Case Briefs

Supreme Court: On being appraised of high number of pending bail applications in 10-14 years old cases, the Division Bench of Sanjay Kishan Kaul and M.M. Sundresh, JJ., directed the Lucknow Bench of Allahabad High Court to decide all the cases in one go. The Bench directed,

“We would like a closure to all these matters of bail before the next date as the matters are directed to be taken up in one go.”

The Court had called a report from the Registrar of the Lucknow Bench of Allahabad High Court with regard to the submission that no criminal Bench available in the Court to hear matters for the last 25 days. Though the report suggested that the factual position was not what had been alleged, it also highlighted the number of convicts in jail for more than 14 years and 10 years whose appeals are pending consideration. The Court remarked,

“What is of concern to us is cases which are pending for 10 years and 14 years in appeal, where bail applications are also pending and some of them are in incarceration even without pending bail applications as they may have been disposed of.”

On the submission of the High Court that in single offence cases, the matters are referred for remission after 14 years of actual incarceration and 20 years with remission, the Court expressed,

“We see no reason why these cases are not dealt with in one go by asking the State Government to take a stand in respect of such cases which are single offence cases and pending for 10 years or more and unless there are special circumstances, all of them can be enlarged on bail.”

To clear the backlog of some appeals, the Court directed that as far as cases which meet the norms of remission, the State Government, irrespective of pendency of the appeal, should be forthwith asked to take a call on the plea of remission as it may also facilitate posting all of the matters at one go. Further, the Court suggested that the counsels appearing for the convicts could be asked whether they would be satisfied with cases being considered for remission or would also like to urge the matter in appeal.

Noticeably, as on 22-04-2022, there were 159 convicts incarcerated for more than 14 years and 191 convicts incarcerated for 10-14 years 191, whose bail applications were pending in the High Court; making it a total of 350 pending bail applications.

Consequently, the Court directed to reach a closure to all those matters of bail before the next date as the matters were directed to be taken up in one go. The matter is listed on 25-07-2022 for directions.

[Suleman v. State of U.P., Misc. Application No.764 of 2022 in Cr. A. No.491 of 2022, decided on 09-05-2022]

Appearance by:

For Petitioner(s): Mohd. Irshad Hanif, AOR and Aarif Ali, Mujahid Ahmad, Rizwan Ahmad, Advocates

For Respondent(s): AOR Ajay Vikram Singh and Nikhil Goel, Naveen Goel, Priyanka Singh, Ajay Kumar Prajapati, Narender Rana, Neelambar Jha, Advocates

Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: In a case where it was argued before the Court that an accused cannot be prosecuted under the Gangsters Act, 1986 for a single offence/FIR/charge sheet with respect to any of the antisocial activities mentioned in Section 2(b), the bench of MR Shah* and BV Nagarathna, JJ has held that even a single crime committed by a ‘Gang’ is sufficient to implant Gangsters Act on such members of the ‘Gang’.

Observing that there is no specific provision under the Gangsters Act, 1986 like the specific provisions under the Maharashtra Control of Organized Crime Act, 1999 and the Gujarat Control of Terrorism and Organized Crime Act, 2015 that while prosecuting an accused under the Gangsters Act, there shall be more than one offence or the FIR/charge sheet, the Court said that

“even in case of a single offence/FIR/charge sheet, if it is found that the accused is a member of a ‘Gang’ and has indulged in any of the anti-social activities mentioned in Section 2(b) of the Gangsters Act, such as, by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person and he/she can be termed as ‘Gangster’ within the definition of Section 2(c) of the Act, he/she can be prosecuted for the offences under the Gangsters Act.”

On a fair reading of the definitions of ‘Gang’ and ‘Gangster’ under the Gangsters Act, 1986, the Court explained that a ‘Gang’ is a group of one or more persons who commit/s the crimes mentioned in the definition clause for the motive of earning undue advantage, whether pecuniary, material or otherwise. Even a single crime committed by a ‘Gang’ is sufficient to implant Gangsters Act on such members of the ‘Gang’. The definition clause does not engulf plurality of offence before the Gangsters Act is invoked.

