SECOND FIR CAN BE QUASHED IF FIRST FIR IN RESPECT TO SAME INCIDENT HAS ALREADY BEEN REGISTERED: PUNJAB & HARYANA HIGH COURT - Business Guardian
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SECOND FIR CAN BE QUASHED IF FIRST FIR IN RESPECT TO SAME INCIDENT HAS ALREADY BEEN REGISTERED: PUNJAB & HARYANA HIGH COURT

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In a very significant observation, the Punjab and Haryana High Court in a learned, laudable, landmark and latest judgment titled Mr Monishankar Hazra and another v. State of Haryana and others and a connected petition in CRM-M-6692-2022(O&M) and CRM-M-6698-2022(O&M) have observed that in case an FIR with respect to an incident has already been registered, then a second FIR with respect to the same incident cannot be registered and in case, the same is registered then the High Court is well within its power to quash the second FIR. It must be noted that the single Judge Bench of Justice Vikas Bahl observed thus as it quashed an FIR against the Optum Global Solutions (India) Private Limited and its officials over cheating and forgery charges. The Court also observed that if an FIR does not disclose the essential requirements of the penal provision or does not disclose the essential requirements of the penal provision or does not disclose the commission of a cognizable offence, the same can be quashed at the initial stage.

To start with, this notable judgment authored by a single Judge bench comprising of Justice Vikas Bahl of the Punjab and Haryana High Court first and foremost points out in para 1 and here we shall state only key point that, “This order will dispose of the two petitions filed under Section 482 Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) to set aside/quash the order dated 15.12.2021 passed by the Chief Judicial Magistrate, Panchkula, in case bearing no. COMI/63/2021 titled as “Sharad Kothari vs. United Health Group Information Services &Ors.”, registered on 31.08.2021 and the consequential proceedings arising therefrom, including FIR bearing no.508 dated 23.12.2021 registered under Sections 120-B, 406, 409, 420, 465, 467, 468 and 471 of the Indian Penal Code (hereinafter referred to as “IPC”) at Police Station Sector 5, Panchkula. The first petition, i.e. CRM-M-6692-2022 has been filed by Monishankar Hazra and Sameer Bansal and the second petition, i.e. CRMM-6698-2022 has been filed by seven petitioners namely Optum Global Solutions (India) Private Limited through its authorised representative Mr.Prashant Sinha, Anurag Khosla, Tim Trujillo, Rajat Bansal, Gayatri Varma, John Santelli and Partha Sarathi Mishra. Since the impugned order in both the cases is the same and the issues involved and questions of law are also common, thus, both the cases are being taken up together and with the consent of all the parties, CRM-M-6692-2022 is taken up as the lead case and facts have been taken from the said petition.”

BACKGROUND/ FACTS OF THE CASE

While elaborating on background/facts of case, the Bench envisages in para 2 that, “Respondent no.2 had filed a complaint dated 27.08.2021 under Section 156(3) of the Cr.P.C. (Annexure P-28 page 539) against ten accused persons, including 9 petitioners in both the petitions, collectively. A prayer was made in the said complaint for issuance of directions as envisaged under Section 156(3) of the Cr.P.C. to the concerned Police Station for registration of an FIR under Sections 406, 409, 420, 465, 467, 468, 471 and 120-B IPC, on the allegations that the accused persons committed illegalities in order to procure a tender, floated by Haryana State Health Resource Centre (hereinafter referred to as “HSHRC”) for implementation of Hospital Information System (HIS) in favour of M/s United Health Group Information Services Pvt. Ltd.(hereinafter referred to as “UHGIS”). It had been alleged in the complaint that the complainant / respondent no.2 was an ex-employee of accused no.1-company and was appointed as DirectorBusiness Development vide appointment letter dated 09.12.2013 in accused no.1-company, which came to be known as M/s Optum Global Solutions India Limited after passing of the amalgamation order by the Hon’ble National Company Law Tribunal, Hyderabad on 20.03.2017. It has further been alleged that in the month of December, 2013, the Government of Haryana through HSHRC floated a tender/Request for Proposal (hereinafter referred to as (“RFP”) for implementation of HIS. As per the said tender, the bidders were required to be highly specialized in the field of ‘System Integration’ with minimum qualifications / requirements as prescribed under para 4.3 of Volume II of tender /RFP. Specific reference had been made to serial nos. 7 and 8 of said para 4.3. It has also been alleged that the award of contract was dependent upon the fulfillment of the qualifications as prescribed and in pursuance of the said tender, five companies submitted their cost bids to the HSHRC. The companies who had given their bid are as follows:-

