Legal Reference Library

The Patna High Court, in the case of Dr. Syed Mohhammad Azfar vs The State Of Bihar & Anr, shed light on the wide-ranging powers of the High Court under Section 482 of the Criminal Procedure Code and noted that even those complaints of which the Magistrate has taken cognizance of, but are of a private and vexatious nature, can be quashed by the High Court. In this case, an appeal had been filed for the quashing of order of cognizance by the Magistrate and issuance of process under a Complaint Case alleging offences under Sections 323 and 342 of the IPC. It was contended that the complaint was filed on malicious and vexatious grounds. Justice Nilu Agarwal, after examining the material placed on record and balancing rival contentions, held that even though an offence is disclosed in the complaint, the same is held to be a vexatious petition filed to harass and humiliate the accused.

In Nirmal Bang Securities Private Limited Vs. State of Maharashtra, the Bombay High Court while dealing with various issues including cheating and fraud stated that a litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same. 30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applicati...

In NISHU WADHWA versus SIDDHARTH WADHWA, the questions before the Hon'ble Delhi High Court was :- i. Whether a person who has not been summoned as an accused can file a revision petition ? ii. Whether revision petition filed under Section 397 Cr.P.C. against the order of the Metropolitan Magistrate passed under Section 156(3) Cr.P.C. was maintainable or not? iii. Whether the Metropolitan Magistrate had territorial jurisdiction to entertain the application under Section 156 (3) Cr.P.C. and pass order thereon as the investigation had been transferred? iv. Whether directions by the Metropolitan Magistrate to add Sections in the FIR would amount to interference during investigation? The Hon'ble court held that :- i & ii) As decided by the Hon'ble Supreme Court in Randhirsinh Dipsinh Parmar vs. State of Gujarat & Ors, the issue that since the accused has not been summoned as an accused and has no right to file a revision petition is alien, while deciding an a...

The Orissa High Court in Nandita Sethi vs. State of Orissa, has held that a magistrate cannot direct further investigation of the case at the instance of a de facto complainant after taking cognizance of offences on the basis of charge sheet submitted by police. A magistrate, on a petition filed by the defacto complainant, had ordered further investigation of the case under Section 173(8) of CrPC. The prosecution, in the instant case, had objected to the said petition stating that the defacto complainant has no locus standi to file such petition and when charge sheet has already been submitted and cognizance of offences has been taken, such petition should not be entertained. Aggrieved by the said order, the accused approached the high court. Justice SK Sahoo observed that even though after taking cognizance of the offence by the magistrate upon the charge sheet or final report submitted by police, the right of the police to further investigate the case is not exhausted after seeki...

In Arun Kumar Sharma Vs. State of U.P. , the Hon'ble Allahabad High Court has held that a Magistrate may dismiss a complaint (a) if he finds that no offence has been committed upon the statement of the complainant; (b) if he distrust the statements by the complainant, and (c) if he finds that there is no sufficient ground for proceeding. For issuing the process against the accused, it has to be only seen whether prima facie case has been made out. The Magistrate is not required to go deep into the probative value of material on record. The Magistrate before issuing process against the accused must exercise his judicial mind to the facts of the case and law applicable thereto. The Court is not required to assess the evidence and consider the probabilities or improbabilities of the version of the complaint and or evaluate the sworn statement of the complainant or witness. The Magistrate under law at this stage is not permitted to embark upon meticulous examination of the evidence or ...

The Supreme Court in Abhijit Pawar vs. Hemant Madhukar Nimbalkar, has emphasised that in cases where the accused is residing at a place beyond the area in which the magistrate exercises his jurisdiction, it is mandatory on the part of the magistrate to conduct an inquiry or investigation before issuing the process. A complaint was lodged by a policeman against editors, publishers and printers of a newspaper for publishing very offensive and contained libellous satire against him, in connection with a raid conducted by the Lokayuktha. The magistrate summoned all the accused and on the writ petitions preferred by two of the accused, the high court dropped proceedings against one of the accused and allowed the magistrate to continue proceedings against another. This order of high court was assailed by the accused and the complainant before the apex court. The bench headed by Justice AK Sikri observed that the purpose or objective behind 2005 amendment to Section 202 CrPC was to ward off f...