A member of a ‘Gang’ acting either singly or collectively may be termed as a member of the ‘Gang’ and comes within the definition of ‘Gang’, provided he/she is found to have indulged in any of the anti-social activities mentioned in Section 2(b) of the Gangsters Act.

Further, a ‘Gangster’ means a member or leader or organiser of a gang including any person who abets or assists in the activities of a gang enumerated in clause (b) of Section 2, who either acting singly or collectively commits and indulges in any of the anti-social activities mentioned in Section 2(b) can be said to have committed the offence under the Gangsters Act and can be prosecuted and punished for the offence under the Gangsters Act.

Reading the relevant provisions of the Gangsters Act together, the Court concluded that there can be prosecution against a person even in case of a single offence/FIR/charge sheet for any of the anti-social activities mentioned in Section 2(b) of the Act provided such an anti-social activity is by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person.

The Court was deciding the case where allegedly the main accused P.C. Sharma was a gang leader and who was the mastermind and he hatched the criminal conspiracy along with other co-accused including the appellant to commit the murder of the deceased Sadhna Sharma for a pecuniary benefit as there was a property dispute going on since long between the family members. The other co-accused were already charge sheeted/prosecuted for the offence under the Gangsters Act and therefore the appellant and the other two co-accused being members of the ‘Gang’ were also required to be prosecuted for the offences under the Gangsters Act also like other co-accused.

Applying the law enunciated above to the facts and circumstances of the case, the Court held that it cannot be said that no prosecution could have been initiated against the appellant-accused for the offences under Sections 2/3 of the Gangsters Act, 1986.

[Shraddha Gupta v. State of Uttar Pradesh, 2022 SCC OnLine SC 514, decided on 26.04.2022]

*Judgment by: Justice MR Shah


For appellant: Advocate Divyesh Pratap Singh

For State: Advocate Sanjay Kumar Tyagi

For informant: Advocate Shuvodeep Roy

Case BriefsSupreme Court

Supreme Court: In a case where the Karnataka High Court had reversed the judgment of Karnataka Administrative Tribunal directing compulsory retirement of a Government Servant after being found guilty of bribery, the bench of Dr. DY Chandrachud* and Surya Kant, JJ has held that acquittal of a person in the course of the criminal trial does not impinge upon the authority of the disciplinary authority or the finding of misconduct in the disciplinary proceeding.

Factual Background

  • The respondent, working as a Village Accountant at Revathagao in Indi Taluka of Bijapur District in Karnataka, was charged for demanding a bribe for deleting the name of a person from Column No. 11 of the RTC with regard to land bearing Survey No. 54, situated at Shirdona Village.
  • A criminal complaint was registered with the Lokayukta police against the respondent for the commission of an offence punishable under Sections 7 and 13(1) (d) read with Section 13 (2) of the Prevention of Corruption Act 1988.
  • After the investigation, a charge sheet was submitted against the respondent by the Lokayukta police in Special Case No. 20 of 2011 in the Court of Special Judge at Bijapur, who gave the benefit of doubt to the respondent and acquitted him of all charges.
  • A disciplinary enquiry was initiated under Section 7(2) of the Karnataka Lokayukta Act 1984 and the Lokayukta held that the charge against the respondent was proved and recommended the penalty of compulsory retirement from service.
  • The disciplinary authority held that the misconduct was proved and imposed a penalty of compulsory retirement.
  • Aggrieved by the penalty, the respondent moved the Karnataka Administrative Tribunal. The Tribunal upheld the order of compulsory retirement.
  • The Karnataka High Court set aside the judgment of the Tribunal.

Disciplinary enquiry vis-à-vis Criminal Trial

The principles which govern a disciplinary enquiry are distinct from those which apply to a criminal trial. In a prosecution for an offence punishable under the criminal law, the burden lies on the prosecution to establish the ingredients of the offence beyond reasonable doubt. The accused is entitled to a presumption of innocence. The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment. Unlike a criminal prosecution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, a charge of misconduct has to be established on a preponderance of probabilities. The rules of evidence which apply to a criminal trial are distinct from those which govern a disciplinary enquiry. The acquittal of the accused in a criminal case does not debar the employer from proceeding in the exercise of disciplinary jurisdiction.

