by Shivendra Pratap Singh | Jan 27, 2025 | Criminal Matter
Bail order with condition to deposit fifty lakh rupees and two sureties of fifty thousand rupees. My husband is not in a position to deposit that amount consequently he is not enlarged on bail. A false criminal case has been filed by one partner of my husband's firm. My husband is running a firm for trading in food grains. We are living in Madhya Pradesh, and our firm is situated in Sihor. My husband contracted thirty thousand ton of rice with a firm in Madhya Pradesh. He received five crores advance because there was shortage of rice in the state. My husband's firm has supplied twenty-seven thousand ton to the firm and received another nine crores from that firm. He deposited that amount in bank and for some other purpose drawn five crores from the bank account.
This fact was not in the knowledge of his partner. When he knew about it immediately lodged first information report in the XX police station. When we came to know about the FIR immediately move anticipatory bail application. Bail is granted by the court but with the condition to deposit fifty lakh rupees in the court. Despite bail order my husband is not able to furnish sureties.
Asked from: Madhya Pradesh
The condition imposed by the court is illegal as it undermines the fundamental principle of bail. The court is not meant to act as a recovery agent. This condition is indeed unreasonable because the purpose of surety is to ensure the attendance of the accused during the trial and court proceedings, not to compensate the complainant. In Munish Bhasin v. State (Govt. of N.C.T. of Delhi), (2009) 4 SCC 45, the Supreme Court observed that
it is well established that, while exercising discretion to release an accused under Section 438 of the Code, neither the High Court nor the Sessions Court is justified in imposing arbitrary or excessive conditions. Although courts can impose necessary, just, and efficacious conditions based on the facts and circumstances of a case, they cannot subject the accused to irrelevant conditions.
The conditions that can be imposed while granting anticipatory bail are outlined in sub-section (2) of Section 438 and sub-section (3) of Section 437 of the Code. Generally, such conditions are meant to:
- Ensure the accused's presence before the investigating officer or court,
- Prevent the accused from evading justice,
- Prevent tampering with evidence or intimidating witnesses,
- Restrict the accused's movements in a specific area to maintain law and order.
Imposing any condition beyond these parameters exceeds the jurisdiction conferred upon the court under Section 438 of the Code. When imposing conditions under Section 438, the court must exercise caution and ensure it does not exceed its jurisdiction or impose unwarranted conditions. Conditions under Section 438 should not be harsh, excessive, or onerous, as doing so would defeat the very purpose of granting anticipatory bail.
You should file an application in the High Court under Section 528 of the Bhartiya Nagrik Suraksha Sanhita [Section 482 crpc] to quash the unreasonable condition of depositing fifty lakh rupees as bail. The High Court is likely to quash this condition, as it is unjust, unreasonable, and unfair. After quashing such a harsh condition, the High Court may impose reasonable conditions if it deems them appropriate.
Also read: Recall of cognisance order
by Shivendra Pratap Singh | Jan 27, 2025 | Criminal Matter
Whether recall of cognisance order is mandatory before seeking further investigation? The investigating officer has committed grave error in the charge sheet. He has saved the accused from main offence. Instead of it he is submitted charge sheet in lesser offence. The offence was committed by the accused along with his friend MMM but the investigating officer completely saved the MMM from the alleged offence and also submitted charge sheet for sexual harassment instead of rape. The victim suffered several injuries on her private part. But the investigating officer ignored that medical report and filed charge sheet in sexual offence only. I approach the superior officer but he said that cognisance order should be recalled before further investigation. Judicial magistrate has taken cognisance of the offence. In this situation whether recall of cognisance order is mandatory? I want further investigation in this case.
Asked from: Uttar Pradesh
The recall of a cognizance order is not mandatory. It is within the prerogative of the investigating agency to decide whether to conduct further investigation into a matter. Further investigation can be conducted even after the submission of a final report under Section 173(2) of the Criminal Procedure Code (CrPC) [Section 193 BNSS].
Upon receiving a final report under Section 173(2) of the CrPC, the Magistrate has the authority to order further investigation under Section 156(3) of the CrPC. Section 173(8) of the CrPC specifically addresses further investigation and supplementary reports. In State Through Central Bureau of Investigation v. Hemendhra Reddy, 2023 SCC OnLine SC 515 the Supreme Court has held that
In the light of the aforesaid decision of the Supreme Court, it appears that though the order passed by the learned Magistrate accepting a final report under Section 173 is a judicial order, there is no requirement for recalling, reviewing or quashing the said order for carrying out further investigation under Section 173(8) of the CrPC.
Subsection (8) of Section 173 clarifies that nothing in this section precludes further investigation into an offence after a report under subsection (2) has been submitted to the Magistrate. Thus, even after the filing of a chargesheet or challan under Section 173(2), the police may conduct further investigation under Section 173(8).
