Saturday, May 18, 2019

Scope Of Enquiry Under Section 202 CrPC: SC Explains

The Supreme Court, in a judgment delivered recently, has succinctly explained the scope of enquiry under Section 202 of the Code of Criminal Procedure.
In Birla Corporation Ltd. v. Adventz Investments and Holdings Ltd, the Apex Court bench of Justice R. Banumathi and Justice R. Subhash Reddy observed that the purpose of the enquiry under Section 202 Cr.P.C. is to determine whether a prima facie case is made out and whether there is sufficient ground for proceeding against the accused. Page 19-29 of the judgment discusses the scope of Section 202 CrPC.
The bench said that, on presentation of the complaint by an individual, the Magistrate is required to examine the complainant and the witnesses present, if any. Thereafter, on perusal of the allegations made in the complaint, the statement of the complainant on solemn affirmation and the witnesses examined, the Magistrate has to get himself satisfied that there are sufficient grounds for proceeding against the accused and on such satisfaction, the Magistrate may direct for issuance of process as contemplated under Section 204 Cr.P.C. The court added that the allegations in the complaint and complainant's statement and other materials must show that there are sufficient grounds for proceeding against the accused. It said:
"The scope of enquiry under this section is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should be issued or not under Section 204 Cr.P.C. or whether the complaint should be dismissed by resorting to Section 203 Cr.P.C. on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. At the stage of enquiry under Section 202 Cr.P.C., the Magistrate is only concerned with the allegations made in the complaint or the evidence in support of the averments in the complaint to satisfy himself that there is sufficient ground for proceeding against the accused."
The court also added that, under amended sub-section (1) to Section 202 Cr.P.C., it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding against the accused. Referring to various judgments on the subject:
"The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint."
Some other judgments referred by the bench on the subject are the following:

Friday, May 17, 2019

Insurers can’t deny cover for mental illness, adventure sports enthusiasts

Insurance regulator IRDAI on Friday came out with new rules that will have widespread ramifications for health insurers and the general public. Insurers henceforth cannot decline coverage to those who have used opioids or anti-depressants. Nor can they exclude those with a history of clinical depression, personality disorders, sociopathy, psychopathy, or neurodegenerative disorders.
They cannot exclude kids suffering from development disorders such as Down’s syndrome, cerebral palsy, and autism, or those suffering from dyslexia, stammering and other disorders of speech and language. Batting for the LGBTQ community, IRDAI has said that insurers cannot discriminate on the basis of gender and identity. Insurers cannot refuse to provide coverage or reject claims if a person is on life support. Insurers can reject claims only if the patient is certified as being in a vegetative state, but even then insurers will be required to provide coverage/pay expenses till that date.
For young girls and older women who suffer from excessive bleeding, hormonal changes due to the onset of puberty or menopause, insurers can no longer exclude coverage or payment for treatment costs. Insurers cannot deny coverage to geriatric patients, suffering from age-related macular degeneration (ARMD) and those suffering from rare or orphan diseases.
Insurers will have to cover adventure sports such as dirt biking, paragliding, whitewater rafting, go-karting, F1 racing, and ethnic sports like jallikattu and kambala. This would be a relief to sports enthusiasts, clubs and adventure trip organisers.
Another important decision is that at the point of claims if the person is discovered to be a smoker or suffering from a disease/pre-existing condition, the insurer cannot reject the claim if he/she has been availing of insurance for eight years in continuity.
IRDAI has said that insurers cannot exclude coverage or reject claims if the policyholder has “failed to seek or follow medical advice or follow treatment”. Often patients undergoing treatment for a condition stop the treatment towards the final stages or stop taking drugs midway. Insurers have been known to penalise patients for failure to follow through on a prescribed regime.