S. No. Company name

1 IL & FS Technologies Limited

2 Hewlett-Packard India Sale Private Limited

3 Accenture Services Pvt Ltd.

4 United Health Group Information Systems Pvt. Ltd. (Accused no.1)

5 EY/NDSL

It had further been alleged that accused no.1-UHGIS was the 4th lowest bidder and by fabricating documents, managed to procure the tender. The same was procured by all the accused persons in connivance with each other and in collusion with some officials from HSHRC and accused no.1 had submitted its bid very cleverly, without the extracts of the audited balance sheet and profit and loss statement, as was required by HSHRC and without furnishing any certificate from its statutory auditor certifying that the company had a turnover of INR 100 crore from system integration services etc. and for reasons best known to the HSHRC, it still accepted the said tender. It has further been alleged that accused no.1 was incompetent to participate in the tender inasmuch as, the services which were required to be carried out, were never done by accused no.1 and even the same did not form a part of the Memorandum of Association of accused no.1-company and the said Memorandum of Association was amended vide resolution dated 29.04.2014, incorporating clauses 1B and 1C in the Objects Clause to include activities / services which were required to be carried out by the bidders. It had further been submitted that the tender bid was submitted on 13.03.2014 and the amendment in the Memorandum of Association was carried out subsequent to the same, i.e., on 29.04.2014. It had also been alleged that in order to fulfill the condition listed at serial no.8 of para 4.3 Volume II (supra) of the tender, which required the bidder to have experience demonstrated in networks of hospitals and not one / single hospital, the accused persons in collusion with each other, manipulated this requirement by preparing false documents, including two experience certificates, which were stated to be clearly fake and forged document as they were issued by M/s Optum Inc. USA (hereinafter referred to as “Optum US”) and the said experience certificate showed that UHGIS (accused no.1- company) had rendered service to M/s Optum Inc, USA in the year 2008 and 2009 whereas, Optum US itself came into existence on 17.09.2009.It has further been alleged that accused no.1 had not submitted any document to show that it had fulfilled the requirement of the HSHRC to the effect that it should have Rs.100 crore turnover for each year, i.e. 2008-09, 2009-10, 2010-11 and that respondent no.2 came to know about the entire scam/incident on 01.10.2015 when accused no.2-Sandeep Khurana in a drunken state disclosed to him the whole episode/incident in a restaurant. It has further been alleged that thereafter, respondent no.2 got an FIR no.419/2017 dated 18.08.2017 under Sections 66/66C of the IT Act lodged at Police Station Prashant Vihar, Rohini, New Delhi, regarding invasion of privacy of respondent no.2 and a complaint was also filed before the Director General of Police, Haryana which was marked to the Economic Offences Wing for enquiry/ investigation regarding which, a report was made by the ASI Prakash Chand from which, it was clear that the accused persons have repeatedly tried to thwart the investigation by not appearing on many occasions. It has also been alleged that the cause of action arose to the complainant on 13.03.2014 firstly, when the forged documents were supplied by the accused persons to the office of HSHRC Panchkula and then, again on 01.10.2015 and then, on 08.04.2016,as well as on 29.04.2016, cause of action continued as the complainant was made to resign from the accused-company. It had been stated that it is the Court in Panchkula which has the jurisdiction to entertain this matter and no such or similar petition except mentioned in the petition was filed or pending.”

To put things in perspective, the Bench then enunciates in para 3 that, “The Chief Judicial Magistrate, Panchkula, vide impugned order dated 15.12.2021 allowed the said application and directed the SHO, Sector 5 Panchkula to lodge the FIR. In the said order, the Chief Judicial Magistrate, Panchkula, had considered the interim report dated 22.07.2020 which was submitted by the Director General Health Services Haryana, Panchkula in which Sanjay Sethi, Assistant General Manager, HARTRON and Puneet Brar, Senior Consultant, HARTRON had made observations against the accused persons. Reliance was also placed upon the interim report of the Investigating Officer dated 01.09.2020. It was further observed that since respondent no.2 was also involved in bidding process on behalf of accused no.1 company, the Court was taking cognizance on the report filed by above said Sanjay Sethi and Puneet Brar. In pursuance of the same, above said FIR no.508 dated 23.12.2021 was registered and above said Sanjay Sethi and Puneet Brar were made as complainant. It is the above said order dated 15.12.2021, FIR dated 23.12.2021 and the subsequent proceedings arising therefrom which have been challenged by 9 accused persons by filing two separate petitions.”

CONCLUSION

Most remarkably, the Bench hastens to add in para 67 that, “That on the basis of above-said factors, this Court is of the opinion that the impugned order as well as the subsequent FIR arising therefrom, deserve to be quashed. Apart from the judgments which have been noticed hereinabove, the Hon’ble Supreme Court of India as well as various High Courts have repeatedly held that where the grounds, as are there in the present case, are made out then, the High Court can exercise its powers under Section 482 Cr.P.C to quash the proceedings as well as to set aside the impugned order. The Hon’ble Supreme Court of India in State of Haryana and others vs. Bhajan Lal and others (supra) has held as under:-

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under section 482of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

In the above said case, the Hon’ble Supreme Court of India had enumerated categories of various cases, by way of illustrations, wherein power under Section 482 Cr.P.C. could be exercised either to prevent abuse of the process of any Court or to otherwise secure the ends of justice. It is held that the present case would fall within the said parameters moreso, category 1, 2, 3 and 7.”

