Anticipatory bail in allegations of money laundering by ex Minister, P. Chidambaram

Money-laundering is the process of concealing illicit sources of money and the launderer transforming the money proceeds derived from criminal activity into funds and moved to other institution or transformed into legitimate asset.

It is realised world around that money laundering poses a serious threat not only to the financial systems of the countries but also to their integrity and sovereignty. The Prevention of Money-laundering Act, 2002 was enacted in pursuance of the Political Declaration adopted by the Special Session of the United Nations General Assembly held in June 1998, calling upon the Member States to adopt national money-laundering legislation and programme, primarily with a view to meet out the serious threat posed by money laundering to the financial system of the countries and to their integrity and sovereignty.

The predicate offences are under Sections 120B IPC and 420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act. Case is registered against the appellant and others under Sections 3 and 4 of PMLA. The main point falling for consideration is whether the appellant is entitled to the privilege of anticipatory bail.

Decision of Supreme Court:

Continue reading “Anticipatory bail in allegations of money laundering by ex Minister, P. Chidambaram”

Advertisements

Framing of Charge in a Criminal Trial

At the stage of framing of charge guilt of accused is not relevant.

Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that “the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused”.

The “ground” in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into.”

Held:

Applying the law laid down by this Court in the aforesaid decisions and considering the scope of enquiry at the stage of framing of the charge under Section 227/228 if the CrPC, we are of the opinion that the submissions made by the learned Counsel appearing on behalf of the appellant on merits, at this stage, are not required to be considered. Whatever submissions are made by the learned Counsel appearing on behalf of the appellant are on merits are required to be dealt with and considered at an appropriate stage during the course of the trial. Some of the submissions may be considered to be the defence of the accused. Some of the submissions made by the learned Counsel appearing on behalf of the appellant on the conduct of the victim/prosecutrix are required to be dealt with and considered at an appropriate stage during the trial. The same are not required to be considered at this stage of framing of the charge. On considering the material on record, we are of the opinion that there is more than a prima facie case against the accused for which he is required to be tried. There is sufficient ample material against the accused and therefore the learned Trial Court has rightly framed the charge against the accused and the same is rightly confirmed by the High Court. No interference of this Court is called for.

[Source: Tarun Jit Tejpal vs The State Of Goa decided by SC on 19 August, 2019]

Investigation by Complainant Police Officer, if vitiates the Criminal Trial?

The appellant cannot be discharged at this stage on the aforesaid ground mainly that the Investigating Officer and the complainant/informant are the same and thus the trial is vitiated.

At the outset it is required to be noted that after conclusion of the investigation, the Investigating Officer had filed the charge­sheet against the accused for the offences under Sections 354, 354A, 354B, 341, 342, 376 (2) (f) and 376 (2) (k) of the IPC. That thereafter, learned Trial Court has framed the charge against the appellant­original accused for the aforesaid offences, in exercise of its powers under Section 227/228 of the CrPC. Framing of the charge against the accused for the aforesaid offences was the subject matter before the High Court. By the impugned Judgment and Order the High Court has dismissed the Revision Application and has confirmed the Order passed by the learned Trial Court ordering to frame the charge against the accused for the aforesaid offences. Hence, the appellant­original accused is before this Court by way of present appeal.

Decision:

That it is mainly contended on behalf of the appellant that in the present case as the complainant and Investigating Officer are the same and therefore in view of the decision of this Court in the case of Mohan Lal (Supra) the entire criminal proceedings are vitiated and therefore the appellant – original accused is to be discharged. However, it is required to be noted that apart from the fact that the decision of this Court in the case of Mohan Lal (Supra) has been doubted and pursuant to the Order passed by this Court dated 17.01.2019 in SLP (Crl.) D. No.39528 of 2018, the same is referred to the larger Bench. In the subsequent decision in the case of Varinder Kumar (Supra), a three Judge Bench of this Court had an occasion to consider the decision of this Court in the case of Mohan Lal (Supra) and the three Judge Bench of this Court has held that the decision of this Court in the case of Mohan Lal (Supra) shall be applicable prospectively, it is further held that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (Supra) shall continue to be governed by the individual facts of the case. Therefore, the reliance placed upon the decision of this Court in the case of Mohan Lal (Supra) by the learned Counsel appearing on behalf of the appellant/­original accused is misplaced. Now, the submission made by Shri Vikas Singh, learned Senior Advocate appearing on behalf of the appellant/­original accused that the subsequent Bench in the case of Varinder Kumar (Supra) could not have held that the decision of this Court in the case of Mohan Lal (Supra) shall be applicable prospectively is concerned, at the outset, it is required to be noted that this Bench is not considering whether in the subsequent decision in the case of Varinder Kumar (Supra), the Bench could not have considered the prospective applicability of the decision in the case of Mohan Lal (Supra) or not? The three Judge Bench of this Court held that the decision of this Court in the case of Mohan Lal (Supra) would be applicable prospectively and the same shall not affect criminal prosecutions, trials and appeals. We are bound by that decision. Therefore, we are of the opinion that the decision of this Court in the case of Mohan Lal (Supra) shall not be applicable to the facts of the case on hand as criminal prosecution has been initiated in the present case much prior to the decision in the case of the Mohan Lal (Supra). Therefore, the appellant cannot be discharged at this stage on the aforesaid ground mainly that the Investigating Officer and the complainant/informant are the same the trial is vitiated, relying upon the decision of this Court in the case of Mohan Lal (Supra). Even the decision of this Court in the case of Bhagwan Singh (Supra), relied upon by the learned Counsel appearing on behalf of the appellant­ original accused, also shall not be of much assistance to the appellant at this stage. In the case of Bhagwan Singh (Supra) and after the trial this Court held that as the complainant herself was the Investigating Officer, the case of the prosecution would not be free from doubt. It was the case after trial and not at the stage of framing of the charge. Where the complainant himself had conducted the investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record but it would be completely a different thing to say that the trial itself would be vitiated for such infraction.

