Miscellaneous Part 4
Summary of Question- Framing of Charge or Discharge
Question – Whether court is expected to do like Post Office or mouthpiece of Prosecution at the stage of framing of Charge.
Answer- No. At the stage of framing of charge the Court is not expected to do like a post office or mouthpiece of the prosecution ; even if there is strong suspicion in the mind of the court, it must be based on material which must be such as can be translated into evidence at the stage of trial ; the strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that the accused has committed the offence
The Hon’ble Supreme Court in CRIMINAL APPEAL NO.714 of 2019 , decided on 24th. April 2019, observed and held :
“13. We may profitably, in this regard, refer to the judgment of this Court in State of Bihar v.Ramesh Singh* wherein this Court has laid down the principles relating to framing of charge and discharge as follows:
“Reading SS. 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and initial stage of the trial the truth, veracity and effect of the
evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S.227 or S.228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross- examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under S.227 or S.228, then in such a situation ordinarily and generally the order which will have to be made will be one under S.228 and not under S.227.”
*AIR 1977 SC 2018
"14. In Union of India v. Prafulla Kumar Samal and another*, after survey of case law, this is what the Court has laid down:
“10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising hisjurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”
*AIR 1979 SC 366
"21. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the Court is expected to do is, it does not act as a mere post office. The Court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the Court dons the mantle of the Trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the Court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence."
Summary of Question- Sanction for Prosecution
Question- Whether and when sanction for prosecution of a Public servant is required.
Answer- Sanction for prosecution of a Public Servant (Govt. Officer) is required under section 197 Cr. P.C if the offence alleged is under I.P.C and under P.C Act if the offence alleged is under P.C Act. But for prosecution a Bank Employee (who is also Public Servant) sanction is not requited under section 197 Cr. P.C if the Offence alleged is under I.P.C ; Sanction would be required under P.C Act if the offence alleged is under I.P.C.
1. This is settled Law as also held by Hon’ble supreme Court in CRIMINAL APPEAL No.579 of 2019 (decided on the 2nd. April 2009) that Sanction under section 197 Cr. P.C for prosecution of a Govt. Officer is required if the offence alleged against the Govt. Officer has some nexus or/ and relation with the discharge of his official duties as Govt. Officer. In other words, the offence alleged must be in discharge of the official duties or purporting to act in discharge of Official duties of the Govt. officer.
1.1. But for prosecuting a Bank Employee/ Manager/ Officer, sanction under section 197 Cr. P.C is not required even if the alleged Offence under I.P.C has been committed during discharge of official duty by the Bank Employee/ Manager / Officer because a Bank Employee is not removable from office except with the sanction of Govt. . But sanction under section 19 of P.C is required if the Offence alleged is under P.C Act.
2. 19 of the P.C. Act , 1988 (P.C.Act) as well as section 197 of Cr.P.C both deal with the matter of sanction for prosecution. In the case of A.K.Verma vs. State [1999 ISJ(Banking) 214], the Hon'ble Karnataka High Court relied on the Supreme Court judgment in the case reported in 1998(5)SCC 91 and held that for prosecution of the Manager of State Bank of Bikaner and Jaipur, no sanction is required u/s 197 Cr.PC.
3. " Public servant " has not been defined in the Cr.P.C but by virtue of Section 2(y) thereof " Public servant " defined in section 21 of I.P.C will have the same meaning in the Cr.P.C. Sanction under section 197 of Cr.P.C. is required if all the conditions indicated in that section are fulfilled . In the other words, sanction under section 197 of Cr.P.C is required if the Public Servant is not removable from office except with the sanction of Govt. As such, even though an employee of a Bank may be treated as “public Servant” within the meaning of sec.21 of I.P.C, Bank's employee being removable without the sanction of the central or State Government, section 197 of Cr.P.C is not attracted and as such no sanction under section 197 of Cr.P.C is required.
