be termed as part of the investigation and cannot be considered to have been covered under the stay granted by the High Court in CRMA No.
10303 of 2012. It was further held that illegal or unauthorised detention or confinement is a sine qua non for entertaining a petition for writ of habeas corpus and the custody of the petitioner being in pursuance of a judicial act, it could not be termed as illegal.
12. At this juncture, it is seemly to note that the appellant had knocked at the doors of the High Court in a habeas corpus petition. The writ of habeas corpus has always been given due signification as an effective method to ensure release of the detained person from prison. In P.
Ramanatha Aiyar’s Law Lexicon (1997 edition), while defining “habeas corpus”, apart from other aspects, the following has been stated: - “The ancient prerogative writ of habeas corpus takes its name from the two mandatory words habeas. corpus, which it contained at the time when it, in common with all forms of legal process, was framed in Latin. The general purpose of these writs, as their name indicates, was to obtain the production of an individual.”
13. In Secretary of State for Home Affairs v. O’Brien[1], it has been observed that it is perhaps the most important writ known to the constitutional law of England affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty third year of Edward I. It has through the ages been jealously maintained by the courts of law as a check upon the illegal usurpation of power by the executive at the cost of liege.
14. In Ranjit Singh v. The State of Pepsu (now Punjab)[2], after referring to Greene v. Secretary of States for Home Affairs[3], this Court observed that the whole object of proceedings for a writ of habeas corpus is to make them expeditious, to keep them as free from technicality as possible and to keep them as simple as possible. The Bench quoted Lord Wright who, in Greene’s case, had stated thus:
“The incalculable value of Habeas Corpus is that it enables the immediate determination of the right to the appellant’s freedom.” Emphasis was laid on the satisfaction of the court relating to justifiability and legality of the custody.
15. In Kanu Sanyal v. District Magistrate, Darjeeling and others[4], it was laid down that the writ of habeas corpus deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty.
16. Speaking about the importance of the writ of habeas corpus, a two- Judge Bench, in Ummu Sabeena v. State of Kerala and others[5], has observed as follows: - “…the writ of habeas corpus is the oldest writ evolved by the common law of England to protect the individual liberty against its invasion in the hands of the executive or may be also at the instance of private persons. This principle of habeas corpus has been incorporated in our constitutional law and we are of the opinion that in a democratic republic like India where Judges function under a written Constitution and which has a chapter on fundamental rights, to protect individual liberty the Judges owe a duty to safeguard the liberty not only of the citizens but also of all persons within the territory of India.
The most effective way of doing the same is by way of exercise of power by the Court by issuing a writ of habeas corpus.” In the said case, a reference was made to Halsbury’s Laws of England, 4th Edn. Vol. 11, para 1454 to highlight that a writ of habeas corpus is a writ of highest constitutional importance being a remedy available to the lowliest citizen against the most powerful authority.
17. Having stated about the significance of the writ of habeas corpus as a weapon for protection of individual liberty through judicial process, it is condign to refer to certain authorities to appreciate how this Court has dwelled upon and expressed its views pertaining to the legality of the order of detention, especially that ensuing from the order of the court when an accused is produced in custody before a Magistrate after arrest.
It is also worthy to note that the opinion of this Court relating to the relevant stage of delineation for the purpose of adjudicating the legality of the order of detention is of immense importance for the present case.
18. In Col. Dr. B. Ramachandra Rao v. The State of Orissa and others[6], it was opined that a writ of habeas corpus is not granted where a person is committed to jail custody by a competent court by an order which prima facie does not appear to be without jurisdiction or wholly illegal.
19. In Re. Madhu Limaye and others[7], the Court referred to the decision in Ram Narayan Singh v. State of Delhi[8] and opined that the court must have regard to the legality or otherwise of the detention at the time of return.
20. In Kanu Sanyal v. Dist. Magistrate, Darjeeling and others[9], contentions were raised to the effect that the initial detention of the petitioner in District Jail, Darjeeling was illegal because he was detained without being informed of the grounds for his arrest as required under clause (i) of Article 22 of the Constitution and that the Sub-Divisional Magistrate, Darjeeling had no jurisdiction to try and, therefore, he could not authorise the detention of the petitioner under Section 167 of the Code. The two-Judge Bench adverted to the aforesaid aspects and referred to the earlier decisions in Naranjan Singh v. State of Punjab[10], Ram Narain Singh (supra), B.R. Rao (Supra) and Talib Hussain v. State of Jammu and Kashmir[11] and noted that three views had been taken by this Court at various times pertaining to the relevant date to determine the justifiability of the detention and opined as follows:- “This Court speaking through Wanchoo, J. (as he then was) said in A.K. Gopalan v. Government of India; [(1966) 2 SCR 427 = (AIR 1966 SC 816)]. “It is well settled that in dealing with the petition for habeas corpus the Court is to see whether the detention on the date on which the application is made to the Court is legal, if nothing more has intervened between the date of the application and the date of the hearing”. In two early decisions of this Court, however, namely, Naranjan Singh v.
State of Punjab, [(1952 SCR 395) = [1952] INSC 4; AIR 1952 SC 106)] and Ram Narain Singh v. State of Delhi, [(1953 SCR 652) = (AIR 1953 SC 277)] a slightly different view was expressed and that view was reiterated by this Court in B.R. Rao v. State of Orissa (AIR 1971 SC 2197) where it was said; “In habeas corpus the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings.” And yet in another decision of this Court in Talib Husain v. State of Jammu & Kashmir (AIR 1971 SC 62) Mr.