Most significantly, the Bench minces no words to hold in para 68 that, “The Hon’ble Supreme Court in “T.T. Antony’s case (supra) has observed as under: –

“However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) Criminal Procedure Code, 1973 It would clearly be beyond the purview of sections 154 and 156 Criminal Procedure Code, 1973 nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of a fresh investigation based on the second or successive FIRs, not being a counter case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 Criminal Procedure Code, 1973 or under Articles 226/227 of the Constitution.

xxx xxx xxx

The course adopted in this case, namely, the registration of the information as the second FIR in regard to the same incident and making a fresh investigation is not permissible under the scheme of the provisions of the Criminal Procedure Code as pointed out above, therefore, the investigation undertaken and the report thereof cannot but be invalid. We have, therefore, no option except to quash the same leaving it open of the investigating agency to seek permission in Crime No. 353/94 or 354/94 of the Magistrate to make further investigation, forward further report or reports and thus proceed in accordance with law.”

A perusal of the above-reproduced judgment would show that it had been observed by the Hon’ble Supreme Court of India that in case, with respect to one incident an FIR already stands registered, then a second FIR with respect to the same incident cannot be registered and in case the same is registered then, the High Court while exercising its powers under Section 482 Cr.P.C, would be well within its rights to quash the second FIR. The same principle has been followed by the Hon’ble Supreme Court in the case of “Amitbhai Anil Chandra Shah’s case (supra). Thus, in a situation where a second FIR is registered with respect to the same incident on which an FIR has already been registered as in the present case, the petition for quashing of the second FIR should not be thrown out on the ground that the report under Section 173 CrPC has not been submitted.”

Relief:

Finally, the Bench then concludes by holding in para 71 that, “Keeping in view the eight grounds, as have been detailed in the preceding paragraphs and the facts and circumstances of the present case and the ratio of law laid down in the plethora of judgments referred to hereinabove, both the petitions i.e., CRM-M-6692/2022 and CRM-M 6698/ 2022 are allowed and the impugned order dated 15.12.2021 is set aside and FIR no.508/2021 dated 23.12.2021 registered under Sections 120B, 406, 409, 420, 465, 467, 468 and 471 of the IPC at Police Station Sector 5, Panchkula and all the subsequent proceedings arising therefrom, are quashed.

It is, however, clarified that the setting aside of the impugned order and quashing of the FIR and the subsequent proceedings as well as the observations made in the present case would not affect the proceedings / complaint which is pending before the Lokayukta, Haryana and also the proceedings pending before the Rohini Courts in New Delhi arising out of the FIR no.419 dated 18.08.2017 registered at Police Station Prashant Vihar, Delhi which had been registered in pursuance of the application dated 07.06.2017 filed under Section 156(3) Cr.P.C. by Respondent no.2 in the Court of Chief Metropolitan Magistrate, Rohini Courts, New Delhi.”

In conclusion, the Punjab and Haryana High Court has made it indisputably clear that the second FIR can be quashed if first FIR in respect to same incident has already been registered. The relevant case laws have already been discussed hereinabove. It merits no reiteration that Justice Vikas Bahl has painstakingly dwelt on a number of relevant cases and we have discussed here only the most important ones to make it abundantly clear that when can the second FIR be quashed.

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Legally Speaking

Supreme Court: Commercial Transactions Outside Purview Of Consumer Protection Act 1986

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The Supreme Court in the case Annapurna B. Uppin And Ors. Versus Malsiddappa And Anr. observed wherein the complaints is filed seeking recovery of the investment from which the complainant is deriving benefit in the form of interest cannot be entertained under the Consumer Protection Act of 1986. The bench comprising of Justice Vikram Nath and Justice Satish Chandra Sharma in the case observed and has stated that it was a commercial transaction (investment) and therefore also would be outside the purview of the 1986 Act.

The court in the case stated that Commercial disputes cannot be decided in summary proceeding as stated under the 1986 Act but the appropriate remedy for recovery of the said amount, if any, admissible to the complainant respondent No.1, would be before the Civil Court. Thus, the complaint was not maintainable. The aforesaid observations came in the judgement authored by Justice Vikram Nath while deciding the civil appeal preferred by the appellants, the Legal heirs of the partner of the firm against the decision of the National Consumer Dispute Redressal Commission, NCDRC.

The present case relates to the alleged for the non-payment of the respondent no.1, the investment amount by the appellant(s). The respondent also had invested an amount of Rs. 5 lakhs in the partnership firm, wherein the husband of appellant’s was a partner to be repayable after 120 months with interest @ 18% per annum.