4. But, vide section 19(1) (c) of the P. C. Act, no court shall take cognizance of an offence punishable under Section 7, 10,11, 13 and 15 alleged to have been committed by a Public Servant except with the previous sanction of the authority competent to remove him from his office. Applying the definition of “Public Servant” contained in Section 2(c) of the P.C.Act , employees of SBI and other public sector Banks are " Public servant” and as such sanction of the authority competent to remove him from his office is required for prosecution u/s 7,10,11,13& 15 of P.C Act.
5. In this connection, decision of the Hon'ble Supreme Court in CRIMINAL APPEAL No.744 of 2019, decided on 30th. April 2019, is also to be referred to in which the Apex Court has reiterated that no sanction under section 197 Cr.P.C is required for prosecution of a manager of a Public Sector Bank. Paragraph 10 of the judgment is quoted below:
"10. The question as to whether a manager of nationalized bank can claim benefit of Section 197 Cr. .P.C. is not res integra. This Court in K. CH. Prasad Vs. Smt. J. Vanalatha Devi and Others, (1987) 2 SCC 52 had occasion to consider the same very question in reference to one, who claimed to be a public servant working in a nationalized bank. The application filed by appellant in above case questioning the maintainability of the prosecution for want of sanction under Section 197 Cr.P.C. was rejected by Metropolitan Magistrate and revision to the High Court also met the same fate. This Court while dismissing the appeal held that even though a person working in a nationalized bank is a public servant still provisions of Section 197 are not attracted at all. In paragraph No.6 of the judgment, following has been held:-
“6. It is very clear from this provision
that this section is attracted only in
cases where the public servant is such who
is not removable from his office save by
or with the sanction of the Government. It
is not disputed that the appellant is not
holding a post where he could not be
removed from service except by or with the
sanction of the government. In this view
of the matter even if it is held that
appellant is a public servant still
provisions of Section 197 are not
attracted at all.” "
6. Now a question is whether sanction is required at Pre-cognizance stage.
6.1. With regard to the said question , the case reported in (2018) 5 SCC 557 is relevant . Short facts of the case was that the Appellant submitted complaint before Special Judge under Sections 7 and 13 of P.C Act and Sections 420, 467, 468 and 471 read with Section 120B of the IPC. The Appellant prayed for investigation of offences and registration of FIR against Respondents (who were Principal Secretary to the Government P.H.E.D. Chief Minister, Superintending Engineer, Chief Engineer, ex Chief Minister , ex Minister of P.H.E.D., Finance Secretary, Deputy Accountant General and P.S.L. Company through its Managing Director). Special Judge closed the complaint on the ground that the Respondents were either public servants or have remained as public servants but no prior sanction had been granted by Competent Authority under Section 19 of the PC Act read with Section 197 of the Code of Criminal Procedure. To support the conclusion, the learned Special Judge placed reliance on the judgment reported in (2013) 10 SCC 705 opining that no complaint could be forwarded for investigation under Section 156(3) of the Code of Criminal Procedure nor could any proceedings be initiated under Sections 202 & 202 of the Code of Criminal Procedure in the absence of such sanction. Appellant preferred revision petition in the High Court, and the High Court dismissed the Revision petition . Aggrieved by the order of the High court , Appellant preferred Appeal in the Supreme Court.
6.2. The question of law sought to be raised in the appeal was whether prior sanction for prosecution qua allegation of corruption in respect of a public servants is required before setting in motion even the investigative process under Section 156(3) of the Cr.P.C.
6.3. Learned Counsel for the Appellant sought to question the view taken in (2013) 10 SCC 705 and (2016) 9 SCC 598 ; the sub-stratum of his argument was that the requirement of prior sanction for prosecution against the public servant would arise only when cognizance is taken, while no such sanction was required at the stage of setting into motion an investigation under Section 156(3) of the Code of Criminal Procedure. It was, thus, contended that the observations in these two judgments are per incuriam or in conflict with the long line of earlier judgments on the question as to when the cognizance can be stated to have be taken.
