Punjab Municipal Elections : Supreme Court Appoints Former P&H HC Judge To Enquire Into Candidates' Allegations Of Nomination Paper-Snatching, Etc

 The Supreme Court recently constituted a Fact Finding Commission and appointed a former Punjab and Haryana High Court judge to enquire into issues raised by candidates of Punjab municipal elections regarding conduct of the polls.

Without expressing any opinion on merits, a bench of Justices Surya Kant and N Kotiswar Singh passed the order appointing Justice Nirmaljit Kaur (former High Court judge) to perform the stipulated task, preferably on day-today basis, and submit a report.

"Keeping in view the peculiar facts and circumstances, both sides have fairly agreed to deviate from the settled prescribed procedure so that a Fact-Finding Commission can be constituted limited to the sub-judice constituencies. Liberty to submit claims shall be limited to those who have either approached the High Court or this Court by way of special leave petitions/intervenor applications", the order observed.

"It goes without saying that the appointment of the Fact Finding Commission will not be a precedent",

Supreme Court Mandates Preliminary Inquiry Before FIR On Certain Offences Related To Speech & Expressions

 With the aim of curbing frivolous FIRs against speeches, writings and artistic expressions, the Supreme Court on Friday mandated that a preliminary inquiry must be conducted before lodging the FIR, if the offences alleged are punishable with imprisonment between three to seven years.

The Court held so after referring to Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

Section 173(3) provides that for offences punishable with imprisonment between three to seven years, the police may conduct a preliminary enquiry within 14 days to establish a prima facie case, with prior approval from a Deputy Superintendent of Police (DSP).

The Court noted that there are certain offences dealing with speech and expressions, which are recognised as reasonable restrictions as per Article 19(2) of the Constitution. If there is an allegation regarding the commission of such an offence, and if it is punishable by 3-7 years, then the police must conduct a preliminary inquiry before registering the FIR. The Court adopted this interpretation to safeguard the fundamental right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution.

A bench comprising Justice Abhay S Oka and Justice Ujjal Bhuyan observed :

“Therefore, when an allegation is of the commission of an offence covered by the law referred to in clause (2) of Article 19, if sub Section (3) of Section 173 is applicable, it is always appropriate to conduct a preliminary inquiry to ascertain whether a prima facie case is made out to proceed against the accused. This will ensure that the fundamental rights guaranteed under sub-clause (a) of clause (1) of Article 19 remain protected. Therefore, in such cases, the higher police officer referred to in sub Section (3) of Section 173 must normally grant permission to the police officer to conduct a preliminary inquiry.”

With the aim of curbing frivolous FIRs against speeches, writings and artistic expressions, the Supreme Court on Friday mandated that a preliminary inquiry must be conducted before lodging the FIR, if the offences alleged are punishable with imprisonment between three to seven years.

The Court held so after referring to Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

Section 173(3) provides that for offences punishable with imprisonment between three to seven years, the police may conduct a preliminary enquiry within 14 days to establish a prima facie case, with prior approval from a Deputy Superintendent of Police (DSP).

The Court noted that there are certain offences dealing with speech and expressions, which are recognised as reasonable restrictions as per Article 19(2) of the Constitution. If there is an allegation regarding the commission of such an offence, and if it is punishable by 3-7 years, then the police must conduct a preliminary inquiry before registering the FIR. The Court adopted this interpretation to safeguard the fundamental right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution.

A bench comprising Justice Abhay S Oka and Justice Ujjal Bhuyan observed :

“Therefore, when an allegation is of the commission of an offence covered by the law referred to in clause (2) of Article 19, if sub Section (3) of Section 173 is applicable, it is always appropriate to conduct a preliminary inquiry to ascertain whether a prima facie case is made out to proceed against the accused. This will ensure that the fundamental rights guaranteed under sub-clause (a) of clause (1) of Article 19 remain protected. Therefore, in such cases, the higher police officer referred to in sub Section (3) of Section 173 must normally grant permission to the police officer to conduct a preliminary inquiry.”

