The Karnataka High Court disposed of a Public Interest Litigation (PIL) filed seeking direction to the Respondents  to publish directives/guidelines to its election personnel to mandate the procedure liable to be adopted in initiating effective prosecution against voters who indulge in electoral malpractices during elections, in the likes of the General Election to the Karnataka Legislative Assembly, under Chapter IX-A of the Indian Penal Code, 1860, or other applicable statutes.

The petition in general and the above prayer in particular have been structured keeping in view a learned Single Judge’s order dated 17.02.2023 rendered in Criminal Petition No.10435 of 2022 between A.MANJU vs. STATE OF KARNATAKA AND ANOTHER, wherein at paragraph 8, the following directions have been issued:   

“(i) If any such non-cognizable offences were found committed, the informant have to obtain permission under Section 155(2) of Cr.P.C. by very informant shall approach the Magistrate under Section 155(1) of Cr.P.C. and thereafter, the Magistrate shall accord permission under Section 155(2) of Cr.P.C. by application of mind by following the judgment of the Coordinate Bench in the case of Vaggeppa Gurulinga Jangaligi (Jangalagi) vs. The State of Karnataka, Through PSI, Kagwad Police Station, Belagavi reported in ILR 2020 KAR 630 and then the police to register the FIR and file the charge sheet. 

(ii) In respect of offences punishable under Section 188 of IPC, though it is cognizable offence, the complainant or the flying squad shall not file any complaint before the Police under Section 154(1) of Cr.P.C., but, the complainant can seize the materials by preparing panchanama in the presence of witnesses, based upon the power conferred by the Election Commission of India and thereafter, the Election Commission of India may authorize the complainant to file the complaint under Section 2(d) read with Section 200 of Cr.P.C. along with the documents before the Magistrate as per Section 195(1)(a)(iii) of Cr.P.C. Then, the Magistrate can take cognizance and dispensed with the recording of sworn statement of the complainant-public servant and then pass the order by issuing the process under Section 204 of Cr.P.C. in accordance with law.”

The counsel for the PIL Petitioner vehemently argued that the above observations need to be implemented by the Election Commission of India by issuing appropriate Orders in terms of Article 324 of the Constitution of India for the entire country. 

The Standing Counsel for the Commission has filed the Statement of Objections resisting the petition inter alia contending that already the HANDBOOK FOR PRESIDING OFFICERS 2023 promulgated by the Commission makes provisions. 

He also draws the attention of the High Court to several Annexures inter alia issued by the Commission and the Chief Electoral Officer for the State. 

He further submits that an appropriate Circular/Order also shall be issued by the Commission in due course in terms of the subject order of the Single Judge, so that the same would apply to whole of the country. This is appreciable.

The Division Bench of Chief Justice N. V. Anjaria and Justice  Krishna S. Dixit disposed the PIL with the above observation.

The Kerala High Court has said that while the society should be protected from drug-related crimes, the manner of investigating and prosecuting such offences must remain fair.

The observations were made by the single-judge Bench of Justice N Nagaresh.

Setting aside a man’s (appellant) sentence and conviction under Section 22(c) (punishment for possessing a commercial quantity of drugs) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the High Court said there was a need to protect society from criminals pedaling in narcotic drugs.

The societal interest and safety would suffer if persons committing crimes were let off because the evidence against them was to be treated as if it did not exist, it pointed out.

The High Court, however, noted that the manner in which drug traffickers were proceeded against must remain above board.

It said the remedy could not be worse than the disease itself.

The legitimacy of judicial process may come under cloud if the court was seen to condone acts of lawlessness conducted by the investigating agency during search operations, it added.

(Case title: Raveedranath v State of Kerala)

A court that was dealing with the riots in Delhi has imposed fine on the prosecution for not showing any respect towards the time of a witness and the court, or the money of the public exchequer.

Additional Sessions Judge of Karkardooma court Pulastya Pramachala said the prosecution did not take any steps to drop “unnecessary witnesses” in the trial, despite getting repeated directions for the same.

The judge was compelled to impose a fine of ₹5,000 to the prosecution. The court said the fine shall be paid in the court on the next date and the Deputy Commissioner of Police, Northeast, shall make enquiry to fix accountability,to recover such cost amount from the responsible person.