6.4.The Hon’ble Supreme Court after discussing various judicial pronouncements referred the said question of Law to be settled by a larger Bench.
Summary of Question- Second Appeal under CPC ; Substantial Question Law mandatory
Question – Whether it is obligatory for the High court to formulate substantial question law in Second Appeal.
Answer- Yes. In Second Appeal, it is obligatory for the High Court to first formulate the appropriate substantial question of law and then deal with the same. It is so , even if findings of lower court is perverse. But this not the case in the State of Punjab.
1. In CIVIL APPEAL No. 1301 of 2019 , decided on 30th. January 2019, the Apex Court observed and held:
"Even on a fair reading of the judgment, we are of the considered opinion that the High Court proceeded to decide the Second Appeal without formulating any substantial question of law, which it ought to have done in view of the mandate of Section 100 of the Code of Civil Procedure, 1908 and the consistent view taken by this Court including in 2012 (4) SCC 344 – Hardeep Kaur Vs. Malkiat Kaur....."
2. With regard to the submission of the learned counsel of the respondent to the effect that the findings of the trial court and affirmed by first Appellate Court being perverse, the High Court, in second Appeal , interfered without framing substantial question of law, the Apex Court in the said case held:
" In our view, even if the High Court wanted to so hold, it was obligatory, to first formulate the appropriate substantial question of law and then deal with the s
3.However, in the State of Punjab , a second appeal does not require formulation of a substantial question of law since section 41 Punjab Courts Act is applicable for the State of Punjab.
3.1. In CIVIL APPEAL NO. 4988 of 2019 (KIRODI Vs. RAM PARKASH), decided on 10th. May 2019, the Hon’ble Supreme Court observed and held :
"7. It is no doubt true that by virtue of Section 97 of the Code of Civil Procedure (Amendment) Act, 1976 (hereinafter referred to as the ‘Amendment Act’) and Section 100 of the Code of Civil Procedure, 1976 (hereinafter referred to as the ‘Code’) was amended requiring the second Appeal to mandatorily contain a substantial question of law considering the same."
"8. It was initially held in Kulwant Kaur & Ors. Vs. Gurdial Singh Mann (Dead) by Lrs. Ors. that Section 100 of the Code would take precedence over Section 41 of the Punjab Courts Act, 1918 (hereinafter referred to as the ‘Punjab Act’) which conspicuously does not require the framing of such a substantial question of law. It was held. that Section 41 of the Punjab Courts Act being repugnant to the amended provisions of Section 100 of the Code and Section 97 of the Amendment Act containing a saving clause, Section 41 of the Punjab Act would no longer hold the field and substantial question of law will be required to be framed."
" 9. A Constitution Bench of this Court however in Pankajakshi (Dead) through L.Rs. & Ors. (supra) opined that Section 97 of the Amendment Act prohibited amendments made in the principal Act which were repugnant to the same and, therefore, if any state amendment to the Code was enacted by the state legislature or a rule was made by the High Court of State in respect of the provisions of the Code which ran counter to the Code, it would be hit by the provisions of the savings clause of the Amendment Act. The caveat, however, was that the legislation in question being the Punjab Act is a pre-Constitution Act and hence is not a legislation hit by the provisions of Article 254 of the Constitution of India which holds state enactments to be repugnant to the enactments when they run counter to the laws enacted by the centre through the concurrent list. The legislation was saved by Article 372(1) of the Constitution of India being a pre-Constitutional enactment which was to continue in to be force until altered or repealed or amended by a competent legislature. No such repeal took place, hence, the legislation continues to operate."
"10. The effect of the judgment of the Constitution Bench is that insofar as the State of Punjab is concerned, a second appeal does not require formulation of a substantial question of law since the Punjab Act would be applicable for the State. Hence, Section 100 of the Code would not hold the field having supervening effect."
Summary of Question- An Order without reason
Question – Whether an order without assigning reason is sustainable .