"The police officer to whom information is furnished will have to read or hear the words written or spoken, and by taking the same as correct, decide whether an offence under Section 196 is made out. Reading of written words, or hearing spoken words will be necessary to determine whether the contents make out a case of the commission of a cognizable offence. The same is the case with offences punishable under Sections 197, 299 and 302 of the BNS. Therefore, to ascertain whether the information received by an officer-in-charge of the police station makes out a cognizable offence, the officer must consider the meaning of the spoken or written words. This act on the part of the police officer will not amount to making a preliminary inquiry which is not permissible under sub-Section (1) of Section 173."

Court explains changes from S.154 CrPC

Section 173(1) of the BNS mandates the registration of an FIR if the information received discloses a cognizable offence. The court noted that provision is largely similar to Section 154 of the CrPC, which was in force before the introduction of the BNS. Under this section, the police are duty-bound to register an FIR upon receiving credible information about a cognizable offence.

However, the Court emphasized the distinction introduced by Section 173(3) of the BNS. Unlike the CrPC, the BNS includes a specific provision allowing for a preliminary inquiry before registering an FIR in certain circumstances.

“sub-Section (3) of Section 173 of the BNSS makes a significant departure from Section 154 of the CrPC. It provides that when information relating to the commission of a cognizable offence which is made punishable for 3 years or more but less than 7 years is received by an officer-in-charge of a police station, with the prior permission of a superior officer as mentioned therein, the police officer is empowered to conduct a preliminary inquiry to ascertain whether there exists a prima facie case for proceeding in the matter.”

The Court reasoned that the purpose of this provision is to act as a safeguard against the misuse of the legal process.

“Therefore, in a case where sub-Section (3) of Section 173 is applicable, even if the information pertaining to the commission of any cognizable offence is received, an inquiry can be conducted to ascertain whether a prima facie case exists for proceeding in the matter. The intention appears to be to prevent the registration of FIRs in frivolous cases where punishment is up to 7 years, even if the information discloses the commission of the cognizable offence.”

The Court also elaborated on the distinction between a preliminary inquiry under Section 173(3) and the assessment required under Section 154 of the CrPC. It referred to the guidelines laid down in the case of Lalita Kumari v. Government of U.P. (2014) case, as per which a preliminary inquiry is permissible only when the information received does not disclose a cognizable offence but suggests the need for further inquiry to determine the nature of the offence. However, under the BNS, the inquiry under Section 173(3) extends further, allowing the police to evaluate whether there is sufficient basis to proceed with the registration of an FIR, the Court said.

In the facts of the present case, the Court opined that offences alleged against Pratapgarhi were not made out even without taking recourse to Section 173)(3) of the BNSS.

Case Title – Imran Pratapgadhi v. State of Gujarat

Supreme Court Directs Customs Authorities To Upgrade Lab Facilities For Proper Testing Of Disputed Articles On All Parameters

In a key decision, the Supreme Court today overturned the confiscation of imported goods labelled as "Base Oil SN 50," which customs authorities had classified as High-Speed Diesel (HSD), which only the State entities can import.

The Court found that the Customs Department failed to provide conclusive evidence proving the goods were High-Speed Diesel (HSD), due to inadequate laboratory testing and conflicting expert opinions.

In this regard, the bench comprising Justices BV Nagarathna and N Kotiswar Singh criticized inadequate lab testing facilities, which led to the release of confiscated goods because the customs authorities tested only 8–14 out of 21 IS 1460:2005 (HSD) parameters—insufficient to classify the goods as HSD.

Therefore, the Court directed the Respondents to upgrade lab facilities within six months to ensure full IS-standard testing and prevent future disputes.

"The genesis of the prolonged litigation lies in the non- availability of adequate facilities for testing all the parameters provided under Bureau of Indian Standard Specifications. Such a dispute could have been avoided had the testing facilities for all the parameters been available.