Justice Dua, sitting as a Single Judge, presumably in the vacation, observed that “in habeas corpus proceedings the Court has to consider the legality of the detention on the date of the hearing.” Of these three views taken by the Court at different times, the second appears to be more in consonance with the law and practice in England and may be taken as having received the largest measure of approval in India, though the third view also cannot be discarded as incorrect, because an inquiry whether the detention is legal or not at the date of hearing of the application for habeas corpus would be quite relevant, for the simple reason that if on that date the detention is legal, the Court cannot order release of the person detained by issuing a writ of habeas corpus. But, for the purpose of the present case, it is immaterial which of these three views is accepted as correct, for it is clear that, whichever be the correct view, the earliest date with reference to which the legality of detention may be examined is the date of filing of the application for habeas corpus and the Court is not, to quote the words of Mr. Justice Dua in AIR 1971 SC 2197 “concerned with a date prior to the initiation of the proceedings for a writ of habeas corpus”.” (emphasis supplied) After so stating, the Bench opined that for adjudication in the said case, it was immaterial which of the three views was accepted as correct but eventually referred to paragraph 7 in the case of B.R. Rao (supra) wherein the Court had expressed the view in the following manner: - “….in habeas corpus proceedings the court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings.” Eventually, the Bench ruled thus: - “The production of the petitioner before the Special Judge, Vizakhapatnam, could not, therefore, be said to be illegal and his subsequent detention in the Central Jail, Vizakhapatnam, pursuant to the orders made by the Special Judge, Vizakhapatnam, pending trial must be held to be valid. This Court pointed out in AIR 1971 SC 2197 that a writ of habeas corpus cannot be granted “where a person is committed to Jail custody by a competent court by an order which prima facie does not appear to be without jurisdiction or wholly illegal”.”
21. The principle laid down in Kanu Sanyal (supra), thus, is that any infirmity in the detention of the petitioner at the initial stage cannot invalidate the subsequent detention and the same has to be judged on its own merits.
22. At this juncture, we may profitably refer to the Constitution Bench decision in Sanjay Dutt v. State through C.B.I., Bombay (II)[12] wherein it has been opined thus: - “It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order.”
23. Keeping in view the aforesaid concepts with regard to the writ of habeas corpus, especially pertaining to an order passed by the learned Magistrate at the time of production of the accused, it is necessary to advert to the schematic postulates under the Code relating to remand.
There are two provisions in the Code which provide for remand, i.e., Sections 167 and 309. The Magistrate has the authority under Section 167(2) of the Code to direct for detention of the accused in such custody, i.e., police or judicial, if he thinks that further detention is necessary.
24. The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner. It is apt to note that in Madhu Limaye (supra), it has been stated that once it is shown that the arrests made by the police officers were illegal, it was necessary for the State to establish that at the stage of remand, the Magistrate directed detention in jail custody after applying his mind to all relevant matters.
25. In Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni[13], it has been stated that where an accused is placed in police custody for the maximum period of fifteen days allowed under law either pursuant to a single order of remand or more than one order, when the remand is restricted on each occasion to a lesser number of days, the further detention of the accused, if warranted, has to be necessarily to judicial custody and not otherwise. Thus, the exercise of jurisdiction clearly shows that the Magistrate performs a judicial act.
26. Presently, we shall advert to the concept of investigation. The term “investigation” has been defined in Section 2(h) of the Code. It reads as follows: - “Investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;”
27. A three-Judge Bench in H.N. Rishbud and another v. State of Delhi[14], while dealing with “investigation”, has stated that under the Code, investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected, there is a case to place the accused before a Magistrate for trial and, if so, taking the necessary steps for the same by the filing of a charge-sheet under Section 173.
28. In Adri Dharan Das v. State of West Bengal[15], it has been opined that arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding the various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime.
29. In Niranjan Singh v. State of Uttar Pradesh[16], it has been laid down that investigation is not an inquiry or trial before the court and that is why the legislature did not contemplate any irregularity in investigation as of sufficient importance to vitiate or otherwise form any infirmity in the inquiry or trial.
30. In S.N. Sharma v. Bipen Kumar Tiwari[17], it has been observed that the power of police to investigate is independent of any control by the Magistrate.
31. In State of Bihar v. J.A.C. Saldanha and others[18], it has been observed that there is a clear cut and well demarcated sphere of activity in the field of crime detection and crime punishment and further investigation of an offence is the field exclusively reserved for the executive in the police department.
32. Coming to the case at hand, it is evincible that the arrest had taken place a day prior to the passing of order of stay. It is also manifest that the order of remand was passed by the learned Magistrate after considering the allegations in the FIR but not in a routine or mechanical manner. It has to be borne in mind that the effect of the order of the High Court regarding stay of investigation could only have bearing on the action of the investigating agency. The order of remand which is a judicial act, as we perceive, does not suffer from any infirmity. The only ground that was highlighted before the High Court as well as before this Court is that once there is stay of investigation, the order of remand is sensitively susceptible and, therefore, as a logical corollary, the detention is unsustainable. It is worthy to note that the investigation had already commenced and as a resultant consequence, the accused was arrested. Thus, we are disposed to think that the order of remand cannot be regarded as untenable in law. It is well accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. As has been stated in the cases of B.R. Rao (supra) and Kanu Sanyal (supra), the court is required to scrutinize the legality or otherwise of the order of detention which has been passed. Unless the court is satisfied that a person has been committed to jail custody by virtue of an order that suffers from the vice of lack of jurisdiction or absolute illegality, a writ of habeas corpus cannot be granted. It is apposite to note that the investigation, as has been dealt with in various authorities of this Court, is neither an inquiry nor trial. It is within the exclusive domain of the police to investigate and is independent of any control by the Magistrate. The sphere of activity is clear cut and well demarcated. Thus viewed, we do not perceive any error in the order passed by the High Court refusing to grant a writ of habeas corpus as the detention by virtue of the judicial order passed by the Magistrate remanding the accused to custody is valid in law.
33. Though we have not interfered with the order passed by the High Court, yet we would request the High Court to dispose of the Criminal Miscellaneous Application No. 10303 of 2012 within a period of six weeks.
Liberty is granted to the appellant to move the appropriate court for grant of bail, if so advised.
34. Consequently, with the aforesaid observations mentioned hereinabove, the appeal, being sans merit, stands dismissed.
...........................................J.
[K. S. Radhakrishnan]
..........................................J.
[Dipak Misra] New Delhi;
September 28, 2012. 

