Criminal Proceedings

Principle of criminal jurisprudence arising out of maxim "communi observantia non est recedendum" means that when the law prescribes a specific procedure, it must be followed accordingly; any deviation renders the act questionable.

Provisions of Criminal Procedure Code, 1898 do not affect a special law or special jurisdiction or a special form of procedure provided under a law for the time being in force only in the absence of any specific provision to the contrary in such law.

Perusal of Section 37A of Sales Tax Act, 1990 shows that if such provisions are allowed to be invoked independently without any reference to the other relevant provisions of Sales Tax Act, 1990 including section 2(37) tax fraud, section 3 Scope of Tax, section 11 Assessment of tax and section 33 Offences and Penalties, the same would be in violation of substantial provisions relating to charge of sales tax and assessment of sales tax, as it would give unbridled powers to officials of sales tax to initiate criminal prosecution against a registered person or any person within the supply chain, including registration of FIR and arrest, even without creating a lawful demand under the law

Such interpretation in respect of provisions of section 37-A of Sales Tax Act, 1990 would make the provisions of Sales Tax Act, 1990 redundant, whereas, redundancy cannot be attributed to legislation.

Perusal of Section 37A of Sales Tax Act, 1990 shows that if such provisions are allowed to be invoked independently without any reference to the other relevant provisions of Sales Tax Act, 1990 including section 2(37) “tax fraud”, section 3 “Scope of Tax”, section 11 “Assessment of tax” and section 33 “Offences and Penalties”, the same would be in violation of substantial provisions relating to charge of sales tax and assessment of sales tax, as it would give unbridled powers to officials of sales tax to initiate criminal prosecution against a registered person or any person within the supply chain, including registration of FIR and arrest, even without creating a lawful demand under the law

Such interpretation in respect of provisions of section 37-A of Sales Tax Act, 1990 would make the provisions of Sales Tax Act, 1990 redundant, whereas, redundancy cannot be attributed to legislation.

Petitioners / importers were aggrieved of registration of FIR against them by authorities for not providing consumption certificates in terms of Entry No. 151 in Sixth Schedule to Sales Tax Act, 1990

Validity

Prosecution can be launched under S. 37-A of Sales Tax Act, 1990 against taxpayer by competent authority who, on the basis of material evidence, has reasons to believe that taxpayer has committed tax fraud or any offence warranting prosecution under Sales Tax Act, 1990

Phrase "tax fraud" is defined under S. 2(37) of Sales Tax Act, 1990 which means that registered person with dishonest intention falsifies sales tax invoices to avoid payment of duties and taxes to make a false claim of refund

Petitioners / importers under concessionary regime did not provide consumption certificate and authorities were at liberty to retain security instrument i.e. post-dated cheque, which were enforceable only when liability of petitioners / importers, if any, had been determined under S. 11 of Sales Tax Act, 1990

Before determination of the liability, in view of dispensation, authorities had illegally and without lawful authority presented security cheques, which were provided by petitioners / importers in terms of Entry No.151 in Sixth Schedule to Sales Tax Act, 1990 for presentation to bank

Launching of criminal prosecution on the basis of dishonouring of security cheques was pre-mature and without lawful authority

Authorities acted in excess of their authority, therefore, registrations of FIRs, were not sustainable in the eyes of law

Letters/refusal to provide consumption certificates were annulled by Appellate Tribunal Inland Revenue in many other cases

High Court quashed the FIRs registered against petitioners / importers, however authorities were at liberty to conduct audit of petitioners / importers in terms of S. 25 of Sales Tax Act, 1990

High Court directed the authorities that if any discrepancy was pointed out relating to sale of goods in tariff area, the matter could be adjudicated against petitioners / importers under S. 11 of Sales Tax Act, 1990 and relevant provisions of Income Tax Ordinance, 2001

Constitutional petition was allowed accordingly.

For an accused challenging any adverse order relating to his prayer for the grant of bail before arrest, the accused may not surrender to the police, and still undertake to appear and surrender in the Supreme Court at the time of hearing of his petition for the grant of bail before arrest, to render the petition maintainable

For a convict challenging his conviction and sentence of imprisonment, he has to first surrender to undergo the term of the sentence awarded, so as to render his petition (before the Supreme Court) as maintainable

In the present case, since the appellants had been convicted and sentenced to imprisonment, they both had to first surrender to serve their sentences of imprisonment, in order for their present petitions for leave to appeal to be maintainable under the Supreme Court Rules, 1980

Accordingly, appeal, being not entertainable, was dismissed.

