Investigation and filling of chargesheet under The Immoral Traffic (Prevention) Act, 1956 should be done only by Special Police Officer empowered under Section 13 of the Act

Learned counsel also took my attention to Joseph v. State of Kerala [2011 (2) KHC 958]. In that decision, while dealing with Sections 3, 4, 5, 14 (ii) of the Act, it has been held that authorisation given by the Special Police Officer to his subordinate officer must mention the name of any of the persons to be arrested. It is also held that Special Police Officer cannot authorise investigation of the case to be conducted by any other officer. In paragraph No.4 of the said judgment, the ambit and scope of Section 13 has been dealt with, which is relevant in this context to be extracted and it reads as follows:

"4. There is also yet another aspect that is required to be looked into. Under S.13 of the Act, a Special Police Officer shall be appointed 'for dealing with the offences under this Act in that area'. 'Dealing with the case' means doing everything connected with the progress of the case. The Supreme Court in the decision referred supra considered that question and held that the expression would include detection, prevention and investigation of offences and other duties which have been specifically imposed on the Special Police Officer under the Act. It is seen from the records that investigation of the case was conducted by the Circle Inspector though, as authorised by the Special Police Officer and the role of the Special Police Officer was only to verify the investigation and submit final report. S.14(ii) of the Act does not empower the Special  

Police Officer to authorise investigation of the case to be conducted by any other officer. If that be so the investigation conducted by the officer other than the Special Police Officer is against the provisions of law."[Para No.8]

In an inquiry under Section 202 Cr.P.C., the Magistrate is required to consider whether the civil dispute is tried to be given a colour of criminal dispute or not

Now so far as the reliance placed on the decision of this Court in the case of National Bank of Oman vs. Barakara Abdul Aziz (Supra) relied upon by the Learned Advocate appearing on behalf of the complainant is concerned, we are of the opinion that in the facts and circumstances of the case, the said decision shall not be of any assistance to the complainant.

It cannot be disputed that while holding the inquiry under Section 202 Cr.P.C. the Magistrate is required to take a broad view and a prima facie case. However, even while conducting/holding an inquiry under Section 202 Cr.P.C., the Magistrate is required to consider whether even a prima facie case is made out or not and whether the criminal proceedings initiated are an abuse of process of law or the Court or not and/or whether the dispute is purely of a civil nature or not and/or whether the civil dispute is tried to be given a colour of criminal dispute or not. As observed hereinabove, the dispute between the parties can be said to be purely of a civil nature. Therefore, this is a fit case to quash and set aside the impugned criminal proceedings. [Para No.6.5]

Mentioning of a wrong provision or non-mentioning of any provision of law would, by itself, be not sufficient to take away the jurisdiction of a court if it is otherwise vested in it in law

It is also now a well-settled principle of law that mentioning of a wrong provision or non-mentioning of any provision of law would, by itself, be not sufficient to take away the jurisdiction of a court if it is otherwise vested in it in law.

Wile exercising its power, the court will merely consider whether it has the source to exercise such power or not. The court will not apply the beneficent provisions like Sections 5 and 14 of the Limitation Act in a pedantic manner. When the provisions are meant to apply and in fact found to be applicable to the facts and circumstances of a case, in our opinion, there is no reason as to why the court will refuse to apply the same only because a wrong provision has been mentioned. In a case of this nature, Sub-section (2) of Section 14 of the Limitation Act per se may not be applicable, but, as indicated hereinbefore, the principles thereof would be applicable for the purpose of condonation of delay in terms of Section 5 thereof.[Para No.14]

Magistrate; after taking cognizance, cannot issue, at the first instance, non bailable arrest warrant against accused who has obtained anticipatory bail

Learned counsel for the petitioners submits that the petitioners were granted anticipatory bail by this Court in the FIR registered against them bearing No.3/2003 at Police Station Khetri, District Jhunjhunu under Section(s) 418, 420, 465, 467, 468, 471, 406 & 120-B IPC. The police submitted a Final Report whereafter protest petition was filed, which was dismissed.