On the other hand, the Respondent No. 1 sought for the premature release of the invested amount but was asked to wait till the maturity period and when the amount was not returned even after the end of the maturity period, thus, he filed a consumer complaint claiming the said amount. Therefore, the Forums at various levels allowed the respondent No. 1 i.e., complaint, following which the appellant approached the Supreme Court.

Arguments:

It was also contended before the court Supreme Court by the appellants that the transaction to invest in the partnership firm was commercial and the consumer complaint filed seeking recovery of the investment made by respondent no. 1. Would not be maintainable under the 1986 Act. It has also been contended by the appellants that the complainant could not seek the recovery of the investment because when the investment was made by respondent no.1, he was the partner of the firm.

Further, it was contended before the court by respondent no.1 that the refusal of the appellants to return the investment amounted to a deficiency of service and therefore, the complaint was maintainable. It also being the case of respondent No.1 that the appellants herein inherited the estate of the Managing Partner Basavaraj Uppin, and hence cannot escape the liability of making the payment due to respondent No.1.

Observations Made By Supreme Court:

The court while finding force in the appellant’s contentions held that the complaint seeking recovery of the investment would not be maintainable under the old act. The court in the case noted that respondent no.1 would not benefit from the complaint as he was the partner of the partnership firm during the period of the investment made by him.

The court observed that this court is of the considered opinion that once there was a registered partnership deed dated May 27,1996, there is no further document which is placed on record by the complainant-respondent No.1 with regards to the dissolution of the said registered deed which continued till the time when the investment was made by the complainant respondent No.1 on May 21, 2002 and hence the complainant respondent No.1 would be deemed to be partner of the firm.

Deceased Partner Liability Do Not Passes Upon Its Legal Heirs:

The court in the case rejected respondent no.1 or complainant argument that being the legal heirs of the Managing Partner of the firm, the appellants cannot escape from the liability owed by the Managing Partner. It has also been stated by the said court that the legal heirs of a deceased partner do not become liable for any liability of the firm upon the death of the partner.

The court in the case observed that there was no evidence on record in order to show that a fresh partnership deed was executed reconstituting the firm in which the present appellants had become partners so as to take upon themselves the assets and liabilities of the firm. Further, the court stated that the law is well settled that legal heirs of a deceased partner do not become liable for any liability of the firm upon the death of the partner.

The court while considering the facts and circumstances of the case allowed the appeal and the complaint preferred by the complainant or respondent No. 1 was set aside. Accordingly, the court allowed the appeal. The counsel, Mr. C. B. Gururaj, Adv. Mr. Prakash Ranjan Nayak, AOR Mr. Animesh Dubey, Adv. Mr. Debendra Ghosal, Adv. Appeared for the Petitioner(s). The counsel, Mr. Chinmay Deshpande, Adv. Mr. Anirudh Sanganeria, AOR represented the respondent(s).

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Former AAP Minister Moves Delhi High Court, Seeks Removal Of Kejriwal From CM’s Post

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In the case Sandeep Kumar v. Arvind Kejriwal and Others, the Delhi High Court observed a petition filed by Aam Aadmi Party MLA Sandeep Kumar seeking the removal of Arvind Kejriwal from the post of Chief Minister of Delhi. Arvind Kejriwal is presently in judicial custody related to an Enforcement Directorate (ED) case concerning the excise policy. This is the third petition seeking such a prayer, with the previous two pleas being rejected by the Division bench headed by Acting Chief Justice Manmohan.

Sandeep Kumar approached the court as a Court of first instance in writ jurisdiction, not as a Public Interest Litigation (PIL), in his individual capacity. He, being a lawyer by profession, claims to be a founding member of the Aam Aadmi Party and a social worker.

The plea filed seeks the issuance of a writ of quo warranto against Kejriwal, calling upon him to show by what authority, qualification, and title he is holding the office of the Chief Minister of Delhi. Additionally, the plea prays for an inquiry to dislodge Kejriwal from the office of the Chief Minister, with or without retrospective effect.

Kumar claims that as a voter of the Delhi Assembly Election, he is personally aggrieved for having a Chief Minister for his Union Territory who has incurred an ‘incapacity to hold the post’ and ‘who can never function as the Chief Minister from custody or prison’ as envisaged by the Constitution of India.

The petitioner argues that Kejriwal has incurred an incapacity to carry out his functions as the Chief Minister of Delhi under the Constitution and therefore, he cannot hold the post. The plea emphasizes that the right to have a government in accordance with the Constitution is a Constitutional Right of every citizen and voter.

Arvind Kejriwal was arrested on the night of March 21 and subsequently remanded to judicial custody until April 15. However, the court refused to entertain a Public Interest Litigation (PIL) seeking Kejriwal’s removal from the post of Chief Minister, observing that there is no scope for judicial interference in the matter, and it is for other organs of the State to examine the issue.