Answer- No. If there is no reason in an order then such order can be set aside and remanded back
1. In the case reported in (2017) 13 SCC 606, the Hon’ble Supreme Court remanded the case back to the writ Court observing the following:
“In our considered opinion, the need to remand the case to the writ Court has occasioned due to the reason that both, i.e., the writ Court and the Appellate Court did not set out even the factual controversy nor dealt with the submissions urged by the Appellant and nor examined the issues in the context of relevant provisions of the Act which governed the controversy.”
“In our considered view, in order to appreciate the factual and legal controversy involved in the lis, the least which is expected of is that the order which decides the lis between the parties should contain the brief facts involved in the case, the grounds on which the action is impugned, the stand of the parties defending the action, the submissions of the parties in support of their stand, legal provisions, if any, applicable to the controversy involved in the lis, and lastly, the brief reasons as to why the case of one party deserves acceptance or rejection, as the case may be.”
2. In CRIMINAL APPEAL No. 888 OF 2019 (Jitender Kumar @ Jitender Singh vs. The State of Bihar), decided on 10th May 2019 , the Hon’ble Supreme Court remanded the case back to the High court observing the following:
“8. The need to remand the case to the High Court has occasioned because on perusal of the impugned order, we find that paras 1 to 4 contain facts of the case, paras 5 and 6 contain the submissions of the learned counsel for the parties, paras 7 to 9 refer to what transpired in the Trial Court, paras 10 and 11 contain quotation from two decisions of this Court and para 12 contains the conclusion, which reads as under:
“12. After giving analytical thought to the
facts and circumstances of the case, the
instant petition is found devoid of merit,
consequent thereupon is dismissed.”
“9. In the entire impugned order, which consists of 13 paras, we find that the High Court did not assign any reason as to why the petition is liable to be dismissed. In other words, neither there is any discussion and nor the reasoning on the submissions urged by the learned counsel for the parties.”
“ 10. In our view, such approach of the High Court while disposing of the petition cannot be countenanced. Time and again, this Court has emphasized the necessity of giving reasons in support of the conclusion because it is the reason, which indicates the application of mind. It is, therefore, obligatory for the Court to assign the reasons as to why the petition is allowed or rejected, as the case may be.”
Summary of Question- Quashing ; Civil Nature dispute
Question – Whether a criminal case can be quashed merely on this ground that it is of civil Nature.
A Civil Dispute may also involve ingredients of an offence (s). If the situation be that in a Civil Dispute, ingredients of offence are also present then the criminal case (complaint / FIR) cannot be quashed merely on this ground that the Dispute is of Civil Nature.
High Court has no jurisdiction to appreciate the evidence of the proceedings under Section 482 or under Article 226, but if, without meticulous analysis of the case and without appreciation of Evidence / Defence of the accused , it appears to the High Court that the ingredients of an offence or offences are, prima face, not fulfilled, and that the complaint / FIR is mala fide, frivolous or vexatious, and is just to pressurize parties to settle civil disputes , in that event there would be justification for interference by the High Court for quashing ; it the paramount duties of the superior court to see that a person, who is absolutely innocent, is not subjected to prosecution and humiliation on the basis of a false and wholly untenable complaint /FIR.
Although High Court in the matter of quashing cannot, ordinarily, appreciate a document relied by the accused, a public document or a document veracity of which is not disputed by the complainant, can be considered by High Court in deciding a petition for quashing.
1. In Arun Bhandari Vs. State of UP 2013(2) SCC 801, the Hon’ble Supreme Court held:
" .... some times a case may apparently look to be of civil nature or may involve a commercial transaction but such civil disputes or commercial disputes in certain circumstances may also contain ingredients of criminal offences and such disputes have to be entertained notwithstanding they are also civil disputes"
"This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes"
".... meticulous analysis of the case is not necessary and the complaint has to be read as a whole and if it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court."
