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Meaning Of White Collar Crime

White collar crimes involve criminal activities committed by people in the regular course of their business and involve bribery, extortion, fraud and embezzlement. These crimes usually end in financial gain for the perpetrator.

This notion was laid down for the first time in the field of criminology by Prof. Edwin Sutherland in 1941. He defined white collar crime as “crime committed by persons of respectability and high social status in course of their occupation”. Examples of it include fraudulent advertisements, infringement of patents, publication of falsified balance sheet of business, passing of goods, concealment of defects in the commodity for sale etc. These white collar crimes by nature are such that the injury or the damage caused as a consequence of them is so widely diffused in the large body of citizens that their enormity as regards personage victim is almost trifling.

White collar crimes are criminal acts that are performed by people in the course of business committed for financial gain.

Types of White Collar Crime In India

The white collar crimes which are common to Indian trade and business world are hoardings, profiteering and black marketing. Violation of foreign exchange regulations and import and export laws are frequently resorted to for the sake of huge profits. That apart, adulteration of foodstuffs, edibles and drugs which causes irreparable danger to public health is yet another white collar crime common in India.

The Santhanam Committee Report in its findings gave a vivid picture of white collar crimes committed by persons of respectability such as businessmen, industrialists, contractors and suppliers as also the corrupt public officials . The Report of the Vivin Bose Commission of Inquiry into the affairs of Dalmia Jain group of companies in 1963 highlights how these industrialists indulge in white collar crimes such as fraud , falsification of accounts, tampering with records for personal gains and tax evasion etc. Similar observations re made by Mr Justice M.C Chagla about the big business magnate Mundhra who wanted to “build up an industrial empire of dubious means.”

The Law Commission of India has suggested drastic measures against such offenders. In the Commission’s observation the tedious prosecution process involved in the trial of such cases frustrates the cause of justice.

 Bank Fraud: To engage in an act or pattern of activity where the purpose is to defraud a bank of funds.

Blackmail: A demand for money or other consideration under threat to do bodily harm, to injure property, to accuse of a crime, or to expose secrets.

 Bribery: When money, goods, services, information or anything else of value is offered with intent to influence the actions, opinions, or decisions of the taker. You may be charged with bribery whether you offer the bribe or accept it.

 Cyber Crimes :Where computer hackers steal information sources contained on computers such as: bank information, credit cards, and proprietary information. Counterfeiting: Occurs when someone copies or imitates an item without having been authorized to do so and passes the copy off for the genuine or original item. Counterfeiting is most often associated with money however can also be associated with designer clothing, handbags and watches.

 Credit Card Fraud: The unauthorized use of a credit card to obtain goods of value.

 Currency Schemes: The practice of speculating on the future value of currencies.

 Educational Institutions: Yet another field where collar criminals operate with impunity are the privately run educational institutional in this country. The governing bodies of those institutions manage to secure large sums by way of government grants of financial aid by submitting fictitious and fake details about their institutions. The teachers and other staff working in these institutions receive a meager salary far less than what they actually sign for, thus allowing a big margin for the management to grab huge amount in this illegal manner.

Embezzlement: When a person who has been entrusted with money or property appropriates it for his or her own use and benefit.

Extortion: Occurs when one person illegally obtains property from another by actual or threatened force, fear, or violence, or under cover of official right.

 Forgery: When a person passes a false or worthless instrument such as a check or counterfeit security with the intent to defraud or injure the recipient.

 Insider Trading: When a person uses inside, confidential, or advance information to trade in shares of publicly held corporations.

Money Laundering: The investment or transfer of money from racketeering, drug transactions or other embezzlement schemes so that it appears that its original source either cannot be traced or is legitimate.

 Securities Fraud: The act of artificially inflating the price of stocks by brokers so that buyers can purchase a stock on the rise.

Tax Evasion: When a person commits fraud in filing or paying taxes. The complexity of tax laws in India has provided sufficient scope for the tax-payers to evade taxes. The evasion is more common with influential categories of persons such as traders, businessmen, engineers, contractors etc. The main difficulty posed before the Income Tax Department is to know the real and exact income of these

Punishments

Criminal offences, in India, have been codified in the Indian Penal Code of 1860, which covers most of the above said white collar crimes and defines the punishments for the commission/attempt of those offences. Other offences are governed by their respective field of enactments.

The crime is no less heinous than putting an end to the life of a person. A large number of suicides which follow such white collared crime is indicative of the magnitude of the crime involved. Therefore, the fact that a maximum punishment of 7 years is prescribed for a single offence of cheating cannot be pressed into service by the petitioners for seeking relief.

Conclusions:

It is required to take note of the investigation made by the State agency for such type of alleged white-collar crimes. The investigation for the white collar crimes must be conducted by highly trained Investigating Officer, who are well conversant with the system and the field in which the crime has been committed. In the present case, it is the banking in cooperative field. Not only that, but for detection of while collar crimes, it is expected for the State to undertake the investigation through ultra modern machineries like lie detector test, narco test etc. Not only that, but normally in the matter of investigation of while collar crimes running into crores of rupees, it would be expected for the Investigating Officer to immediately intimate the concerned Airport Authorities, so that the accused may not fly away, outside the territory of the country. In the same manner, the I.O. conducting the investigation for white collar crimes running into crores of rupees has to take immediate steps for intimating the concerned bankers, so that the accused may not withdraw and convert the money in such a manner which makes the things irreversible, even if subsequently found that on the date of the complaint, the money realized out of the white collar crime should be made available to the victims of such crimes as an outcome of the trial.

Bail in White Collar Crimes Cases in India.

Bail law on economic and white collar offences is well delineated and no more res integra. Echoing the concern for economic offences, which are more dangerous and having far reaching impact on society than bodily offences, Honble Apex Court and several High Courts have held that in dealing with such bail applications, Courts are required to analyze and evaluate certain relevant factors cautiously.

As held in the matter of : Mallampati Gandhi S/O. Naga Raju vs The State Of Telangana

The Hon’ble Apex Court further held that an economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest. The Hon’ble Apex Court has further held that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail held in the matter of Murthy.V.K vs The State

White Collar Crimes related judgments:

  1. Narinderjit Singh Sahni And Anr vs Union Of India And Ors: SC
  2. Noormohmed Jamalbhai Latiwala vs State Of Gujarat : Gujrat High Court.
  3. V.K vs The State : Madras High Court.
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 In the aforesaid analysis, while declaring the directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee is impermissible. Therefore, we think it appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar (supra), D.K. Basu (supra), Lalita Kumari (supra) and Arnesh Kumar (supra). It will also be appropriate to direct the Director General of Police of each State to ensure that investigating officers who are in charge of investigation of cases of offences under Section 498-A IPC should be imparted rigorous training with regard to the principles stated by this Court relating to arrest.

  In view of the aforesaid premises, the direction contained in paragraph 19(i) as a whole is not in accord with the statutory framework and the direction issued in paragraph 19(ii) shall be read in conjunction with the direction given hereinabove.

  Direction No. 19(iii) is modified to the extent that if a settlement is arrived at, the parties can approach the High Court under Section 482 of the Code of Criminal Procedure and the High Court, keeping in view the law laid down in Gian Singh (supra), shall dispose of the same

As far as direction Nos. 19(iv), 19(v) and 19(vi) and 19(vii) are concerned, they shall be governed by what we have stated in paragraph 35

READ THE WHOLE JUDGMENTS BELOW:


REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 73 OF 2015

Social Action Forum for Manav Adhikar …Petitioner(s) and another

VERSUS

Union of India Ministry of Law and Justice and others …Respondent(s)

WITH CRIMINAL APPEAL NO. 1265 OF 2017

WRIT PETITION (CRIMINAL) NO. 156 of 2017

J U D G M E N T

Dipak Misra, CJI

Law, especially the criminal law, intends to control, if not altogether remove, the malady that gets into the spine of the society and gradually corrodes the marrows of the vertebrae of a large section of the society. A situation arises and the legislature, expressing its concern and responsibility, adds a new penal provision with the intention to achieve 2 the requisite result. When a sensitive legal provision is brought into the statute book, the victims of the crime feel adequately safe, and if the said provision pertains to matrimonial sphere, both the parties, namely, wife and husband or any one from the side of the husband is booked for the offence and both the sides play the victim card. The accused persons, while asserting as victims, exposit grave concern and the situation of harassment is built with enormous anxiety and accentuated vigour. It is propounded in a court of law that the penal provision is abused to an unimaginable extent, for in a cruel, ruthless and totally revengeful manner, the young, old and relatives residing at distant places having no involvement with the incident, if any, are roped in. Thus, the abuse of the penal provision has vertically risen. When the implementation of law is abused by the law enforcing agency, the legislature introduces a protective provision as regards arrest. Needless to say, the courts have ample power to grant pre-arrest bail or popularly called anticipatory bail and even to quash the criminal proceeding totally to stabilize the lawful balance because no court of law remotely conceives of a war between the two sexes. The courts remain constantly alive to the situation that though no war takes place, yet neither anger nor vendetta of the aggrieved section should take an advantage of the legal provision and harass the other side with influence or espousing the principle of sympathy. The role of the law enforcing agency or the prosecuting 3 agency is sometimes coloured with superlative empathy being totally oblivious of the sensation to make maladroit efforts to compete with the game of super sensitivity. Such a situation brings in a social disaster that has the potentiality to vertically divide the society. The sense of sensitivity and the study of social phenomenon are required to be understood with objectivity. In such a situation, it is obligatory on the part of the legislature to bring in protective adjective law and the duty of the constitutional courts to perceive and scrutinize the protective measure so that the social menace is curbed. We are, in the instant matters, focussing on Section 498-A of the Indian Penal Code, 1860 (for short, „the IPC‟).

  1. Section 498-A was brought into the statute book in the year 1983. The objects and reasons for introducing Section 498-A IPC can be gathered from the Statement of Objects and Reasons of Criminal Law (Second Amendment) Act of 1983 and read as under :-

“The increasing number of Dowry Deaths is a matter of serious concern. The extent of evil has been commented upon by the Joint Committee of the Houses constituted to examine the working of Dowry Prohibition Act, 1961. Cases of cruelty by the husband and the relatives of the husband which culminate in suicide by, or murder of the hapless woman concerned, constitute only a small fraction of the cases involving such cruelty. It is, therefore proposed to amend the Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act suitably to deal effectively not only with cases of Dowry Death but also cruelty to married woman by their in laws.