UK visa racket busted in Valsad- Gujarat

Travel Agent And Two Clients Allegedly Forged Documents

Police busted a racket of visa application to British High Commission on the basis of forged documents with the arrest of a 32-year-old travel agent and two of his clients in Valsad on Friday. Police produced the travel agent in a local court which remanded him in their custody until May 21. Six people have been booked altogether in this connection at Valsad town police station.
Accused Soyeb Saiyed is the owner of Soby Tour and Travel. Tabrez Sharafat Husain Gebi and Mohamed Shakil Hanif Shaikh, both from Valsad, who two were arrested, had applied for a visa to the UK in 2018 through Saiyed. Three others who were booked were Mohmed Imran Basir Ahmed Doctor, Sarfaraz Abdul Kadir Saiyed and Riyaz Chhotu Panjwani. Police investigation revealed that Sarfaraz and Riyaz are currently in South Africa.

The complaint was lodged by Darren Fraser, immigration liaison officer of British High Commission, New Delhi.
Police suspect around 40 visa applications of clients for the United Kingdom had been filed by Saiyed.
Detailed checking by document verification unit of British High Commission has found that Saiyed had submitted forged income tax returns, bank balance certificates and travel agency letters on behalf of his clients.
“It is an unusual case where so many applications with forged documents had been filed,” said Sunil Joshi, superintendent of police, Valsad. TOI

Wednesday, May 15, 2019

Temporary removal of document for replication of content can be the subject of Theft, Supreme Court

The Supreme Court recently held that information replicated from a document even temporarily removed from its lawful custody, will fall within the purview of “movable property” and thus can be the subject matter of theft under Section 378 of the Indian Penal Code.
While deciding the point of law, a Bench of Justices R Banumathi and Subhash Reddyheld,
“Information contained in a document, if replicated, can be the subject of theft and can result in wrongful loss, even though the original document was only temporarily removed from its lawful custody for the purpose of extracting the information contained therein.”
As per the facts of the case, the appellant Birla Corporation had alleged the theft of fifty-four of its documents by the respondents, Adventz Investments and Holdings. A criminal complaint was filed by the appellant company alleging the commission of offences punishable under Sections 379, 403 IPC read with Section 120-B IPC. This complaint was filed in the midst of a complex web of litigation between the parties.
However, the Calcutta High Court had quashed the complaint. The High Court held that since originals of the documents were still in the custody of the complainant, taking away the information contained in such documents cannot be considered to be “movable property”. Thus, the temporary removal of the documents for taking information by itself cannot be the subject of the offence of theft. The appellant company then approached the Supreme Court in appeal.
The question before the Supreme Court was whether temporary removal of the documents and using them in the litigation pending between the parties would amount to theft.
The following requirements need to be established in order to make out a case of theft under Section 378 IPC:
  • Dishonest intention
  • To take away movable property
  • For wrongful gain
  • To cause wrongful loss
While interpreting whether the replication of information from a document would fall under the scope of movable property, the Court noted,
““Moveable property” is defined in Section 22 IPC which includes a corporeal property of every description. It is beyond doubt that a document is a “moveable property” within the meaning of Section 22 IPC which can be the subject matter of theft. A “document” is a “corporeal property”. A thing is “corporeal” if it has a body, material and a physical presence….
…The first Explanation to Section 29 IPC provides that it is immaterial by what means or upon what substance these are formed. This definition would include within its ambit photocopy of a document. As per Explanation No.2 of Section 29 IPC, letters, figures or marks shall be deemed to be expressed by such letters, figures or marks within the meaning of the Section. Such letters, figures or marks thus have a material and physical presence. Therefore, it can also be inferred that the said information would be deemed to fall within the purview of “Document” – a corporeal property.”
Therefore, the Bench held that the High Court was not right in holding that the replication of the documents or use of information therein is not moveable property and would not amount to theft.
However, the Court held that the replication of information in the facts and circumstances of the present case would not amount to theft. The Court held that there wasn’t sufficient evidence to conclude that there was a dishonest intention on the part of the respondent company to create wrongful gain for themselves.
“…it is to be seen in using the documents in the litigation, whether there is “dishonest intention” on the part of the respondents in causing “wrongful loss” to the appellant Company and getting “wrongful gain” for themselves. Respondents…have produced the photocopies of the documents No.1 to 54 in the CLB proceedings which were filed by them on the ground of oppression and mismanagement.
Merely because the respondents have produced the copies of the documents in the CLB proceedings, it cannot be said that the respondents have removed the documents with “dishonest” intention. Copies of documents are produced in support of the case of respondents No.1 to 5 and to enable the Court to arrive at the truth in a judicial proceeding involving alleged oppression and mismanagement in the affairs of the appellant Company by respondent No.17.”
The Court further held,
“When a bona fide dispute exists between the parties as to whether there is oppression and mismanagement, there is no question of “wrongful gain” to the respondents or “wrongful loss” to the appellant. In using the documents, when there is no dishonest intention to cause “wrongful loss” to the complainant and “wrongful gain” to the respondents, it cannot be said that the ingredients of theft are made out…
…How the respondents had access to the documents may be one thing. It may perhaps have bearing on the evidentiary value to be attached to the documents. But to say that it amounts to theft and seeking to prosecute the respondents is nothing but an attempt to cow down their defence in the litigation or to deprive the respondents of their valuable defence.”
Thus, the judgment of the High Court was set aside and the appeals were allowed.
In the same case, the Court also made an important ruling as regards Section 202 of the Code of Criminal Procedure. It was held that it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer for finding out whether or not there is sufficient ground to proceed against the accused.

