AI Drafter 
TaxTMI 
TaxTMI 
2026 (5) TMI 1440
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.... the alleged offences. The petitioner also seeks restoration of the aforesaid complaint before the learned Trial Court for further proceedings. 2. The germane facts of the present cases are as under: 2.1. The petitioner/ complainant was the director of M/s. Vinay Wires and Poly Products Pvt. Ltd., which was involved in manufacturing of Poly Films, flexible laminates and trading of granule. Allegedly, on 30.06.2009, the accused persons, who were working in Director of General Central Excise Intelligence ('DGCEI') at that time, conducted the search operations on various business properties belonging to the petitioner as well as the residential premises of the petitioner. On the said date, the accused persons allegedly apprehended the petitioner from his residential premises, whereafter, he was illegally detained for more than 48 hours at the office of DGCEI, Kanpur. Several complaints were made to the office of DGCEI by the wife and father of the petitioner. The petitioner was ultimately released on 02.07.2009. It is alleged that the petitioner was subjected to physical and mental torture in detention and he was also forced to sign on certain documents and invoices. The petitio....
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....Sections 341/ 348/ 308/ 324/ 326/ 191/ 192/ 365/ 506/ 193/ 120B/ 34 of the Indian Penal Code, 1860 ('IPC') through his father in relation to the aforesaid allegations. 2.4. On receipt of the complaint, pre-summoning evidence was recorded and summons were issued under Sections 323/ 348/ 365/ 368/ 506/ 34 read with Section 120B of the IPC on 01.12.2009. The summoning order was set aside by this Court by order dated 01.03.2011 essentially on account of absence of sanction under Section 197 of the CrPC. It was also noted that the inquiry was within scope of duties and the officers enjoyed the protection of Section 40 of the Central Excise Act, 1944. It was noted that it could not be said that the acts of the officers were not done in good faith merely on the complaint of the complainant. 2.5. The Hon'ble Apex Court allowed the appeal filed by the petitioner against the same and remanded the matter to the Trial Court after observing that this Court had erred in quashing the summons on a technicality. 2.6. Pre-charge evidence was led by the petitioner where he examined himself (PW1), his father (PW2) and the Senior Manager of Hotel Balaji (PW3). The petitioner correctly identifi....
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....legations in the original complaint as well as prior statements or before the Allahabad High Court. It was also noted that all acts in Delhi were done in pursuance of proceedings in Kanpur, and the petitioner seemed to have himself come with the officials of DGCEI on service of summons. It was further noted that age of injury was not recorded in the petitioner's MLC, and no such observation was made by the Duty Magistrate in relation to the petitioner having suffered any injury or beating. It was also noted that no report of any adverse physical condition of the petitioner was made by Tihar Jail either, which belies claims of torture. It was noted that the allegations only came to be made on 12.11.2009 and although initially 4 officers were arrayed in the complaint, subsequently 5 more accused were added. Electronic evidence was rejected due to absence of certificate under Section 65B. Lastly, it was noted that DGCEI had maintained that the officers were acting in good faith in their official capacity, whereafter, no allegation of criminal conspiracy could be attributed on the accused persons. It was also noted that there was no fact that all accused officers were even present a....
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....l. He submitted that the MLCs of the petitioner have been erroneously overlooked by the Sessions Court. 9. He submitted that the acts of the officers cannot be said to be covered under protection of Section 197 of the CrPC as sanction is only required for acts committed in discharge of duties. He submitted that even in relation to the detention in Kanpur, it is wrongly noted that the incident had been judicially scrutinized without appreciating that the Hon'ble Allahabad High Court had granted express liberty to the petitioner to seek appropriate remedy in case of commission of any illegality. He submitted that even otherwise, the charge was only framed in respect of the incident in Delhi. 10. He submitted that insofar as the implication of additional accused is concerned, the CCTV footage was played in Court and the other identifiable officers were then summoned with the named accused. He submitted that the CCTV footage was downloaded from the original hard disk and the same was produced and proved by the then Hotel Manager, which is sufficient compliance of Section 65B of the Indian Evidence Act, 1872. 11. The learned counsel for the respondents submitted that no written....
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.... a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial. (iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before frami....
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....y the petitioner before this Court is that the petitioner had merely elaborated upon his initial allegations by specifying the exact role of the accused officers respectively and the same has been wrongly taken as improvements in the deposition of the petitioner. Mere clarification of previous allegations is not sufficient to discredit a witness. Ordinarily, this Court would be loath to even delve into the said aspect at the stage of framing of charges. However, as the allegations are fulcrumed primarily on the statement of the petitioner, consideration of the said aspect cannot be ignored, especially since the allegations pertain to the year 2009. 20. The learned Sessions Court has laboured and culled out the embellishments as well as admitted improvements in the allegations levelled by the petitioner. Perusal of the same indicates that although the petitioner has admitted to not mentioning the concerned allegations in his original complaint, statements dated 27.11.2009 and 01.12.2009 as well as in his writ before Allahabad High Court, he has volunteered an explanation that he was in JC and the complaint was filed by his father, who could not give the complete account. Even if ....
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....the Indian Evidence Act, 1872 is not the only mode of proving electronic evidence. The said decision has since been overruled and it is no more res integra that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B of the Indian Evidence Act, 1872 are met [Ref. Anvar P.V. v. P.K. Basheer : (2014) 10 SCC 473]. 23. Perusal of the statements tendered by the Hotel Manager at the pre-summoning stage as well as at the pre-charge stage makes it evident that he has not evidenced that a copy of the recording was made in his presence so as to enable him to vouch for the same being unedited. Rather, he has admitted that the CCTV footage was not downloaded by him and the CD (in which a copy of the footage was produced before Court) was also not prepared by him. The said witness was admittedly not present at the place of occurrence. The footage clearly was also not in custody of the Manager. Thus, once it is settled that the footage in pen-drive/ CD cannot be admitted as evidence, the whole allegation in relation to the petitioner being illegally apprehended from the hotel becomes even more fickle in absence of any compl....
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....le it is contested that the learned Sessions Judge has erroneously recorded that the petitioner never expressed his willingness to join the investigation on 10.11.2009 in pursuance of any summons, however, a perusal of the petitioner's pre-charge evidence shows that although the petitioner had alleged that he was being beaten, he had explicitly stated that he was willing to accompany them. Although it is also disputed that the petitioner did not voluntarily turn up at the office of DGCEI, however, as observed in the impugned order, it surfaced during arguments that the petitioner had himself made a claim to this effect in one of his bail applications. 29. Insofar as the contention in relation to no summons being placed on record is concerned, it is stressed that the files perused by the learned ACMM on 12.11.2009 were not the case files. It is contended that the learned ACMM had signed on a file of arrest and few other files, including a file of complaints of non-compliance of summons by DGCEI to show the non-cooperation of the petitioner during investigation. The learned Sessions Court has found the said explanation to be plausible. This Court finds no perversity in the same. ....