Petitioner sought initiation of criminal proceedings against all those persons who did not declare gifts received from Tosha Khan in their assets declaration form

Validity

Jurisdiction of High Court under Art. 199 of the Constitution is subject to limitations specified therein

High Court may exercise jurisdiction under Art. 199 of the Constitution, where it is satisfied that no other adequate remedy is provided by law to any aggrieved party for redressal of its grievance in his petition

Law under S.190 of Elections Act, 2017, has provided remedies of complaint before Sessions Judge and appeal before High Court

High Court declined to interfere in the matter as adequate remedy of complainant under S. 190 (2) of Elections Act, 2017, was available to petitioner

Constitutional petition was dismissed, in circumstances.

Section 17(1) provides that the application of Qanun-e-Shahadat, 1984, is excluded in respect of proceedings on matters falling in Part I of the Schedule to the Family Courts Act, 1964

However, such exclusion has no applicability vis-à-vis criminal proceedings for the offences specified in Part II of the Schedule or S. 20 of the Family Courts Act, 1964, including the offence under S. 6(5) of the Muslim Family Laws Ordinance, 1961

Therefore, the provisions of Qanun-e-Shahadat, 1984, are applicable in criminal proceedings before the Family Court.

Appellant / importer was aggrieved of criminal proceedings initiated against him by authorities for misdeclaration of value of goods and duty paid thereon

Validity

Post General Agreement Tarrifs and Trade (GATT) era S.25 of Customs Act, 1969, not only eliminated concept of economic zones for comparison and fixation of values of imported goods for customs purposes but at the same time required such valuation to be based on actual value of imported merchandise on which duty was to be assessed and had barred valuation hinged to the value of merchandise of national, or any other country's origin, or on arbitrary or fictitious values

Offense under S.32 of Customs Act, 1969, could not be constituted in absence of mens rea on the part of an importer and could not be put in operation

Provision of S.32 of Customs Act, 1969could only be invoked on an importer upon availability of deliberate act or connivance, error, omission or misconstruction

Element of mens rea was missing and no deliberate misdeclaration was apparent from the record

Authorities did not adduce any evidence to substantiate that it was a willful fault and deliberate mis-declaration

Authorities' desire to levy fine in absence of incriminating evidence could not be entertained

Merely hypothecation would not ipso facto mean that element of mens rea was present making importer liable for imposition of penalty

High Court set aside allegation of mis-declaration and imposition of fine and penalty as the same could not be sustained

Appeal was allowed, in circumstances.

Complaint under Illegal Dispossession Act, 2005, was maintainable against any person who had forcibly dispossessed the occupier or owner

Such remedy was not meant to settle civil dispute or a substitute for civil dispute

Civil litigation was pending between the parties

Provision of section 3 of Illegal Dispossession Act, 2005, was applicable only to land grabbers

Petitioner/ complainant failed to produce any legal and cogent evidence in support of his contention, he mentioned different dates of occurrence and had also not filed document before High Court in accordance with law and civil litigation was pending between parties

High Court declined to interfere in order passed by Trial Court

Revision was dismissed, in circumstances.

Even if no order has been passed under S.12 of National Accountability Ordinance, 1999, there is a statutory prohibition under S.23 of National Accountability Ordinance, 1999, to deal with a property connected with one of the offences described under S.9 of National Accountability Ordinance, 1999

Special scheme provided under Ss.12, 13 & 23 of National Accountability Ordinance, 1999, to deal with a property owned or controlled by an accused and connected with offence allegedly committed by the latter is distinct from the powers under Criminal Procedure Code, 1898

Provisions under Cr.P.C. fall within the category of laws that are procedural and general in nature

Criminal Procedure Code, 1898, was promulgated to consolidate and amend law relating to criminal procedure and it contains general provisions which empower a police officer to detain, seize or take into possession any property suspected to be connected with the crime.

Regime of criminal litigation is placed in three compartments which can be summed up as investigative phase, judicial proceedings and powers of executive to implement orders of Court

Balance of criminal administration of justice rests in the idea that respective three organs must not encroach upon jurisdiction of others

Courts must exercise restraint and must not interfere in process of investigation

At the same time, a judge is not expected to sit like a silent spectator and let the executives mutilate rights of ordinary individuals

If act of an individual of State is found to be in sheer violation of law, it is required to be set at right by the Courts.

Concept of cognizance had to be considered in terms of S.154, Cr.P.C. at first instance and primary requirement of same was that a criminal matter could only be agitated within jurisdiction of a particular police station where offence was committed and such analogy had to be kept in mind while filing criminal complaint and content of such complaint should disclose territorial jurisdiction where prima face offence was committed.