In Rama Chaudhary v. State of Bihar [(2009) 6 SCC 346], the Supreme Court held that further investigation under Section 173(8) CrPC is supplemental, additional, and a continuation of the earlier investigation, rather than a fresh or de novo investigation that nullifies the previous one.
When a final report is forwarded by the Investigating Officer to the Magistrate under Section 173(2)(i) of the CrPC, several possibilities arise:
- The Magistrate may accept the report, take cognizance of the offence, and issue process.
- The Magistrate may disagree with the report, drop the proceedings, or take cognizance based on the material submitted by the Investigating Officer.
- The Magistrate may direct further investigation under Section 156(3) and require the police to submit a report as per Section 173(8).
- The Magistrate may treat a protest complaint as a complaint and proceed under Sections 200 and 202 of the CrPC.
You said that the victim of rape has suffered several injuries on her private part. It prima facie constitutes the offence of rape. Therefore, submitting charge sheet for sexual harassment is unjust and renders the final report faulty. It is not a justice for the victim of rape. In Hasanbhai Valibhai Qureshi v. State of Gujarat [(2004) 5 SCC 347], the Supreme Court emphasized that
The prime consideration for further investigation is to ascertain the truth and ensure justice. Further investigation should not be hindered solely due to potential delays in concluding the trial if it aids in uncovering the truth and delivering substantial justice.
In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. [(1999) 5 SCC 740], the Court observed:
- The police's power to conduct further investigation after submitting a final report is recognized under Section 173(8) of the CrPC. Even after the court takes cognizance of an offence based on the initial police report, the police may carry out further investigation. However, it is desirable for the police to inform the court and seek formal permission to proceed.
- The court also holds the authority to direct the police to conduct further investigation. There is no statutory obligation for the court to hear the accused before issuing such a direction. Imposing such an obligation would unnecessarily burden the Magistrate, as the law does not mandate this requirement.
In King-Emperor v. Khwaja Nazir Ahmad [(1943-44) 71 IA 203], the Privy Council highlighted the importance of maintaining the separation of functions between the judiciary and the police. It was stated that the judiciary should not interfere with police investigations, which are within the statutory domain of the police. The police have a statutory right to investigate cognizable offences without requiring judicial approval, although courts retain the right to intervene in appropriate cases, such as habeas corpus petitions under Section 491 of the CrPC.
If the investigating agency deems it necessary to conduct further investigation to gather additional evidence related to the alleged offence or to address any lacunae in the current investigation, there is no requirement to recall the Magistrate's cognisance order.
Also read: What to do if investigating officer submits biased final report?
by Shivendra Pratap Singh | Jan 25, 2025 | Criminal Matter
Investigating officer submitted biased final report under section 173(2) crpc under the pressure of accused. The accused are very influential and politically strong to manage the police. They have compelled the investigating officer to save them and file final report. In that pressure and influence (probably receiving bribe from the accused) the investigating officer has submitted final report. I want to challenge the investigation. I am not getting justice from the police authority. There are several flaws deliberately committed by the investigating officer. How to approach the court for direction of further investigation?
Asked from: Bihar
At this stage you should not approach the court for seeking direction for further investigation. You should approach the Superintendent of Police for such a direction. After the investigating officer submits the final report under sub section 2 of section 173 of the code of criminal procedure, the police authority can still conduct further investigation. In Vinay Tyagi vs Irshad Ali alias Deepak (2010), the supreme court held that:-
The police authority can conduct further investigation. This can be done after submitting a police report under section 173(2) crpc. But they should seek a formal permission from the court for further investigation.
The same view was expressed by the Supreme Court in Ram Lal Narang v. State (Delhi Admn.), (1979) 2 SCC 322. You should approach the superior police officer for such a direction. The Superintendent of police can direct the investigating officer to do further investigation if he finds that the investigation was done in the manner to provide undue favour to the accused. You have to show that:
- The investigating officer submitted biased final report under section 173(2) crpc.
- The real culprits have been protected by the faulty investigation.
- Line of investigation adopted by the investigating officer suggests an intention to save the accused.
If specific allegations have made in the FIR and the investigating officer has ignored that allegations this will constitute a good ground for further investigation. In case the superintendent of police does not take proper action or refused to pass such an order after finding the investigation is faulty then you should file a criminal misc. writ petition in the high court under article 226 of constitution of India for direction of further investigation.
Also read: Transfer case to another investigating agency
by Shivendra Pratap Singh | Jan 15, 2025 | Service Matters
Transfer order under political influence, especially by the minister. In the month of December 2024, I was transferred from one district to another, which initially gave me a sense of hope for a fresh start. Upon joining at the transferred place, I began to adapt to the new environment and engage with the local community. However, the situation took a perplexing turn when the individual who was transferred from this location, having established good political connections, met with the local MLA and, through influence and negotiations, managed to cancel his own transfer. Since his transfer order was rescinded, I found myself in a precarious position as I was once again ordered to relocate to another district within a matter of weeks.