In Pragti Devi Vs. State of U.P. the Hon'ble Allahabad High Court, it is a fact that at the time of passing order on point of cognizance and summoning, the Magistrate is expected to consider as to whether prima facie evidence for summoning the accused are available or not. But this consideration has to be after application of judicial mind, and not blindly. Magistrate is not expected only to read the words uttered by witnesses under sections 200 or 202 CrPC, but he also is required to use its judicial mind before passing any order and not to act like a silent spectators of the words uttered by the witnesses, who were not going to be cross-examined at the stage of evidences under Chapter XV CrPC. Even in the aforesaid judgment of Km. Nisha case (supra), this court had cited certain verdicts of Hon’ble Apex Court, which are again reiterated.

Explaining the difference between Sections 301 and 302 CrPC, the Court said that the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone other than the public prosecutor. It is because the legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court, however, as far as Section 302 CrPC is concerned, power is conferred on the Magistrate to grant permission to the complainant to conduct the prosecution independently. It was further clarified that the role of the informant or the private party is limited during the prosecution of a case in a Court of Session and the counsel engaged by him is required to act under the directions of public prosecutor. The bench of Dipak Misra and A.K. Goel, JJ also clarified that the said provision applies to every stage including the stage of framing charge inasmuch as the complainant is permitted by the Magistrate to conduct the pros...

The Allahabad High Court in Abhishek Mishra vs State Of U.P. has held that the Chief Judicial Magistrate exercising jurisdiction in non-metropolitan area in exercise of powers conferred on by Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002, can assist a secured creditor in taking possession of the secured asset and pass an order in the creditor’s favour for the purpose. A Division Bench comprising Justice Prashant Kumar and Justice Krishna Murari, differing with the contrary view by a Full Bench of the Madras High Court in K. Arockiyaraj Vs. Chief Judicial Magistrate, Srivilliputhur & Anr., observed that the nomenclature ‘Chief Metropolitan Magistrate’ used by legislature in Section 14 of the Act includes Chief Judicial Magistrate functioning in non-metropolitan area and shall have jurisdiction to entertain an application made under Section 14 of the SARFAESI Act, 2002. The Bench observed: “It is clea...

The Allahabad High Court, in Dr. Kuldeep Kaushik vs. State of UP, has held that a magistrate has the authority to interfere in a case investigation if it is not going on in a proper or fair manner. In the instant case, a magistrate had dismissed a surrender application filed by a doctor, accused of medical negligence, on the ground that any interference in the investigation cannot be done. In the surrender application, it was requested that various papers, along with surrender application, be sent to the Investigating Officer and after taking into consideration the papers, a report may be called for from the Investigating Officer. After the magistrate rejected the surrender application, the accused approached the High Court. Justice Abhai Kumar said: “The magistrate while passing the impugned order observed that the court cannot interfere in the investigation. The observation of the magistrate can be correct up to a certain extent, but what ‘interfere’ means is entirely dependent upon ...

A two Judge Bench of Supreme Court of India has held that Section 311-A of Code of Criminal Procedure which has been introduced by Act No.25 of 2005 with effect from 23.06.2006 with respect to the powers of the Magistrate to order the person to give specimen signatures or handwriting is prospective in nature. The Bench of Justice V.Gopala Gowda and Justice R. Banumathi was considering the question whether the Judicial Magistrate/ Executive Magistrate was authorized to take specimen writing and signatures of the said accused during the investigation of the case when no matter was pending before either of them. Section 311-A Cr.P.C. has been inserted on the suggestions of the Supreme Court in State of Uttar Pradesh v. Ram Banu Misra, (1980) 2 SCC 343: AIR 1980 SC 791, that a suitable legislation be brought along the lines of Section 5 of Identification of Prisoners Act, 1980, to provide for the investiture of Magistrates with powers to issue directions to any person including an accused ...

