Top News Headlines 7th Feb 2022: Preliminary Inquiry Not Needed When Prosecution Of Witness Is Done Under U/S 195 IPC

Preliminary Inquiry Not Needed When Prosecution Of Witness Is Done Under U/S 195 IPC: Madhya Pradesh HC

• In the case of Laxman Rao vs. Court of Third Additional Sessions Judge, Guna and anr. the Hon’ble Madhya Pradesh HC has held that an inquiry is not an absolute necessity before prosecuting a witness under section 195 CrPC and the applicant does not have a right of hearing prior to the inquiry.
• In the instant case, the applicant was a seizure witness for the prosecution in a robbery case of the amount of Rs. 20 lakh. While he was being examined in the trial Court, he changed his stance multiple times and thereby tried to deliberately weaken the prosecution case by saying things like he forgot about the incident and goofing up the name of the area from which the money was recovered.
• While pronouncing the judgement, the trial Court also observed that the applicant has deliberately tried to weaken the prosecution case and therefore directed a complaint to be filed under section 340 CrPC for his prosecution under section 195 IPC. An objection was raised by the applicant that since no preliminary inquiry was conducted under 340 CrPC, thus the complaint was not maintainable and liable to be set aside. But the Court rejected this application.
• Aggrieved, the applicant filed an appeal which was also rejected by the Additional Sessions Judge, Guna. It was after this rejection, that the applicant moved the HC.
• On the question of whether a preliminary enquiry is mandatory for the persecution of the witnesses under 340 CrPC, the Court relied upon the judgement of the Hon’ble Apex Court in the case of Pritish vs State of Maharashtra (2002)SCC where the Apex Court has held that the object of 340 CrPC is to form an opinion by the Court that an inquiry is to be made by the Court into an offence which appears to have been committed, if it is in the interests of justice. It is in order to form such an opinion that the preliminary inquiry is necessary. The holding of such preliminary inquiry is not mandatory and can be done away with if the Court thinks fit.
• It was also held by the Apex Court in the aforementioned case the preliminary inquiry mentioned in 340 CrPC is not to find if a particular person is guilty or not, but the purpose is to decide whether the same is necessary to decipher whether the offence has been committed or not. It was in this light that the HC held that when a magistrate is of a prima facie opinion that it is in the interest of justice to proceed against a witness for giving false evidence, holding of a preliminary inquiry is not mandatory.
• The HC also observed that the applicant was a member of Gram Raksha Samiti and that he had a statutory duty to discharge. He deliberately changed his version of events multiple times to defeat the ends of justice by intentionally weakening the prosecution case.
• Thus, the HC held that the trial Court had not made any mistake in rejecting the application filed under section 340 CrPC. Thus, the revision application was dismissed.

A Reliable Testimony Of An Injured Witness Is Credible Even In The Presence Of Procedural Irregularities In A Case Under 307 IPC: Delhi HC

• The Delhi HC in the case of Saleem Khan vs The State (Govt. of NCT Delhi), while upholding the conviction of the accused under section 307 read with section 324 of IPC has held that the testimony of the injured eyewitness is credible even in the face of procedural irregularities like the non-examination of the public witness and non-recovery of the offensive weapons.
• In the instant case, the convict assaulted the injured witness on multiple occasions leading to an FIR under section 308/34 of IPC. He was further threatened by the accused because of this case, and he and his friend were assaulted at night, while they were on their way to a medical store. The injuries were on his vital body parts like the neck and the shoulder, and the weapon of offence was a knife.
• The doctor’s reports also suggested that the injuries were sharp and incisive and could have been brought about by a knife.
• During the examination, the Investigating Officer deposed that the weapon of offence could not be recovered. This was raised by the appellant in the appeal. Other discrepancies were also highlighted by the applicant, like the absence of blood stained clothes, the non-examination of the injured witnesses, etc.
• The Court brushed aside all these contentions and held that the testimony of the injured witness was found to be highly reliable as it was consistent on all other aspects.
• The Court placed reliance on the decision of the Apex Court in the case of State of UP vs. Naresh and ors. (2011) where it was held that the presence of the injured witness at the scene of the crime cannot be disputed and his testimony should be given due weightage. It is presumed that the injured witness would not let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the testimony of an injured witness can be relied upon unless there are cogent grounds for the rejection of his evidence.
• Two very important points were mentioned by the HC in this case, the first being that the recovery of the weapon of offence cannot be a necessary prerequisite for the conviction of the accused. The Court cited the case of Rakesh and anr. vs. State of UP (2021) SC in support of its contention.
• Secondly, the Court held that the non-examination of the public witness is not significant when the testimony of the injured witness is corroborated by the medical reports and another injured witness. The injuries were also of a grievous nature.
• The Court relied upon the case of Sadakat Kotwal and anr. vs. State of Jharkhand (2021) SC where the Apex Court has held that no one can enter the mind of the accused for the purpose of deciphering his intention. The same has to be ascertained from the weapon that has been used, the part of the body chosen and the nature of the injury caused.
• Thus, the Hon’ble HC upheld the decision of the lower Court convicting the accused.

Operational Debt Includes Debt Arising From Supply Of Goods Or Services From A Corporate Debtor: Supreme Court

• Setting aside the order passed by the National Company Law Appellate Tribunal (NCLAT), the Supreme Court (SC), in the case of Consolidated Construction Consortium Limited v Hitro Energy Solutions Private Limited, held that an operational creditor includes everyone person who provides or receives operational services from a corporate debtor, eventually leading to an operational debt.
• The appeal arose under Section 62 of the Insolvency and Bankruptcy Code, 2016 (IBC), from a judgment of the National Company Law Appellate Tribunal (NCLAT). The NCLAT held that since the Appellant was a purchaser and not a supplier, he was not covered under the definition of Operational Creditor under the IBC.
• Brief facts of the case are that the Appellant entered into a contract with Hitro Energy Solution (Proprietary Concern), for supply of light fittings for Chennai Metro Rail Limited (CMRL). The Proprietary Concern was taken over by the Respondent. CMRL, paid a certain sum of money on behalf of the Appellant to the Respondent. Later, CMRL cancelled the project. However, the Respondent encashed the cheque and the Appellant had to pay CMRL.
• Analysing the definition of ‘Operational Debt’, the SC observed that the phrase ‘in respect of’ given under Section 5(21) must be given a broad and purposive interpretation and disagreed with the narrow interpretation of the NCLAT. As per NCLAT, operational debt and creditors includes one supplier of goods and services to a corporate debtor and excludes persons receiving goods and services.
• In the instant case, SC held that the Appellant sought an operational service from the Proprietary Concern in relation to the contract for supply of light fittings. Encashment of the cheque despite the termination of the contract by CMRL gave rise to operational debt in favor of the Appellant. As a result, the Appellant became an operational creditor by virtue of Section 5(20) of the IBC.
• The Court also took cognizance of it’s observation in a previous judgment that IBC proceedings should not become recovery proceedings and held that the current issue before it stems entirely from dispute regarding repayment of the advance and does not deal with the quality of services provided by the Proprietary Concern.
• On the issue whether the Operational Debt of the Proprietary Concern can be realised by the Respondent, the Court held that the MOA of the Respondent was an undeniable proof that the latter had taken over the business and liabilities of the former. The Court denied the Respondent’s submission of a Board Resolution (BR) resolving not to take over the Proprietary Concern.
• In this regard, the Court observed that the conduct of the Respondent in bringing up the resolution for the first time between the NCLAT has led to an adverse inference against them and that MOA of the Respondent still stands despite the BR.
• Held, the Appellant is an Operational Creditor and can recover the advance paid.