Contentions of petitioners were that FIR was lodged after delay of one month and nineteen days, registered on the recommendation of Judicial Commission, with mala fide intention just to protect the civilians involved in firing and hurling stones if contents of FIR were deemed correct then report of Commission was not true, and if report was considered correct then FIR was not sustainable

Validity

Facts as narrated by the petitioners were that the Jammu Kashmir Liberation Front (JKLF) called a long march which violated their commitment and reached in front of Line of Control (LOC)

Owing to intensive situation existed at Control Line, petitioners, being District Administration, took measures to prevent protesters in order to save their lives as well as the lives of population living around the LOC

Meanwhile, protesters became enraged and starting firing as well as pelted stones and also set on fire the check post, hence, large number of police personnel and civilians amongst protesters sustained injuries

First Informatino Report was lodged against the said incident

One injured, died after five days of the occurrence, the people of vicinity made demonstration and demanded to constitute a Judicial Commission for inquiry into the matter

Judicial Commission was constituted by the government

Said Commission submitted reports for initiating proceedings against the petitioners

On the basis of inquiry report, impugned FIR was registered against petitioners and other police personnel

Later on, government also recommended criminal as well as disciplinary proceedings against nominated officers and police personnel

Admittedly, government was empowered under S. 3 of the Commissions of Inquiry Act, 1956 to appoint Commission

Inquiry report indicated role of petitioners as well as others during the incident

Matter, therefore, needed detailed investigation

Commission report and Notification could not be quashed, in circumstances

Even otherwise, protection had been provided under S. 9 of the Commissions of Inquiry Act, 1956, in respect of the publication of any report by Commission or orders made by the Authority, which would not be challenged through suits or other legal proceedings

High Court observed that in the impugned report of the Commission, there was no valid justification to exercise writ jurisdiction, thus, petition filed for setting aside the report of the Commission and Notification merited dismissal

High Court observed that in order to consider the question of quashing a criminal proceedings at the preliminary stage when the evidence was yet to come, the court had to take the allegations against the accused at their face value and accept the same in their entirety and then see if they did not constitute any offence for which prosecution was warranted

Court in its limited jurisdiction would not embark upon an enquiry to ascertain the innocence or otherwise of the accused

If the allegations disclosed an offence, the case could not be quashed merely because the accused denied the allegations and asserted that he had a good defence, when his defence was yet to come

Ordinarily the guilt or innocence of an accused depended on the totality of the facts and circumstances revealed during the trial

Writ petition to quash the impugned FIR, in circumstances.

For initiating criminal proceedings in cases of medical negligence, complaining person is required to show that death was due to gross negligence or recklessness of doctor.

Case was to be allowed to be disposed of on merits after recording of prosecution evidence, statement of accused under S. 342, Cr.P.C. and under S. 340(2), Cr.P.C. if so desired and after hearing the arguments of both the parties.

Mere pendency of criminal proceedings against defendant by itself cannot be a ground on which proceedings in the suit can be stayed under S.34 of Arbitration Act, 1940.

Stay of execution of order of Trial Court for imprisonment pending disposal of a petition for leave to appeal before the Supreme Court

Bar under proviso to O.XXIII, R.8 of the Supreme Court Rules, 1980, that "unless surrender was first made to an order of imprisonment, petition for leave to appeal shall not be entertained"

Scope

Petitioner, in the present case, was convicted and sentenced by Trial Court, and at time of announcement of judgment by Trial Court, petitioner slipped away and non-bailable warrants of arrest had been issued against him

Petitioner thereafter filed appeal against conviction and sentence before the High Court and vide miscellaneous application sought suspension of sentence; which application was dismissed by High Court

Question before the Supreme Court was "whether the petition for leave to appeal against impugned order of High Court could be entertained in view of the bar contained in proviso to O.XXIII, R.8 of the Supreme Court Rules, 1980"

Contention of petitioner was that after recording of his conviction and sentence by the Trial Court, he had surrendered before the High Court at the time of hearing of his application seeking suspension of sentence; hence his petition for leave to appeal should be entertained

Held, that per O.XXIII, R.8 of the Supreme Court Rules, 1980; surrender to an order of imprisonment was a condition precedent for entertainment of petition for leave to appeal and it was only after a valid and proper entertainment of such petition that the relief regarding stay of execution of the order for imprisonment or fine could be granted

Requirement of surrender to an order of imprisonment pertained only to criminal petitions involving an order of imprisonment; for example, cases where a conviction had been recorded or upheld and an express order has been passed that the petitioner may be taken into custody or cases where bail of the petitioner has been disallowed or cancelled and an order had been passed that he may be taken into custody and the same did not apply to criminal petitions seeking bail before arrest in a criminal case where no order of imprisonment had so far been passed

