05 November 2024 - Legal Updates

1. If Cheque Bounce Complaint Is Withdrawn, Continuing Proclamation Proceedings U/S 174A IPC is Abuse of Power: Punjab & Haryana High Court

The Punjab & Haryana High Court has reiterated that once the main petition of cheque bounce case under section 138 of the Negotiable Instrument Act stands withdrawn in view of an amicable settlement between the parties, the continuation of proceedings under section 174A IPC (Section 209 of BNS) is nothing but an abuse of the process of law.

Justice N.S. Shekhawat was hearing plea filed by Punjab realtor Jarnail Singh Bajwa, for quashing FIR under section 174A IPC. It was contended that a complaint of cheque bounce was lodged against Bajwa and the same was dismissed after parties entered into a settlement.

However the Bajwa was declared to be a proclaimed offender, to secure his presence before the trial court.

Section 174A IPC, which was introduced in 2005, criminalises the non-appearance of proclaimed offenders at the specified place and time.

Counsel appearing for Bajwa Nikhil Ghai contended that since the petitioner has compromised the matter with the complainant and the complaint has already been withdrawn by the complainant, no purpose will be served by prosecuting the petitioner under Section 174-A IPC and the FIR and all subsequent proceedings arising therefrom are liable to be quashed by this Court.

After hearing the submissions, the Court referred High Court's decision in Baldev Chand Bansal vs. State of Haryana and another to wherein the FIR had been registered under Section 174-A IPC in view of the order passed in proceedings under Section 138 of the Act, while declaring the petitioner therein as a proclaimed offender, a co-ordinate Bench after relying upon various judgments observed that once the main petition under Section 138 of the Act stands withdrawn in view of an amicable settlement between the parties, the continuation of proceedings under Section 174-A IPC is nothing but an abuse of the process of law.

In the present case, the Court noted that the main case has already been withdrawn by the complainant. Consequently, the continuation of the proceedings under Section 174-A IPC would be abuse of process of the Court.

In the light of the above, the plea was allowed.

Case- Jarnail Singh Bajwa vs. State of Punjab

2. UP Courts Can’t Entertain Anticipatory Bail Pleas For Offences Punishable By Death As State Amendment Prohibits It: Allahabad HC

The Allahabad High Court has held that since the Code of Criminal Procedure (Uttar Pradesh Amendment) Act 2018 bars the grant of anticipatory bail in cases where the offence is punishable by a death sentence, the courts cannot entertain pre-arrest bail pleas concerning such cases.

A bench of Justice Vivek Chaudhary and Justice Narendra Kumar Johari held thus while answering a reference made by a single judge of the HC in April this year. The question referred for the consideration of the larger bench was.

“Whether section 438 (6) (b) CrPC, as it applies to the state of UP, puts an absolute bar against applicability of section 438 CrPC to offences, in which death sentence can be awarded or the aforesaid bar would apply only where the court comes to a conclusion after examining the facts of the case, that the case warrants imposition of the death sentence.”

The Court noted that since the State amendment explicitly prohibits anticipatory bail for offences punishable by death sentence, the statutory bar is absolute. Hence, the Courts (be it the High Court or the Sessions Court) cannot entertain anticipatory bail pleas in such cases.

“It is not for the courts to rewrite the law or create exceptions to a legislative mandate that is unequivocal. While the courts are the guardians of individual liberties, they are also bound to uphold the rule of law and respect the boundaries set by the legislature”, the division bench observed.

With this, the Court rejected the argument that the nature of the offence should be considered in determining whether anticipatory bail can be granted despite the statutory prohibition.

Such an approach would effectively render the legislative bar meaningless and open the door to judicial overreach, the Court opined.

It may be noted that the reference was made to the larger bench after a contradiction appeared in two high court judgments regarding whether anticipatory bail pleas would be maintainable in cases punishable by death.

For context, in the case of Deshraj Singh Vs. State of U.P. (Neutral Citation No.-2022, the single judge of the HC held that although the provision of Section 438(6)(b) of the CrPC (as amended by the UP State Amendment Act 2018) bars the granting of anticipatory bail in cases where the offence is punishable by death sentence if no case for death punishment is made out, an anticipatory bail application would be maintainable.

On the other hand, in Vishal Singh vs State of U.P [Criminal Misc Anticipatory Bail No.2759 of 2023], a co-ordinate Bench of the Court held that an anticipatory bail application would not be maintainable in cases involving the commission of an offence under Section 302 IPC, which is punishable by death.