Scope of Judicial Review

In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not re-appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether:

  • the rules of natural justice have been complied with;
  • the finding of misconduct is based on some evidence;
  • the statutory rules governing the conduct of the disciplinary enquiry have been observed; and
  • whether the findings of the disciplinary authority suffer from perversity; and (vi) the penalty is disproportionate to the proven misconduct.


The Court observed that none of the above tests for attracting the interference of the High Court were attracted in the present case. The Karnataka Administrative Tribunal having exercised the power of judicial review found no reason to interfere with the award of punishment of compulsory retirement. The Division Bench of the High Court exceeded its jurisdiction under Article 226 and trenched upon a domain which falls within the disciplinary jurisdiction of the employer. The enquiry was conducted in accordance with the principles of natural justice. The findings of the inquiry officer and the disciplinary authority were held to be sustainable with reference to the evidence which was adduced during the enquiry. Hence, the acquittal of the respondent in the course of the criminal trial did not impinge upon the authority of the disciplinary authority or the finding of misconduct in the disciplinary proceeding.

[State of Karnataka v. Umesh, 2022 SCC OnLine SC 345, decided on 22.03.2022]

*Judgment by: Justice Dr. DY Chandrachud


For appellant: Advocate V N Raghupathy

For Respondent: Advocate Ashwin V Kotemath

Case BriefsHigh Courts

Delhi High Court: Rajnish Bhatnagar, J., dismissed a matter revolving around the dishonour of cheque under Section 138 of the Negotiable Instruments Act.


Respondent 2 had filed a complaint under Section 138 of the Negotiable instruments Act, 1881 against the revisionist stating that he had taken a friendly loan of Rs 4,80,000 from the respondent for a period of one month.

The revisionist had issued a cheque for the above-said amount, but the said cheque was returned with the remark “fund insufficient”. Thereafter, the respondent issued a legal notice, but the revisionist could not make the payment within a stipulated period, hence case under Section 138 NI Act was filed.

Analysis, Law and Decision

High Court expressed that, taking into consideration the various provisions of Cr.P.C. which have been discussed in various judgments time and again demonstrate that the Negotiable Instruments Act, provides sufficient opportunity to a person who issues the cheque.

Further, the Court observed that,

Once a cheque is issued by a person, it must be honored and if it is not honored, the person is given an opportunity to pay the cheque amount by issuance of a notice and if he still does not pay, he is bound to face the criminal trial and consequences.

Trite Law

Once the issuance of a cheque and signature are admitted, the presumption of a legally enforceable debt in favour of the holder of the cheque arises.

Bench stated that while imposing sentence on the accused after his conviction, it is to be kept in mind that sentence for offence under Section 138 NI Act should be of such nature as to give proper effect to the object of the legislation and no drawer of the cheque can be allowed to take dishonour of cheque issued by him light-heartedly.

In the present matter, the revisionist submitted that the cheque was lost and he had filed a complaint of the same as well, but the original complaint was not placed on record.

Bench noted his malafides when it was found that he neither informed the bank concerned about the cheque nor requested the bank to get the payment stopped against the said cheque.

Lastly, while stating that mere statement by revisionist would not be sufficient to raise suspicion with the prosecution’s case, High Court found no infirmity in the decision of the trial court and upheld the same.[Sanjay Gupta v. State, 2022 SCC OnLine Del 822, decided on 24-3-2022]

Advocates before the Court:

For the Revisionist: Mr. Sudhanshu Palo and Mr. Surendra Kr. Roy, Advs.

For the Respondents: Ms. Manjeet Arya, APP for the State. Ms. Seema Sharma, Adv. for complainant.

Case BriefsDistrict Court

Central District, Tis Hazari Court, Delhi: Kratika Chaturvedi, DJS, while addressing a matter revolving around Section 138 of the Negotiable Instruments Act, 1881 expressed that,

“The presumptions raised under Sections 118(b) and 139 NI Act are rebuttable presumptions.