[Source: Tarun Jit Tejpal vs The State Of Goa decided by SC on 19 August, 2019]

Restitution is a remedy against unjust enrichment or unjust benefit.

The concept of restitution is a common law principle and it is a remedy against unjust enrichment or unjust benefit. The court cannot be used as a tool by a litigant to perpetuate illegality. A person who is on the right side of the law, should not have a feeling that in case he is dragged in litigation, and wins, he would turn out to be a loser and wrong­doer as a real gainer, after 20 or 30 years.

It is a settled law that when there is stay of proceedings by court, no person can be made to suffer for no fault on his part and a person who has liability but for the interim stay, cannot be permitted to reap the advantages on the basis of interim orders of the court. In Amarjeet Singh v. Devi Ratan, (2010) 1 SCC 417, it was held that no person can suffer from the act of court and unfair advantage gained by a party of interim order must be neutralised. The Court should never permit a litigant to perpetuate illegality by abusing the legal process. It is the bounden duty of the court to ensure that dishonesty and any attempt to abuse the legal process must be effectively curbed and the court must ensure that there is no wrongful, unauthorised or unjust gain for anyone by the abuse of process of the court. No one should be allowed to use the judicial process for earning undeserved gains or unjust profits. The object and true meaning of the concept of restitution cannot be achieved unless the courts adopt a pragmatic approach in dealing with the cases. The Court observed: Continue reading “Restitution is a remedy against unjust enrichment or unjust benefit.”

Consumer Law in India in 2019

Highlights of the provisions of Consumer Protection Act, 2019:

1. District forum is renamed as District Commission

2. The Opposite Party needs to deposit 50% of the amount ordered by District Commission before filing appeal before State Commission, earlier the ceiling was of maximum of Rs. 25,000/-, which has been removed.

3. The limitation period for filing of appeal to State Commission is increased from 30 days to 45 days, while retaining power to condone the delay.

4. State Commission shall have a minimum of 1 President and 4 Members

5. The original pecuniary jurisdiction of District Commission shall be uptil Rs. 1 Crore, State Commission from 1 Cr – 10 Cr. And NCDRC to be more than Rs. 10 crore

6. Now complainant can also institute the complaint within the territorial jurisdiction of the Commission where the complainant resides or personally works for gain besides what was provided earlier Continue reading “Consumer Law in India in 2019”

Acquisition of title by adverse possession may entitle right to sue as well.

Whether a person claiming the title by virtue of adverse possession can maintain a suit under Article 65 of Limitation Act, 1963 (for short, “the Act”) for declaration of title and for a permanent injunction seeking the protection of his possession thereby restraining the defendant from interfering in the possession or for restoration of possession in case of illegal dispossession by a defendant whose title has been extinguished by virtue of the plaintiff remaining in the adverse 2 possession or in case of dispossession by some other person?

Adverse possession:

There is the acquisition of title in favour of plaintiff though it is negative conferral of right on extinguishment of the right of an owner of the property. The right ripened by prescription by his adverse possession is absolute and on dispossession, he can sue based on ‘title’ as envisaged in the opening part under Article 65 of Act. Under Article 65, the suit can be filed based on the title for recovery of possession within 12 years of the start of adverse possession, if any, set up by the 55 defendant. Otherwise right to recover possession based on the title is absolute irrespective of limitation in the absence of adverse possession by the defendant for 12 years. The possession as trespasser is not adverse nor long possession is synonym with adverse possession.

Supreme Court not inclined to accept the submission that there is no conferral of right by adverse possession:

Continue reading “Acquisition of title by adverse possession may entitle right to sue as well.”