Before the Division bench, counsel for the applicant seeking anticipatory bail strongly argued that where the Court is prima facie of the opinion that a death sentence cannot be awarded, an anticipatory bail application should be entertained.

To bolster the arguments, the counsel for the applicant referred to the top Court's judgment in the cases of Dr. Subhash Kashinath Mahajan vs The State Of Maharashtra 2018 (a judgment recalled by the SC in 2019) and Prathvi Raj Chauhan vs Union Of India 2020 [a judgment which overruled certain portion of the Subhash Kashinath case]. Both the cases arose out of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

In these cases, the Apex Court observed that if the complaint does not make out a prima facie case for the applicability of the provisions of the 1989 Act, the bar created by Sections 18 and 18- A of the 1989 Act shall not apply.

Referring to these judgments, it was argued that since the Supreme Court has interpreted Section 18 of the 1989 Act liberally, the Court should also give a similar liberal interpretation to Section 438(6)(b) of the CrPC in the present matter.

On the other hand, the AGA for the State and the counsel for opposite party No. 2 contended that the provisions of Section 438 of CrPC are not part material to Section 18 of the 1989 Act. Being a special Act, the interpretation given to the provisions of the 1989 Act cannot be simply picked up and applied to Section 438 of CrPC.

Finding merit in the arguments of opposite parties, the Court observed that the Supreme Court's interpretation of Section 18 of the 1989 Act cannot be applied to Section 438 of the CrPC.

The Court also said that any perceived hardship or injustice arising from the strict application of the statutory bar is a matter for the legislature to address through amendment and the court can't fill the perceived gaps in the law by exercising discretion contrary to the express provisions of the statute.

The division bench, however, added that the High Court, in its inherent jurisdiction under Section 482 CrPC or under Article 226/227 of the Constitution of India, can still grant interim protection from arrest if, prima facie, the offences alleged are not made out from the contents of the complaint.

Further, even an interim bail can be granted by a Court, in appropriate cases, pending a regular bail application, the Court added.

In view of this, the division bench answered the question referred to it in the negative and held that the Courts cannot entertain anticipatory bail applications in cases where the State amendment prohibits it.

Case- Jitendra Pratap Singh Alias Jeetu vs. State of Uttar Pradesh

3. Court Can’t Exercise Inherent Powers U/S 482 CrPC In Domestic Violence Proceedings: Punjab & Haryana High Court

The Punjab & Haryana High Court has made it clear that the court can exercise its inherent power under section 482 CrPC (section 482 of BNSS) on proceedings under the Domestic Violence (DV) Act.

Chief Justice Sheel Nagu and Justice Pankaj Jain said, “The Scheme of the act of 2005 (Domestic Violence Act) provides that all proceedings under section 12 of the Act of 2005 are to be governed by the provisions of the Code of Criminal Procedure, 1973 and thus it is not possible to hold that Section 482 CrPC would not be applicable to the proceedings arising out of complaints file under the Act of 2005.”

The development came after a single judge referred questions to the Division Bench, seeking clarification due to conflicting interpretations on the applicability of the jurisdiction of the High Court under section 482 CrPC on the proceedings arising out of DV Act.

The Court mainly considered the question, "Once Section 28(1) prescribes that all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of Code of Criminal Procedure, 1973, can it be held that application of Section 482 Cr.P.C. is ousted?"

After analysing the provisions, the Court said, "It is too broad a proposition to hold that merely for the reason that the complaint under Section 12 of the Act of 2005 seeking relief as provided under Chapter IV deals with civil right, applicability of Section 482 Cr.P.C. is ousted."

The bench added, If we stretch it further, the natural corollary will be to hold that inherent powers of the High Court under the Code of Civil Procedure,1908 can be invoked and shall govern the complaint filed under Section 12 of the Act of 2005 as it deals with civil rights. Holding so will militate against the mandate of Section 28(1) of the Act of 2005.

The Court also said that there is no provision under the DV Act that ousted the jurisdiction of the Court under Section 482 CrPC.

Speaking for the bench Justice Pankaj Jain concluded that, "Section 482 Cr.P.C./528 B.N.S.S. is applicable qua proceedings arising out of complaint under Section 12 of the Act of 2005. The only exception is the cases where provisions of the Act of 2005 have been invoked in proceedings pending before Civil Court or Family Court."

Case- Hemant Bhagar and Ors. vs. Prekshi Sood Bhagat