".. one of the paramount duties of the superior court is to see that person who is absolutely innocent is not subjected to prosecution and humiliation on the basis of a false and wholly untenable complaint"
2. In CRIMINAL APPEAL No. 675 of 2019 , decided on 15th. April 2019, the Apex Court examined the following findings of the Hon’ble Patna High :
“6. On perusal of complaint petition, I find that the complainant has asserted that firstly, he had contracted for purchasing the shop premises from the land owner, but the petitioners offered more money and got the document registered in their favour. There is no chit of paper on record to support the agreement of sale or payment of any amount to the land owner. The petitioners claim to be bona fide purchaser of the shop premises, which was in tenancy of the complainant. The petitioners have filed an Eviction Suit No.10 of 2012, in which the complainant has filed his written statement admitting tenancy in the said shop premises. The complainant has further asserted that he has been remitting rent of the said shop regularly and when he learnt about the transfer of shop premises in favour of the petitioners, the complainant has filed a Title Suit No.2 of 2012. The dispute between the parties appears to be a civil dispute. The relationship of landlord and tenant stands admitted by the complainant in the eviction suit. I further find that there are contradictions in the statement of witnesses on the point of occurrence. The criminal prosecution of these petitioners in the above background appears to be an abuse of process of Court.”
2.1. The Apex court found two errors in the said findings and held :
i. “ First error is that the High Court did not examine the case with a view to find out as to whether the allegations made in the complaint
prima facie make out the offences falling under Sections 323, 379 read with Section 34 IPC or not."
“Instead the High Court in Para 6 gave importance to the fact that since there was a dispute pending between the parties in the Civil Court in relation to a shop as being landlord and tenant, it is essentially a civil dispute between the
"The High Court failed to see that mere pendency of a civil suit is not an answer to the question as to whether a case under Sections 323, 379 read with Section 34 IPC is made out against respondent Nos. 2 and 3 or not."
ii. "The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence."
"In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short “Cr.P.C.”) because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case."
3. In Criminal Appeal No. 255 of 2019 , decided on 12th. Feb. 2019, the Hon’ble Supreme Court refered to 2015 (3) SCC 424, 2002 (3) SCC 89 and 2006 (6) SCC 736, and observed and held :
"... Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted."
4. In AIR 2000 SC 1869 , the Hon’ble Supreme Court observed held as under:
“Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. With the lodgment of First Information Report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on perusal of the complaint comes to a conclusion that the allegations leveled in the complaint or charge-sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise upto the expectation of the people and deal with the situation as is required under the law.
Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount."
" Needless to record however and it being a settled principle of law that to exercise powers under Section 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint."
" Be it noted that in the matter of exercise of High Court's inherent power, the only requirement is to see whether continuance of the proceeding would be a total abuse of the process of Court. The Criminal Procedure Code contains a detailed procedure for investigation, charge and trial, and in the event, the High Court is desirous of putting a stop to the known procedure of law, the High Court must use a proper circumspection and as noticed above, very great care and caution to quash the complaint in exercise of its inherent jurisdiction."
5. In a petition for quashing under section 482 crpc, High Court can consider a document, relied by the accused, if the document is a public document or a document, veracity of which is not disputed.
5.1. A three judge bench decision in CRIMINAL APPEAL No.254 OF 2015, decided on 3.10.2018, observed and held :
"Ordinarily and in the normal course, the High Court when approached for quashing of a criminal proceeding will not appreciate the defence of the accused; neither would it consider the veracity of the document(s) on which the accused relies. However an exception has been carved out by this Court in Yin Cheng Hsiung Vs. Essem ChemicalIndustries (1) ; State of Haryana & Ors. Vs Bhajan Lal& Ors. (2) and Harshendra Kumar D. Vs. Rebatilata Koley Etc.(3) to the effect that in an appropriate case where the document relied upon is a public document or where veracity thereof is not disputed by the complainant, the same can be considered."