Since the Authorities themselves had laid down the specific parameters for classification of goods, as in the present case by referring to classification under IS 1460:2005, it is incumbent upon the Authorities to ensure that necessary facilities are made available for testing of any disputed article on all these parameters as otherwise, laying down such parameters would be meaningless.

“Hence, to avoid these difficulties, doubts and uncertainties in future, the respondents are directed to ensure that proper facilities are made available in the appropriate laboratories for undertaking tests for all these parameters or at least for those parameters which the Authorities consider are of essential character to satisfy the “most akin” test without which the article in issue cannot be properly classified. Accordingly, we direct the respondents to take necessary steps in this regard within a period of six months for proper testing in all the parameters in future.”, 

S.200 CrPC/S.227 BNSS | Supreme Court Asks Magistrates To Ascertain Truth Of Complaints Before Summoning Accused

 

The Court stated that the recording of the compainant's statement on oath was not an empty formality; Magistrates must put questions to elicit the truth.

The Supreme Court on Wednesday (March 26) quashed a complaint filed for the offence of cheque dishonour under the Section 138 of the Negotiable Instruments Act (NI Act) after noting that the complainant suppressed material facts and abused the judicial process by withholding loan documents.

The appellant allegedly took loan from the Respondent-Cooperative Society and issued blank cheques as security.

In 2016, the respondent deposited the second security cheque (₹27.27 lakh), which also bounced. A legal notice was sent (11.11.2016), but the appellant denied liability, demanding loan documents to verify the debt.

In her reply to the demand notice, the appellant requested the loan documents, but the respondent did not provide them. Despite this, the respondent filed a complaint in December 2016, suppressing these letters. The Magistrate issued a process (summons) in March 2017.

The Court observed that criminal law cannot be set in motion by suppressing material facts.

“While filing a complaint under Section 200 of Cr.P.C. and recording his statement on oath in support of the complaint, as the complainant suppresses material facts and documents, he cannot be allowed to set criminal law in motion based on the complaint. Setting criminal law in motion by suppressing material facts and documents is nothing but an abuse of the process of law.”

Setting aside the High Court's decision, the judgment authored by Justice Oka emphasized that the law cannot be set into motion by issuing a process on a complaint without satisfying that there were sufficient grounds to proceed against the accused. The Court underscored the Magistrate's duty to apply its mind before setting criminal law into motion.

“Recording the complainant's statement on oath under Section 200 of the CrPC is not an empty formality. The object of recording the complainant's statement and witnesses, if any, is to ascertain the truth. The learned Magistrate is duty-bound to put questions to the complainant to elicit the truth. The examination is necessary to enable the Court to satisfy itself whether there are sufficient grounds to proceed against the accused. After considering the complaint, the documents produced along with the complaint, and the statements of the complainant and witnesses, if any, the learned Magistrate has to apply his mind to ascertain whether there is sufficient ground for proceeding against the accused. If he is satisfied that there is sufficient ground to proceed against the accused, then the learned Magistrate has to issue a process in terms of sub-Section (1) of Section 204 of the CrPC. The corresponding provision under the BNSS is Section 227. Setting criminal law in motion is a serious matter. The accused faces serious consequences in the sense that he has to defend himself in the trial.",

“Thus, this was a case where very material documents in the form of two letters addressed by the appellant were suppressed in the complaint and the statement on oath under Section 200. In the statement on oath, the respondent-complainant vaguely referred to a 'false notice reply', but a copy of the reply was not produced by the respondent along with the complaint.”, the court noted.

It is settled law that a litigant who, while filing proceedings in the court, suppresses material facts or makes a false statement, cannot seek justice from the court. The facts suppressed must be material and relevant to the controversy, which may have a bearing on the decision making. Cases of those litigants who have no regard for the truth and those who indulge in suppressing material facts need to be thrown out of the court.”, the court observed.

Accordingly, the Court allowed the appeal and quashed the pending complaint case against the Appellant.

Case Title: REKHA SHARAD USHIR versus SAPTASHRUNGI MAHILA NAGARI SAHKARI PATSANSTA LTD. 