Section 138 NI Act: Delay In Filing The Complaint Can Be Condoned If Sufficient Cause Is Shown In The Complaint

The Supreme Court has observed that cognizance of a complaint filed under Section 138 of the Negotiable Instrument Act can be taken by the court even after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.
The bench comprising Justice DY Chandrachud and Justice Hemant Gupta was concerned with an appeal against Patna High Court judgment which quashed a summons issued by Chief Judicial Magistrate in a cheque bounce complaint.

In Birendra Prasad Sah vs. State of Bihar, after dishonour of cheques, the complainant issued a legal notice on 31.12.2015. As the accused failed to reply, the reminder notice was issued on 26.02.2016 by the complainant. The accused replied to the second notice denying his liability. The complaint was filed on 11.05.2016. The delay in filing complaint was condoned by the CJM taking into consideration the request made by the complainant that during the intervening period he had fallen ill.

The High Court had quashed the summons mainly on the ground that it was not permissible for a payee to create another cause of action in respect of the same cheque. It also observed that the complainant failed to file the complaint within the statutory period of thirty days as prescribed under the N.I. Act in pursuance to the issuance of first notice.
In appeal, though it was argued before the Apex Court bench, that in MSR Leathers v. S Palaniappan, a three judge Bench of this Court has taken the view that the issuance of successive notices is permissible under the provisions of Section 138, the bench did not consider this issue.
Instead, the bench observed that that sufficient cause was shown by the complainant for condoning the delay in instituting the complaint taking the basis of the complaint as the issuance of the first legal notice dated 31 December 2015. Setting aside the High Court order on this ground, the bench said:
"The complaint was instituted on 11 May 2016. Under Section 142(1), a complaint has to be instituted within one month of the date on which the cause of action has arisen under clause (c) of the proviso to Section 1386 . The proviso however stipulates that cognizance of the complaint may be taken by the court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. Both in paragraphs 7 and 8 of the complaint, the appellant indicated adequate and sufficient reasons for not being able to institute the complaint within the stipulated period. These have been adverted to above. The CJM condoned the delay on the cause which was shown by the appellant for the period commencing from 6 April 2018. However, if paragraphs 7 and 8 of the complaint are read together, it is evident that the appellant had indicated sufficient cause for seeking condonation of the delay in the institution of the complaint. The High Court has merely adverted to the presumption that the first notice would be deemed to have been served if it was dispatched in the ordinary course. Even if that presumption applies, we are of the view that sufficient cause was shown by the appellant for condoning the delay in instituting the complaint taking the basis of the complaint as the issuance of the first legal notice dated 31 December 2015."