  1. The following are the changes that are proposed to be made:

(i) The Indian Penal Code is proposed to be amended to make cruelty to a woman by her husband or any relative of her husband punishable with an imprisonment for a term which may extend to three years and also with fine. Willful conduct of such a nature by the husband or any other relative of the husband as is likely to drive the woman to commit suicide or cause grave physical or mental injury to her, and harassment of woman by her husband or by any relative of her husband with a view to coercing her or any of her relatives to meet any unlawful demand for property would be punishable as cruelty, the offence will cognizable if information relating to the commission of the offence is given to the officer in charge of a Police Station by the victim of the offence or a relative of the victim of the offence or, in the absence of any such relative, by any public servant authorized in this behalf by the State Government. It is also being provided that no court shall take cognizance of the offence except upon a Police Report or complaint made by the victim of the offence or by her father, mother, brother, sister or by her father’s or mother’s brother or sister or with the leave of the court by any other person related to her by blood, marriage or adoption (vide Clauses 2, 5 and 6 of the Bill.)

(ii) Provision is being made for inquest by Executive Magistrates and for postmortem in all cases where a woman has, within seven years of her marriage, committed suicide or died in circumstances raising a reasonable suspicion that some other person has committed an offence. Post-mortem is also being provided for in all cases where a married woman has died within seven years of her marriage and a relative of such woman has made a request in this behalf (vide Clauses 3 and 4 of the Bill)

(iii)The Indian evidence Act, 1872 is being amended to provide that where a woman has committed suicide 5 within a period of seven years from date of her marriage and it is shown that her husband or any relative of her husband and subjected her to cruelty, the court may presume that such suicide had been abetted by her husband or by such relative of her husband (vide Clause 7 of the Bill)

  1. The Bill seeks to achieve the above objectives.”
  2. Regarding the constitutionality of Section 498-A IPC, in Sushil Kumar Sharma v. Union of India and others1 , it was held by the Supreme Court:

“Provision of S. 498A of Penal Code is not unconstitutional and ultra vires. Mere possibility of abuse of a provision of law does not per se invalidate a legislation. Hence plea that S. 498A has no legal or constitutional foundation is not tenable. The object of the provisions is prevention of the dowry menace. But many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame-work.”

  1. In B.S. Joshi and others v. State of Haryana and another2 , the Court observed:- 1 (2005) 6 SCC 281 : AIR 2005 SC 3100 2 (2003) 4 SCC 675 : AIR 2003 SC 1386 6

“There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is eveiy likelihood that nonexercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code.”

  1. In Brij Lal v. Prem Chand and another3 , this Court ruled thus:

“It would not be out of place for us to refer here to the addition of Sections 113-A and 113-B to the Indian Evidence Act and Sections 498-A and 304-B to the Indian Penal Code by subsequent amendments. Section 113-A Evidence Act and 498-A Indian Penal Code have been introduced in the respective enactments by the Criminal Law (Second amendment) Act, 1983 (Act 46 of 1983) and Section 113-B of the Evidence Act and 304-B Indian Penal Code have been introduced by Act No. 43 of 1986. The degradation of society due to the pernicious system of dowry and the unconscionable demands made by greedy and unscrupulous husbands and their parents and relatives resulting in an alarming number of suicidal and dowry deaths by women has shocked the Legislative conscience to such an extent that the Legislature has deemed it necessary to provide additional provisions of law, procedural as well as substantive, to combat the evil and has consequently introduced Sections 113-A and 113-B in the Indian Evidence Act and Sections 498-A and 304-B in the Indian Penal Code. By reason of Section 113-A, the Courts can presume that the commission of suicide by a woman has been abetted by her husband or relation if two factors are present viz. (1) that the woman 3 (1989) 2 SCR 612 7 had committed suicide within a period of seven years from her marriage, and (2) that the husband or relation had subjected her to cruelty. We are referring to these provisions only to show that the Legislature has realised the need to provide for additional provisions in the Indian Penal Code and the Indian Evidence Act to check the growing menace of dowry deaths…”

  1. Presently, to the factual score. The instant Petitions have been preferred under Article 32 of the Constitution of India seeking directions to the respondents to create an enabling environment for married women subjected to cruelty to make informed choices and to create a uniform system of monitoring and systematically reviewing incidents of violence against women under Section 498-A IPC including their prevention, investigation, prosecution and rehabilitation of the victims and their children at the Central, State and District levels. That apart, prayer has been made to issue a writ of mandamus to the respondents for a uniform policy of registration of FIR, arrest and bail in cases of Section 498-A IPC in consonance with the law of the land, i.e., to immediately register FIR on complaint of cruelty and harassment by married women as per the IPC.
  2. It has been averred by the petitioners that hundreds of women are being subjected to horrific acts of violence often in the guise of domestic abuse or to extract more money from the girl’s natal family due to absence of any uniform system of monitoring and systematic review of 8 incidents of violence against married women which has led to dilution of the legislative intent behind Section 498-A IPC. And, in the wake of ever increasing crimes leading to unnatural deaths of women in marital homes, any dilution of Section 498-A IPC is not warranted.
  3. It has been contended that Section 498-A IPC, since its introduction, has increasingly been vilified and associated with the perception that it is misused by women who frequently use it as a weapon against their in-laws. As per the petitioners, though there is general complaint that Section 498-A IPC is subject to gross misuse, yet there is no concrete data to indicate how frequently the provision has been misused. Further, the Court, by whittling down the stringency of Section 498-A IPC, is proceeding on an erroneous premise that there is misuse of the said provision, whereas in fact misuse by itself cannot be a ground to repeal a penal provision or take away its teeth.
  4. It is set forth in the petition that Section 498-A IPC has been specifically enacted to protect the vulnerable sections of the society who have been victims of cruelty and harassment. The social purpose behind Section 498-A IPC is being lost as the rigour of the said provision has been diluted and the offence has practically been made bailable by reason of various qualifications and restrictions prescribed by various 9 decisions of this Court including Rajesh Sharma and others v. State of U.P. and another4 , a recent pronouncement.
  5. It has also been submitted by the petitioners that the police is hesitant to arrest the accused on complaint of married women and the same inaction is justified by quoting various judgments, despite the fact that Section 498-A IPC discloses a non-bailable offence and sufficient checks and balances have been provided in the law itself under Section 41 CrPC. To prevent arbitrary and necessary arrest, the statute very clearly states that the police shall record reasons for effecting arrest as well as for not arresting.
  6. The petitioners have also asseverated that there is lack of monitoring mechanism to track cases registered under Section 498-A IPC including systematic study of the reason of low convictions and due to this absence, penal laws have not been able to secure a safe married environment to women. This, as per the petitioners, has also resulted in rise in cases under Section 498-A IPC because the deterrent effect of the said provision is getting diluted. It is also the case of the petitioners that investigation by the police of offence under Section 498-A IPC is often unprofessional and callous and the investigating officers 4 AIR 2017 SC 3869 : 2017 (8) SCALE 313 10 perceptibly get influenced by both the parties which results in perpetrators escaping conviction.
  7. It is further contended that in many cases under Section 498-A, IPC the Court has not considered mental cruelty caused to the woman but has concentrated only on any sign of physical cruelty due to which the courts do not look into a case if the evidence does not show that the woman was physically harassed. This has led the courts to brand the woman on many occasions as hyper-sensitive or of low tolerance level.
  8. It has been further averred that the alleged abuse of the penal provision is mostly by well-educated women who know that the offence is both cognizable and non-bailable and impromptu works on the complaint of the woman by placing the man behind the bars, but this cannot be a ground for denying the poor and illiterate women the protection that is offered by Section 498-A IPC against cruelty, rather there is a need to create awareness specifically in the rural areas about the laws for protection of women and consequent available remedies in case of breach.
  9. It is also set forth in the petition that despite the Dowry Prohibition Act, 1961 being passed, the irony still survives perhaps with more oxygen, for the social evil of dowry is on the increase and is openly 11 practised with pride. It is put forth that women today are still tortured and often the court, despite being the ultimate saviour, does not come to the rescue of these women as a consequence of which an atmosphere of ambivalence prevails and such societal ambivalence creates a situation of war between two classes though in actuality the offence is relatable to individuals. A sorry state of affairs is pronouncedly asserted.
  10. On the aforesaid bedrock, a prayer in Writ Petition (Civil) No. 73 of 2015 has been made to have a uniform policy of registration of FIR, arrest and bail in cases of Section 498-A IPC. It is worthy to note here that during the pendency of this Writ Petition, the judgment had been pronounced in Rajesh Sharma (supra).

The Court in Rajesh Sharma (supra) issued the following guidelines:-

“19.i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/ wives of working officers/other citizens who may be found suitable and willing.

(c) The Committee members will not be called as witnesses. 12

(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication

. (e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.

(f) The committee may give its brief report about the factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be effected.

(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.

(j) The Members of the committee may be given such honorarium as may be considered viable.

(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.

  1. ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today;

iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord; 13

  1. iv) If a bail application is filed with at least one clear day‟s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;
  2. v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
  3. vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and

vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.

. viii) These directions will not apply to the offences involving tangible physical injuries or death.”

  1. In the meanwhile, Writ Petition (Criminal) No. 156 of 2017 had been filed. A prayer had been made in the said Writ Petition to implement the suggestion that out of three members, at least two members should be appointed in the Family Welfare Committee. When this Writ Petition was listed on 13.10.2017, the following order came to be passed:-

“Mr. Alok Singh, learned counsel for the petitioner though has a different set of prayers in the writ petition, it fundamentally requires this Court to implement directions rendered in Criminal Appeal No.1265 of 2017 [Rajesh Sharma vs. State of U.P. and Another]. Additionally, learned counsel would submit that certain lady members, certain organizations and welfare committees are to be involved. At this stage, we are obligated to state that we are not in agreement with the decision rendered in Rajesh Sharma (supra) because we are disposed to think that it really curtails the rights of the women who are harassed under Section 498A of the Indian Penal Code. That apart, prima facie, we perceive that the guidelines may be in the legislative sphere. Issue notice to the respondent Nos.1 to 3. No notice need be issued to the respondent No.4. Even if the petitioner does not take steps, the Registry shall see to it that the respondents are served. Ms. Indu Malhotra and Mr. V. Shekhar, learned senior counsel are appointed as Amicus Curiae to assist the Court in the matter.