1 2011(15) SCC 207
2 1992 Supp.(1) SC 335
3 (2011) 3 SCC 351
6. In Hridaya Ranjan Prasad Verma vs. State of Bihar (2000) 4 SCC 168, the Hon’ble Supreme Court made a distinction between a mere breach of contract and an offence of cheating in the following words:
“It is held time and again that the distinction between mere breach of contract and the offence of cheating is a fine one.It would depend upon the intention of the accused at the time of inducement, which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of transaction that is the time when the offence is said to have been committed. Therefore, it is the intention which is gist of the offence. To hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such an culpable intention right at the beginning that is when he made the cannot be presumed."
6.1. As such, if from the plain reading of Complaint read with deposition / FIR, ingredients of cheating (including that the accused had no fraudulent or dishonest intention at the time of entering into contract / making of promise) are , prima facie, not fulfilled , the complaint /FIR may be quashed under Article 226 / Section 482 Cr.P.C
7. In CRIMINAL APPEAL NO. 834 of 2017 ( The Commissioner of Police vs. Devender ), decided on the 8th. August 2019, a Three Judge Bench of the Hon’ble Supreme Court observed and held :
“Having heard the learned counsel appearing on behalf of the parties at length and considering the material on record, we are of the opinion that the criminal proceedings initiated by Respondent No. 1-original complainant is nothing but an abuse of the process of law for settling a civil dispute.”
“ Even considering the nature of allegations in the complaint, we are of the firm opinion that no case is made out for taking cognizance of the offence Under Section 420/34 Indian Penal Code. The case involves a civil dispute and for settling a civil dispute, the criminal complaint has been filed, which is nothing but an abuse of the process of law.”
Summary of Question- Representation by Lawyer before a In-House Committee
Question – Whether a person has right to be represented by Lawyer before In-House Committee.
Answer- No. A person , vide section 30 of the Advocates Act, has right to be represented by Lawyer only before a court or Tribunal or person legally authorised to take evidence. But there is no legal Right for representation by Lawyer before a In - House Committee if the In-House committees are not vested with any judicial power to decide a lis between the parties rather only administrative power is given to in-house committees to gather facts to arrive at a result.
1. In Civil Appeal No. 4776 of 2019 with Civil Appeal No. 4777 of 2019 with Civil Appeal No. 4778 of 2019, decided on the 8th May 2019, the issue before the Hon’ble Supreme Court was whether, when a person is declared to be a wilful defaulter under the Circulars of the Reserve Bank of India , such person is entitled to be represented by a lawyer of its choice before such declaration is made.
2. The Apex Court observed and held and under:
“Since the judgment of the Delhi High Court has held that the two in-house committees can be considered to be tribunals, and that therefore, a lawyer has the right to represent his client before such in-house committees, it is first necessary to determine whether these in-house committees can be said to be tribunals for the purpose of Section 30 of the Advocates Act. Section 30 of the Advocates Act reads as follows:
30. Right of advocates to practise.-Subject to the provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends,-
(i) in all courts including the Supreme Court;
(ii) before any tribunal or person legally authorised to take evidence; and
(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.”
“The impugned judgment has held that the expression legally authorised to take evidence goes with the word person and not with the word tribunal. While this may be correct, it is clear that before a body can be said to be a tribunal, it must be invested with the judicial power of the State to decide a lis which arises before it. This would necessarily mean that all tribunals must be legally authorised to take evidence by statute or subordinate legislation or otherwise, the judicial power of the State vesting in such tribunal. This Court, in Jaswant Sugar Mills Ltd., Meerut v. Lakshmi Chand and Ors.  Supp (1) SCR 242, held that a Conciliation Officer under Clause 29 of an Order promulgated under the U.P. Industrial Disputes Act, 1947, has to act judicially. However, he cannot be regarded as a tribunal within the meaning of Article 136 of the Constitution of India as such tribunal must be a body invested with the judicial power of the State, which a Conciliation Officer was not so invested with. Similarly, in Engineering Mazdoor Sabha and Anr. v. Hind Cycles Ltd.  Supp (1) SCR 625, this Court held that an arbitrator appointed Under Section 10-A of the Industrial Disputes Act, 1947 could not be said to be a tribunal because the State has not invested him with judicial power. His position may be stated to be higher than that of a private arbitrator, but lower than that of a tribunal.”