The court further asked the DCP to sensitise all special public prosecutors (SPPs) and investigating officers (IOs) of all the riot cases and see if they can find any “irrelevant witness” and drop them, instead of obtaining summons for such witnesses.

While going through the case, the court noted that a witness had to be dropped without examination as his statement before the police under Section 161 of the Code of Criminal Procedure (CrPC) was recorded at around 6 pm on February 25, 2020, whereas the incident in question had reportedly taken place between 12 midnight and 1 am on the intervening night of February 24 and 25, 2020.

The court noted that such a witness was ‘not relevant at all’ for the present case and, as a result, he was discharged.

The court was upset on the fact that no steps were taken, even after being repeatedly told to drop unnecessary witnesses.

The Court said that unfortunately, despite giving directions to the prosecution in a number of cases for dropping irrelevant and unnecessary witnesses, no such step has been taken in this case by the representative of prosecution i.e. special PPs as well as IO. Such directions were also communicated to the DCP, northeast, but still the same did not have any positive effect in this case.

“Since the witness had already come to the court, therefore, he was paid diet money,” added the Bench.

The examination of witness will continue on November 30.

SPP DK Bhatia appeared for the State, while Advocates Salim Malik, Shavana, Babar Chauhan and Abdul Gaffar represented the accused in the case.

By Sonia Mathur, Senior Advocate

The Government of India celebrates April 21st as “Civil Services Day” as an occasion for civil servants to rededicate themselves to the cause of society and its citizens. The idea is to commemorate the day when Sardar Vallabhbhai Patel, the first home minister of independent India referred to them in 1947 as the “steel frame of India”. Their contribution in the present times has been acknowledged by the Hon’ble President of India by referring to them as backbone of our country’s fight against Covid-19.

As a protective measure, Section 19 of Prevention of Corruption Act 1988 debars a Court from taking cognizance of specified offences where accused is a public servant, without prior sanction of the “Government concerned.” Validity of this “protective discrimination” was upheld by the Apex court as a necessary measure to safeguard the public servant from vexatious cases during discharge of official duties. However, no such protection from prosecution was available to a public servant after retirement from service. Hence, the risk of post retirement prosecution hung like a sword of Damocles on the serving public servants which had the potential of seriously compromising their decision making.

A restrictive view was taken by Supreme Court in L. Narayana Swamy v. State of Karnataka (2016) 9 SCC 598. The Court ruled that a public servant would lose the protection under Section 19 of the Act if he is transferred from the post allegedly abused by him, even though he continues to be a public servant. This decision raised concerns about a remedy available to public servants at the threshold of criminal proceedings in case of violation of the statutory mandate by the state actors. The law laid down also had the potential of being misused to harass honest public servants.

To facilitate an effective and fearless decision making by public servants, the legislature later amended Section 19 with effect from 26.07.2018. The statutory protection of sanction was extended to post retirement period. The statute now makes provision for scrutiny of the allegations against public servants, by superior authorities and a prior sanction, as condition precedent, at all times. The wording in the Act now is, that the person “who is employed” or as the case may be “was at the time of commission of the alleged offence employed”. Therefore, subsequent retirement will not cure the defect of want of sanction to prosecute a public servant under Prevention of Corruption Act. The amendment reflects realization that organizational perspective is not divorced from ethics at the individual level. It is the society which is ultimately denied full extent of competence and imagination of the public officials for fear of such prosecution.

However, the view taken by Supreme Court in L. Narayana Swamy v. State of Karnataka is still to be remedied. Every transfer from the office abused, whether by way of promotion or otherwise, would take away the shield of sanction even though the status of accused continues to be of a “public servant”. In this case, the accused persons were government officials and political office holder (Cabinet Minister), charged for offences under Prevention of Corruption Act and Indian Penal Code, 1860. However, both categories of public servants were to be treated differently for according protection of sanction.

A is a public servant accused of offences under the Prevention of Corruption Act and under Indian Penal Code 1860. Allegations relate to the period when he was working as Tahsildar, Land Revenue Department of the State Government. However, when cognizance is taken by the competent court, Mr A has been promoted to the post of Assistant Commissioner. He is now posted in some other Department of the State Government. The authority competent to remove him continues to be the State Government from the time of commission of offence till the stage of cognizance despite his promotion/transfer. Such “transfer” would not expose him to prosecution not protected by sanction.