Police Constitutionally Bound To Protect Freedom Of Expression; State Should Sensitize Officers On Constitutional Ideals

 The Supreme Court on Friday (March 28) emphasized that police officers, as part of the State under Article 12 of the Constitution, have a duty to abide by the Constitution and respect its ideals.

Referring to Article 51A(a), which mandates citizens to abide by the Constitution and respect its institutions, the Court observed that officers must uphold the fundamental rights of individuals, particularly the right to freedom of speech and expression guaranteed under Article 19(1)(a).

“The police officers must abide by the Constitution and respect its ideals. The philosophy of the Constitution and its ideals can be found in the preamble itself. The preamble lays down that the people of India have solemnly resolved to constitute India into a sovereign, socialist, secular, democratic republic and to secure all its citizens liberty of thought, expression, belief, faith and worship. Therefore, liberty of thoughts and expression is one of the ideals of our Constitution.”

The Court observed, “Article 19(1)(a) confers a fundamental right on all citizens to freedom of speech and expression. The police machinery is a part of the State within the meaning of Article 12 of the Constitution. Moreover, the police officers being citizens, are bound to abide by the Constitution. They are bound to honour and uphold freedom of speech and expression conferred on all citizens.”

It noted that despite the Constitution being in force for over 75 years, police officers were often not sufficiently sensitized to their constitutional responsibilities. The Court urged the State to conduct massive training programs to ensure officers are aware of their obligations under the Constitution.

“The Constitution is more than 75 years old. By this time, the police officers ought to have been sensitized about their duty of abiding by the Constitution and respecting the ideals of the Constitution. If the police officers are not aware of these obligations, the State must ensure that they are educated and sensitized by starting massive training programs.”

“If an option under sub-Section (3) is not exercised by the police officer in such a case, he may end up registering an FIR against a person who has exercised his fundamental right under Article 19 (1)(a) even though clause (2) of Article 19 is not attracted. If, in such cases, the option under sub-Section (3) of Section 173 is not exercised, it will defeat the very object of incorporating sub-Section (3) of Section 173 of the BNSS and will also defeat the obligation of the police under Article 51-A (a)”, the Court held.

The Court emphasized that, even while fulfilling obligation under Section 173(1) of the BNSS to register an FIR if a cognizable offence is disclosed, police officers must be mindful of the rights guaranteed under Article 19(1)(a) and the exceptions outlined in Article 19(2).

“Even while dealing with the performance of an obligation under sub-Section (1) of Section 173, where the commission of the offence is based on spoken or written words, the police officer concerned will have to keep in mind the fundamental rights guaranteed under Article 19(1)(a) read with an exception carved out under clause (2) of Article 19. The reason is that he is under an obligation to abide by the Constitution and to respect the ideals under the Constitution.”

Under Article 19(2), the State can impose reasonable restrictions on freedom of speech and expression guaranteed under Article 19(1)(a) in the interests of public order, decency, morality, or other specified grounds. However, the Court cautioned that such restrictions must remain reasonable and cannot be arbitrary, fanciful, or oppressive.

The Court further observed that while Article 19(2) allows certain laws to limit the right to free speech, those laws cannot overshadow the primary right enshrined in Article 19(1)(a). The substantive right to free expression must be protected unless the restrictions meet the criteria of reasonableness as laid down under Article 19(2).

Case Title – Imran Pratapgadhi v. State of Gujarat

'Instigation Must Have Close Proximity To Suicide', Supreme Court Quashes Abetment To Suicide Case Against Business Partners

 Observing that there must be a close proximity between the positive act of instigation by the accused person and the commission of suicide by the victim, the Supreme Court on Thursday (March 27) upheld the quashing of an abetment to suicide case against the business partner of the deceased, who committed suicide alleging harassment from his business partner.