List the matter on 29th November, 2017.”

  1. Mr. V. Shekhar, learned senior counsel, was appointed as Amicus Curiae to assist the Court in the matter.
  2. It was submitted by the learned Amicus Curiae that the decision in Rajesh Sharma (supra) requires reconsideration, for the said judgment confers powers on the Family Welfare Committee to be constituted by the District Legal Services Authority which is an extra-judicial committee of para legal volunteers/social workers/retired persons/wives of working officers/other citizens to look into the criminal complaints under Sections 15 498-A IPC in the first instance and further, there has been a direction that till such time a report of the committee is received, no arrest should be made. It is urged that the constitution of FWC to look into the criminal complaints under Section 498-A IPC is contrary to the procedure prescribed under the Code of Criminal Procedure.
  3. It is further propounded that the directions in certain paragraphs of the judgment in Rajesh Sharma (supra) entrusting the power to dispose of the proceedings under Section 498-A IPC by the District and Sessions Judge or any other senior judicial officer nominated by him in the district in cases where there is settlement, are impermissible, for an offence under Section 498-A is not compoundable and hence, such a power could not have been conferred on any District and Sessions Judge or any senior judicial officer nominated by him. Elaborating the said submission, it is canvassed that the High Court is empowered under Section 482 CrPC to quash the proceeding if there is a settlement between the parties. Learned Amicus Curiae further submitted that the recovery of disputed dowry items may not itself be a ground for denial of bail which is the discretion of the court to decide the application of grant of bail in the facts and circumstances of the case and thus, this tantamounts to a direction which is not warranted in law. Criticism has 16 been advanced with regard to the direction in paragraph 19(v) which states that for persons who are ordinarily residing out of India, impounding of passports or issuance of Red Corner Notice should not be done in a routine manner. It is urged that if an accused does not join the investigation relating to matrimonial/family offence, the competent court can issue appropriate directions to the concerned authorities to issue Red Corner Notice which will depend on the facts of the case.
  4. Learned Amicus Curiae has further put forth that dispensation of personal appearance of outstation family members is unwarranted, for in a criminal proceeding, the competent court which deals with application of exemption should be allowed to exercise the judicial discretion and there should not have been a general direction by this Court. Certain suggestions have been given by the learned Amicus Curiae which we shall refer to at the relevant stage.
  5. To appreciate the controversy, it is necessary to understand the scope of Section 498-A of IPC. It reads thus:-

“498-A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave 17 injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

  1. The said offence is a cognizable and non-bailable offence. This Court in Arnesh Kumar v. State of Bihar and another5 has observed that the said offence which is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. The Court has taken note of the statistics under “Crime in India 2012 Statistics” published by the National Crime Records Bureau, Ministry of Home Affairs which shows arrest of 1,97,762 persons all over India during the year 2012 for the offence under Section 498-A. Showing concern, the Court held that arrest brings humiliation, curtails freedom and casts scars forever and the police had not learnt its lesson which is implicit and embodied in the Criminal Procedure Code. Commenting on the police, the Court said:-

“It has not come out of its colonial image despite six decades of Independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the 5 (2014) 8 SCC 273 18 drastic power of arrest has been emphasised time and again by the courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.”

  1. The Court, thereafter, has drawn a distinction between the power to arrest and justification for the exercise of it and analysed Section 41 CrPC. Section 41 stipulates when police may arrest without warrant. The said provision reads as follows:-

“41. When police may arrest without warrant.—(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—

(a) who commits, in the presence of a police officer, a cognizable offence;

(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:-

– (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary—

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing. Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.

(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence.

(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonable suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable 20 suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or

(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.”

  1. Scrutinising the said provision, the Court held as under:

“7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his 21 presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. x x x x x 7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.”

  1. The learned Judges, thereafter, referred to Section 41-A CrPC which has been inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009). The said provision is to the following effect:-

“41-A. Notice of appearance before police officer.—(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the 22 offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice.” Explaining the said provision, it has been ruled:-

“9. …The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.” The Court further went on to say that:-

“10. We are of the opinion that if the provisions of Section 41 CrPC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 CrPC for effecting arrest be discouraged and discontinued.

” The directions issued in the said case are worthy to note:-

“11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and 23 mechanically. In order to ensure what we have observed above, we give the following directions:

11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;

11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.

11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court

  1. The aforesaid decision, as is perceptible, is in accord with the legislative provision. The directions issued by the Court are in the nature of statutory reminder of a constitutional court to the authorities for proper 24 implementation and not to behave like emperors considering the notion that they can do what they please. In this context, we may refer with profit to a passage from Joginder Kumar v. State of U.P and others :-

“20. … No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person‟s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.”

  1. Again, the Court in Joginder Kumar (supra), while voicing its concern regarding complaints of human rights pre and after arrest, observed thus:- “9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of 6 (1994) 4 SCC 260 25 deciding which comes first—the criminal or society, the law violator or the law abider….” 28. In D.K. Basu v. State of W.B.7 , after referring to the authorities in Joginder Kumar (supra), Nilabati Behera v. State of Orissa and others8 and State of M.P. v. Shyamsunder Trivedi and others9 , the Court laid down certain guidelines and we think it appropriate to reproduce the same:-

“(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the 7 (1997) 1 SCC 416 8 (1993) 2 SCC 746 9 (1995) 4 SCC 262 26 police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is

. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.”

  1. In Lalita Kumari v. Government of Uttar Pradesh and others10 , the Constitution Bench, referring to various provisions of CrPC, adverted 10 (2014) 2 SCC 1 27 to the issue of conducting a preliminary enquiry. Eventually, the Court opined that the scope of preliminary enquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence and, thereafter, proceeded to state thus:- “120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months‟ delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.”
  2. From the aforesaid, it is quite vivid that the Constitution Bench had suggested that preliminary enquiry may be held in matrimonial/family disputes. 31. In Rajesh Sharma (supra), as is noticeable, the Court had referred to authorities in Arnesh Kumar (supra) and Lalita Kumari (supra) and observed that:- “16. Function of this Court is not to legislate but only to interpret the law. No doubt in doing so laying down of norms 28 is sometimes unavoidable.11 Just and fair procedure being part of fundamental right to life,12 interpretation is required to be placed on a penal provision so that its working is not unjust, unfair or unreasonable. The court has incidental power to quash even a non-compoundable case of private nature, if continuing the proceedings is found to be oppressive. 13 While stifling a legitimate prosecution is against public policy, if the proceedings in an offence of private nature are found to be oppressive, power of quashing is exercised.
  3. We have considered the background of the issue and also taken into account the 243rd Report of the Law Commission dated 30th August, 2012, 140th Report of the Rajya Sabha Committee on Petitions (September, 2011) and earlier decisions of this Court. We are conscious of the object for which the provision was brought into the statute. At the same time, violation of human rights of innocent cannot be brushed aside. Certain safeguards against uncalled for arrest or insensitive investigation have been addressed by this Court. Still, the problem continues to a great extent.
  4. To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned trial courts being sensitized. It is also necessary to facilitate closure of proceedings where a genuine settlement has been reached instead of parties being required to move High Court only for that purpose.”
  5. After so stating, the directions have been issued which we have reproduced in paragraph 15 hereinabove.
  6. On a perusal of the aforesaid paragraphs, we find that the Court has taken recourse to fair procedure and workability of a provision so 11 Sahara India Real Estate Corporation Limited v. Securities and Exchange Board of India : (2012) 10 SCC 603, Para 52; SCBA v. Union of India : (1998) 4 SCC 409, Para 47; Union of India v. Raghubir Singh (d) by Lrs. : (1989) 2 SCC 754, Para 7; Dayaram v. Sudhir Batham : (2012) 1 SCC 333 12 State of Punjab v. Dalbir Singh : (2012) 3 SCC 346, Paras 46, 52 & 85 13 Gian Singh v. State of Punjab : (2012) 10 SCC 303, Para 61 29 that there will be no unfairness and unreasonableness in implementation and for the said purpose, it has taken recourse to the path of interpretation. The core issue is whether the Court in Rajesh Sharma (supra) could, by the method of interpretation, have issued such directions. On a perusal of the directions, we find that the Court has directed constitution of the Family Welfare Committees by the District Legal Services Authorities and prescribed the duties of the Committees. The prescription of duties of the Committees and further action therefor, as we find, are beyond the Code and the same does not really flow from any provision of the Code. There can be no denial that there has to be just, fair and reasonable working of a provision. The legislature in its wisdom has made the offence under Section 498-A IPC cognizable and non-bailable. The fault lies with the investigating agency which sometimes jumps into action without application of mind. The directions issued in Arnesh Kumar (supra) are in consonance with the provisions contained in Section 41 CrPC and Section 41-A CrPC. Similarly, the guidelines stated in Joginder Kumar (supra) and D.K. Basu (supra) are within the framework of the Code and the power of superintendence of the authorities in the hierarchical system of the investigating agency. The purpose has been to see that the investigating agency does not abuse the power and arrest people at its whim and fancy.
  7. In Rajesh Sharma (supra), there is introduction of a third agency which has nothing to do with the Code and that apart, the Committees have been empowered to suggest a report failing which no arrest can be made. The directions to settle a case after it is registered is not a correct expression of law. A criminal proceeding which is not compundable can be quashed by the High Court under Section 482 CrPC. When settlement takes place, then both the parties can file a petition under Section 482 CrPC and the High Court, considering the bonafide of the petition, may quash the same. The power rests with the High Court. In this regard, we may reproduce a passage from a three-Judge Bench in Gian Singh (supra). In the said case, it has been held that:

– “61. … Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.:

(i) to secure the ends of justice, or

(ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim‟s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having 31 overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim.”

  1. Though Rajesh Sharma (supra) takes note of Gian Singh (supra), yet it seems to have it applied in a different manner. The seminal issue is whether these directions could have been issued by the process of interpretation. This Court, in furtherance of a fundamental right, has issued directions in the absence of law in certain cases, namely, Lakshmi Kant Pandey v. Union of India14 , Vishaka and others v. State of Rajasthan and others15 and Common Cause (A Registered Society) v. Union of India and another16 and some others. In the obtaining factual matrix, there are statutory provisions and judgments in the field and, therefore, the directions pertaining to constitution of a Committee and conferment of power on the said Committee is 14 (1984) 2 SCC 244 15 (1997) 6 SCC 241 16 (2018) 5 SCC 1 32 erroneous.