CBI, HYDERABAD v. K. NARAYANA RAO [2012] EssenSC 542 (21 September 2012)


Judgement 
REPORTABLE 
IN THE SUPREME COURT OF INDIA 
CRIMINAL APPELLATE JURISDICTION 1 CRIMINAL APPEAL NO. 1460 OF 2012 (Arising out of S.L.P. (Crl.) No. 6975 of 2011) 

Central Bureau of Investigation, Hyderabad .... Appellant(s) 
Versus 
K. Narayana Rao .... Respondent(s)

 
P.Sathasivam,J.

1) Leave granted.
2) This appeal is directed against the final judgment and order dated 09.07.2010 passed by the High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Petition No. 2347 of 2008 whereby the High Court allowed the petition filed by the respondent herein under Section 482 of the Code of Criminal Procedure, 1973 and quashed the criminal proceedings pending against him in CC No. 44 of 2007 (Crime No. 36 of 2005) on the file of the Special Judge for CBI cases, Hyderabad.
3) Brief facts:
(a) According to the prosecution, basing on an information, on 30.11.2005, the CBI, Hyderabad registered an FIR being RC 32(A)/2005 against Shri P. Radha Gopal Reddy (A-1) and Shri Udaya Sankar (A-2), the then Branch Manager and the Assistant Manager, respectively of the Vijaya Bank, Narayanaguda Branch, Hyderabad, for the commission of offence punishable under Sections 120-B, 419, 420, 467, 468 471 read with Section 109 of the Indian Penal Code, 1860 (in short ‘the IPC’) and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 for abusing their official position as public servants and for having conspired with private individuals, viz., Shri P.Y. Kondala Rao – the builder (A-3) and Shri N.S. Sanjeeva Rao (A-4) and other unknown persons for defrauding the bank by sanctioning and disbursement of housing loans to 22 borrowers in violation of the Bank’s rules and guidelines and thereby caused wrongful loss of Rs. 1.27 crores to the Bank and corresponding gain for themselves.
In furtherance of the said conspiracy, A-2 conducted the pre-sanction inspection in respect of 22 housing loans and A-1 sanctioned the same.
(b) After completion of the investigation, the CBI filed charge sheet along with the list of witnesses and the list of documents against all the accused persons. In the said charge sheet, Shri K. Narayana Rao, the respondent herein, who is a legal practitioner and a panel advocate for the Vijaya Bank, was also arrayed as A-6. The duty of the respondent herein as a panel advocate was to verify the documents and to give legal opinion.
The allegation against him is that he gave false legal opinion in respect of 10 housing loans. It has been specifically alleged in the charge sheet that the respondent herein (A-6) and Mr. K.C. Ramdas (A-7)-the valuer have failed to point out the actual ownership of the properties and to bring out the ownership details and name of the apartments in their reports and also the falsity in the permissions for construction issued by the Municipal Authorities.
(c) Being aggrieved, the respondent herein (A-6) filed a petition being Criminal Petition No. 2347 of 2008 under Section 482 of the Code before the High Court of Andhra Pradesh at Hyderabad for quashing of the criminal proceedings in CC No. 44 of 2007 on the file of the Special Judge for CBI Cases, Hyderabad. By impugned judgment and order dated 09.07.2010, the High Court quashed the proceedings insofar as the respondent herein (A-6) is concerned.
(d) Being aggrieved, the CBI, Hyderabad filed this appeal by way of special leave.
4) Heard Mr. H.P. Raval, learned Additional Solicitor General for the appellant-CBI and Mr. R. Venkataramani, learned senior counsel for the respondent (A-6).
5) After taking us through the allegations in the charge sheet presented before the special Court and all other relevant materials, the learned ASG has raised the following contentions:
(i) The High Court while entertaining the petition under Section 482 of the Code has exceeded its jurisdiction. The powers under Section 482 are inherent which are to be exercised in exceptional and extraordinary circumstances. The power being extraordinary has to be exercised sparingly, cautiously and in exceptional circumstances;
(ii) The High Court has committed an error in holding that no material had been gathered by the investigating agency against the respondent herein (A- 6) that he had conspired with the remaining accused for committing the offence; and (iii) There is no material on record to show that the respondent herein (A- 6) did not verify the originals pertaining to housing loans before giving legal opinion and intentionally changed the proforma and violated the Bank’s circulars.
6) On the other hand, Mr. Venkataramani, learned senior counsel for the respondent (A-6), after taking us through the charge sheet and the materials placed before the respondent seeking legal opinion, submitted that he has not committed any offence much less an offence punishable under Section 120-B read with Sections 419, 420, 467, 468, 471 and 109 of IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. He further submitted that based on the documents placed, the respondent herein after perusing and on satisfying himself, furnished his legal opinion for which he cannot be implicated as one of the conspirators for the offence punishable under Section 420 read with Section 109 IPC.
7) We have carefully perused all the relevant materials and considered the rival submissions.
8) In order to appreciate the stand of the CBI and the defence of the respondent, it is necessary to refer the specific allegations in the charge sheet. The respondent herein has been arrayed as accused No. 6 in the charge sheet and the allegations against him are as under:
“Para 20: Investigation revealed that legal opinions in respect of all these 10 loans have been given by Panel Advocate – Sri K. Narayana Rao (A-6) and valuation reports were given by Approved Valuer – Sri V.C.
Ramdas(A-7). Both, the advocate and the valuer, have failed to point out the actual ownership of the property and failed to bring out the ownership details and name of the apartments in their reports. They have also failed to point out the falsehood in the construction permission issued by the municipal authorities.
Para 28: Investigation revealed that the municipal permissions submitted to the bank were also fake.
Para 29: Expert of Finger Print Bureau confirmed that the thumb impressions available on the questioned 22 title deeds pertain to A-3, A-4 and A-5.
Para 30: The above facts disclose that Sri P. Radha Gopal Reddy (A-1) and Sri M. Udaya Sankar (A-2) entered into criminal conspirary with A- 3 and abused their official position as public servants by violating the bank norms and in the process caused wrongful gain to A-3 to the extent of Rs.1,00,68,050/- and corresponding wrongful loss to the bank in sanctioning 22 housing loans. Sri P.Y. Kondal Rao(A-3) registered false sale deeds in favour of borrowers using impostors as site owners, produced false municipal permissions and cheated the bank in getting the housing loans. He is liable for conspiracy, cheating, forgery for the purpose of cheating and for using forged documents as genuine. Sri B. Ramanaji Rao(A-4) and Sri R. Sai Sita Rama Rao(A-5) impersonated as site owners, executed the false sale deeds. They are liable for impersonation, conspiracy, cheating, forging a valuable security and forgery for the purpose of cheating. Sri K. Narayana Rao (A-6) submitted false legal opinions and Sri K.C. Ramdas(A-7) submitted false valuation reports about the genuineness of the properties in collusion with A-3 for sanction of the loans by Vijaya Bank, Narayanaguda branch, Hyderabad and abetted the crime. Sri A.V.