In an effort to address this unsettling development, I reached out to my senior officer to request consideration of my circumstances and to appeal for the cancellation of this new transfer order; regrettably, I received no response from my superior officer, which was disheartening. Furthermore, I took the initiative to submit a formal representation to the director, seeking intervention, but that too is still pending, leaving me in a state of uncertainty. No decision has been reached by the director regarding my representation, which heightens my anxiety.
This has created an incredibly challenging scenario for me, complicating my ability to manage family obligations and compelling me to consider uprooting yet again in such harsh and cold weather, making it nearly impossible to ensure stability for my family during this tumultuous period.
Asked from: Himachal Pradesh
A transfer of an employee under political influence is not permissible under the law. Transfer orders are presumed to address administrative exigencies, and every such order issued by an administrative officer must be just, fair, and reasonable. The officer is required to make decisions based on the facts and materials available, ensuring that each decision is well-reasoned, especially in the case of transferring government servants.
If an officer acts under the influence or direction of a political figure, the order cannot be deemed reasonable or fair and is therefore invalid in the eyes of the law. In Tondon Brothers case [(2001) 5 SCC 664], the Supreme Court emphasized that an administrative officer's opinion must be based on available materials and justifiable reasons. The formation of an opinion without a valid basis renders the decision legally unsound.
Political interference cannot be regarded as an administrative ground for transfer. If such influence is evident in a transfer order, the order may be challenged in the High Court. A writ petition under Article 226 of the Constitution of India can be filed to seek quashing of the transfer order, particularly when it lacks administrative justification or involves an unjustified cancellation and re-transfer of a government servant within a short period.
A transfer order influenced by political directives is arbitrary, unjust, and unreasoned. If the court satisfies that transfer order was passed under political influence, the court may intervene and quash the order.
Also read: How to quash wrong order of disability pension?
by Shivendra Pratap Singh | Jan 1, 2025 | Criminal Matter
Complaint under Section 138 NI Act rejected for prematurity. My advocate presented a complaint for the offence of cheque bounce and the court has issued summons to the accused. The accused appeared in the court two years only after issuance of non bailable warrant. When the accused appeared in the court through his advocate he took copies of the complaint. He immediately moved a petition in the high court for quashing of the complaint. I appeared in the high court and argued that the trial court has already taken cognisance after lapse 27 days from the date of receiving of demand notice. The high court said that the complaint was filed on fourteenth day instead of fifteen days. My advocate argued that cognisance has been taken and the accused has appeared through counsel but the high court has dismissed my complaint. Sir, in this situation what should I do to carry on criminal proceedings against the accused because he has cheated and taken my hard earned money.
Asked from: Maharashtra
Your complaint has been filed before the expiration of the mandatory fifteen-day period from the date of receiving the demand notice. According to Section 138 of the Negotiable Instruments Act, the cause of action for initiating a criminal case against the accused for the dishonor of a cheque arises when the drawee of the cheque fails to pay the amount within fifteen days from the date of receiving of demand notice.
When the bank returns the cheque unpaid due to insufficient funds or any other reason, the drawer of the cheque must serve a demand notice to the drawee. At this stage, no offence is considered to have been committed by the drawee. Upon receiving the demand notice, the drawee must discharge their liability by paying the amount mentioned in the cheque to the drawer. If the drawee pays the amount, no offence has been committed, and no cause of action arises.
Also read: Compromise in cheque bounce after conviction
If the drawee fails to pay the amount within fifteen days from the date of receiving the notice, the offence is considered to have been committed on the fifteenth day. Unless and until the offence has been committed or a cause of action has arisen, a complaint for that offence cannot be filed. According to Section 190 of the Code of Criminal Procedure, the magistrate can take cognizance of the offence only when it has been committed.
In the Sarav Investment and Financial Consultancy case [(2007) 14 SCC 753], the Supreme Court held that the Negotiable Instruments Act is a special enactment, and Section 138 provides a penal provision; therefore, it must be strictly construed. Consequently, unless and until the offence is committed or a cause of action arises, no complaint can be filed. If a complaint is filed before the expiration of fifteen days, it is not considered a valid complaint in the eyes of the law.
Also read: Unreasonable condition imposed on bail order
In this situation, you should file a fresh complaint within thirty days from the date of the rejection of the original complaint. There is no bar to filing a fresh complaint if the previous complaint was dismissed due to prematurity.
In Yogendra Pratap Singh vs. Savitri Pandey and Others [(2014) 10 SCC 713], the Supreme Court held that if a complaint is filed before the completion of the fifteen-day period and is subsequently dismissed, the aggrieved person may file a fresh complaint within thirty days from the date of the order of dismissal. Therefore, if a complaint under Section 138 NI Act rejected for prematurity the drawer can file a fresh complaint.
Also read: My husband's second wife claiming right to residence in my own property