However, the directions pertaining to Red Corner Notice, clubbing of cases and postulating that recovery of disputed dowry items may not by itself be a ground for denial of bail would stand on a different footing. They are protective in nature and do not sound a discordant note with the Code. When an application for bail is entertained, proper conditions have to be imposed but recovery of disputed dowry items may not by itself be a ground while rejecting an application for grant of bail under Section 498-A IPC. That cannot be considered at that stage. Therefore, we do not find anything erroneous in direction Nos. 19(iv) and (v). So far as direction No. 19(vi) and 19(vii) are concerned, an application has to be filed either under Section 205 CrPC or Section 317 CrPC depending upon the stage at which the exemption is sought. 36. We have earlier stated that some of the directions issued in Rajesh Sharma (supra) have the potential to enter into the legislative field. A three-Judge Bench in Suresh Seth v. Commissioner, Indore Municipal Corporation and others17 ruled thus:

– “5. … In our opinion, this is a matter of policy for the elected representatives of people to decide and no direction in this regard can be issued by the Court. That apart this Court cannot issue any direction to the legislature to make any particular kind of enactment. Under our constitutional scheme Parliament and Legislative Assemblies exercise sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation. In Supreme Court Employees’ Welfare Assn. v. 17 (2005) 13 SCC 287 33 Union of India18 (SCC para 51) it has been held that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of a subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which it has been empowered to do under the delegated legislative authority. …” 37. Another three-Judge Bench in Census Commissioner and others v. R. Krishnamurthy 19 , after referring to N.D. Jayal and another v. Union of India and others20 , Rustom Cavasjee Cooper v. Union of India21 , Premium Granites and another v. State of T.N. and others22 , M.P. Oil Extraction and another v. State of M.P. and others23 , State of Madhya Pradesh v. Narmada Bachao Andolan and another24 and State of Punjab and others v. Ram Lubhaya Bagga and others25 , opined:- “33. From the aforesaid pronouncement of law, it is clear as noon day that it is not within the domain of the courts to embark upon an enquiry as to whether a particular public policy is wise and acceptable or whether a better policy could be evolved. The court can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary and founded ipse dixit offending the basic requirement of Article 14 of the Constitution. In certain matters, as often said, there can be opinions and opinions but the court is not expected to sit as an appellate authority on an opinion.” 18 (1989) 4 SCC 187 19 (2015) 2 SCC 796 20 (2004) 9 SCC 362 21 (1970) 1 SCC 248 22 (1994) 2 SCC 691 23 (1997) 7 SCC 592 24 (2011) 7 SCC 639 25 (1998) 4 SCC 117 34 38. In the aforesaid analysis, while declaring the directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee is impermissible. Therefore, we think it appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar (supra), D.K. Basu (supra), Lalita Kumari (supra) and Arnesh Kumar (supra). It will also be appropriate to direct the Director General of Police of each State to ensure that investigating officers who are in charge of investigation of cases of offences under Section 498-A IPC should be imparted rigorous training with regard to the principles stated by this Court relating to arrest.

  1. In view of the aforesaid premises, the direction contained in paragraph 19(i) as a whole is not in accord with the statutory framework and the direction issued in paragraph 19(ii) shall be read in conjunction with the direction given hereinabove.
  2. Direction No. 19(iii) is modified to the extent that if a settlement is arrived at, the parties can approach the High Court under Section 482 of the Code of Criminal Procedure and the High Court, keeping in view the law laid down in Gian Singh (supra), shall dispose of the same.
  3. As far as direction Nos. 19(iv), 19(v) and 19(vi) and 19(vii) are concerned, they shall be governed by what we have stated in paragraph 35
  4. With the aforesaid modifications in the directions issued in Rajesh Sharma (supra), the writ petitions and criminal appeal stand disposed of. There shall be no order as to costs. …..………………………..

,CJI (Dipak Misra) …..…………………………..

,J (A.M. Khanwilkar) ..………………………….….,J

(Dr. D.Y. Chandrachud)

New Delhi; September 14 , 2018.

Without going into controversy as to whether the learned Metropolitan Magistrate was competent to grant bail under POCSO Act, it is to be noted that at the time of grant of bail, the Trial Court was of bonafide belief that respondent No.2 was booked by the Investigating Agency only for commission of offences under Sections 354/506/452 IPC. The counsel for the respondent No.2 had not revealed in the bail application if Sections 8/12 POCSO Act were also there in the FIR. Since respondent No.2 was in custody for the last two days and the statement of the prosecutrix had already been recorded under Section 164 Cr.P.C., the Trial Court deemed it fit to grant bail putting certain conditions. Perusal of the file reveals that even FIR (At page-41 ‘annexure P-7’) does not reflect if Sections 8/12 POCSO Act were mentioned at the relevant place in column No.2. In other copy of the said FIR (At page-30 ‘annexure P-4’) Sections 8/12 POCSO Act appear against column No. 2(ii). It is not clear as to how and when, these Sections came to be added in the original FIR. The discrepancy has remained un-explained.

The Court dealing with POCSO matters after considering the rival submissions of the parties did not find any ground to cancel the bail on merits. Apparently, Special Court dealing with POCSO matters has considered the merits of the case and did not find fault with the bail granted to the respondent No.2 on merits.

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New Amendment in POSCO Act.

The Criminal Law (Amendment) Bill 2018 enhances the minimum sentence for offence of rape against girl children of all three age categories. Under new law, if the victim is under 12 years of age, the culprit faces minimum sentence of 20 years, up from 10 years previously.

The maximum punishment is death penalty. In the cases of gangrape of child under 12, the minimum punishment is life sentence (earlier 20 years) while the maximum is death penalty.

In cases of child aged between 12 and 16, the offence of rape is punishable with the minimum sentence of 20 years, up from 10 years. Maximum punishment in such cases is life imprisonment. If a girl aged between 12 and 16 is gangraped, the convict faces minimum punishment of life sentence.

If the victim is aged between 16 and 18, the offence of rape is punishable with minimum punishment of 10-year jail term and maximum is life imprisonment.

Repeat offenders will be punished with life imprisonment or death.

The Bill provides for time-bound investigation in cases of rape of girl children. The investigation into rape of a child must be completed within two months.

The case is to be tried in a fast track court. The Bill states that any appeal against a sentence by the trial court must be disposed of within six months.

Accused is not entitled to anticipatory bail, under new law, in offences of rape of child less than 16 years of age.

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IN THE HIGH COURT OF DELHI AT NEW DELH

+                        CRL.M.C. 2372/2015

JAISHREE                                           ….. Petitioner

versus

STATE, GOVT. OF NCT OF DELHI & ANR.                ….. Respondents

CORAM:

HON’BLE MR. JUSTICE S.P.GARG

S.P.Garg, J. (Oral)

  1. Instant petition under Section 482 Cr.P.C. has been preferred by the petitioner / complainant to challenge the legality and propriety of an order dated 25.02.2013 of learned Metropolitan Magistrate by which respondent No.2 was granted regular bail in case FIR No.63/13 registered under Sections 354/506/452 IPC and 8/12 POCSO Act. Petition is contested by respondent No.2.
  2. I have heard the learned counsel for the parties and have examined the file. FIR No.63/13 was registered at Police Station Burari under Sections 452/354/506 IPC and 8/12 POCSO Act on petitioner’s complaint on 22.02.2013. It led to respondent No.2’s arrest on 23.02.2013. A bail application was moved by his counsel before the learned Metropolitan Magistrate on 23.02.2013 which was taken up for hearing on 25.02.2013. On perusal of the bail application, it reveals that the counsel omitted to disclose registration of FIR under Sections 8/12 POCSO Act also. In the status report, the Investigating Officer, however, reported registration of FIR under Sections 8/12 POCSO Act. Though the IO W/SI Neeraj appeared in person at the time of consideration of bail application on 25.02.2013, she did not point out the omission of offences under POCSO Act in the bail application. Considering that the FIR was registered under the provisions of Indian Penal Code only, the Trial Court, by the impugned order, granted bail to respondent No.2 as he was in custody since 23.02.2013. Certain conditions were put at the time of grant of bail.
  3. Subsequently, application under Section 437 (5) Cr.P.C. was moved by the victim / complainant for cancellation of bail on 08.03.2013. It was disposed of after notice to the accused, his counsel and the Investigating Officer. It records assurance of the Investigating Officer to remain careful in future. The Trial Court was fair enough to record that there was an irregularity in passing the bail order which she was unable to rectify. Certain observations about the functioning of the IO / SHO were also made. The said order was challenged before Special Court. By an order dated 24.07.2013, the learned Addl. Sessions Judge dealing with POCSO matters declined to cancel the bail.
  4. Main grievance of the petitioner is that learned Metropolitan Magistrate had no jurisdiction to entertain and grant bail to respondent No.2 as offences under Sections 8/12 POCSO Act were exclusively triable by a Special Court. Reliance has been placed on ‘Ramrahit Singh vs. Dhananjoy Singh & Ors.’, MANU/WB/0218/2015, ‘Ramu Ram vs. State of Rajasthan & Ors.’, 2014(2)RLW 987 (Raj), ‘State of Andhra Pradesh vs. Mohd.Hussain @ Saleem’, 2014 (1) SCC 258, ‘State of Gujarat vs. Salimbhai Abdulgaffar Shaikh’, 2003 (8) SCC 50, ‘State of Tamil Nadu vs. Paramasiva Pandian’, 2002 (1) SCC 15 & ‘State of Bihar vs. Braj Nandan Raut’, 2001 Cri.L.J. 3678.
  5. Without going into controversy as to whether the learned Metropolitan Magistrate was competent to grant bail under POCSO Act, it is to be noted that at the time of grant of bail, the Trial Court was of bonafide belief that respondent No.2 was booked by the Investigating Agency only for commission of offences under Sections 354/506/452 IPC. The counsel for the respondent No.2 had not revealed in the bail application if Sections 8/12 POCSO Act were also there in the FIR. Since respondent No.2 was in custody for the last two days and the statement of the prosecutrix had already been recorded under Section 164 Cr.P.C., the Trial Court deemed it fit to grant bail putting certain conditions. Perusal of the file reveals that even FIR (At page-41 ‘annexure P-7’) does not reflect if Sections 8/12 POCSO Act were mentioned at the relevant place in column No.2. In other copy of the said FIR (At page-30 ‘annexure P-4’) Sections 8/12 POCSO Act appear against column No. 2(ii). It is not clear as to how and when, these Sections came to be added in the original FIR. The discrepancy has remained un-explained.
  6. Besides it, the Court dealing with POCSO matters after considering the rival submissions of the parties did not find any ground to cancel the bail on merits. Apparently, Special Court dealing with POCSO matters has considered the merits of the case and did not find fault with the bail granted to the respondent No.2 on merits.
  7. Considering the peculiar facts and circumstances of the case whereby due to bonafide mistake, bail was granted by the Trial Court and the fact that the said order was upheld by the Special Court, no sound reasons exist to cancel bail specifically when the investigation is over and charge-sheet has already been filed before the Special Court.
  8. The petition lacks merit and is dismissed. Trial Court record (if any) be sent back forthwith with the copy of the order.