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Delhi High Court Reserved Verdict On Arvind Kejriwal’s Plea Challenging ED Arrest In Liquor Policy Case

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The Delhi High Court in the case Arvind Kejriwal v. Directorate Of Enforcement observed and has reserved verdict on the plea moved by Chief Minister Arvind Kejriwal challenging his arrest by the Enforcement Directorate, ED in the money laundering case related to the alleged liquor policy scam case.

The bench headed by Justice Sharma in the case observed and has denied any interim relief to Kejriwal and only issued notice on his plea challenging the arrest, as well as his interim application seeking immediate release.

In the present case, Kejriwal is currently in judicial custody. Kejriwal was being arrested on the night of March 21.

The Trial Court in the case remanded him to six days of ED custody, which was extended by further four days. On April 01, he was remanded to judicial custody till April 15.

It has been stated by the Enforcement Directorate, ED that Kejriwal is the kingpin and the key conspirator of the excise scam and there were reasons to believe on the basis of material in its possession that he was guilty of the offence of money laundering.

It has also been alleged that the Aam Aadmi party was the ‘major beneficiary’ of the proceeds of the crime and has committed the offence through Kejriwal.

The response stated that, the Aam Aadmi Party, AAP is the major beneficiary of the proceeds of crime generated in the Delhi Liquor Scam. The Sh Arvind Kejriwal was and is not only the brain behind the AAP but also controls its major activities, he was also one of the founding members and was also involved in the decision making of the policy as evident from the statements of the witnesses.

Arguments:

The counsel, Additional Solicitor General SV Raju told the Court that investigation qua the sitting CM is at a nascent stage. Thus, he also pointed that Kejriwal has not challenged the latest order remanding him to 15 days judicial custody. He has also challenged the first remand order. Please look at the remand order of 26 March. Today we are on April 3. The second remand order is passed on March 28. That has not been challenged. Thus, the third remand order of judicial custody has not been challenged. So today his custody isn’t pursuant to arrest or first remand order, it’s pursuant to April 1 order which has not been challenged. Therefore, Raju also wondered if Kejriwal can challenge his remand since he did not oppose it. ‘He voluntarily accepts please remand me further. Can he challenge the remand order? Or is it barred by waiver? They are blowing hot and cold at the same time. You cant challenge the remand order and say please pass the order and accept it. They have not challenged the latest orders pursuant to which he is in custody. Thus, custody can’t be said to be illegal.”

The counsel, Senior Advocate Abhishek Manu Singhvi appearing for Kejriwal argued before the court that the central probe agency did not comply with Section 50 PMLA which empowers it to issue summons, collect evidence, etc. thus, it being clear that section 50 involves an inquiry. Because it’s inquiry which enables ED to make up mind about arrest and prosecution. No attempt is made to record my section 50 even at my residence. While pointing out the remand application he added ED wants to “find out” the role of Chief Minister. ‘Surely that’s not a ground for today’s arrest… There has to be specific role of the petitioner, even for the company, which I’m denying.’

On the other hand, it has been argued by the ASG that the fact that a PMLA offence has taken place is clear and beyond any doubt. Because as far as first Police Custody and subsequent Police Custody is concerned, court has taken cognizance… Categorical finding that there is money laundering. Cognizance of the offence of money laundering. Nobody has challenged the order.

It has also been contended by the Singhvi that ED forced the approvers Raghav Magunta, Sarath Reddy and Magunta Reddy to make statements against Kejriwal. Further, it has been alleged that two approvers even have links with the ruling party. Adding to it, Singhvi stated that initial statements that did not implicate Kejriwal are not even put on record by the ED. ‘These statements are kept in unrelied. Why should the court not see it? Is it fair? What cannon of fairness are you carrying ED? Out of 13 statements by this Reddy. He says nothing in 11 statements. The judge will go by one statement?’

He also questioned the necessity of arrest amid upcoming general elections. The test is not can arrest. It is demonstrating the necessity to arrest. The should arrest test. The necessity to arrest immediately before elections… the only object is to insult, humiliate and disable… So that the petitioner is unable to participate in the election process and to try to demolish the party before the first vote is cast. The timing reeks of basic structure issue, free and fair election issue and democracy issue. What is this urgency or necessity?

Further, Singhvi stated that it said to be a flight risk, given his deep roots in the society. Responding to this ASG stated that, supposing a political person commits murder two days before elections. This means he can’t be arrested? Basic structure comes into play? Criminals are supposed to be arrested and put in jail. In such cases there is no infringement of basic structure.

Further, it has been argued by ASG that calculation was done as to why 5 percent profit was made 12 percent in the new policy. “Only inference is that it was done so that 7 percent of portion is used for giving kickbacks. The fact that there is a scam is beyond doubt. Howsoever hue and cry you make, its a fact that a scam was there… Finding of the actual proceeds of crime is irrelevant if we make out a case that you were involved in money laundering.