    Against the dismissal order of the protest petition, a revision petition was filed, which was allowed by the learned Additional Sessions Judge, Khetri and the matter was remanded back to the Court to pass a fresh order on 18.7.2018, whereafter the learned Magistrate has taken cognizance on 11.1.2019 and summoned the petitioners through arrest warrants. The said order of remand was challenged by the petitioners before the High Court and the High Court had stayed the said proceedings. Taking into consideration the order of taking cognizance, the petition was declared infructuous.[Para No.1]

    Learned Magistrate thereafter again issued arrest warrants.[Para No.2]

......

    For the aforesaid backdrop, this Court notices that it is a case where on remand from the District Judge, the Court has taken cognizance of the offences relating to allegations under Sections 418, 420, 465, 467, 468, 471, 406 & 120-B IPC. The High Court vide its order dated 29.4.2003 had granted anticipatory bail to the petitioners with the condition that in the event of arresting the petitioners, they shall be released on bail.

    

    Keeping in view the conditions laid down in Sushila Agarwal & Others (supra), this Court is of the firm view that

the action of the learned Magistrate from the date, it has taken cognizance and upto passing of the impugned order dated 3.9.2020 has acted in clear violation of the orders passed by the High Court after having granted anticipatory bail. There was no occasion for the learned Magistrate to have issued the arrest warrants and such course or power was not available with it in spite of having been given to it.

Absence of proof of motive creates a doubt regarding the mens rea entitling the accused for an acquittal

Mens rea of the accused has much relevance in a case when the benefit under Section 84 IPC has been pleaded by an accused. So when the prosecution in this case failed to prove any motive behind the incident it would also raise a reasonable doubt of mens rea in doing the act. So as per the proposition of law laid down above, it would be a fact which creates a reasonable doubt entitling the accused to get the benefit of the exception.

In other words absence of proof of motive from the side of the prosecution creates a doubt in the mind of the court regarding the mens rea entitling the accused for an acquittal.[Para No.44]

    Though the contention of the learned counsel for the accused that medical evidence adduced from the side of the prosecution would not prove the unsoundness of mind at the time of the commission of the offence even if accepted the attending circumstances brought out during the oral evidence of the witnesses coupled with the medical evidence would create a reasonable suspicion about the soundness of the mind of the accused at the time of commission of the act. That also would enable the accused for benefit of doubt entitling for an acquittal on the ground that the general burden of proof resting on the prosecution is not discharged.[Para No.45]

...............

In investigation police should consider the defence put forth by the accused which if investigated fairly, may exonerate him

In Ankush Maruti Shinde The Supreme Court expressed its displeasure against the police for the manner in which it had investigated an offence in which several people were murdered and a woman raped in which, the accused persons, who were members of a nomadic tribe were falsely implicated while, the actual perpetrators of the crime who were identified by the witness's from the register at the police station, where never proceeded or investigated into. Underscoring the importance of a fair investigation, The Supreme Court held "It has to be uppermost kept in mind that impartial and truthful investigation is imperative. It is judiciously acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India. The role of the police is to be one for protection of life, liberty and property of citizens, that investigation of offences being one of its foremost duties. That the aim of investigation is ultimately to search for truth and to bring the offender to book". In the same judgment, The Supreme Court, relying upon an earlier judgment passed in V.K. Sasikala Vs. State - (2012) 9 SCC 771, Highlighted the importance of the police in examining the documents that maybe in support of the accused and held in the following words "As observed by this Court in V.K. Sasikala v. State [V.K. Sasikala v. State, (2012) 9 SCC 771 : (2013) 1 SCC (Cri) 1010] , though it is only such reports which support the prosecution case that are required to be forwarded to the Court under Section 173(5), in every situation where some of the seized papers and the documents do not support the prosecution case and, on the contrary, support the accused, a duty is cast on the investigating officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself"[Para No.21]