Subba Rao(A-8) managed verification of salary slips of the borrowers of 12 housing loans in collusion with A-3 and abetted the crime.
Para 33: In view of the above, the accused A-1, A-2, A-3, A-4, A-5, A- 6, A-7 & A-8 are liable for offences punishable under Section 120-B read with Sections 419, 420, 467, 468, 471 and 109 read with Section 420 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and substantive offences thereof.” With the above details, let us consider whether there is prima facie allegation(s) and material(s) in order to pursue the trial against the respondent herein. In the same way, we have to see whether the reasoning and the ultimate conclusion of the High Court in quashing the charge sheet against the respondent herein (A-6) is sustainable. We are conscious of the power and jurisdiction of the High Court under Section 482 of the Code for interfering with the criminal prosecution at the threshold.
9) Mr. Raval, learned ASG in support of his contentions relied on the following decisions:
i) State of Bihar vs. Ramesh Singh[1977] INSC 156; , (1977) 4 SCC 39;
ii) P. Vijayan vs. State of Kerala and Another, (2010) 2 SCC 398; and iii) Sajjan Kumar vs. Central Bureau of Investigation, (2010) 9 SCC 368.
10) The first decision Ramesh Singh (supra) relates to interpretation of Sections 227 and 228 of the Code for the considerations as to discharge the accused or to proceed with trial. Para 4 of the said judgment is pressed into service which reads as under:
“4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If “the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing”, as enjoined by Section 227. If, on the other hand, “the Judge is of opinion that there is ground for presuming that the accused has committed an offence which— … (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused”, as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial.
But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. It the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.” 11) Discharge of accused under Section 227 of the Code was extensively considered by this Court in P. Vijayan (supra) wherein it was held as under:
“10. ……. If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts.
11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.” 12) While considering the very same provisions i.e., framing of charges and discharge of accused, again in Sajjan Kumar (supra), this Court held thus:
“19. It is clear that at the initial stage, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce proves the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.
20. A Magistrate enquiring into a case under Section 209 CrPC is not to act as a mere post office and has to come to a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, it is the duty of the Magistrate to discharge the accused, on the other hand, if there is some evidence on which the conviction may reasonably be based, he must commit the case.
It is also clear that in exercising jurisdiction under Section 227 CrPC, the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
Exercise of jurisdiction under Sections 227 and 228 CrPC
21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” From the above decisions, it is clear that at the initial stage, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, in that event, it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. A judicial magistrate enquiring into a case under Section 209 of the Code is not to act as a mere post office and has to arrive at a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. On the other hand, if the Magistrate finds that there is no prima facie evidence or the evidence placed is totally unworthy of credit, it is his duty to discharge the accused at once. It is also settled law that while exercising jurisdiction under Section 227 of the Code, the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
This provision was introduced in the Code to avoid wastage of public time and to save the accused from unavoidable harassment and expenditure. While analyzing the role of the respondent herein (A-6) from the charge sheet and the materials supplied along with it, the above principles have to be kept in mind.
13) In Rupan Deol Bajaj (Mrs.) and Another vs. Kanwar Pal Singh Gill and Another, (1995) 6 SCC 194, this Court has considered the scope of quashing an FIR and held that it is settled principle of law that at the stage of quashing an FIR or complaint, the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. By noting the principles laid down in State of Haryana vs. Bhajan Lal, 1992 Supp (1) SCC 335, this Court held that an FIR or a complaint may be quashed if the allegations made therein are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
14) In Mahavir Prashad Gupta and Another vs. State of National Capital Territory of Delhi and Others, (2000) 8 SCC 115, this Court considered the jurisdiction of the High Court under Section 482 of the Code and held as under:
“5. The law on the subject is very clear. In the case of State of Bihar v. Murad Ali Khan (1988) 4 SCC 655 it has been held that jurisdiction under Section 482 of the Code of Criminal Procedure has to be exercised sparingly and with circumspection. It has been held that at an initial stage a court should not embark upon an inquiry as to whether the allegations in the complaint are likely to be established by evidence or not. Again in the case of State of Haryana v. Bhajan Lal 1992 Supp. (1) SCC 335 this Court has held that the power of quashing criminal proceedings must be exercised very sparingly and with circumspection and that too in the rarest of rare cases. It has been held that the court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. It has been held that the extraordinary or inherent powers did not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.
15) Regarding conspiracy, Mr. Raval, learned ASG after taking us through the averments in the charge sheet based reliance on a decision of this Court in Shivnarayan Laxminarayan Joshi and Others vs. State of Maharashtra, (1980) 2 SCC 465 wherein it was held that once the conspiracy to commit an illegal act is proved, act of one conspirator becomes the act of the other. By pointing out the same, learned ASG submitted that the respondent herein (A-6), along with the other conspirators defrauded the Bank’s money by sanctioning loans to various fictitious persons.
16) We have already extracted the relevant allegations and the role of the respondent herein (A-6). The only allegation against the respondent is that he submitted false legal opinion to the Bank in respect of the housing loans in the capacity of a panel advocate and did not point out actual ownership of the properties. As rightly pointed out by Mr. Venkataramani, learned senior counsel for the respondent, the respondent was not named in the FIR. The allegations in the FIR are that A-1 to A-4 conspired together and cheated Vijaya Bank, Narayanaguda, Hyderabad to the tune of Rs. 1.27 crores. It is further seen that the offences alleged against A-1 to A-4 are the offences punishable under Sections 120B, 419, 420, 467, 468 and 471 of IPC and Section 13(2) read with Section 13 (1)(d) of the Prevention of Corruption Act, 1988. It is not in dispute that the respondent is a practicing advocate and according to Mr. Venkataramani, he has experience in giving legal opinion and has conducted several cases for the banks including Vijaya Bank. As stated earlier, the only allegation against him is that he submitted false legal opinion about the genuineness of the properties in question. It is the