“We are, therefore, of the considered view that even taking the allegations at its face value, it cannot be said that the allegations would amount to instigating the deceased to commit suicide. In any case, there is no reasonable nexus between the period to which the allegations pertain and the date of death. In that view of the matter, we do not find that the learned Single Judge of the High Court has erred in quashing the proceedings under Section 306 of IPC.”, 

“The learned Single Judge of the High Court, in our view, while quashing the proceedings under Section 420 of IPC, has acted in a casual and cursory manner. If the learned Single Judge of the High Court was of the view that even investigation papers as collected by the investigating agency did not constitute an offence punishable under Section 420 of IPC, then the least that was expected of the learned Single Judge of the High Court was to give reasons as to why the material collected by the investigating agency which has been placed before the learned Single Judge of the High Court was not sufficient to constitute an offence punishable under Section 420 of IPC.”, the Court observed.

“In absence of any reason given, we are of the considered view that the learned Single Judge of the High Court has erred in quashing the proceedings under Section 420 of IPC.”, the court added.

Accordingly, the appeal was partly allowed.

Case Title: R. SHASHIREKHA VERSUS STATE OF KARNATAKA AND OTHERS

'Prior Enmity Can Indicate Motive But Also Raise Possibility Of False Accusation' : Supreme Court Acquits Man In 30-Year-Old Murder Case

 The Supreme Court (March 27) observed that when a criminal act is committed based on prior enmity with the victim, then the possibility of false accusations cannot be ruled out. Though hostility between parties can establish a motive for a crime, it also raises the possibility of false accusations driven by personal grudges.

“It is a settled law that enmity is a double-edged weapon. On one hand, it provides motive, on the other hand it also does not rule out the possibility of false implication. From the nature of the evidence placed on record by the prosecution, the possibility of the present appellant being falsely implicated on account of previous enmity cannot be ruled out. In our opinion, therefore, the appellant is entitled to benefit of doubt”, 

Further, the Court cited other factors which cast doubt over the prosecution's case such as contradictions in witness statements and an unexplained 45-day delay in recording key witness testimonies, which weakened the prosecution's case.

“The following factors cast a serious doubt on the veracity of the prosecution witnesses:

(i) The witnesses who were carrying the deceased Guddu to the hospital not having bloodstains on their clothes;

(ii) The witnesses not informing either the Police Station or the police constable who was standing at a distance of about 50 steps from the place of incident;

(iii) The contradictions in the evidence of witnesses with regard to presence of each other at the place of incident;

(iv) The witnesses not informing the cause of death of the deceased Guddu in the MLC papers, though according to them they were aware about the person who had inflicted the injury on the deceased; and

(v) Recording of the statement of the witnesses after a long gap after the date of incident when the said witnesses were very much available.”

Accordingly, the Court allowed the appeal and acquitted the Appellant of all the charges leveled against him.

Case Title: ASLAM ALIAS IMRAN VERSUS THE STATE OF MADHYA PRADESH

Art 311 Doesn't Mean Only Appointing Authority Can Initiate Disciplinary Action Against Govt Servant

 The Supreme Court reaffirmed that the appointing authority is not required to initiate disciplinary proceedings against a state employee. Referring to Article 311(1) of the Constitution, the Court clarified that while the appointing authority's approval is necessary for dismissal, it is not required for initiating disciplinary action.

Overturning the High Court's decision, the judgment authored by Justice Datta noted that the court erred in applying the rulings in BV Gopinath and Promod Kumar, IAS. It clarified that these judgments were based on central laws, which differ from Jharkhand's Civil Service Rules governing the state.

The Court found that the Jharkhand's Rules didn't mandate charge-sheet approval by the Chief Minister, and only states that the disciplinary proceedings can be initiated by any superior authority. Moreover, the Chief Minister's approval of the draft charge-sheet (submitted alongside the proposal) sufficed as compliance, hence the court noted that no separate approval of CM was needed.