    In Babubhai Vs. State of Gujarat, The Supreme Court examined a case arising from a fight between two groups in which three people died. The police are alleged to have examined the case only from the standpoint of one, completely ignoring the defence of the other. Emphasising on the importance of a fair investigation, the Supreme Court held "The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth". (Vide R.P. Kapur v. State of Punjab [AIR 1960 SC 866 : 1960 Cri LJ 1239] , Jamuna Chaudhary v. State of Bihar [(1974) 3 SCC 774 : 1974 SCC (Cri) 250 : AIR 1974 SC 1822] , SCC at p. 780, para 11 and Mahmood v. State of U.P. [(1976) 1 SCC 542 : 1976 SCC (Cri) 72 : AIR 1976 SC 69] )". Further, in the same judgement Supreme Court held "Not only fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. Where non-interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation"[Para No.22]

    Thus, fair investigation by the police is an imperative facet inhering in Article 21. It is not an option but a constitutional mandate on the police that when it investigates, it must be done, not from the standpoint of the prosecution alone, but also from the point of view of the accused. It has to consider the defence put forth by the accused which if investigated fairly, may exonerate him. The purpose of investigation is not to secure a conviction of the accused but to unearth the truth relating to the commission of an offence. A partisan investigation is a defective investigation which puts a question mark on the sanctity of the proceedings against the accused. If after taking the defence of the accused into consideration the police is of the view that the accused is not the person who committed the offence, in such a situation he is to be exonerated and the case against him, closed. In the present case, the investigation was initially biased and one-sided. There was even reluctance on the part of the police to accept documents from the accused. Even after the police had received the prurient photographs of the deceased, it never carried out any investigation to examine the motive of the deceased to commit suicide and whether the reason put forth by the Petitioner was plausible. The police have merely taken the material given by the Petitioner and made the same a part of the chargesheet without conducting any investigation into the defence of the Petitioner. The police have merely recorded the statement of the immediate relations of the deceased and filed the chargesheet against the Petitioner. No investigation was conducted to a certain the veracity of the allegations against the Petitioner.[Para No.23]

Order of process issue u/s.204 of Cr.P.C.; passed summarily and without discussing facts, evidence, law and exact overt act, is not proper legal judicial order

As held by the Courts as above, the passing of order of summoning any person as accused is a very important matter, which initiates criminal proceeding against him. Such orders cannot be passed summarily or without applying judicial mind.[Para No.13]

    In light of this legal position I have gone through the impugned order. A perusal of this order indicates that neither any discussion of evidence was made by learned Magistrate, nor was it considered as to which accused had allegedly committed what overt act. The five accused persons of complaint were summoned for offences mentioned in it. Impugned order clearly lacks the reflection of application of judicial discretion or mind.

Nothing is there which may show that learned Magistrate, before passing of the order under challenge had considered the facts and circumstances of the case and the evidence or the law. Therefore it appears that, in fact, no judicial mind was applied before the passing of impugned order of summoning. Such order cannot be accepted as a proper legal judicial order passed after following due procedure of law. Therefore it is liable to be quashed.[Para No.14]

Mesne profits and interest thereon received under the direction of the Civil Court is revenue receipt and is liable to tax u/s. 23(1) of the Income Tax Act

The real issue that needs consideration in the present appeal is whether the mesne profits, and interest on mesne profits, received by the appellant constituted revenue receipt, or capital receipt, in the hands of the appellant/assessee, in the facts and circumstances of the case.[Para No.40]

    Having heard the submissions of learned counsels for the parties and having given our due consideration to them in the light of the decisions relied upon by the learned counsels,

we are of the view that the mesne profits, and interest on mesne profits, received by the appellant in pursuance of the court decree, in the facts of the present case, constitute revenue receipt.[Para No.41]