definite stand of the respondent herein that he has rendered Legal Scrutiny Reports in all the cases after perusing the documents submitted by the Bank. It is also his claim that rendition of legal opinion cannot be construed as an offence. He further pointed out that it is not possible for the panel advocate to investigate the genuineness of the documents and in the present case, he only perused the contents and concluded whether the title was conveyed through a document or not. It is also brought to our notice that LW-5 (Listed Witness), who is the Law Officer of Vijaya Bank, has given a statement regarding flaw in respect of title of several properties. It is the claim of the respondent that in his statement, LW-5 has not even made a single comment as to the veracity of the legal opinion rendered by the respondent herein. In other words, it is the claim of the respondent that none of the witnesses have spoken to any overt act on his part or his involvement in the alleged conspiracy. Learned senior counsel for the respondent has also pointed out that out of 78 witnesses no one has made any relevant comment or statement about the alleged involvement of the respondent herein in the matter in question.
17) In order to appreciate the claim and the stand of the respondent herein as a panel advocate, we have perused the legal opinion rendered by the respondent herein in the form of Legal Scrutiny Report dated 10.09.2003 as to the title relating to Sri B.A.V.K. Mohan Rao, S/o late Shri Someshwar Rao which is as under.
“Legal Scrutiny Report Dated 10.09.2003.
To The Branch Manager, Vijaya Bank, Narayanaguda Hyderabad Sir, Sub:- Title Opinion Shri BAVK Mohan Rao S/o Late Shri Someswar Rao.
With reference to your letter dated NIL. I submit my Scrutiny Report as hereunder:-
1. Name and address of the Mortgagor Shri. BAVK Mohan Rao S/o Late Shri Someswar Rao R/o 1-1 290/3, Vidyanager, Hyderabad.
2. Details/Description of documents scrutinized:
|Sl.No. |Date |Name of the documents |Whether | | | | |Original/ | | | | |Certified | | | | |True Copy | |1. |12.05.2003 |C.C. Pahais for the year |Xerox Copy | | | |1972-73 and 1978-79 | | |2. |08.02.1980 |Death Certificate of Shri PV |Xerox Copy | | | |Narahari Rao | | |3. |07.03.1980 |Legal Heir Certificate of Shri|Xerox Copy | | | |PV Narahari Rao | | |4. |24.04.1980 |C.C. of Regd. GPA No. 58/80 |Xerox Copy | |5. |19.09.1980 |Regd. Sale Deed No. 1243/80 |Xerox Copy | | | |with Plan | | |6. |07.12.1998 |Sanctioned Plan vide |Xerox Copy | | | |proceeding No. 2155/98 | | |7. |02.01.2003 |Development Agreement |Xerox Copy | |8. |25.04.2003 |EC No. 6654/2003 for the |Xerox Copy | | | |period from 28.06.1980 to | | | | |31.03.1982 | | |9. |25.04.2003 |EC No. 4136/2003 for the |Xerox Copy | | | |period from 01.04.1982 to | | | | |23.03.1984 | | |10. |21.04.2003 |EC No. 3918/2003 for the |Xerox Copy | | | |period from 24.03.1994 to | | | | |20.04.2003 | | |11 |28.07.2003 |Agreement for Sale |Original |
3. Details/Description of Property:- Sl.No. Sy. No./H.No. Extent of land Location Boundaries Building Dist.Village All that Flat bearing No. F-5 on First Floor, admeasuring 900 sq. Ft, along with undivided share of land 28 sq yds, out of total admeasuring 870 sq. yds constructed on Plot Nos. 3, 4 and 5 in Sy. Nos. 84 and 85 in the premises of “Guru Datta Nivas”, situated at Nerdmet, Malkajagiri Municipality, and Mandal, Ranga Reddy Dist. Hyderabad and bounded by:
FLAT BOUNDARIES: LAND BOUNDARIES NORTH: Flat No. F-6 20-0” SOUTH: Open to sky Wide Road, Sy No. 86 EAST : Corridor & Stair Case Sy. Nos. 76 and 78 open to sky.
WEST : Open to sky
4. Brief History of the Property and How the owner/Mortgagor has derived title:
The Pahains for the years 1972-73 and 1978-79 under document No. 1 reveals that Sri. Venkat Naraari Rao is the pattadar and possessor of the land admeasuring Ac. 1-31 guntas in Sy No. 84 and Ac. 1-22 guntas in Sy No. 85 of Malkajgiri, Hyderabad.
The document No. 2 shows that Sri. PV Narahari Rao was expired on 23.01.1980 as per the Death Certificate issued by MCH.
The document No 3 shows that Smt. Saraswathi Bai is only the legal heir of Late Shri PV Narahari Rao.
The document No. 4 shows that Smt. Saraswathi Bai executed a GPA in favour of Sri. CV Prasad Rao, empowering him to deal and sell the above said property. The GPA was registered in the office of sub- Registrar of Hyderabad-East vide document No. 58/80 dated 24.04.1980.
The document No. 5 shows that Smt. Saraswathi Bai sold the Plot Nos.
3, 4 and 5 admeasuring 870 sq yds. situated at Malkajgiri, Hyderabad to Smt. N. Samson Sanjeeva Rao and executed a sale deed in his favour by virtue of document No. 1243/80 dated 19.09.1980 registered in the office of sub-registrar of Uppat, Ranga Reddy.
The document No. 6 shows that Shri N. Samson Sanjeeva Rao obtained permission from Malkajgiri Municipality for construction of Residential building consisting of Ground + 4 floors vide permit No.
G1/2155/98 dated 07.12.1998.
The document No. 7 shows that Shri N. Samson Sanjeeva Rao entered into development agreement with Shri PY Kondal Rao for construction of residential flats in the above said plots.
The document Nos. 8, 9 and 10 are the Encumbrance Certificates for the period from 28.06.1998 to 20.04.2003 (23 years) which disclose only the transactions mentioned in document No. 5.
The document No. 11 shows that Shri N. Samson Sanjeeva Rao (owner) along with Shri PY Kondal Rao (builder) agreed to sell the Schedule Property (referred under Item No. III of this opinion) to Shri BAVK Mohan Rao (applicant) for a total sale consideration of Rs. 5,50,000/- and Shri. BAVK Mohan Rao (applicant) also agreed to purchase the said property for the same consideration.
5. Search and Investigation.
|5.1 |The person who is the |Shri NS Sanjeeva Rao | | |present owner of the |(present owner/vendor) and | | |property |Shri BAVK Mohan Rao | | | |(purchaser/Vendee) | |5.2 to 5.5 |xxx |xxx | |5.6 |Whether there the latest|The document No. 5 is | | |title deed and |available in Xerox | | |immediately previous |(original verified) | | |title deed(s) are | | | |available in original | | |5.7 to 5.13|xxx |xxx | |5.14 |Whether the proposed |Yes, Equitable mortgage is | | |equitable mortgage by |possible. The original | | |deosit of title deed is |registered Sale Deed | | |possible? If so, what |executed in favour of Shri | | |are the documents to be |BAVK Mohan Rao (applicant) | | |deposited? If deposit is|by the Vendors along with | | |not possible, can there |all the documents as | | |be simple mortgage or a |mentioned in the list in | | |registered memorandum or|Item No. 2 of this opinion | | |by any other mode of |should be deposited. | | |mortgage? | | |5.15to 5.20|xxx |xxx | 6-8 xxx xxx xxx
9. CERTIFICATE I am of the opinion that Shri NS Sanjeeva Rao is having clear marketable title by virtue of Regd. Sale Deed No. 1243/1980 dated 19.09.1980 referred document No. 5 of this opinion. He can convey a valid clear marketable title in favour of Shri BAVK Mohan Rao (applicant) in respect of the schedule property (referred under Item No. 3 of this opinion) by duly executing a Regd. Sale Deed in his favour.