Conundrum of article 35-A and article 370 of the Constitution of India scrapped for Good

One Nation One Constitution

Constitution of India came into effect on 26th January 1950 and it became applicable on entire territory of India except state of Jammu and Kashmir (J&K for short). In respect of J&K a special provision was crafted in the Constitution called 370 and it was named a temporary provision. According to this provision, the President of India will be entitled to apply the Constitution of India to the State of J&K in such manner as it may please which means in pieces. This provision is as under:

“370. Temporary provisions with respect to the State of Jammu and Kashmir:
(1) Notwithstanding anything in this Constitution,

Continue reading “Conundrum of article 35-A and article 370 of the Constitution of India scrapped for Good”

Jadav is entitled to Consular Access; held by INTERNATIONAL COURT OF JUSTICE

Dispute between India and Pakistan

India had approached the UN court alleging that Pakistan had violated Article 36 of the Vienna Convention on Consular Relations 1963 by failing to inform India of Kulbhushan Jadhav’s arrest and by refusing consular access to him.

On the other hand, Pakistan argued that Vienna Convention on Consular Relations was not applicable to persons detained on charges of espionage.

Pakistan claimed that its forces arrested Jadhav from Balochistan province on March 3, 2016, after he allegedly entered from Iran.However, India maintains that Jadhav was kidnapped from Iran where he had business interests after retiring from the Navy.

Arguments:

India submitted that Jadhav’s conviction was based on extracted confessions and that the military court had not followed due process by denying him Consular Access under Vienna Convention.

Pakistan disputed Jadhav’s Indian identity. There was no proof of him being retired from armed forces. He was in possession of an Indian passport with a Muslim cover name, Qureshi submitted. He cited articles written by Indian journalists Karan Thapar, Praveen Swami and Chandan Nandy to state that Jadhav was a spy planted by India in Pakistan on an espionage mission.

Factual background and Issues:

Arrest and detention by Pakistan of an individual named Mr. Kulbhushan Sudhir Jadhav — Mr. Jadhav accused of involvement in espionage and terrorism activities — Criminal proceedings instituted — Mr. Jadhav sentenced to death by military court in Pakistan.

Jurisdiction of the Court:

Dispute relates to interpretation and application of Vienna Convention on Consular Relations — The Court has jurisdiction under Article I of Optional Protocol to Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes.

Admissibility of India’s Application:

Continue reading “Jadav is entitled to Consular Access; held by INTERNATIONAL COURT OF JUSTICE”

Karnataka Assembly Speaker prevented from ordering disqualification

The question before Supreme Court:

The issue arising in the case is whether resignations submitted by Members of the Legislative Assembly at a point of time earlier than petitions for their disqualification under the Tenth Schedule of the Constitution should have priority in the decision making process or whether both sets of proceedings should be taken up simultaneously or the disqualification proceedings should  have precedence over the request(s) for resignation.

The order of Supreme Court:

The imperative necessity,at this stage, is to maintain the constitutional balance and the conflicting and competing rights that have been canvassed before us. Such an interim exercise has become prudent in view of certain time frame exercise(s) that is in the offing in the Karnataka Legislative Assembly, particularly, the no-trust motion against the present Government, which we are told is due for being taken up on 18th July, 2019.

In these circumstances, the competing claims have to be balanced by an appropriate interim order, which according to us, should be to permit the Hon’ble Speaker of the House to decide on the request for resignations by the 15 Members of the House within such time frame as the Hon’ble Speaker may consider appropriate.

We also take the view that in the present case the discretion of the Hon’ble Speaker while deciding the above issue should not be fettered by any direction or observation of this Court and the Hon’ble Speaker should be left free to decide the issue in accordance with Article 190 read with Rule 202 of the Rules of Procedure and Conduct of Business in Karnataka Legislative Assembly framed in exercise of the powers under Article 208 of the Constitution. The order of the Hon’ble Speaker on the resignation issue, as and when passed, be placed before the Court.

We also make it clear that until further orders the 15 Members of the Assembly, ought not to be compelled to participate in the proceedings of the ongoing session of the House and an option should be given to them that they can take part in the said proceedings or to opt to remain out of the same. Continue reading “Karnataka Assembly Speaker prevented from ordering disqualification”

Criminal Trial must be held on day to day basis.

Recall of witness

There cannot be a strait jacket formula providing for the grounds on which judicial discretion under Section 231(2) of the Cr.P.C. can be exercised. The exercise of discretion has to take place on a case-to-case basis. The guiding principle for a Judge under Section 231(2) of the Cr.P.C. is to ascertain whether prejudice would be caused to the party seeking deferral,if the application is dismissed.

While deciding an Application under Section 231(2) of the Cr.P.C.,a balance must be struck between the rights of the accused,and the prerogative of the prosecution to lead evidence.The following factors must be kept in consideration:
• possibility of undue influence on witness(es);
• possibility of threats to witness(es);
• possibility that non-deferral would enable subsequent witnesses giving evidence on similar facts to tailor their testimony to circumvent the defence strategy; Continue reading “Criminal Trial must be held on day to day basis.”