Facts of the Case:

Kejriwal had skipped nine summons issued to him by ED. The Aam Aadmi Party leaders Manish Sisodia and Sanjay Singh are also accused in the case and are presently in judicial custody. While following his arrest, Kejriwal had promptly moved an urgent petition before the Supreme Court challenging his arrest. However, the same was withdrawn later. Kejriwal has previously moved the Delhi High Court, the division bench wherein it challenged the summons issued to him by the central probe agency. He has also filed an application seeking interim protection. The matter is fixed for hearing on April 22. The Kejriwal has skipped the summons, claiming that they are illegal.

It has also been alleged by the ED that Arvind Kejriwal is the ‘kingpin’ of Delhi excise scam and is directly involved in the use of proceeds of crime accounting to over Rs. 100 crores. It being the case of ED’s that the excise policy was implemented as part of a conspiracy to give wholesale business profit of 12 percent to certain private companies, although such a stipulation was not mentioned in the minutes of meetings of Group of Ministers, GoM. Further, it has also been claimed by the Central agency that there was a conspiracy that was coordinated by Vijay Nair and other individuals along with South Group to give extraordinary profit margins to wholesalers. According to the agency, Nair was acting on behalf of Chief Minister Arvind Kejriwal and Manish Sisodia.

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Delhi High Court CM Arvind Kejriwal’s ED Custody extended By 4 Days Till April 1 In Liquor Policy Case

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The Delhi High Court in the case Surjit Singh Yadav v. Union Of India observed and has remanded the Chief Minister Arvind Kejriwal to Enforcement Directorate, ED custody till April 01 in the money laundering case which relates to the alleged liquor policy scam case. Arwind Kejriwal was being arrested on the night of March 21, 2024. The Special CBI judge Kaveri Baweja of the Rouse Avenue Courts passed the order after Kejriwal was produced in court on the expiry of his six days of Enforcement Directorate, ED custody.

The Delhi High Court in the case declined any interim relief to Kejriwal and only issued notice on his plea challenging the arrest and remand. The counsel, Additional Solicitor General SV Raju told the court that the sitting CM was giving “evasive replies” during interrogation and the agency needs to confront him with some individuals who have been summoned from Goa. Thus, ED sought 7 more days of custody. He doesn’t get exonerated if he is a CM. There is no different standards for a CM. Right to arrest a CM is no different from an ordinary man.”

Yesterday, the Enforcement Directorate, ED summoned AAP’s Goa unit chief Amit Palekar and some other party leaders for questioning. Thus, they have been asked to appear at the agency’s Goa office on March 28, 2024. Further, the Kejriwal while appearing in person submitted before the court that he is not opposing remand. He claimed the entire case is a ‘political conspiracy’ and there is no such material against him. It has also been alleged by the Delhi CM that the central probe agency was collecting selective material and even the approver was forced to make a statement against him. Further, the central probe agency submitted before the court that Kejriwal has refused to share the password of his mobile phone.

Adding to it, Kejriwal responded that ED cannot force him to unlock his electronic gadgets. Delhi High Court Rejected PIL For Removal Of Arvind Kejriwal From Post Of Chief Minister The Delhi High Court rejected the Public Interest Litigation, PIL moved seeking removal of Arvind Kejriwal, who has been arrested by the Enforcement Directorate, ED in the liquor policy case, from the post of Chief Minister of Delhi. The Division bench comprising of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora in the case observed and has stated that the petitioner failed to show any bar in the law which prohibits the arrested CM from holding office. The CJI orally stated that, ‘Show us, where is the prohibition. Show us any legal bar which you’re canvassing’.

Further, the bench stated that there is no scope for judicial interference in the matter and the executive is examining the issue. The court in the case observed that if there is a constitutional failure, President or Governor will act on it…Is there any scope for judicial interference in this? The LG is examining the issue. It will go to the President. It belongs to a different wing. There is no scope for judicial interference in this. In the present case, the petition is moved by one Surjit Singh Yadav, a Delhi resident claiming to be a farmer and social worker. It has been claimed by him before the court that a Chief Minister accused of a financial scandal should not be permitted to continue in public office. Kejriwal is presently in ED custody which ends on March 28, 2024. It has been submitted by Yadav in the PIL that Kejriwal’s continuation in the post would not only lead to obstruction of due process of law and disrupt the course of justice, but also would lead to a breakdown of the constitutional machinery in the State as Kejriwal does not satisfy most of the limbs of Article 163 and 164 of the Constitution of India owing to his incarceration.

Further, the plea stated that the Respondent No.4 has virtually forfeited his office as a Chief Minister of account of being arrested and as he is in the Custody he has disabled himself from performing the duties and responsibilities of being a public servant and as such he ought not to continue as a Chief Minister. Therefore, the AAP Ministers have been making statements in the media that Kejriwal will not resign from the post and if need be, he will run the government from inside the prison.