Shri BAVK Mohan Rao (applicant) can create a valid equitable mortgage with the Bank by depositing the original Regd. Sale deed executed in his by the vendors and also depositing all the documents as mentioned in the list in Item No. 2 of this opinion. I further certify that:- |1. |There are no prior mortgage/charge | | | |whatsoever as could be seen from the | | | |encumbrance certificate for the period | | | |from 28.06.1980 to 20.04.2003 pertaining to|Yes | | |the immovable property covered by the above| | | |title deed(s). | | |2. |There are prior mortgages/charges to the | | | |extent, which are liable to be cleared or | | | |satisfied by complying with the following. |NA | |3. |There are claims from minors and | | | |his/her/their interest in the property to | | | |the extent of (specify) the share of |NA | | |minor(s) with name | | |4. |The undivided share of minor of (specify | | | |the liability that is fastended or could be|NA | | |fastened on the property). | | |5. |The property is subject to the payment of | | | |Rupees (specify the liability that is | | | |fastened or could be fastened on the |NA | | |property) | | |6. |Provisions of Urban Land (Ceiling and | | | |Regulation) Act are not applicable. |NA | | |Permission obtained. | | |7. |Holding/Acquisitions in accordance with the| | | |provisions of the land: |NA | |8. |The mortgage if created will be perfect and| | | |available to the bank for the liability of | | | |the intending borrower: Shri BAVK Mohan Rao| | | |(Applicant) | | The Bank is advised to obtain the encumbrance certificate for the period from 21.04.2003 till the date after obtaining a registered sale deed in favour of Shri BAVK Mohan Rao (applicant) SEARCH REPORT:
I have verified the title deed of Shri N.S. Sanjeeva Rao in the office of sub-Registrar of Uppal, Hyderabad on 18.07.2003 and found that the sale transaction between parties, schedule property stamp papers, regd. Sale Deed No. 1243/1980 are genuine. The verification receipt is enclosed herewith.
(K. NARAYANA RAO) ADVOCATE” The above particulars show that the respondent herein, as a panel advocate, verified the documents supplied by the Bank and rendered his opinion. It also shows that he was furnished with Xerox copies of the documents and very few original documents as well as Xerox copies of Death Certificate, Legal heir-ship Certificate, Encumbrance Certificate for his perusal and opinion. It is his definite claim that he perused those documents and only after that he rendered his opinion. He also advised the bank to obtain Encumbrance Certificate for the period from 21.04.2003 till date. It is pointed out that in the same way, he furnished Legal Scrutiny Reports in respect of other cases also.
18) We have already mentioned that it is an admitted case of the prosecution that his name was not mentioned in the FIR. Only in the charge- sheet, the respondent has been shown as Accused No. 6 stating that he submitted false legal opinion to the Bank in respect of the housing loans in the capacity of a panel advocate and did not point out actual ownership of the properties in question.
19) Mr. Venkataramani, learned senior counsel for the respondent submitted that in support of charge under Section 120B, there is no factual foundation and no evidence at all. Section 120A defines criminal conspiracy which reads thus:
“120A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done,- 1) an illegal act, or 2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.” Section 120B speaks about punishment of criminal conspiracy. While considering the definition of criminal conspiracy, it is relevant to refer Sections 34 and 35 of IPC which are as under:
“34. Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” “35. When such an act is criminal by reason of its being done with a criminal knowledge or intention. - Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention.” 20) The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence.
21) In the earlier part of our order, first we have noted that the respondent was not named in the FIR and then we extracted the relevant portions from the charge-sheet about his alleged role. Though statements of several witnesses have been enclosed along with the charge-sheet, they speak volumes about others. However, there is no specific reference to the role of the present respondent along with the main conspirators.
22) The High Court while quashing the criminal proceedings in respect of the respondent herein has gone into the allegations in the charge sheet and the materials placed for his scrutiny and arrived at a conclusion that the same does not disclose any criminal offence committed by him. It also concluded that there is no material to show that the respondent herein joined hands with A-1 to A-3 for giving false opinion. In the absence of direct material, he cannot be implicated as one of the conspirators of the offence punishable under Section 420 read with Section 109 of IPC. The High Court has also opined that even after critically examining the entire material, it does not disclose any criminal offence committed by him.
Though as pointed out earlier, a roving enquiry is not needed, however, it is the duty of the Court to find out whether any prima facie material available against the person who has charged with an offence under Section 420 read with Section 109 of IPC. In the banking sector in particular, rendering of legal opinion for granting of loans has become an important component of an advocate’s work. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skills.
23) A lawyer does not tell his client that he shall win the case in all circumstances. Likewise a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of the two findings, viz., either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.
24) In Jacob Mathew vs. State of Punjab & Anr. (2005) 6 SCC 1 this court laid down the standard to be applied for judging. To determine whether the person charged has been negligent or not, he has to be judged like an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.
25) In Pandurang Dattatraya Khandekar vs. Bar Council of Maharashtra &
Ors. [1983] INSC 153; (1984) 2 SCC 556, this Court held that “…there is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct.
26) Therefore, the liability against an opining advocate arises only when the lawyer was an active participant in a plan to defraud the Bank. In the given case, there is no evidence to prove that A-6 was abetting or aiding the original conspirators.
27) However, it is beyond doubt that a lawyer owes an “unremitting loyalty” to the interests of the client and it is the lawyer’s responsibility to act in a manner that would best advance the interest of the client. Merely because his opinion may not be acceptable, he cannot be mulcted with the criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators. At the most, he may be liable for gross negligence or professional misconduct if it is established by acceptable evidence and cannot be charged for the offence under Sections 420 and 109 of IPC along with other conspirators without proper and acceptable link between them. It is further made clear that if there is a link or evidence to connect him with the other conspirators for causing loss to the institution, undoubtedly, the prosecuting authorities are entitled to proceed under criminal prosecution. Such tangible materials are lacking in the case of the respondent herein.
28) In the light of the above discussion and after analysing all the materials, we are satisfied that there is no prima facie case for proceeding in respect of the charges alleged insofar as respondent herein is concerned. We agree with the conclusion of the High Court in quashing the criminal proceedings and reject the stand taken by the CBI.
29) In the light of what is stated above, the appeal fails and the same is dismissed.
.................................................J.
(P. SATHASIVAM) 
..........................................................J.
(RANJAN GOGOI) NEW DELHI;
SEPTEMBER 21, 2012. 