Tuesday, May 14, 2019

Sharing Meme Of Mamata Banerjee: SC Directs Immediate Release Of BJP Activist

The Supreme Court on Tuesday 14/05/2019 directed BJP Leader Priyanka Sharma arrested by West Bengal police for allegedly sharing a morphed photo of Chief Minister Mamata Banerjee on social media to be released immediately.
The order of release, initially being subject to her furnishing a written apology forthwith on her release, was ultimately modified to revoke the condition of the apology. 
"The post was deleted even before she was arrested. But the meme is still doing rounds. It is not like she was the only one who shared it. To place her in judicial custody for 14 days for this is a grave infringement of fundamental rights!", urged Senior Advocate N. K. Kaul for Sharma.

Friday, May 10, 2019

Tri HC | Purpose of demand notice under S. 138 NI Act – not to demand payment, but to inform the party of broken contract and liability to pay

Tripura High Court: The Bench of Arindam Lodh, J. allowed a revision petition under Section 397 read with Section 401 of Code of Criminal Procedure, 1973 and set aside the lower courts’ order acquitting the accused in a case filed under Section 138 of the Negotiable Instruments Act, 1881.
Petitioner herein (complainant before lower court) gave a loan of Rs 3.6 lakhs to the accused in three installments against which the respondent issued three post-dated cheques. When the petitioner tried to encash these cheques, they were dishonoured with the remark ‘insufficient funds’ in the account of the respondent. The petitioner served a statutory demand notice upon the respondent which went unresponded. Thereafter, he filed a complaint in the Trial Court charging the accused for dishonour of cheque. The Trial Court dismissed the case holding that the demand notice was invalid as it did not bear the signatures of petitioner’s Advocate.  Respondent’s acquittal was affirmed and upheld by the learned Sessions Judge. Aggrieved thereby, the instant revision petition was filed.
The Court opined that the decisions arrived at by the lower courts were perverse and unwarranted on both the points of facts and law, hence not sustainable. It was held that Section 138 proviso (b) does not stipulate that the notice is to be sent through an advocate. Further, each page of the demand notice had been signed by the complainant himself, and thus it was a valid notice in terms of Section 94 of the NI Act. It was observed that the object of notice of dishonor of cheque to endorser is not to demand payment, but to indicate to the party notified that his contract arising on the negotiable instrument has been broken and he is liable for payment.
Reliance was placed on Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd.2016 SCC Online SC 954, where it was held that a post-dated cheque issued as security towards payment of installments of a loan transaction falls within the purview of Section 138 NI Act. In view thereof, it was held that the respondent was liable under Section 138 of NI Act, and he was ordered to pay a fine of Rs 3,60,000 to the petitioner as compensation, failing which, he would be sentenced to simple imprisonment of six months.[Subal Chandra Ghosh v. State of Tripura, 2019 SCC OnLine Tri 134, decided on 25-04-2019]

Sunday, May 5, 2019

Courts Cannot Decide Eligibility And Essential Qualifications For Employment: SC

The Supreme Court observed that a Court, while exercising its power of judicial review, cannot decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.
The essential qualifications for appointment to a post are for the employer to decide, said the bench comprising  of Justice Arun Mishra and Justice Navin Sinha while setting aside a Bombay High Court order.
The High Court had, in the impugned order, interpreted an advertisement issued by Maharashtra Public Service Commission to hold that candidates possessing the requisite years of experience in research and development of drugs and testing of the same, are also eligible to be considered for appointment to the post of Assistant Commissioner (Drugs) and Drug Inspectors.
The court, observed that it is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. It said:
"The employer may prescribe additional or desirable qualifications, including any grant of preference. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive re-writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law"
In this case, the bench observed the interpretation of the terms of the advertisement as made by the High Court both regard to the posts of Assistant Commissioner (Drugs) and Drug Inspectors cannot be upheld. The term "preference" mentioned in the advertisement cannot be interpreted to mean that merely because a candidate may have had the requisite experience of testing in a research and development laboratory he/she possessed the essential eligibility and had a preferential right to be considered for appointment, the court added.

Friday, May 3, 2019

Give 10 Acres Land to Girl, Bombay HC Tells Lawyer Who Married a 14-year-old

The Bombay High Court on Thursday directed a 56-year-old lawyer, facing a case of rape for marrying a 14-year-old girl, to give ten acres of land to her and ensure she finishes her education.