A reverse onus is cast on the accused, who has to establish a probable defence on the standard of preponderance of probabilities to prove that either there was no legally enforceable debt or other liability.”

Complainant filed a complaint through SPA holder, Mohinder Singh Jadhav against the accused persons Narinder Kaur and Lucky Bajaj under Section 138 of the Negotiable Instruments Act, 1881.

Accused 1 had taken a loan of Rs 3,50,000 from the complainant and the mortgage agreement was executed between the complainant and Narinder Kaur, thereafter accused 2 Lucky Bajaj issued a cheque with the assurance that the said cheque would be duly honoured after its presentation, however, the said cheque was returned with unpaid remarks “effect not cleared, present again”.

Thereafter, the cheque was again dishonoured with the remarks “funds insufficient”. After which, the complainant issued a legal demand notice for the cheque in question which was duly served upon the accused as the registered post was received back with the report of refusal.

Despite the service as stated above, the accused failed to pay the cheque amount, hence the present complaint was filed under Section 138 of the NI Act.

Analysis, Law and Decision

The Bench noted that the accused raised a probable defence that the cheque in question was given as a security cheque and the same was to be presented when the physical possession of the premises would be handed over.

In Court’s opinion, the accused raised a probable defence by bringing a record of facts and circumstances in order to rebut the presumption raised under Section 139 NI Act and that the non-existence of the consideration and debt is so probable that a prudent man would under the circumstances of the case, act upon the plea as it did not exist.

The Bench held that no legal liability existed in favour of the complainant as the second ingredient of Section 138 NI Act did not stand proved as the accused had been successful in establishing a probable defence on a standard of preponderance of probabilities to rebut the presumption under Sections 118 and 139 of the NI Act by punching the holes in the case of the complainant.

Cogent evidence is required to be proved beyond reasonable doubt to secure conviction in a criminal trial.

In view of the above discussion, accused 2 was acquitted. [Prabhjot Kaur v. Narinder Kaur, 2022 SCC OnLine Dis Crt (Del) 10, decided on 11-3-2022]

Advocates before the Court:

Bhagat Singh, Counsel for the Complainant

Mukesh Sharma, Counsel for the accused

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., addressed whether the magnitude of offence can be the only criterion for granting bail and further explained the object of bail.

“Object of bail is to secure the presence of the accused at the time of trial, object is this, neither punitive nor preventative, and a person who has not been convicted should only be kept in custody if there are reasons to believe that they might flee from justice or tamper with the evidence or threaten the witnesses.”

Petitioner sought regular bail in an FIR registered under Sections 406, 420, 409, 120B of the Penal Code, 1860.

Factual Matrix

An ex-servicemen filed a complaint stating, ‘Hello Taxi’ and its Directors/Officials and other unknown persons had committed cheating and fraud.  The complainant had received a message and an email from the said company stating that if he invested his money, they would give him a 200% return within 1 year. The Directors called the complainant and invited him to a place where they explained to him about the Company and their plans to expand on the lines of Uber/Ola.

After much insistence, the complainant invested Rs 9,00,000. Further, even the complainant’s friends invested rs 15 to 20 lakhs. It is stated that on the 10th of every month, installment would be sent to the account of the investors, however, he did not receive any instalments and on calling the company a clip was shown to the complainant that the Company’s accounts had been frozen.

Stating that the Complainant and many others had been defrauded of their money, the complaint was filed on the basis of which the FIR was registered.

Analysis, Law and Decision

High Court on perusal of the charge sheet noted that both the petitioners were involved in the multi-person scam involving more than Rs 200 Crores from the inception of the same and that both were instrumental in misleading the public into investing in the scheme with no intention of returning the money.

It was also noted that more 900 complaints have been made till date pertaining to the scam and the investigation revealed that the petitioner played an integral role, right from inducing the public to siphoning off of the cheated money.

It was added that the gravity of the offences was such that if the petitioners were subsequently convicted, they would be liable to be sentenced to undergo imprisonment for life.

Gravity of the Offence: Can it be the sole ground?