Magistrates cannot ask the police to investigate a private criminal defamation complaint as it is the complainant who needs to prove the case, the Supreme Court on Wednesday said while prima facie finding fault with a lower court order asking Maharashtra cops to probe the defamation case against Congress Vice President Rahul Gandhi. Gandhi, facing a defamation complaint for his remarks allegedly accusing RSS for assassination of Mahatma Gandhi, has sought its quashing from the apex court which had observed that the leader should not have resorted to "collective denunciation" of an organisation (RSS) and will have to face trial if he does not express regret. A bench of Justices Dipak Misra and RF Nariman, at the outset, referred to an earlier judgement delivered on a batch of pleas, including the one filed by BJP leader Subramanian Swamy and Gandhi each, challenging the constitutional validity of penal defamation law and said that police cannot be asked by judicial magistrates...

The case before the bench comprising of A.K. Sikri & R.K Agarwal,JJ was whether the Court of Sessions is empowered to take the cognizance of offence when a similar application to this effect was rejected by the Judicial Magistrate while committing the case to Sessions Court, taking cognizance of offence only under Section 306 IPC and specifically refusing to take cognizance of offence under Sections 304-B and 498-A IPC. The Court observed that normally, such a course of action would not be permissible. But referring to the present case, the court held that the power of Magistrate in refusing to take cognizance against the appellants is revisable by a superior Court, the Court of Sessions in this case, either on the revision petition that can be filed by the aggrieved party or even suo moto by the revisional Court itself. Also, it was not a case wherein the opportunity was not given to the other party to file a reply at the sessions Court against the order of Cognizance and the Cou...

Courts can entertain petitions to recall non-bailable arrest warrants (NBWs) without insisting on the presence of people against whom they had been issued, but it does not mean the practice should be followed invariably in all cases irrespective of the conduct of the person concerned, the Madras High Court Bench here has said. Justice S. Vimala made the observation while rejecting the plea of Shanmugapandian, an accused in a criminal case, to direct the Valliyoor Judicial Magistrate in Tirunelveli district to recall an NBW without insisting upon his appearance. The judge said the Magistrate could at most be directed to consider the plea for recall of warrant right on the day when the petitioner surrenders. She pointed out that the Magistrate was constrained to issue the arrest warrant not only because the petitioner did not appear in the court on a particular day but also because he failed to file an application either under Section 317 or Section 205 of the Code of Criminal Proc...

Delhi High Court has held in State v Hargyan that acceptance of an incomplete charge sheet and denying statutory bail (167(2) CrPC] to the accused amounted to apparent abuse of process of Law. The accused was alleged of committing misappropriation of funds in ATM accounts, wherein he was acting as custodian. The police filed final report before the magistrate court. The court below, returning the charge sheet, directed further investigation into certain aspects .The accused applied for statutory bail before the magistrate court which was rejected.His revision before the sessions judge was allowed, granting statutory bail. Aggrieved by the same,state filed the above criminal revision petition. Dismissing the petition, Justice P.S .Teji, observed:-“Section 167(2) Cr. P.C. precludes the concerned Magistrate to have the custody of the detenue beyond 60 days until he receives the charge sheet under Section 173 Cr. P.C. to adjudicate upon the same.” The court noted that in the instant case, ...

Calcutta High Court has directed Judicial Magistrates of the State to ensure that order for investigation U/S 156(3) CrPC reaches concerned Police stations forthwith, without delay, to avoid inordinate in starting police investigation. Justices Sankar Acharyya and Aniruddha Bose made this observation while dismissing acriminal appeal filed by a person convicted for rape. The bench observed “At the very outset we feel it necessary for administration of criminal justice system in the State and to prevent abuse of process of Courts by exercise of our power under Article 227 of the Constitution of India and under Section 482 of the CrPC. to point out an irregularity which is apparent in this case. It comes to our notice that the petition of complaint was lodged by PW 1 in Court on 4.11.2006 which was forwarded to O.C. of police station for treating it as FIR under Section (3), CrPC. but it was received at police station on 11.12.2006 which is after one month and one week of lodging the com...

