Stage At Which Section 91 Can Be Invoked: Read What Madhya Pradesh HC Has To Say
- In a case titled Special Police Establishment vs. Umesh Tiwari and anr. the Madhya Pradesh HC has held that while the victim and the Courts can invoke section 91 of CrPC at any stage of the legal proceedings, be it investigation, inquiry or trial, the accused can only invoke the same when the investigation has been completed and the chargesheet has been filed.
- In the instant case, the trial Court had allowed an application of the accused under section 91 CrPC for the summoning of the call details of the conversation between the complainant and some other people who were connected with the dispute in question. The same had been during the course of the investigation.
- The objections of the petitioner were that the same violated his right to privacy and that the accused had no right to invoke section 91 of CrPC during the pendency of the investigation.
- The HC observed that a bare reading of the impugned section makes it clear that it can be invoked at any stage of the investigation, inquiry or trial. It does not specifically provide as to who can or cannot invoke it. However, the language of the section clearly shows that it can be invoked by the Court or the Officer in-charge of the Police Station concerned when they feel that the summoning of the document for the purpose of investigation, inquiry, trial or other proceedings under CrPC.
- The Court also observed that the section confers a power upon the Court to summon any document necessary in order to do complete justice and to prevent a miscarriage of justice. The Court also concluded that the power provided for by this section should not be restricted to Courts and Police Officers only. The same power could be availed of by all the concerned parties in the case, thua, extending the power of summoning to both the prosecution and the accused.
- However, the Court also noted that the investigation proceedings are unilateral in nature, and since the accused has no role to play in the same, it would be unwise to suggest that the accused can, as of right, invoke section 91 CrPC during the pendency of the investigation.
- The Court also held that it is after filing of the chargesheet, when the proceedings become multilateral, bringing into the case the other stakeholders, that the accused can invoke section 91 CrPC as a matter of right.
- Thus, the HC held that the order of the trial Court allowing the accused to invoke section 91 CrPC during the pendency of the investigation was incorrect and the order was set aside.
Court Can Monitor Investigation While Exercising The Power Under 156(3) CrPC: Allahabad HC
- The Hon’ble Allahabad HC, in the case of Satyaprakash vs. State of UP and ors. has held that while exercising the powers vested in the Court under Section 156(3) of CrPC, the Court can also monitor the ongoing investigation.
- In a plea before the HC, the appellants had contended that the police were acting in collusion with the accused persons and were acting in dereliction of their duties as an impartial investigative agency.
- They further contended that no arrests have been made and no chargesheet has been filed in the case. The accused in the present case were accused of committing an offence under section 363 and 366 of IPC.
- In rendering their judgement in the present appeal, the HC placed reliance on the case of Sudhir Bhaskarrao tambe vs. Hemant Yashwant Dhage (2016)SCC wherein the Apex Court held that the person aggrieved by the way that the investigation was being conducted can approach the Magistrate by filing an application under section 156(3) of CrPC since the Magistrate is even empowered to monitor an ongoing investigation under the aforesaid section.
- The Court also directed the appellants to file an application in the Magistrate’s Court and filing an application before the HC was not the correct procedure. Reliance was placed upon the decision of the Hon’ble SC in Sakiri Vasu vs. State of UP (2008) SCC wherein it was held that if the aggrieved person feels that the FIR has not been registered, or, if registered, the investigation was not being done, the correct remedy would be not to file a writ petition under Article 226 before the HC, but to file an application under section 156(3) of CrPC before the Magistrate’s Court.
Application Withdrawn By The Appellant And Later Filed On The Same Transaction Will Be Barred By Res Judicata: NCLT Kochi
- In the case of Jose Samuel vs. M/s Royal International Trade and Allied Products Pvt. Ltd. has rejected an application for the initiation of a CIRP (Corporate Insolvency Resolution Process) against the defendant- Royal International Trade and Allied Products Pvt. Ltd. on the ground that the application was barred by the principle of res judicata enshrined in section 11 of CPC.
- The petitioner Jose Samuel had filed an application under section 9 of IBC seeking an initiation of CIRP proceedings against the respondent company for the payment of the defaulted amount of Rs. 4,03,23,329.
- The sister of the applicant filed an application for the initiation of CRIP against the respondent, but the application was rejected on the ground of privity of contract. Later the same was filed by the applicant through his power of Attorney holder.
- However, the same was withdrawn by the power of attorney holder later, and thus, the applicant was forced to file the present application under section 9 of the IBC which states that the Operational Creditor can initiate the CRIP proceedings against the Corporate debtor after the expiry of 10 days from the date of delivery of the notice or the invoice demanding payment if the same has not been made.
- The respondent had argued that the thumb impression of the appellant that has been taken has not been attested by any person in whose presence the same was taken, which casts serious doubts on the identity of the appellant.
- The Tribunal held that the previous application which was filed by the power of attorney holder of the applicant and the present application are identical in the sense that both sought an initiation of CIRP proceedings against the respondent.
- The applicant had withdrawn the previous application after it was served to the respondents because they knew that the same would not be decided in their favour. The same was allowed to be withdrawn with costs which goes to show that the tribunal was ready to hear their application and was ready to pass a final order.
- The applicant did not pay the costs, but instead filed the present application, which is barred by res judicata.
- Thus, in light of the aforesaid contentions, the application for the initiation of CIRP proceedings against the respondent was dismissed.