The Bench stated that gravity of the offence cannot be the sole ground to deny bail to the petitioners. Supreme Court’s decision in Sanjay Chandra v. CBI, (2012) 1 SCC 40, was referred.

Therefore, the magnitude of the offence cannot be the only criterion for denial of bail.

Object of Bail

Bench opined that if there is no apprehension of interference in the administration of justice in a criminal trial by an accused, then the Court should be circumspect while considering depriving the accused of their personal liberty.

Mere vague belief that the accused may thwart the investigation cannot be a ground to prolong the incarceration of the accused.

High Court noted that the petitioners were in custody for over a year now and observed that,

“Charge sheet as well as supplementary chargesheet have been filed, and all the evidence available is documentary in nature and in custody of the investigation agency. Whether or not the cheated money was entrusted to the petitioners is a matter of trial and cannot be taken into consideration at this juncture.”

Therefore, Court concluded that continued custody of the petitioner was no longer required and enlarged them on bail.

Conditions laid down for bail

  • Each petitioner shall furnish a personal bond in the sum of Rs 1,50,000 with two sureties of the like amount, one of them should be a relative of the petitioner, to the satisfaction of the trial court
  • Petitioners are directed to reside at their respective address till further orders.
  • Every Monday, Wednesday and Friday the petitioners are directed to report the Police Stations concerned
  • Petitioners should provide their mobile numbers to the investigating officer and keep the same operational at all times.
  • Petitioners shall not tamper with evidence or try to influence the witness
  • In case it is established that the petitioners have tried to influence the witnesses or tamper with the evidence, the bail granted to the petitioners shall stood cancelled.

In view of the above bail applications were disposed of.[Sunder Singh Bhati v. State, 2022 SCC OnLine Del 134, decided on 17-1-2022]

Advocates before the Court:

For the Petitioner: Pradeep Singh Rana, Ankit Rana, Abhishek Rana, Nitish Pande, Advocates

For the Respondent: Amit Chadha, APP for the State with SI Shiv Dev, P S EOW

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah and BV Nagarathna, JJ has held that merely because some of the persons who might have committed the offences are not charge-sheeted, cannot be a ground to quash the proceedings against the accused charge-sheeted after having found prima facie case against him after investigation.

In the case at hand, the Karnataka High Court had quashed the criminal proceedings against respondent for the offences under Sections 120B, 408, 409, 420 and 149 of IPC, on the ground that in absence of the officers of the drawee bank informing the payee’s banker with reference to dishonour of one of the cheques well within the time stipulated in the Clearing House Rules which amounts to offence under Sections 408 and 409 of IPC, without the presence of two of the accused in the PCR, the charge-sheet could not have been filed only against one accused.

The Supreme Cour, however, held that the same cannot be a ground to quash the criminal proceedings against the accused who was charge-sheeted by the Investigating Officer after thorough investigation.

“Merely because some other persons who might have committed the offences, but were not arrayed as accused and were not charge-sheeted cannot be a ground to quash the criminal proceedings against the accused who is charge-sheeted after a thorough investigation.”

The Court explained that during the trial if it is found that other accused persons who committed the offence are not charge-sheeted, the Court may array those persons as accused in exercise of powers under Section 319 Cr.P.C. However, merely because some of the persons who might have committed the offences are not charge-sheeted, cannot be a ground to quash the proceedings against the accused charge-sheeted after having found prima facie case against him after investigation.

The Court, hence, held that the order passed by the High Court quashing the criminal proceedings against the respondent was unsustainable, both, in law and on facts and directed that the respondent be further prosecuted for the offences for which he was chargesheeted and face trial which shall be dealt with and considered in accordance with law and on its own merits.

[Suvarna Cooperative Bank v. State of Karnataka, 2021 SCC OnLine SC 1210, decided on 09.12.2021]


For appellant: Advocate Amith Kumar

For respondent: Advocate H.V. Nagaraja Rao

*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsSupreme Court

Supreme Court: The bench of R. Subhash Reddy* and Hrishikesh Roy, JJ has held that the confessional statements of the co-accused, in absence of other acceptable corroborative evidence, are not enough to convict an accused for conspiracy.