“Similarly, in Associated Cement Companies Ltd. v. P.N. Sharma and Anr.  2 SCR 366, this Court held that the State of Punjab is a tribunal when it exercises its authority under Rule 6(6) of the Punjab Welfare Officers Recruitment and Conditions of Service Rules, 1952. Hence, an order passed by the State of Punjab would be appealable, as the State of Punjab is a tribunal within the meaning of Article 136(1) of the Constitution of India. The majority judgment, through Gajendragadkar, C.J., held that the basic test is whether the adjudicating power which a particular authority is empowered to exercise, has been conferred on it by a statute and can be described as a part of the State's inherent power exercised in discharging its judicial function, can be said to be satisfied on the facts of the case. In a separate concurring judgment, Bachawat, J., held:
44. An authority other than a Court may be vested by statute with judicial power in widely different circumstances, which it would be impossible and indeed inadvisable to attempt to define exhaustively. The proper thing is to examine each case as it arises, and to ascertain whether the powers vested in the authority can be truly described as judicial functions or judicial powers of the State. For the purpose of this case, it is sufficient to say that any outside authority empowered by the State to determine conclusively the rights of two or more contending parties with regard to any matter in controversy between them satisfies the test of an authority vested with the judicial powers of the State and may be regarded as a tribunal within the meaning of Article 136. Such a power of adjudication implies that the authority must act judicially and must determine the dispute by ascertainment of the relevant facts on the materials before it and by application of the relevant law to those facts. This test of a tribunal is not meant to be exhaustive, and it may be that other bodies not satisfying this test are also tribunals. In order to be a tribunal, it is essential that the power of adjudication must be derived from a statute or a statutory rule. An authority or body deriving its power of adjudication from an agreement of the parties, such as a private arbitrator or a tribunal acting Under Section 10-A of the Industrial Disputes Act, 1947, does not satisfy the test of a tribunal within Article 136. It matters little that such a body or authority is vested with the trappings of a Court. The Arbitration Act, 1940 vests an arbitrator with some of the trappings of a Court, so also the Industrial Disputes Act, 1947 vests an authority acting Under Section 10-A of the Act with many of such trappings, and yet, such bodies and authorities are not tribunals.”
“Applying the aforesaid tests to the facts of the present case, it cannot be possibly said that either in-house committee appointed under the Revised Circular dated 01.07.2015 is vested with the judicial power of the State. The impugned judgment's conclusion that such Circulars have statutory force, as a result of which the State's judicial power has been vested in the two committees, is wholly incorrect. First and foremost, the State's judicial power, as understood by several judgments of this Court, is the power to decide a lis between the parties after gathering evidence and applying the law, as a result of which, a binding decision is then reached. This is far from the present case as the in-house committees are not vested with any judicial power at all, their powers being administrative powers given to in-house committees to gather facts and then arrive at a result. Secondly, it cannot be said that the Circulars in any manner vests the State's judicial power in such in-house committees. On this ground, therefore, the view of Delhi High Court is not correct, and no lawyer has any right under Section 30 of the Advocates Act to appear before the in-house committees so mentioned. Further, the said committees are also not persons legally authorised to take evidence by statute or subordinate legislation, and on this score also, no lawyer would have any right under Section 30 of the Advocates Act to appear before the same.”
Summary of Question- Review / Recall/ Modification of order in Criminal case
Question- Whether Courts , in a criminal case, are empowered to recall / review / modify earlier order.
Answer- A Court has no power to recall / review/ modify its earlier order in a criminal case except for clerical and arithmetical error under section 362 of Cr.p.c.
But High Court can re-call its earlier order in exercise of power under section 482 Cr.P.C.