B is a Minister, indisputably a “public servant”. After commission of offence and before cognizance is taken, he ceases to be Minister and is elected as a Municipal President. He continues to be a public servant under the Municipal law when cognizance is taken of the offences committed by him as a Minister. Would sanction be necessary and that too of the authority competent to remove him from the office of the Municipal President? The answer would be in negative. The authority competent to remove him from the present office would not know the nature and functions discharged by him while holding the office abused by him as Minister. Inference of knowledge of duties of office and its abuse is relatable to vertical hierarchy.

Power to grant sanction is conferred on the authority competent to remove the public servant from the office allegedly abused. Reason is, that authority alone would be able to judge the abuse, it’s extent and whether prima facie it had been done. This principle covers all public servants, be it political office holders or a government employee having protection of Article 309 and 311 of the Constitution. However, there would be a difference when the accused is holding political office as Minister, MP or MLA. In these cases, after every five years, with a possible change in political scenario, there would be change in competent authority to remove the public servant. Hence it is to combat such situation that Supreme Court had done away with requirement of sanction for prosecution on “change” of office abused. The authority competent to remove the politician from new office would not have the competence to assess the abuse of earlier office. In L Narayana Swamy, Apex Court relied upon the principle in R.S. Nayak Vs A.R. Antulay, (1984) 2 SCC 183 followed in Prakash Singh Badal Vs State of Punjab, (2007)1 SCC 1 and Abhay Singh Chautala Vs CBI (2011)7 SCC 141. Applying the same principle that has been consistently followed, Court held that sanction was not mandatory for cognizance because the accused were not holding the posts which were allegedly abused by them. However, the distinction between the political office holders and normal public servants, where every “transfer” may not necessarily lead to change in “competent authority” for sanction, has not been taken note of. Seen in the context of judgments relied upon, the term “transfer” implies change of authority competent to grant sanction under section 19(1) of the Act. However, this aspect, which is the touchstone to test the master servant relationship as envisaged under section 19(1) of the Act, has not been dealt with in L.Narayan Swamy. The judgment leads to ambiguity as to whether the accused public servant would be deprived of shield of sanction every time he is promoted/transferred from one office to another even if the authority competent to remove him remained the same. The judicial intent could never be to abrogate or take away the substantive right available to public servants under section 19 of Prevention of Corruption Act.

This issue arose during one of the “coal scam cases” where author was representing a “public servant”. The accused public servant was promoted from the post allegedly abused by him, but continued to work for the concerned State Government at higher position. Following the judgment in L Narayana Swamy, mere transfer on promotion from the post allegedly abused, would have led to his losing the protection of sanction if he was not finally acquitted. Controversy would be resolved by the Apex Court in an appropriate case, as no right could be curtailed by the guardian. Supreme Court in the case of L Narayana Swamy also held that no order directing further investigation under section 156(3) of the Code of Criminal Procedure could be passed against public servant without a valid sanction. However, this question is referred to larger bench in Manju Surana V/s Sunil Arora & Ors. 2018(5) SCC 557 and is yet to be finally decided.

The Author is a Senior Advocate, Supreme Court of India

New Delhi (ILNS): A plea has landed before the Supreme Court, challenging the Income Tax department’s stand opposing Karti Chidambaram’s request to be discharged from prosecution initiated in 2018 for having allegedly evaded capital gains tax in the assessment year 2014-15.

Senior Advocate Kapil Sibal, arguing for Karti Chidambaram, said: “All the findings of the high court are in my favour. Your lordship must consider this as it is discriminatory. How can you pick and choose an accused and send him to special courts?”

Solicitor General Tushar Mehta said: “I am from the prosecuting agency, serve us a copy.”

The bench of Justices Ashok Bhushan and R. Subhash Reddy issued notice, giving two weeks for submitting the response. The court also directed that a copy of the plea be submitted to the SG.

New Delhi (ILNS): The Supreme Court has said if an accused enforced his right to be release on default bail on the expiry of time limit for investigation than the court must release him and such prompt action would restrict the prosecution from frustrating the legislative mandate to release the accused on bail.