Thursday, October 18, 2012

LALKU MIAN AND ORS v. CHIEF SECRETARY, M.H.A., GOVT.OF W.B. [2012] EssenSC 573 (20 September 2012)


Judgement 
IN THE SUPREME COURT OF INDIA 
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1290 OF 2007 

LALKU MIAN AND ORS APPELLANTS 
VERSUS 
CHIEF SECRETARY, M.H.A., GOVT.OF 

O R D E R

 
1. Being aggrieved by the judgment and order passed by the High Court of Calcutta in Criminal Appeal No.229 of 2002 dated 24.01.2006, the appellant, who are four in number, are before us in this appeal. By the impugned judgment and order, the High Court has confirmed the judgment and order passed by the learned Additional Sessions Judge, 2nd Court, Birbhumi, West Bengal in Sessions Case No.47 of 1999, dated 11.06.2002.
2. This is a case of the circumstantial evidence being taken note of by the Trial Court as well as the High Court for convicting the appellants herein for offences under Section 302 read with Section 34 of the Indian Penal Code, 1860 (“IPC” for shor). The High Court, in its well considered order, has noted the following aspects to bring home the point that the prosecution has proved beyond all reasonable doubt that the appellants are guilty of the offences alleged against them. The High Court has noted (a)that the appellants were last seen in the company of the deceased; (b)that the father of the deceased, namely, P.W.1 and other witnesses, namely P.W.s 2, 4, 5 and 6 had heard the cries of the deceased and endeavored to search for him; (c)that immediately after the commission of offence the appellants went missing and could not be traced; and (d) the factum of recovery of the weapon that was used for committing the offence.
3. After considering the aforesaid aspects of the matter, the High Court has come to the conclusion that the chain of circumstances is complete and, therefore, the Trial Court was justified in convicting and sentencing the accused persons for the offences under Section 302 read with Section 34 of the IPC.
4. Smt.Vibha Datta Makhija, learned counsel appearing as amicus for appellant no.1 and Shri Pranesh, learned counsel for appellant nos. 2 to 4 have addressed their arguments in detail. They have also taken us through the entire evidence on record and the judgments of both the Courts.
Shri Anip Sachthey, learned counsel for the State, in our opinion, ably justifies the impugned judgment and order.
5. Having carefully perused the judgments and order passed by the Trial Court as well as by the High Court, we are of the considered opinion that both the Courts have not committed any error either on facts or on the questions of law. Therefore, no interference with the said judgment and order is called for. Accordingly, while confirming the orders passed by the Courts below, we dismiss the appeal.
6. We place on record our deep appreciation in the able assistance rendered by Ms.Vibha Datta Makhija, learned counsel, who was requested by us to assist us as amicus for appellant no.1. She is entitled for the professional fee in a sum of Rs.7,000/-.
.......................J.
(H.L. DATTU) 
.......................J.
(CHANDRAMAULI KR. PRASAD) NEW DELHI; 

Friday, October 12, 2012

Non-bailable warrant issued against Kingfisher, Vijay Mallya

HYDERABAD: A city court on Friday issued a non-bailable warrant against business tycoon Vijay Mallya and five others in a cheque bounce case.