A division bench of justices Ranjit More and Bharati Dangre was hearing a petition filed by the lawyer seeking that the case registered against him be quashed. He argued that the girl, now 18 years old and hence an adult, had consented to continue the marriage and had no objection if the case was quashed.


The lawyer was arrested by the city police in December 2017 for rape and other offenses under the IPC and Protection of Children from Sexual Offenses Act and Prohibition of Child Marriage Act. The girl was 14 when the accused, then 52, "married" her in 2014.

In her complaint, the girl had claimed she was forced into the marriage by her grandparents. The lawyer was in judicial custody for around 10 months and then released on bail. The girl turned 18 on September 17, 2018, after which the lawyer moved the High Court, seeking quashing of the case.


Additional public prosecutor Aruna Kamat Pai opposed the petition, saying quashing such a case would set a bad precedent.

The judges directed the accused to open a fixed deposit (FD) account with Rs seven lakh for the girl, ensure that she finishes her education, and transfer ten acres of land in her name in his village. The court adjourned the case to September 2019 when it will see if the order has been complied with, and decide whether to quash the case.

Limitation Act Applicable To Suits, Appeals, Application Filed In Courts, Not Before Statutory Authorities: SC

The Supreme Court has observed that the suits, appeals and applications referred to in the Limitation Act, 1963 are suits, appeals and applications which are to be filed in a Court, and not before a statutory authority.
The bench comprising Justice Ashok Bhushan and Justice KM Joseph held that the 'Commissioner' under Hindu Religious Endowment Charitable Act, 1959 while hearing the appeal under Section 69 of Act, is not a 'Court' within the meaning of the Limitation Act.
It also held that the Commissioner while hearing of the appeal under Section 69 of the Act, 1959 is not entitled to condone the delay in filing appeal, since, provision of Section 5 shall not be attracted by strength of Section 29(2) of the Act. Section 5 of the Limitation Act is not applicable as per the scheme of HRCE Act, the bench said.


In Ganeshan vs. The Commissioner, the Tamil Nadu Hindu Religious And Charitable Endowments Board, the bench was considering an appeal against the Madras High Court judgment that held that in appeal proceedings before the Commissioner Section 5 of the Limitation Act is fully applicable, and the Commissioner has power to condone the delay in filing appeals under Section 69 of HRCE Act. Referring to various earlier judgments, the bench culled out these principles. It observed:
  • The suits, appeals and applications referred to in the Limitation Act, 1963 are suits, appeals and applications which are to be filed in a Court. 
  • The suits, appeals and applications referred to in the Limitation Act are not the suits, appeals and applications which are to be filed before a statutory authority like Commissioner under Act, 1959. 
  • Operation of Section 29(2) of the Limitation Act is confined to the suits, appeals and applications referred to in a special or local law to be filed in Court and not before statutory authorities like Commissioner under Act, 1959. 
  • However, special or local law vide statutory scheme can make applicable any provision of the Limitation Act or exclude applicability of any provision of Limitation Act which can be decided only after looking into the scheme of particular, special or local law.
Two of the issues before the bench in this case was (1) whether applicability of Section 29(2) of Limitation Act is with regard to different limitation prescribed for any suit, appeal or application to be filed only in a Court or Section 29(2) can be pressed in service with regard to filing of a suit, appeal or application before statutory authorities and tribunals provided in Special or Local Laws? (2) Whether the Commissioner while hearing the appeal under Section 69 of Act 1959 is entitled to condone a delay in filing an appeal applying the provisions of Section 5 of the Limitation Act, 1963?. Applying the above principles to this case, the bench held:
The applicability of Section 29(2) of the Limitation Act is with regard to different limitations prescribed for any suit, appeal or application when to be filed in a Court. Section 29(2) cannot be pressed in service with regard to filing of suits, appeals and applications before the statutory authorities and tribunals provided in a special or local law. The Commissioner while hearing of the appeal under Section 69 of the Act, 1959 is not entitled to condone the delay in filing appeal, since, provision of Section 5 shall not be attracted by strength of Section 29(2) of the Act.