 

(S.P.GARG) JUDGE

 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

There is no gainsaying that each incident of sexual harassment at the place of work, results in violation of the fundamental right to gender equality and the right to life and liberty — the two most precious fundamental rights guaranteed by the Constitution of India. As early as in 1993, at the ILO Seminar held at Manila, it was recognized that sexual harassment of women at the workplace was a form of “gender discrimination against women”. In our opinion, the contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated and that there can be no compromise with such violations, admits of no debate. The message of international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (“CEDAW”) and the Beijing Declaration which directs all State parties to take appropriate measures to prevent discrimination of all forms against women besides taking steps to protect the honour and dignity of women is loud and clear. The International Covenant on Economic, Social and Cultural Rights contains several provisions particularly important for women. Article 7 recognises her right to fair conditions of work and reflects that women shall not be subjected to sexual harassment at the place of work which may vitiate the working environment. These international instruments cast an obligation on the Indian State to gender-sensitise its laws and the courts are under an obligation to see that the message of the international instruments is not allowed to be drowned. This Court has in numerous cases emphasised that while discussing constitutional requirements, court and counsel must never forget the core principle embodied in the international conventions and instruments and as far as possible, give effect to the principles contained in those international instruments. The courts are under an obligation to give due regard to international conventions and norms for construing domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law. (See with advantage — Prem Shankar Shukla v. Delhi Admn. [(1980) 3 SCC 526 : 1980 SCC (Cri) 815


 

         Prevention of sexual harassment.

  1. No woman shall be subjected to sexual harassment at any workplace.
  2. The following circumstances, among other circumstances, if it occurs or is persent in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment>-
  3. implied or explicit promise of preferential treatment in her employment; or
  4. implied or explicit threat of detrimental treatment in her employment; or

iii.        implied or explicit threat about her present or future employment status; or

  1. interference with her work or creating an intimidating or offensive or hostile work environment for her; or
  2. humiliating treatment likely to affect her health or safety.

—————————————————————————————————————————————–

 Complaint of sexual harassment

  1. Any aggrieved woman may make, in writing, a complaint of sexual harassment at work place to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident:

Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing:

Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit not exceeding three months, if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.

  1. Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.

 Constitution of Internal Complaints Committee.

  1. Every employer of a workplace shall, by an order in writing, constitute a Committee to be known as the “Internal Complaints Committee”:

Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the Internal Committee shall be constituted at all administrative units or offices.

  1. The Internal Committee shall consist of the following members to be nominated by the employer, namely:—
  2. a Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees:

Provided that in case a senior level woman employee is not available, the Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in sub-section (l):

Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organisation;

  1. not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge;
  2. one member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment:

Provided that at least one-half of the total Members so nominated shall be women.

  1. The Presiding Officer and every Member of the Internal Committee shall hold office for such period, not exceeding three years, from the date of their nomination as may be specified by the employer.
  2. The Member appointed from amongst the non-governmental organisations or associations shall be paid such fees or allowances for holding the proceedings of the Internal Committee, by the employer, as may be prescribed.
  3. Where the Presiding Officer or any Member of the Internal Committee,- –
  4. contravenes the provisions of section 16; or
  5. has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him; or
  6. he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or
  7. has so abused his position as to render his continuance in office prejudicial to the public interest, such Presiding Officer or Member, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section
  8. Inquiry Into complaint
  1. Subject to the provisions of section 10, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code, and any other relevant provisions of the said Code where applicable:

Provided that where the aggrieved woman informs the Internal Committee or the Local Committee, as the case may be, that any term or condition of the settlement arrived at under sub-section (2) of section 10 has not been complied with by the respondent, the Internal Committee or the Local Committee shall proceed to make an inquiry into the complaint or, as the case may be, forward the complaint to the police:

Provided further that where both the parties are employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee.

  1. Notwithstanding anything contained in section 509 of the Indian Penal Code, the court may, when the respondent is convicted of the offence, order payment of such sums as it may consider appropriate, to the aggrieved woman by the respondent, having regard to the provisions of section 15.
  2. For the purpose of making an inquiry under sub-section (I), the Internal Committee. or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely:-—
  3. summoning and enforcing the attendance of any person and examining him on oath;
  4. requiring the discovery and production of documents; and
  5. any other matter which may be prescribed.
  6. The inquiry under sub-section (I) shall be completed within a period of ninety days.

 Action during pendency of inquiry

  1. During the pendency of an inquiry, on a written request made by the aggrieved woman, the Internal Committee or the Local Committee, as the case may be, may recommend to the employer to—
  2. transfer the aggrieved woman or the respondent to any other workplace; or
  3. grant leave to the aggrieved woman up to a period of three months; or
  4. grant such other relief to the aggrieved woman as may be prescribed.
  5. The leave granted to the aggrieved woman under this section shall be in addition to the leave she would be otherwise entitled.
  6. On the recommendation of the Internal Committee or the Local Committee, as the case may be, under sub-section (1), the employer shall implement the recommendations made under sub-section (1) and send the report of such implementation to the Internal Committee or the Local Committee, as the case may be.

      Inquiry Report.

  1. On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period often days from the date of completion of the inquiry and such report be made available to the concerned parties.
  2. Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter.
  3. Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be—
  4. to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;
  5. to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section 15:

Provided that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman:

Provided further that in case the respondent fails to pay the sum referred to in clause (II), the Internal Committee or, as the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.

  1. The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him. Punishment for false or malicious complaint and false evidence

 Punishment for false or malicious complaint and false evidence

  1. Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document, it may recommend to the employer or the District Officer, as the case may be, to take action against the woman or the person who has made the complaint under sub-section (I) or sub-section (2) of section 9, as the case may be, in accordance with the provisions of the service rules applicable to her or him or where no such service rules exist, in such manner as may be prescribed:

Provided that a mere inability to substantiate a complaint or provide adequate proof need not attract     action against the complainant under this section:

Provided further that the malicious intent on part of the complainant shall be established after an inquiry    in accordance with the procedure prescribed, before any action IS recommended.

  1. Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that during the inquiry any witness has given false evidence or produced any forged or misleading document, it may recommend to the employer of the witness or the District Officer, as the case may be, to take action in accordance with the provisions of the service rules applicable to the said witness or where no such service rules exist, in such manner as may be prescribed.

 

 

What is Money Laundering?.

Money Laundering refers to the conversion of money which has been illegally obtained, in such a way that it appears to have originated from a legitimate source.

What is the Law to regulate for Money Laundering in India ?.

Prevention of Money Laundering Act, 2002 is an Act of the Parliament of India enacted by the NDA government to prevent money-laundering and to provide for confiscation of property derived from money-laundering.

 Offence of money-laundering.-

Section 3 : Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as untainted property shall be guilty of offence of money-laundering.

Punishment for money-laundering.-

Section 4 :Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine which may extend to five lakh rupees: Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words “which may extend to seven years”, t e words “which may extend to ten years” had been substituted.

   Section : 5 : Attachment of property involved in money-laundering.-

  1. Where the Director, or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section, has reason to believe (the reason for such belief to be recorde in writing), on the basis of material in his possession, that-
  2. any person is in possession of any proceeds of crime;
  3. such person has been charged of having committed a scheduled offence; and
  4. such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter, he may, by order in writing, provisionally attach such property for a period not exceeding ninety days from the date of the order, in the manner provided in the Second Schedule to the Income-tax Act, 1961 (43 of 1961) and the Director or the other office so authorised by him, as the case may be, shall be deemed to be an officer under sub-rule (e) of rule 1 of that Schedule: Provided that no such order of attachment shall be made unless, in relation to an offence under-
  5. Paragraph 1 of Part A and Part B of the Schedule, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974); or
  6. Paragraph 2 of Part A of the Schedule, a police report or a complaint has been filed for taking cognizance of an offence by the Special Court constituted under sub-section (1) of section 36 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985).
  7. The Director, or any other officer not below the rank of Deputy Director, shall, immediately after attachment under sub-section (1), forward a copy of the order, along with the material in his possession, referred to in that sub-section, to the Adjud cating Authority, in a sealed envelope, in the manner as may be prescribed and such Adjudicating Authority shall keep such order and material for such period as may be prescribed.
  8. Every order of attachment made under sub-section (1) shall cease to have effect after the expiry of the period specified in that sub-section or on the date of an order made under sub-section (2) of section 8, whichever is earlier.
  9. Nothing in this section shall prevent the person interested in the enjoyment of the immovable property attached under sub-section (1) from such enjoyment. Explanation.-For the purposes of this sub-section, “person interested”, in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property.
  10. The Director or any other officer who provisionally attaches any property under sub-section (1) shall, within a period of thirty days from such attachment, file a complaint stating the facts of such attachment before the Adjudicating Authority.