“As noted above, in the present case, the draft charge-sheet was there on record when the Chief Minister accorded his approval and there appears to be no valid reason as to why approval of the proposal to initiate disciplinary proceedings against the respondent would not be regarded as grant of approval to the draft charge-sheet too. We are unhesitatingly of the view that according approval to initiate the disciplinary proceedings against the respondent, in this case, did amount to approval of the draft charge-sheet.”, the court said.

Since the disciplinary proceedings were initiated by the Commissioner (superior authority), and the dismissal was upheld by the State Cabinet being approved by the Governor, therefore the Court found no reason for the High Court to interfere with the dismissal just because the charge sheet was issued without the Chief Minister's approval.

“We repeat, the entire proposal of initiating disciplinary proceedings inclusive of the draft charge-sheet, to suspend the respondent pending such proceedings and the names of the officers who would conduct the inquiry and present the case of the department in such inquiry having been approved by the Chief Minister, the Single Judge seems to have occasioned a grave miscarriage of justice in interfering with the order of dismissal on the wholly untenable ground of lack of approval of the charge-sheet by the Chief Minister; and the Division Bench, by failing to right the wrong, equally contributed to the failure of justice.”, the court observed.

Constitutional Safeguard Under Article 311(1) Does Not Mandate Issuance Of Charge-sheet By Appointing Authority

The Court noted that an argument was made by the Respondent claiming protection under Article 311(1) stating that the safeguards enshrined in Article 311 of the Constitution be scrupulously followed prior to ordering his dismissal including drawing up a charge-sheet in the manner required by the relevant law.

However, the Court noted that the constitutional safeguard under Article 311(1) only ensures that dismissal is by an appointing authority, not that charge sheets must be issued by the appointing authority or the disciplinary proceedings be initiated by them.

"If one looks at Article 311(1), the sole safeguard that it provides to any member, inter alia, of a civil service of a State or the holder of a civil post under the State is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed (emphasis supplied). Clause (1) does not on its own terms require that the disciplinary proceedings should also be initiated by the appointing authority."

The Court clarified that disciplinary proceedings may be initiated by any superior authority, not solely by the appointing authority unless explicitly required by the rules.

 THE STATE OF JHARKHAND & ORS. VS. RUKMA KESH MISHRA

Giving Arrest Memo Not Same As Supplying Grounds Of Arrest : Supreme Court Sets Aside Arrest & Remand

 "We are in agreement with the submission made by the learned senior counsel appearing for the appellant that the said arrest memo cannot be construed as grounds of arrest, as no other worthwhile particulars have been furnished to him. This, being a clear non-compliance of the mandate under Section 50 of the Code which has been introduced to give effect to Article 22(1) of the Constitution of India, 1950 we are inclined to set aside the impugned judgment, particularly, in light of the judgment rendered by this Court reported as Prabir Purkayastha v. State (NCT of Delhi) - (2024) 8 SCC 254."

In this case, the accused was arrested last December in connection with a first information report registered under Sections 384, 420, 468, 471, 509 and 120B of the Indian Penal Code. He was remanded to police custody for 3 days. He challenged his arrest and remand before the Punjab and Haryana High Court, which refused to entertain it. Against the January 30 order of the High Court, an appeal was filed. He challenged his arrest and remand on three grounds: non-compliance with Section 41A of the Code of Criminal Procedure, the opportunity of being heard at the time of remand and the non-furnishing of the grounds of arrest.

The Supreme Court considered his criminal appeal only in terms of the last ground.

Case Details: ASHISH KAKKAR v. UT OF CHANDIGARH

Penal Code, 1860 (IPC) — Section 300, 302 and 304 — Culpable homicide not amounting to murder

 Penal Code, 1860 (IPC) — Section 300, 302 and 304 — Culpable homicide not amounting to murder — Conviction under Section 302 requires proof of premeditation or intention to kill; absence of such elements may lead to reduced charges, such as under Section 304 IPC, with sentencing considerations potentially based on time already served — Supreme Court partly allows an appeal, converting a conviction under Section 302 to Section 304, considering the lack of premeditation and the time already served by the appellant, and directs release if not required in any other case.