It has been submitted by Yadav that a jailed CM would be incapable of transacting any business that the law enjoins upon him and if he is allowed to do so, any material, irrespective of its secretive nature, would have to be scanned thoroughly by the prison authorities before it reaches Kejriwal’s hands and such an act would amount to direct breach of oath of secrecy administered to the CM under the Third Schedule of the Constitution. Further, the plea stated that the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 empowers a CM to call for files from any department of the Cabinet and if Kejriwal continues as CM, he would be well within his rights to demand for the investigation of files wherein he has been arraigned as an accused.

The plea states that, such a situation is against the ethos of Criminal Jurisprudence. Therefore, Yadav had prayed the Court to issue a writ in the nature of Quo Warranto, calling upon Kejriwal to answer under what authority he is holding the post of CM and consequently remove him. However, Yadav has also filed another PIL seeking to prevent Kejriwal from issuing directions or orders while in ED custody. About The Case: The Kejriwal had skipped nine summons which were issued to him by the Enforcement Directorate, ED.

The Aam Aadmi Party leaders Manish Sisodia and Sanjay Singh are also accused in the case and are presently in judicial custody. The Kejriwal while following the arrest of him had promptly moved an urgent petition before the Supreme Court challenging his arrest. Later, the same was withdrawn. Therefore, Kejriwal has previously moved the Delhi High Court (division bench) challenging the summons issued to him by the central probe agency. Further, the Kejriwal has also filed an application seeking interim protection.

The matter was fixed for hearing on April 22. It has been alleged by ED that two criminal complaints had been filed against Kejriwal in city’s Rouse Avenue Courts alleging non-compliance of the summons by him. Kejriwal has skipped the summons, claiming that they are illegal. It has been alleged by the ED that Arvind Kejriwal is the ‘kingpin’ of Delhi excise scam and is directly involved in the use of proceeds of crime accounting to over Rs. 100 crores.

It being the case of ED that the excise policy was implemented as part of a conspiracy to give wholesale business profit of 12 percent to certain private companies, although such a stipulation was not mentioned in the minutes of meetings of Group of Ministers, GoM. It has been claimed by the Central Agency that there was a conspiracy that was coordinated by Vijay Nair and other individuals along with South Group to give extraordinary profit margins to wholesalers.

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Supreme Court: Plea To Stay Citizenship Amendment Act

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The Supreme Court in the case was hearing the application filed to stay the Citizenship Amendment Act 2019 and the Citizenship Amendment Rules 2024.

The bench comprising of CJI DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra was hearing the present matter. In the present case, the court was hearing the 237 writ petitions challenging the CAA, filed in 2019.

Therefore, these petition before the Court on October 31, 2022. The Union Government notified the Citizenship Amendment Rules 2024 to implement the CAA and notified the formation of committees at the State or UT levels to process the applications on March 11.

The petitioner are Political party Indian Union Muslim League (IUML, the lead petitioner in the case), Democratic Youth Front of India (DYFI, youth wing of the CPI(M)), All Assam Students Union, Assam opposition leaders Debrabata Saika and Abdul Khaleque, State of Kerala, AIMIM head Asaduddin Owaisi, Socialist Democratic Party of India etc.,

The Senior Advocate Kapil Sibal told the court that there was no question of a pause back then since the rules were not notified. Adding to it, Solicitor General Tushar Mehta then said that the fact that the rules were notified before the elections was irrelevant.

The party leader Jairam Ramesh has stated that, the pposition has slammed the Narendra Modi government over the timing of the law’s implementation – four years after it cleared the Parliament. The move is “evidently designed to polarise the elections, especially in West Bengal and Assam”.

Further, the Trinamool Congress chief and Bengal Chief Minister Mamata Banerjee stated that she doubts the legality of CAA and alleged a conspiracy to “snatch citizenship rights. The Bengal Chief Minister Mamata Banerjee says that, BJP leaders say CAA gives you rights. But the moment you apply for citizenship, you become illegal migrants and you will lose your rights. You will lose rights and be taken to detention camps. Please think before you apply. The Centre has trashed the Opposition’s allegations. Stressing that the CAA is not “unconstitutional”, Home Minister Amit Shah has accused the Opposition of resorting to the “politics of lies”.

Amit Shah stated that, On the timing of the law’s implementation, “BJP made it clear in its 2019 manifesto that it will bring CAA and provide Indian citizenship to refugees (from Pakistan, Bangladesh and Afghanistan). BJP has a clear agenda and under that promise, the Citizenship (Amendment) Bill was passed in both houses of Parliament in 2019. It got delayed due to Covid.” Further, Amit Shah stated that, minorities of the country “need not be afraid because CAA has no provision to take back the rights of any citizen”.