The 13th metropolitan sessions court issued the warrant against crisis-hit Kingfisher airlines in a case filed by GMR Hyderabad International Airport Ltd (GHIAL), which manages the Rajiv Gandhi International Airport here.

The case was filed in August by GHIAL after four cheques of Rs 10.3 crore issued by Kingfisher towards user charges bounced.

The court issued the warrant after Mallaya failed to appear despite summons issued to him. The liquor baron reportedly sought exemption from personal appearance as he was abroad.

The respondents in the case include Kingfisher, its chairman Mallya and CEO Sanjay Agarwal.

Kingfisher had issued cheques to GHIAL towards airport user charges which include parking, landing and navigation charges.

The crisis-hit airlines faces similar cases in Mumbai and Delhi after the airport operators moved the court over dishonoured cheques

Gujarat Congress MP faces arrest for brandishing gun at toll booth

VADODARA: Congress MP from Porbandar, Vithhal Radadiya is facing arrest after he brandished his gun at a toll booth in Karjan taluka of Vadodara district late on October 10 night. Radadiya was travelling in his private car along with his driver, his bodyguard and others. The incident occurred at a toll booth near Bharthana village in Karjan. Radadiya and his men not only threatened the toll collector with the gun but also created ruckus that led to heavy traffic jam on the highway. 

Toll booth manager Ajaysinh Thakore registered a police complaint against Radadiya and five other people on Friday. "We had received an application from Thakore earlier following which we started investigating the case. We wanted to confirm whether the person who threatened the toll booth employee was Radadiya. So the police got hold of CCTV images from the toll booth," said Vadodara DySP Usha Raada. 

"The images confirmed that the person brandishing weapon was Radadiya. Hence a complaint was registered at Karjan police station on Friday. The complaint states that he showed his gun to the employee and threatened him with dire consequences," Raada. She added that after conducting investigations, Radadiya would be arrested. 

According to the complaint, Radadiya's driver produced photocopy of the MP's identity card at the toll booth. "But the toll booth employee sought the original ID card and it led to heated arguments between the employee and Radadiya. The MP got out of his car and took out his gun to threaten the toll booth employees," said investigating officer and Karjan police sub-inspector R M Vasava. 

The police has registered an FIR against Radadiya under IPC sections 143, 147, 148, 149, 405, 406 (B) and section 25 and section 25 (1) of Arms Act. 

The police said that when Radadiya was threatening the toll booth employees, his men created ruckus at the entry and exit points of the booth. "This led to heavy traffic jam on the highway. We are now collecting all the evidence following which we will start arresting the accused," investigating officer and Karjan police sub-inspector RM Vasava said. 

Thursday, October 11, 2012

SC notice to Mayawati on disproportionate assets


The Supreme Court  sent a notice to the Central Bureau of Investigation (CBI), BSP chief Mayawati and the Centre on a review petition asking the court to further probe the disproportionate assets against the former Uttar Pradesh Chief Minister.
The Supreme Court in July this year had quashed an FIR filed by the CBI against Mayawati in the case. In August, the petition seeking review of the Supreme Court judgement, filed by one Kamalesh Verma through his advocate Kamini Jaiswal, said that since the CBI failed to file the review, the petitioner is doing so.
The Supreme Court after hearing the review petition said today that it will issue notice to all, seeking their views in the case, adding that the CBI has not been prohibited from probing the disproportionate assets case against Mayawati.
“CBI is at liberty to investigate illegal assets case, if any against her. There is no prohibition. We quashed the FIR as there was no direction to investigate. It doesn’t debar to proceed with the probe with the sanction. If there is any doubt we will clear,” the Supreme Court said today.
“We never said that CBI has no power to investigate. It can do so, but has to get sanction from the state government,” the Supreme Court added.
The top court said its verdict quashing the case against Mayawati was not to protect anyone.
The Supreme Court on July6 had quashed the FIR filed against the former Uttar Pradesh Chief Minister saying, “There was no direction to the CBI to conduct a probe into the petitioner’s assets. The agency had only been directed to probe the Taj Corridor case. There’s no material against her available to this court.”

SC pulls up Centre on Endosulfan use


The Supreme Court today pulled up the Centre for not taking a clear stand on banning Endosulfan and appointed an expert committee to submit a report on whether use and manufacture of the pesticide can be stopped forever.
“Why does Centre not take a stand on this issue and why it is left for the court to decide,” a bench of justices Swatanter Kumar and Madan B Lokur asked.
“If we completely ban using the pesticide then it would be said that it would lead economic crisis and if we allow then it would be said that it would cause human crisis. Let someone from the government take a clear stand on the issue. You cannot leave everything on the court,” the bench observed.
It appointed an expert committee comprising Director General of Health Services, Member Secretary of Centre Pollution Control Board, two scientists and Joint Secretary of Plant Protection form Agriculture Ministry.
It directed the committee to study various aspects and submit its report within six weeks. It posted the matter for further hearing on November 20.
The apex court had on May 13 imposed a temporary ban on production, sale and use of the pesticide.
The court’s interim order had came on a petition seeking a ban on Endosulfan on the ground that it was causing health hazards including genetic disorders in Kerala where it is widely used.
The petition was filed by CPI-M’s youth wing Democratic Youth Federation of India seeking a countrywide ban on sale and production of Endosulfan.
According to the petitioner, researchers studying children from an isolated village in Kasaragod district have linked Endosulfan exposure to delays in sexual maturity among boys.