1. In Criminal Appeal No. 837 of 2019 , decided on 9th. May 2019, Short facts were as under :
i. A petition under Section 482 Cr.P.C was filed by the second respondent for quashing of the FIR. In the meantime charges were framed . After this, on 20 July 2018, the Hon’ble High Court dismissed the petition under Section 482 in the following terms:-
“Considering the circumstances, this petition under Section 482 of CR. .P.C. has no merit. The petitioner may challenge the framing of charge under appropriate provisions. With the above observation, this petition is dismissed.”
ii. After the above order, the second respondent filed another petition under Section 482 in which the following relief was sought:
“It is therefore, prayed that this Hon'ble Court may kindly review, recall and modify the order dated 20.07.2018 in the interest of justice.”
iii. On the second petition, the High Court passed the order allowing the petition and recalling its earlier order.
iv.. In the said Appeal, the Apex Court examined the legality of the subsequent order of the High Court.
1.1.The Apex court observed and held as under :
"The High Court while dismissing the petition under Section 482 observed that it would be open to the second respondent to pursue his remedies after framing of the charge. In view of the specific bar which is contained in Section 362, we are of the view that the impugned order of the High Court is unsustainable. Such an application for review or modification could not have been entertained."
2. The Hon’ble Supreme Court in (2018) 15 SCC 316 observed as under::
“ However patently erroneous the earlier order be, it can only be corrected in the process known to law and not Under Section 362 Code of Criminal Procedure The whole purpose of Section 362 Code of Criminal Procedure is only to correct a clerical or arithmetical error. What the High Court sought to do in the impugned order is not to correct a clerical or arithmetical error; it sought to rehear the matter on merits, since, according to the learned Judge, the earlier order was patently erroneous. That is impermissible under law”
3. But section 362 CrPC does not bar inherent power of High Court to recall an order.
A three judge bench of the Hon’ble Supreme Court in Criminal Appeal No.1852 of 2019 (New India Assurance Co. Ltd. Vs. Krishna Kumar Pandey), decided on 6th. December 2019 observed and held :
"10.....learned Senior Counsel appearing for the respondent strenuously contended that in view of the embargo spelt out in Section 362 of the Code, there was no power for the High Court to alter or review the judgment rendered earlier in the revision filed by the respondent, except for the correction of a clerical or arithmetical error. In this regard, the learned Senior Counsel for the respondent placed strong reliance upon the Judgment of this Court in State of Punjab Versus Davinder Pal Singh Bhullar & Others. It is his contention that the High Court was right in rejecting the application filed by the appellant under Section 482 Cr.P.C for recall/review of its earlier order, as the High Court did not have the power to do so.
11. But the above contention of the learned Senior Counsel for the respondent is fallacious for two reasons. The first is that Section 362 of the Code is expressly subjected to “what is otherwise provided by the Code or by any other law for the time being in force.” Though this Court pointed out in Davinder Pal Singh (supra) that the exceptions carved out in Section 362 of the Code would apply only to those provisions where the Court has been expressly authorized either by the Code or by any other law but not to the inherent power of the Court, this Court nevertheless held that the inherent power of the Court under Section 482 Cr.P.C is saved, where an order has been passed by the criminal Court, which is required to be set aside to secure the ends of justice, or where the proceeding amounts to abuse of the process of Court. In paragraph 46 in particular, this Court held in Davinder Pal Singh as follows:
“46. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate. In such an eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault.”
The Hon'ble Supreme Court in Criminal Appeal No. 56 of 2020 [ K. Jagdish vs. Uday Kumar G.S.), decided on the 10th January 2010, observed and held:
"It is thus well settled that in certain cases the very same set of facts may give rise to remedies in civil as well as in criminal proceedings and even if a civil remedy is availed by a party, he is not precluded from setting in motion the proceedings in criminal law."
" In the light of the principles as mentioned hereinabove, we have no hesitation in concluding that the High Court erred in quashing the criminal proceedings . We, therefore, allow this appeal, set aside the decision rendered by the High Court and direct that that criminal proceedings shall be taken to logical conclusion in accordance with law."