Trial Court, in the present case, had convicted and sentenced the petitioner and had simultaneously passed an order that the petitioner, who was on bail till then, was to be arrested and lodged in jail to serve his sentence of imprisonment

When the petitioner slipped away from the Trial Court, the Court had also issued perpetual non-bailable warrants for his arrest

Two orders of imprisonment already stood outstanding against the petitioner and admittedly he had not surrendered to the said orders of imprisonment so far

Surrender to an order of imprisonment was not the same thing as surrendering before a higher court without actually being imprisoned in compliance of a judicial order passed in such regard

Present petition for leave to appeal filed by the petitioner could not be entertained till he surrendered to his orders of imprisonment, as made explicit by the first proviso to R.8 of O.XXIII of the Supreme Court Rules, 1980

Petition for leave to appeal, being not maintainable, was dismissed, in circumstances.

In the present case, due to allegation of commission of a criminal act against the petitioners, matter was not to be adjudicated upon under the provisions of West Pakistan Revenue Land Act, 1967

Petitioners, would have every opportunity to prove their case before the Police Authorities or the court of competent jurisdiction, which would be appropriate forums for the petitioners

Petition was disposed of by the Board of Revenue with the observation that petitioners could approach the Police Authorities for redressal of their grievances, in circumstances.

For the purpose of examining question of title in respect of property, court has to simply form opinion as to whether prima facie any party is coming within the ambit of definition mentioned in S. 3 of Illegal Dispossession Act, 2005

If court forms such opinion from material placed before it, then it can proceed with matter or otherwise, as the case may be

Similar procedure is adopted by Magistrate, while exercising powers conferred upon him under S.145 Cr. P. C., which is normally required to be adopted in such proceedings.

Conviction in criminal proceedings will have no bearing on adjudication proceedings, which are independent proceedings under the Customs Act, 1969.

Prosecution on a criminal charge of a civil servant and departmental proceedings against him entirely different as one relates to the enforcement of criminal liability whereas the other is concerned with the service discipline, as such, acquittal from criminal charge has no bearing on disciplinary proceedings.

S. 561-A-Stay of proceedings-Criminal proceedings-Not normally to be postponed pending disposal of civil litigation connected with same subject-matter except where criminal liability dependent upon result of civil litigation or so intimately connected with same as to cause danger of grave injustice due to occurrence of conflict of decisions-No invariable rule to stay proceedings-Matter one of discretion entirely-Guiding principle : To see whether accused likely to be prejudiced if criminal proceedings not stayed.

Criminal proceedings-Review-Four Judges including Chief Justice hearing appeal of petitioner but opinion of Court, given by only three Judges due to name of Chief Justice being omitted from panel through inadvertence and copy of judgment not circulated to hint so that he could not give his opinion-Such shortcoming, held, merits rehearing of appeal.- [Rewiew].

Criminal Proceedings Criminal proceedings-Stay of-Pending civil suit-Criminal Court has no power to stay its hands unless decision in civil suit likely to have direct and vital bearing upon alleged guilt or otherwise of accused-Accused, at no stage, able to state precisely what his defence would be-Proceedings not stayed.

Stay-Criminal proceeding-Civil suit pending between parties on substantially identical issues-Stay of criminal case when desirable. Though no invariable rule can be laid down, it is ordinarily undesirable to institute criminal proceedings until the determination of civil proceedings in which the same issues are involved. A case in which the criminal liability of the accused could be established regardless of the result of the civil suit, stay of the criminal proceedings would be declined. But, where, the decision in the civil suit is likely to have a direct and vital bearing upon the alleged guilt or otherwise of the accused in the criminal case or render his prosecution, for all practical purposes, infructuous, the proper course is to keep the criminal case stayed. Similarly if the object of the criminal proceedings, in a private prosecution, is to use it as a lever to coerce the accused Into a compromise of civil suit or if there Is the chance of prejudice to the accused if the criminal case against him were allowed to proceed and be disposed of before the civil suit and should the case be thus decided unfavourably to him, that decision is likely to prejudice him in his defence in the civil suit as well, the Court will be fully justified in staying a criminal case before it till the disposal of a civil suit pending between the parties.

Quashing of, pending civil proceedings on same facts-Not advisable unless upon ground of a formal and legal defect in complaint.

Penal Code (XLV of 1860), S. 211-"Criminal proceeding Moving a Magistrate under S. 107, Criminal Procedure Code (V of 1898) becomes "criminal proceeding" within meaning of S. 211, Indian Penal Code after issue of notice to respondent-Before issue of notice, false or malicious information to Magistrate under S. 107, Criminal Procedure Code covered not by S. 211 but by S. 182, Indian Penal Code.