The Supreme Court in Prakash Nagardas Dubal Shaha vs. Sou Meena Prakash Dubal Shahhas has held that unsuccessful divorce proceedings cannot adversely affect the maintainability of application filed under the Domestic Violence Act. Division Bench comprising of Justices Dipak Misra and Shiva Kirti Singh made this observation in an appeal filed by the Husband against the order of High Court which had held that his wife was entitled to seek maintenance from him. By way of maintenance the Magistrate had fixed Rs. 5,000/- per month for the wife, same amount for the daughter and Rs. 4,000/- for the minor son, which was later upheld by the High Court. The order of Sessions Court reversing the findings of the Magistrate on the ground that the wife had initiated divorce proceedings at an earlier point of time, the Protection of Women from Domestic Violence Act which came into force only later in 2005 was wrongly invoked by the wife, was also set aside by the High Court. Supreme Court said that i...

The Supreme Court in Bhushan Kumar Vs. State (NCT of Delhi) has discussed the relevant provisions of the Code of Criminal Procedure, 1973 to answer the questions posed before it; (a) Whether taking cognizance of an offence by the Magistrate is same as summoning an accused to appear? (b) Whether the Magistrate, while considering the question of summoning an accused, is required to assign reasons for the same? While asnwering the aforesaid questions, the Supreme Court held as under; 5. The questions which arise for consideration in these appeals are: (a) Whether taking cognizance of an offence by the Magistrate is same as summoning an accused to appear? (b) Whether the Magistrate, while considering the question of summoning an accused, is required to assign reasons for the same? 6. In this context, it is relevant to extract Sections 190 and 204 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) which read as under: “190. Cognizance of offences by Magistr...

THE HONBLE THE ACTING CHIEF JUSTICE  SRI DILIP BABASAHEB BHOSALE HONBLE SRI HONBLE SRI JUSTICE C.PRAVEEN KUMAR & HONBLE SRI JUSTICE M.S.K. JAISWAL   WRIT PETITION Nos. 17589  of 2014 27-11-2015 M/s.T.R.Jewellery, a proprietary concern   Rep.by its Proprietor Thiriveedhi Suresh Babu and Another..... PETITIONERS               M/s.State Bank of India, Vedayapalem Branch, Nellore and Another..RESPONDENTS     THE HONBLE THE ACTING CHIEF JUSTICE  SRI DILIP BABASAHEB BHOSALE                HONBLE SRI JUSTICE C.PRAVEEN KUMAR           &  HONBLE SRI JUSTICE M.S.K. JAISWAL       WRIT PETITION Nos. 17589 & 17625 of 2014     COMMON JUDGMENT: (Per Justice C.Praveen Kumar)                Disagreeing with the view expressed in W.P.No.5347 of 2014 another Di...

The Punjab and Haryana High Court has ruled that an investigating agency cannot be allowed to add or delete offences during the progress of trial. It can also not be permitted to convert a magisterial trial into sessions’ trial or vice versa. Depending on the gravity of offences and the punishment prescribed, a criminal trial is classified into magisterial and sessions’ trial. The offence is triable by a court of session, if it is punishable with imprisonment for life or more than seven years under the special law. The ruling by Justice Rajan Gupta came on a bunch of two petitions filed by Neetu Dheer and other petitioners against the State of Haryana and other respondents. They were seeking directions for quashing supplementary challan submitted by the police. The challenge was made primarily on the ground that the investigating agency carried out reinvestigation on its own before including attempt to murder and another offence under Sections 307 and 333 of the IPC. The reinvestiga...