          Search and seizure.-

  1. Where the Director, on the basis of information in his possession, has reason to believe (the reason for such belief to be recorded in writing) that any person-
  2. has committed any act which constitutes money-laundering, or
  3. is in possession of any proceeds of crime involved in money-laundering, or

iii.        is in possession of any records relating to money-laundering, then, subject to the rules made in this behalf, he may authorise any officer subordinate to him to-

  1. enter and search any building, place, vessel, vehicle or aircraft where he has reason to suspect that such records or proceeds of crime are kept;
  2. break open the lock of any door, box, locker, safe, salmirah or other receptacle for exercising the powers conferred by clause (a) where the keys thereof are not available;
  3. seize any record or property found as a result of such search;
  4. place marks of identification on such record or make or cause to be made extracts or copies therefrom;
  5. make a note or an inventory of such record or property;
  6. examine on oath any person, who is found to be in possession or control of any record or property, in respect of all matters relevant for the purposes of any investigation under this Act:

Provided that no search shall be conducted unless, in relation to an offence under-

  1. Paragraph 1 of Part A and Part B of the Schedule, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974); or
  2. Paragraph 2 of Part A of the Schedule, a police report or a complaint has been filed for taking cognizance of an offence by the Special Court constituted under sub-section (1) of section 36 of the Narcotic Drugs and Psychotropic Substances Act, 1985 61 of 1985).
  3. The authority, who has been authorised under sub-section (1) shall, immediately after search and seizure, forward a copy of the reasons so recorded along with material in his possession, referred to in that sub-section, to the Adjudicating Authority n a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such reasons and material for such period, as may be prescribed.
  4. Where an authority, upon information obtained during survey under section 16, is satisfied that any evidence shall be or is likely to be concealed or tampered with, he may, for reasons to be recorded in writing, enter and search the building or place where such evidence is located and seize that evidence: Provided that no authorisation referred to in sub-section (1) shall be required for search under this sub-section.
  5. The authority, seizing any record or property under this section, shall, within a period of thirty days from such seizure, file an application, requesting for retention of such record or property, before the Adjudicating Authority.

        Power to arrest.-

  1. If the Director, Deputy Director, Assistant Director or any other officer authorised in this behalf by the Central Government by general or special order, has on the basis of material in his possession, reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.
  2. The Director, Deputy Director, Assistant Director or any other officer shall, immediately after arrest of such person under sub-section (1), forward a copy of the order along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority in a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such order and material for such period, as may be prescribed.
  3. Every person arrested under sub-section (1) shall, within twenty-four hours, be taken to a Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction: Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of arrest to the Magistrate’s Court.

         What is the new Amendment in PMLA.

       Government introduces Bill to amend the Prevention of Money-laundering Act,          2002 through Finance Act, 2018 

Following amendments have been made in the Prevention of Money-laundering Act,   2002 (PMLA) through Finance Act 2018. The Amendments aim at further enhancing the   effectiveness of the Act, widen its scope and take care of certain procedural difficulties   faced by the Enforcement Directorate in prosecution of PMLA cases. The major   amendments proposed are as follows:

            Measures to enhance effectiveness of PMLA

  1. Amendment in definition of “proceeds of crime”:The definition of “proceeds of crime” in PMLA was amended in 2015 to include “property equivalent held within the country” in case proceeds of crime is taken out or held “outside the country”. The present amendment shall allow to proceed against property equivalent to proceeds to crime held outside the country also.
  2. Amendment in bail provisions: Amendment proposed in Section 45(1) would make the applicability of bail conditions uniform to all the offences under PMLA, instead of only those offences under the schedule which are liable to imprisonment of more than 3 years. This will be a significant step forward in delinking the proceedings against scheduled offences and Money laundering  offences under PMLA.

Further limit of Rs.one crore shall allow court to apply bail provisions more leniently to less serious PMLA cases.

  1. Corporate frauds included as Scheduled offence:Section 447 of Companies Act is being included as scheduled offence under PMLA so that Registrar of Companies in suitable cases would be able to report such cases for action by Enforcement Directorate under the PMLA provisions. This provision shall strengthen the PMLA with respect to Corporate frauds.
  2. Measures to enhance effectiveness of investigations

Section 5(1) of the Act provides that every order of provisional attachment passed by an officer of Enforcement Directorate shall cease to have effect after 180 days from the date of the provisional attachment order, unless confirmed by the Adjudicating Authority under PMLA within that period. The section is proposed to be amended to include the period of stay in this time limit of 180 days and also further period of not more than 30 days to take care of delays if any in communication of judicial orders.

  1. Under the existing provision of Section 8(3), presently, the Directorate is required to file prosecution immediately after confirmation by Adjudicating Authority. Proposed amendment gives 90 days more for investigation to ED, before prosecution is filed.
  2. New sub-section (2) of section 66 is being introduced to provide for clear guidelines to share the information relating to contraventions of other laws noticed during investigation by ED, with concerned authorities under the said Acts. This shall enable exchange of information among agencies and enhance effectiveness of efforts against black money.
  3. Measures for restoration of property of persons adversely affected by PMLA investigation

Present provisions under Section 8(8) allow distribution of confiscated property to the rightful claimants, only after the trial is complete. Present amendment allows Special Court, if it thinks fit, to consider the claims of the claimants for the purposes of restoration of such properties even during trial also, in such manner as may be prescribed.


 

Bail rejected in PMLA Cases Judgment.

IN THE HIGH COURT OF JHARKHAND AT RANCHI

B.A. No. 36 of 2011

Vikash Kumar Sinha                                     ……Petitioner

Versus

The State of Jharkhand through

Directorate of Enforcement                        …..Opposite Party

CORAM:-HON’BLE MR. JUSTICE R.K. MERATHIA

For the Petitioner : Mr.   Y.V. Giri, Sr. Advocate

Mr.   Sameer Saurav, Mr. Siddhartha Ranjan,

Mr.   Rakesh Ranjan, Mr. Amit Kumar,

Mr.   Vinay Prakash, Advocates

For Directorate

of Enforcement : Mr.

A.K. Das, Advocate

: Mr.

Chandrajit Mukherjee, Advocate

——–

C.AV.On 25.2.2011                   Delivered on 11/3/2011

 

7/ 11/3/2011

This application has been filed for grant of bail in connection with Complaint Case No. 1 of 2009, corresponding to Enforcement Case Information Report-E.C.I.R./02/PAT/09/AD registered under section 4 of the Prevention of Money Laundering Act, 2002 ( Money Laundering Act for short).

  1. The prayer for bail of the petitioner was earlier rejected by this Court on 24.05.2010 vide B.A. No. 823 of 2010, inter alia observing as follows;-

It appears that a complaint has been filed by the Assistant Director- II of Directorate of Enforcement under section 45 of the Prevention of Money Laundering Act, 2002 before the Special Judge Ranchi (under the Prevention of Money Laundering Act) against the petitioner Vikash Sinha. It further appears that information was filed under the scheduled offences of Prevention of Money Laundering Act, 2002, i.e. under sections 420, 423,424,409 and 120B of the Indian Penal Code as well as under sections 7,10 and 13 of the Prevention of Corruption Act and now for the offence under the Money Laundering Act punishable under section 4 of the Prevention of Money Laundering Act, 2002 against Sri Madhu Koda, Shri Kamlesh Singh, Shri Bhanu Pratap Shahi, Shri Bandhu Tirkey, Shri Binod Sinha, Shri Sunil Kumar Sinha, Shri Vikas Sinha, Shri Sanjay Chaudhary and Shri Dhananjay Chaudhary.

The investigation against this petitioner was complete and thereafter complaint was filed before the Special Judge, Ranchi (under the Prevention of Money Laundering Act), stating therein that the investigation of the case against other accused persons was going on. Accordingly, leave, as prayed, for filing further complaint against other accused persons was granted by the Special Judge, Ranchi ( under the Prevention of Money Laundering Act).

So far as the petitioner is concerned, the learned Special Judge Ranchi (under the Prevention of Money Laundering Act), on the basis of the complaint as well as the materials collected during the course of investigation, took cognizance against the petitioner under section 3 of the Money Laundering Act, 2002 punishable under section 4 of the said Act.

The allegations made in the complaint, in short, are that the accused persons in collusion and connivance with each other acquired huge properties. Some of the accused persons were even public servants in the State of Jharkhand. The accused persons accumulated moveable and immoveable properties and assets not only in India but in abroad also. Those properties were acquired otherwise and were not included in their disclosed assets. Their criminal acts indicated misappropriation of public money in the capacity of public servants. One of the co- accused Binod Sinha is the own brother of this petitioner Vikash Kumar Sinha. It is alleged that this petitioner jointly with his brother Binod Sinha acquired the properties and assets; the details of which have been given in the complaint.

The present case is a very sensitive case, in which high profile persons like Ex. Chief Minister of the State is one of the accused. The allegation is that he along with other accused persons in collusion and connivance with each other named in the report have acquired huge moveable and immoveable properties and assets not only in India but in abroad also. The investigation against other accused are still in progress and, therefore, in my view if the petitioner is released on bail, he may certainly try to influence the further investigation and he may try to tamper with the evidence or may try to destroy the evidence.

Considering the gravity of the offence and nature of the crime committed by the accused persons as well as for the reasons stated herein above, in my view the petitioner does not deserve bail. Accordingly, the prayer for bail of the petitioner is rejected and this application is dismissed…..”.

  1. Against the said order, petitioner moved before Hon’ble Supreme Court vide S.L.P. ( Cr) No. 5084 of 2010, which was dismissed on 17.09.2010, with the following order.

” Heard learned senior counsel appearing on behalf of the petitioner as well as learned ASG appearing on behalf of Respondent no. 2.

The Special Leave Petition is dismissed. However, liberty is given to the petitioner to renew his bail application after three months before the appropriate court.”

  1. Mr. Y.V. Giri, learned senior counsel appearing for the petitioner, submitted as follows. The main/C.B.I. case was based on Media Reports. In that case, there was no allegations against the petitioner. In the present case, i.e. E.C.I.R. Case No. 02/2009 registered under the Money Laundering Act, petitioner has been made an accused on the basis of his alleged confession/statements made before the Income tax authorities, about which the petitioner made statement later that such statements/confessions were recorded under coercion. The statements made before the Income tax authorities are relevant for the purpose of taking action under that Act. He relied on 1992 Cr. L.J. 2781__K.T.M.S. Mohammad Vs. Union of India. The concerned authorities have not taken any action against co-accused persons, against whom, there are similar allegations such as Mr. Bandhu Tirkey and Bhanu Pratap Sahi, who are sitting M.L.As. The rigorous of Section 45 of the Money Laundering Act is applicable to the offences under part A of the Schedule of the Act, whereas no part of the schedule is applicable to the petitioner on the basis of the offences alleged and therefore the provisions of Cr.P.C. with regard to bail will apply to the petitioner. In the charge-sheet submitted by the C.B.I., the alleged amount involved is about Rs.7 crores covering all the accused persons. Only because petitioner is brother of co-accused Binod Sinha, he has been made an accused in this case. The papers supplied to the petitioner are not readable. The trial is also not progressing. The petitioner was apprehended on 6.11.2009 and since then he is in jail for about 15 months.