    When we apply the said test to the facts of the present case, the only conclusion that we can draw is that the receipt of mesne profits and interest thereon by the appellant/assessee, was a revenue receipt. The capital asset of the appellant i.e. the property in question was earning revenue for the appellant by way of rent till so long as the lease subsisted. After the termination of the lease, the erstwhile tenant continued to occupy the premises unauthorisedly. It is in lieu of the rent which the appellant would have otherwise derived from the tenant, that the mesne profits and interest thereon have been awarded. So far as the capital asset of the assesse is concerned, the same has remained intact. It is not the appellants case that there was any damage to the property/ capital asset inasmuch, as, the building structure was damaged by the bank, and that damages have been awarded by the Court on account of such physical damage. Even the title of the appellant in respect of the capital asset remained intact. Had it been a case where the capital asset would have been subjected to physical damage, or of diminution of the title to the capital asset, and damages would have been awarded under the head, there would have been merit in the appellant's claim that damages received for harm and injury to the capital asset, or on account of its diminution, would be a capital receipt.[Para No.46]

At the time of taking cognizance on chargesheet, Magistrate is not supposed to act as a Post Office

At the time of consideration of charge Magistrate can take into consideration certain facts and documents pointed out and/or submitted by or on behalf of accused 

Filing of Civil Suit for redressal of damages does not bar a person from initiating a criminal case involving ingredients of criminal offence entitling plaintiff/complainant to initiate criminal case against the offender

    It is settled that at the time of taking cognizance of offence, it is not necessary for the Magistrate to find out as to whether trial is clearly going to culminate into conviction of accused or not, but the Magistrate has only to see whether there is prima-facie evidence on record so as to construe that there is possibility of commission of offence by the accused and even if there is evidence raising suspicion of commission of offence by accused the cognizance can be taken by the Magistrate and thereafter the accused has a right to put his version before the Court on the basis of evidence on record at the time of framing of Charge.[Para No.15]

    Parameters to be taken into consideration by the Court at the time of framing of charge are altogether different than that to be taken into consideration at the time of taking cognizance. At the time of taking of cognizance, Magistrate has to look into that material only which is placed before him by the Prosecution/Investigating Agency, but at the time of consideration of charge Magistrate can take into consideration certain facts and documents pointed out and/or submitted by or on behalf of accused and thereafter he can take a decision as to whether there is sufficient material for framing of charge or not. Recently this Court in case Siemens Enterprise Communications Pvt.. Ltd. now known as Progility Technologies Pvt. Ltd. vs. Central Bureau of Investigation, reported in 2019 (3) Shim. LC 1691, on the basis of ratio of law propounded by the Apex Court in its various pronouncements, has reiterated the power of the Magistrate as well as parameters to be taken into consideration at the time of framing of charge. It is also settled that at the time of undertaking such exercise at the time of framing of charge the Magistrate is not supposed to conduct a mini trial at the stage of framing of charge and not to appreciate evidence as warranted at the stage of conclusion of trial, but he has power to evaluate material and the documents on record alongwith material being referred by the accused if the said parameter confirms to the parameters laid down by the Apex Court reiterated in Siemens' case supra. Whereas at the stage of taking cognizance, as already stated supra, on consideration of material placed before Magistrate by prosecution/investigating agency, even if there is evidence raising suspicion of commission of offence by accused the cognizance can be taken.[Para No.16]

    No doubt, the evidence or material placed before the Magistrate, at the time of taking cognizance, is not to be evaluated on merit, but definitely it is duty of the Court to see as to whether some evidence is available on record or not.

In case, there is no evidence on record to indicate commission of alleged offence(s), the Magistrate is not supposed to act as a Post Office, but is expected to apply his judicial mind according to facts and circumstances of the case for accepting or rejecting the challan/report filed before him under Section 173 Cr.P.C.[Para No.17]

Wife can proceed simultaneously under both the provisions of Sec.125 of CrPC and Sec.12 of The Protection Of Women From Domestic Violence Act

As far as other contention raised by learned Counsel for the petitioner that the orders/judgment passed by learned Courts below is not sustainable in view of the fact that the petitioner was also receiving Rs.3,500/­ per month under Section 125 of the Criminal Procedure Code Cr.P.C., is concerned,

the said plea of learned Counsel for the petitioner is also liable to be rejected. The provisions of Section 125 of the Criminal Procedure Code and Section 12 of the Protection of Women from Domestic Violence Act, 2005 are distinct and different. Law does not prohibits the wife to proceed under both of the said statutory provisions simultaneously or Otherwise.[Para No.11]