Court Hearing:

The bench passed an order appointing separate nodal counsels for petitions which relates t0o States of Assam and Tripure. The Adv Ankit Yadav appointed for the petitioners’ side and Adv Kanu Agarwal for the Petitioners.
Sibal: the moment something like this happens, give us liberty to move here.
CJI: We are here.
Jaising : Would your lordships be pleased to say that any citizenship granted will be subject to the outcome of the petitions.
SG : No, no.
CJI : They don’t have the infrastructure in place, the committee..
SG : This attempt was made outside the court four years back. Misleading people that you will be out of NRC. Same thing Mr. Pasha did. NRC is not an issue here. Grant of citizenship is. Please don’t do this. Nizam Pasha : Muslim members left out of NRC will be prejudiced.. 19 lakhs people left out of NRC, it applies to them.
SG : NRC is not an issue
CJI : They are not willing to make a statement, that is why we keep on April 9.
Sibal : If something happens, we will come..
CJI : What we will do is we will keep on April 9, 2024.
Jaising : In the meantime no citizenship.
SG : I am not making any statement.
SC : We direct the proceedings be listed on April 9, 2024.
Sibal : In meantime no citizenship be granted.
SG: Realistically speaking, I need 4 weeks.
CJI : You can file response in one case, opposing interim prayer.
SG : Many matters have different contentions.
Sibal : Then make a statement that no citizenship will be granted
CJI dictates order : On 22.01.2020 notice was issued. The rules have been
recently notified. This has given rise to applications for stay. SG submits that 4 weeks’ time be granted to file response. The request of 4 weeks’ time is opposed on the ground that in the meantime if citizenship is granted, it will be irreversible.
Sibal : There are serious issues of constitutionality.
Sr Adv Ranjit Kumar (for migrant) : From Balochistan, I came to India because I was persecuted. If I am given citizenship, how is it affecting them?
Jaising : They will get the right to vote!.

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Delhi High Court: ED summons cannot be quashed merely because documents required for confrontation or probe not specified in it

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The Delhi High Court in the case Mr Talib Hassan Darvesh v. The Directorate Of Enforcement observed and has said that the summons issued by Enforcement Directorate, ED cannot be quashed merely because relevant documents are required for investigation or confrontation with an accused who have not been specified in them.

The bench of Justice Anoop Kumar Mendiratta in the case observed and has stated that the summoning, in exercise of statutory powers, cannot be stalled merely on mere apprehension that the accused may be arrested and prosecuted on basis of summons issued after registration of ECIR in the proceedings which are initiated by the Enforcement Directorate, ED. The court in the case observed and has denied the interim relief to Talib Hassan Darvesh, the accused in the money laundering case.

Before the court, he also sought a stay on the summons which is issued to him by Enforcement Directorate, ED and to restrain the probe agency from taking any further coercive steps against him. Therefore, the Enforcement Directorate, ED opposed the petition which being on the ground that Darvesh cannot be insulated from any coercive action at the initial stage itself and no protective orders could be passed in his favour, ignoring the mandate of Section 45 of PMLA.

It has also been submitted before the court that the proceedings which are initiated by ED were an independent investigation into money laundering allegations based upon the ECIR and the benefit could not be granted which being merely on account of orders granting anticipatory bail to Darvesh in FIR registered by CBI.

The court stated while denying the relief that the summons issued by the Enforcement Directorate, ED cannot be quashed merely because the relevant documents required for purpose of investigation or confrontation to the petitioner, have not been specified in the summons. Adding to it, the court stated that since ECIR is an internal document which is being created before initiation of prosecution against persons involved with process or activity connected with proceeds of crime and it is not necessary to reveal the evidence collected by the Enforcement Directorate, ED at this stage in the summons forwarded to Darvesh.

Further, the court stated that the petitioner is yet to be absolved of scheduled offence by way of discharge, acquittal or quashing and as such protection orders cannot be issued in favour of petitioner ignoring the mandate as it is stated under Section 45 of PMLA, 2002 for grant of bail. Further, the court stated that summoning in exercise of statutory powers cannot be stalled merely on mere apprehension that petitioner may be arrested and prosecuted on basis of summons issued after registration of ECIR, in proceedings initiated by Enforcement Directorate, ED.

The court while considering the facts and circumstances of the case observed and found no grounds for interim relief to be made out at this stage, thus, the court disposed of the plea. Accordingly, the court the petition seeking to quash of the ECIR and summons for hearing on May 07.

The counsel, Advocates Mr. Siddharth Luthra and Mr. Siddharth Agarwal, Sr. Advs. with Mr. Ayush Agarwal, Mr. Udhav Sinha, Mr. Amar Gahlot, Ms. Srishty Jaura, Mr. Nalin Bajaj, Ms. Purvi Garg and Mr. Prashant Singh appeared for the Petitioner. The counsel, Advocates Mr. Zoheb Hossain, Special Counsel for E.D. with Mr. Vivek Gurnani, Mr. Kartik Sabharwal and Mr. Abhigiya represented the respondent.

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