In similar circumstances, one Kamlesh Singh was granted bail in Vigilance Case No. 9 of 2009, which is the basis of this case. Shri Laloo Prasad Yadav was also granted bail after he remained in jail for about 6 months vide (2002) 9 SCC 731. One Manoj Singh was also granted bail by this Court, against whom, there were allegations under Money Laundering Act involving 12 crores, on the ground that he has remained in jail for about six months.

The order of the High Court rejecting bail of the petitioner earlier has merged in the said order of the Supreme court, in which petitioner was given liberty to apply for bail after three months by order dated 17.9.2010. Petitioner will cooperate in trial. In these circumstances, petitioner should be enlarged on bail.

  1. Mr. A.K. Das, learned counsel appearing for Directorate of Enforcement, vehemently opposed the prayer for bail and submitted as follows. This case was instituted against several accused persons including Shri Madhu Kora, ex Chief Minister, Jharkhand and the petitioner mainly alleging inter alia that during the Chief Ministership of Shri Madhu Kora, he along with co-accused persons acquired huge illegal money ( proceeds of crime) through corrupt and illegal means and committed offences, which are covered under schedule of Money Laundering Act, in connivance with his close associates, including petitioner and others. The proceeds of crime so accumulated were invested not only in India but in several other countries so as to project the same as untainted property such as Dubai, Hongkong, Thailand, Singapur and Sweden.

The modus operandi adopted by the accused persons has been explained in detail by Shri S.K. Naredi ( Chartered Accountant), who is one of the important witnesses in this case- that some Chartered Accountant/Entry Operators maintained several files of Companies which only exist on paper for providing accommodation entries to the intending persons who want to induct their undisclosed income in the books of accounts of the Company as share capital/unsecured loan.

During investigation, it was found that the petitioner gave about Rs.45 crores to one Mr. B.N. Gupta, an employee of Mr. Naredi and the same was inducted in several such companies running on paper.

By such proceeds of crime, the capital of M/s Emmar Alloys Pvt. Ltd., a paper company of the petitioner was increased and 15% of the share of the Company was transferred in the name of the co-accused- Vijay Joshi, who admitted in his statement that he did not pay any consideration in lieu of acquisition of its share.

The proceeds of crime were rapidly allowed to change hands. About Rs.15 crores was spent on construction/acquisition of industry/ property only. The petitioner for the purpose of laundering the proceeds of crime has become Director in about 8 companies. He was examined under the provisions of Money Laundering Act and Income Tax Act. He admitted his guilt, which finds support from other materials available on record.

Other accused persons are in custody in this case. Petitioner is also deeply and actively involved in the offence. Further investigation is going on in India and in foreign countries. Petitioner cannot complain that the main/CBI case was based on media reports, as on investigation, such reports have been found correct to a great extent. Thus the Enforcement Department had reasonable belief about commission of offence. Some of the accused persons have not been arrested as investigation against them is going on. Referring to section 3 of the Money Laundering Act, he submitted that the petitioner is directly involved in the process and actively connected with the proceeds of crime for projecting it as untainted property. Petitioner may hamper and tamper with the evidences of this case, in which high profile person including ex Chief Minister are involved. He also referred to the order dated 26.10.2010, passed in S.L.P ( Crl) Nos. 6995-6999/2010 in the case of CBI, Hyderabad Vs. B. Ramaraju and others. He lastly submitted that petitioner is not entitled to bail, even on the basis of liberty given by Hon’ble Supreme Court, as he himself is delaying the trial.

  1. It will not be proper for this Court to express any opinion on the said submissions of the parties as it may prejudice them during trial. Prima facie, the submissions made on behalf of the petitioner are not acceptable. During investigation, Media reports have been found substantially correct. Petitioner confessed his guilt during investigation, which finds support from other materials available on record. The judgment of K.T.M.S. Mohammad ( supra) relied by the petitioner is of no help to him. It was rendered in altogether different context. The orders granting bail to other accused persons in other criminal cases in the facts and circumstances of those cases by different courts are of no help to the petitioner.

It is true that liberty was given by the Hon’ble Supreme Court to the petitioner to renew his bail application after three months but, from the order sheet of trial court, it appears that petitioner is trying to delay the trial on flimsy grounds. On the other hand, bail is prayed on the ground of the period of detention and the liberty given by Hon’ble Supreme Court.

Prima facie, it is a case of loot and laundering of huge public money in which the petitioner is also actively involved. After hearing the parties at length and considering the entire matter carefully, in my opinion, petitioner does not deserve bail in this case in view of the seriousness of the charges, the materials available in support thereof, and the provisions of Money Laundering Act, as noticed above. Accordingly, this bail application is rejected.

 

(R .K. Merathia, J) Rakesh/

The Hon’ble Supreme Court held that :-

supreme-court-l

“This is a matter that will, of course, be dealt with by the trial judge. However, what is important, as far as we are concerned, is that during the entire period of investigations which appear to have been spread over seven months, the appellant was not arrested by the investigating officer. Even when the appellant apprehended that he might be arrested after the charge sheet was filed against him, he was not arrested for a considerable period of time. When he approached the Allahabad High Court for quashing the FIR lodged against him, he was granted two months time to appear before the trial judge. All these facts are an indication that there was no apprehension that the appellant would abscond or would hamper the trial in any manner. That being the case, the trial judge, as well as the High Court ought to have judiciously exercised discretion and granted bail to the appellant. It is nobody’s case that the appellant is a shady character and there is nothing on record to indicate that the appellant had earlier been involved in any unacceptable activity, let alone any alleged illegal activity.

In our view, taking all these and other factors into consideration, it would be appropriate if the appellant is granted bail on conditions that may be reasonably fixed by the trial judge. We order accordingly

We should not be understood to have expressed any opinion on the allegations made against the appellant, both in the charge sheet as well as in the complaint case filed against him. “

—————————————————————————————————————————————–

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.227 /2018

(ARISING OUT OF S.L.P. (CRL.) NO. 151 OF 2018)

Dataram Singh …Appellant

Versus

State of Uttar Pradesh & Anr. …Respondents

J U D G M E N T

Madan B. Lokur, J.

  1. Leave granted.
  2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a Crl. Appeal No.227/2018 (@ S.L.P. (Crl.) No. 151 of 2018) Page 1 of 9 correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
  3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
  4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.
  5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons. 1 1 (2017) 10 SCC
  6. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in NikeshTarachand Shah v. Union of India2 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab3 in which it is observed that it was held way back in Nagendra v. King-Emperor4 that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson5 wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.
  7. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. 2 2017 (13) SCALE 609 3 (1980) 2 SCC 565 4 AIR 1924 Cal 476 5 AIR 1931 All 356
  8. We have been constrained to make these observations in the present appeal, in which the grant of bail has not been opposed by the State, but there is vehement opposition from the complainant.
  9. On 13th January, 2016 the complainant lodged a First Information Report (FIR) No.16 of 2016 at Police Station Sahjanawa, Gorakhpur, Uttar Pradesh, alleging that the appellant had cheated him of an amount exceeding Rs.37 lakhs and had therefore committed an offence punishable under Sections 419, 420, 406 and 506 of the Indian Penal Code. It was also alleged that the appellant had issued a cheque for Rs. 18 lakhs in favour of the complainant (returning a part of the amount of Rs. 37 lakhs) but had stopped payment of that cheque in violation of Section 138 of the Negotiable Instruments Act, 1881.
  10. Thereafter the complainant filed Complaint Case No. 206 of 2016 on or about 21st January, 2016 alleging the commission of an offence by the appellant under Section 138 of the Negotiable Instruments Act, 1881. Cognizance was taken and summons issued to the appellant by the concerned Magistrate in the complaint case.
  11. Much later, on or about 15th August, 2016, the investigating officer filed a charge sheet against the appellant being Case Crime No. 18 of 2017. It is not clear why the Case Crime was registered so late (it may be a typo), but be that as it may, it appears that during the the appellant was not arrested.
  12. Fearing arrest after the charge sheet was filed against him, the appellant moved the Allahabad High Court for quashing the FIR lodged against him. The record of the case reveals that on 7th February, 2017 the High Court declined to quash the FIR, but granted two months time to the appellant to appear before the trial judge. Presumably, it was directed that during this period, the appellant should not be arrested. On 11th April, 2017 the appellant approached the Allahabad High Court once again, this time for a further period of two weeks to enable him to appear before the trial judge. Time as prayed for, appears to have been granted and eventually on 24th April, 2017 the appellant appeared before the trial judge and was taken into judicial custody. The appellant has been in judicial custody ever since.
  13. A bail application moved by the appellant was rejected by the trial judge on 27th April, 2017 and another application for bail was rejected by the Allahabad High Court on 21st September, 2017 (impugned before us).
  14. On 23rd January, 2018 when the appeal was listed before us, the complainant was represented by learned counsel even though he was not a party to the proceedings. However, on the oral request of learned counsel for the appellant the complainant was impleaded as a party respondent. Notice was then issued to the State of Uttar Pradesh, notice was accepted by learned counsel for the complainant on his behalf. A request was made for filing a reply to the petition for special leave to appeal and two days time was granted for this purpose since the appellant was in judicial custody for a considerable period.
  15. Even though the State of Uttar Pradesh has been served in the appeal, no one has put in appearance on its behalf. As far as the complainant is concerned, no reply was filed by the time the matter was taken up for consideration on 29th January, 2018. Accordingly, the matter was adjourned to 2nd February, 2018 by which date also no reply was filed by the complainant. As mentioned above, no one has put in appearance on behalf of the State of Uttar Pradesh to oppose the grant of bail to the appellant.
  16. Learned counsel for the complainant vehemently contended that the appellant had duped him of a considerable amount of money and that looking to the seriousness of the allegations against him, this was not a case in which the appellant ought to be granted bail by this Court. Learned counsel supported the view taken by the trial judge as well as by the Allahabad High Court. He argued that given the conduct of the appellant in not only cheating the complainant and depriving him of a considerable sum of money but thereafter issuing a cheque for which payment was stopped made it an appropriate case for dismissal
  17. In our opinion, it is not necessary to go into the correctness or otherwise of the allegations made against the appellant. This is a matter that will, of course, be dealt with by the trial judge. However, what is important, as far as we are concerned, is that during the entire period of investigations which appear to have been spread over seven months, the appellant was not arrested by the investigating officer. Even when the appellant apprehended that he might be arrested after the charge sheet was filed against him, he was not arrested for a considerable period of time. When he approached the Allahabad High Court for quashing the FIR lodged against him, he was granted two months time to appear before the trial judge. All these facts are an indication that there was no apprehension that the appellant would abscond or would hamper the trial in any manner. That being the case, the trial judge, as well as the High Court ought to have judiciously exercised discretion and granted bail to the appellant. It is nobody’s case that the appellant is a shady character and there is nothing on record to indicate that the appellant had earlier been involved in any unacceptable activity, let alone any alleged illegal activity.
  18. In our view, taking all these and other factors into consideration, it would be appropriate if the appellant is granted bail on conditions that may be reasonably fixed by the trial judge. We order accordingly
  19. We should not be understood to have expressed any opinion on the allegations made against the appellant, both in the charge sheet as well as in the complaint case filed against him.
  20. The appeal is allowed. ……………………