A three-judge bench of Justices Uday Umesh Lalit, Mohan M. Shantanagoudar and Vineet Saran has pronounced its verdict on an appeal filed by a man who was accused in the NDPS case and had filed a default bail application upon the expiry of stipulated time period of 180 days for the investigation.

Interestingly, the Respondent/Complainant ‘Intelligence Officer, Directorate of Revenue Intelligence’ had filed another case on the same day when his default bail application was listed but the trial court didn’t consider that compliant and had granted default bail. Following, which the prosecution had appealed in the High Court which overruled the judgment of trial court and cancelled his bail application. The accused challenged the order of High Court in the Supreme Court.

The Supreme Court has framed the two questions of law to be answered in this appeal, the first one (a) Whether the indefeasible right accruing to the appellant under Section 167(2), CrPC gets  extinguished by subsequent filing of an additional complaint by the investigating agency; (b) Whether   the Court should take into consideration the time of filing of the application  for bail, based on default  of the investigating agency or the time of disposal of the application for bail while answering (a).

The Supreme Court has reiterated the principle laid down in the case of Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453, a three-judge bench of the Apex Court had observed, “13…It is also further clear that that indefeasible right does not survive or remain enforceable on the challan being filed, if already not availed of, as has been held by the Constitution Bench in Sanjay Dutt’s case (supra). The crucial question that arises for consideration, therefore, is what is the true meaning of the expression ‘if already not availed of’? Does it mean that an accused files an application for bail and  offers his willingness for being released on bail or does it mean that a bail order must be passed, the  accused  must furnish the bail and get him released on bail? In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail.”

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The Supreme Court said: “Article 21 of the Constitution of India provides that ‘no person shall be deprived of his life or personal liberty except according to procedure established by law.’ It has been  settled by a Constitution Bench of this Court in Maneka Gandhi v. Union of India, (1978) 1 SCC 248,  that such  a procedure cannot be arbitrary, unfair or unreasonable. The history of the enactment of Section 167(2), CrPC and the safeguard of ‘default bail’ contained in the Proviso thereto is intrinsically  linked to Article 21 and is nothing but a legislative exposition of the constitutional safeguard that no person shall be detained except in accordance with rule of law.”

The Court noted: “In the present case admittedly the appellant/accused had exercised his opinion to obtain bail by filing an application at 10:30 am on the 181st day of his arrest, i.e. immediately after the court opened, on 01.02.2019. It is not disputed that the Public Prosecutor had not filed any application seeking extension of time to investigate into the crime prior to 31.01.2019 or prior to 10:30 am on 01.02.2019. The Public Prosecutor participated in the arguments on the bail application till 4:25 pm on the day it was filed. It was only thereafter that the additional complaint came to be lodged against the Appellant.”

The Supreme Court further stated: “It is thus clear the State/the investigating agency has, in order to defeat the indefensible right of the accused to be released on bail, filed an additional complaint before the concerned court subsequent to the conclusion of the arguments of the appellant on the bail application. If such practice is allowed, the right under Section 167(2) would be rendered nugatory as the investigating officers could drag their heels till the time the accused exercise his right and conveniently files an additional complaint including the name of the accused as soon as the application for bail is taken up for disposal. Such complaint may be on flimsy grounds or motivated merely to keep the accused detained in Custody, though we refrain from commenting on the merits of the additional complaint in the present case. Irrespective of the seriousness of the offence and the reliability of the evidence available, filing additional complaints merely to circumvent the application for default bail is, in our view, an improper strategy. Hence the order of the High Court was not justified and hereby set aside.”

The Supreme Court in Conclusion has held: “Once the accused files an application for bail under the Proviso to Section 167(2) he is deemed to have ‘availed of’ or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the accused applies for bail under Section 167(2), CrPC read with Section 36A (4), NDPS Act upon expiry of 180 days or the extended period, as the case maybe, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency.

“The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court; or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.

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“However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC.

“Notwithstanding the order of default bail passed by the Court, by virtue of Explanation I to Section 167(2), the actual release of the accused from custody is contingent on the directions passed by the competent Court granting bail. If the accused fails to furnish bail and/or comply with the terms and conditions of the bail order within the time stipulated by the Court, his continued detention in custody is valid.

Read the judgment here;