…J (Madan B. Lokur) J New Delhi;

(Deepak Gupta) February 6, 2018

“”311. Power to summon material witness, or examine person present:-. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case.”

Careful perusal of aforesaid provision clearly suggests that court enjoys vast power to summon any person as a witness or recall and re-examine a witness provided same is essentially .

required for just decision of the case. Moreover, such exercise of power can be at any stage of inquiry, trial or proceedings under the Code, meaning thereby applicant can file an application at any time before conclusion of trial. Very object of Section 311 is to bring on record evidence not only from the point of view of accused and prosecution but also from the point of view of the orderly society.

Otherwise also, it is well established principle of criminal jurisprudence that discovery, vindication and establishment of truth are main purposes of underlying object of courts of justice. It is also well settled that wider the power, greater the responsibility upon court, which exercises such power and exercise of such power cannot be untrammeled and arbitrary, rather same must be guided by object of arriving at a just decision of case. Close scrutiny of aforesaid provision of law further suggests that Section 311 has two parts; first part reserves a right to the parties to move an appropriate application for re-examination of a witness at any stage; but definitely the second part is mandatory that casts a duty upon court to re-examine or recall or summon a witness at any stage if his/her evidence appears to be essential for just decision of case because, definitely the underlying object of aforesaid provision of law is to ensure that there is no failure of justice on account of mistake on the part of either of parties in bringing valuable piece of evidence or leaving an ambiguity in the statements of witnesses examined from either side.

Hon’ble Apex Court in Zahira Habibullah Sheikh (5) and another vs. State of Gujarat and others (2006)3 SCC 374 has held as under:-

“27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.

  1. As indicated above, the Section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court. Sections 60, 64 and 91 of the Indian Evidence Act, 1872 (in short, ‘Evidence Act’) are based on this rule. The Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The Court will often have to depend on intercepted allegations made by the parties, or on inconclusive .

inference from facts elicited in the evidence. In such cases, the Court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the Court may result in what is thought to be “filling of loopholes”. That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.

  1. The object of the Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by Court gives evidence against the complainant he should be allowed an opportunity to cross- examine. The right to cross-examine a witness who is called by a Court arises not under the provision of Section 311, but under the Evidence Act which gives a party the right to cross- examine a witness who is not his own witness. Since a witness summoned by the Court could not be termed a witness of any particular party, the Court should give the right of cross- examination to the complainant. These aspects were highlighted in Jamat Raj Kewalji Govani v. State of Maharashtra, (AIR 1968 SC 178).
  2. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences.

 Hon’ble Apex Court in Raja Ram Prasad Yadav vs. State of Bihar and another, (2013)14 SCC 461, has held that power under Section 311 Cr.P.C. to summon any person or witness or examine any person already examined can be exercised at any stage provided the same is required for just decision of the case. It may be profitable to take note of the following paras of the judgment:-

“14. A conspicuous reading of Section 311 Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression “any” has been used as a pre-fix to “court”, “inquiry”, “trial”, “other proceeding”, “person as a witness”, “person in attendance though not summoned as a witness”, and “person already examined”. By using the said expression “any” as a pre-fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 Cr.P.C. and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Cr.P.C. It is, therefore, imperative that the invocation of Section 311 Cr.P.C. and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and-ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.

In this context, we also wish to make a reference to certain decisions rendered by this Court on the interpretation of Section 311 Cr.P.C. where, this Court highlighted as to the basic principles which are to be borne in mind, while dealing with an application under Section 311 Cr.P.C.

In the decision reported in Jamatraj Kewalji Govani vs. State of Maharashtra – AIR 1968 SC 178, this Court held as under in paragraph 14:-

“14. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court’s action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction.” (Emphasis added) 15.2 In the decision reported in Mohanlal Shamji Soni vs. Union of India and another – 1991 Suppl.(1) SCC 271, this Court again highlighted the importance of the power to be exercised under Section 311 Cr.P.C. as under in paragraph 10:-

“10….In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code

(Section 311 of the new Code) are enacted whereunder any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or .

recall or re- examine any person in attendance though not summoned as a witness or recall and reexamine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.”

15.3 In the decision in Raj Deo Sharma (II) vs. State of Bihar – 1999 (7) SCC 604, the proposition has been reiterated as under in paragraph 9:-

“9. We may observe that the power of the court as envisaged in Section 311 of the Code of Criminal Procedure has not been curtailed by this Court. Neither in the decision of the five-Judge Bench in A.R. Antulay case nor in Kartar Singh case such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the court under Section 311 of the Code. We make it clear that if evidence of any witness appears to the court to be essential to the just decision of the case it is the duty of the court to summon and examine or recall and re-examine any such person.”

(Emphasis added) 15.4 In U.T. of Dadra and Nagar Haveli and Anr. vs. Fatehsinh Mohansinh Chauhan – 2006 (7) SCC 529, the decision has been further elucidated as under in paragraph 15:-

“15. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as “filling in a lacuna in the prosecution case” unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused resulting in miscarriage of justice.” (Emphasis supplied) .

15.5 In Iddar & Ors. vs. Aabida & Anr. – AIR 2007 SC 3029, the object underlying under Section 311 Cr.P.C., has been stated as under in paragraph 9:-

“9…27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is ‘at any stage of inquiry or trial or other proceeding under this Code’. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.” (Emphasis added) 15.6 In P. Sanjeeva Rao vs. State of A.P.- AIR 2012 SC 2242, the scope of Section 311 Cr.P.C. has been highlighted by making reference to an earlier decision of this Court and also with particular reference to the case, which was dealt with in that decision in paragraphs 20 and 23, which are as under:-

“20. Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar (2000) 10 SCC

  1. The following passage is in this regard apposite:

“6. …In such circumstances, if the new counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the .

matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.”

  1. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined-in-chief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself.” (Emphasis in original) 15.7 In a recent decision of this Court in Sheikh Jumman vs. State of Maharashtra – (2012) 9 SCALE 18, the above referred to decisions were followed.

Again in an unreported decision rendered by this Court dated 08.05.2013 in Natasha Singh vs. CBI (State) – Criminal Appeal No.709 of 2013, where one of us was a party, various other decisions of this Court were referred to and the position has been stated as under in paragraphs 15 and 16:

The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as

any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the .

accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal, however, must be given to the other party.

The power conferred under Section 311 Cr.P.C. must, therefore, be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection.

The very use of words such as ‘any Court’, ‘at any stage’, or ‘or any enquiry’, trial or other proceedings’, ‘any person’ and ‘any such person’ clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should, therefore, be whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.

Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person’s right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the

denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. (Vide Talab Haji .

Hussain v. Madhukar Purshottam Mondkar & Anr., AIR 1958 SC 376; Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors. AIR 2004 SC 3114; Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006 SC 1367; Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) (2007) 2 SCC 258; Vijay Kumar v. State of U.P. & Anr., (2011) 8 SCC 136; and Sudevanand v. State through C.B.I. (2012) 3 SCC 387.)”

 From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:

  1. a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?
  2. b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.
  3. c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and reexamine any such person.
  4. d) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
  5. e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
  6. f) The wide discretionary power should be exercised judiciously and not arbitrarily.
  7. g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further .examination in order to arrive at a just decision of the case.
  8. h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
  9. i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
  10. j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
  11. k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
  12. m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
  13. n) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised,

with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be .ensured being a constitutional goal, as well as a human right.”

12.Hon’ble Apex Court in Mannan SK and others vs. State of West Bengal and another AIR 2014 SC 2950, wherein the Hon’ble Court has held as under:-

“10. The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word ‘shall’. It says that the court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words ‘essential to the just decision of the case’ are the key words. The court must form an opinion that for the just decision of the case recall or reexamination of the witness is necessary. Since the power is wide it’s exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all the circumstances and decide whether the prayer for recall is genuine.”

  1. Aforesaid exposition of law clearly suggests that a fair trial is main object of criminal jurisprudence and it is duty of court to ensure such fairness is not hampered or threatened in any manner. It has been further held in the aforesaid judgments that fair trial entails interests of accused, victim and society and therefore, grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. Hon’ble Apex Court has categorically held in the aforesaid judgment that adducing evidence in support of the defence is a valuable right and denial of such right would amount to denial of a fair trial.
  2. Hon’ble Apex Court in Raja Ram Prasad Yadav vs. State of Bihar and another, (2013)14 SCC 461, while culling out certain principles required to be borne in mind by the courts while considering applications under Section 311 has held that exercise of widest discretionary powers under Section 311 should ensure that judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts. Hon’ble Apex Court has further held that if evidence of any witness appears to be essential for the just decision of the case, it is the duty of the court to summon and examine or recall and re-examine any such person because very object of exercising power under Section 311 is to find out truth and render a just decision. Most importantly, in the judgment referred to herein above, Hon’ble Apex Court has held that court should bear in mind that no party in trial can be .foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.