On 14.03.2009, the police party was escorting four accused from Central Jail, Jaipur to the Court of CJM, Bhiwani by train. When the train reached at Railway Station Nangal Pathani, four young boys entered their compartment and attacked the police party in order to rescue the said accused. The accused, who were in custody, also tried to escape. They even tried to snatch the official carbine. One of the accused fired upon Head Constable, who later succumbed to his injuries.

In the complaint, it was stated that the police overpowered one person, who had thrown chilly powder in their eyes and the remaining three accused succeeded in fleeing. The apprehended accused disclosed his name and identity of other assailants.

To prove the guilt of the accused, prosecution examined as many as 23 witnesses in support of its case. The statements of the accused were also recorded under Section 313 of the Cr.P.C. They had pleaded that they were innocent and had been falsely implicated.

The Additional Sessions Judge by judgment dated 14.01.2010, held all the accused guilty for commission of offences punishable under Sections 224, 225, 332, 353, 302 r/w Section 120-B of the Penal Code. The Punjab and Haryana High Court affirmed the conviction.


To prove the charge of conspiracy, within the ambit of Section 120-B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. At the same time, it is to be noted that it is difficult to establish conspiracy by direct evidence at all, but at the same time, in absence of any evidence to show meeting of minds between the conspirators for the intended object of committing an illegal act, it is not safe to hold a person guilty for offences under Section 120-B of IPC.

“A few bits here and a few bits there on which prosecution relies, cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy.”

On the question of relying on the confessional statement of the co-accused, the Court took note of the ruling in Indra Dalal v. State of Haryana, (2015) 11 SCC 31, wherein it was explained that,

“16. The philosophy behind the aforesaid provision is acceptance of a harsh reality that confessions are extorted by the police officers by practising oppression and torture or even inducement and, therefore, they are unworthy of any credence. The provision absolutely excludes from evidence against the accused a confession made by him to a police officer. This provision applies even to those confessions which are made to a police officer who may not otherwise be acting as such. If he is a police officer and confession was made in his presence, in whatever capacity, the same becomes inadmissible in evidence. This is the substantive rule of law enshrined under this provision and this strict rule has been reiterated countlessly by this Court as well as the High Courts.

17. The word “confession” has nowhere been defined. However, the courts have resorted to the dictionary meaning and explained that incriminating statements by the accused to the police suggesting the inference of the commission of the crime would amount to confession and, therefore, inadmissible under this provision. It is also defined to mean a direct acknowledgment of guilt and not the admission of any incriminating fact, however grave or conclusive. Section 26 of the Evidence Act makes all those confessions inadmissible when they are made by any person, whilst he is in the custody of a police officer, unless such a confession is made in the immediate presence of a Magistrate. Therefore, when a person is in police custody, the confession made by him even to a third person, that is, other than a police officer, shall also become inadmissible.”

Considering that in Uppa alias Manjunatha v. State of Karnataka, (2013) 14 SCC 729, it was held that when an accused is held guilty and sentenced to imprisonment, confirmation of sentence by the High Court is justifiable only in the event of giving sound reasons upon analysis of material evidence, the Court noticed that in the case on hand, a perusal of the judgment of the High Court revealed that except referring to depositions, High Court has not considered the evidence at all and confirmed the conviction and sentence as ordered by the Trial Court.

Ruling on facts

On close scrutiny of evidence on record, the Supreme Court held that prosecution failed to prove its case, that the appellant in the present case, had conspired with other accused for the offences for which he was charged.

“Except the alleged confessional statements of the coaccused and in absence of any other corroborative evidence, it is not safe to maintain the conviction and sentence imposed upon the Appellant.”

The Court held that the findings recorded by the Trial Court in convicting the appellant mainly on the ground that he was one of the conspirators for the crime in question, is erroneous and illegal. The High Court also, did not considered the evidence on record in proper perspective and erroneously confirmed the conviction and sentence imposed on the appellant.

The Court, hence, set aside the conviction and ordered the release of the appellant.

[Parveen v. State of Haryana, 2021 SCC OnLine SC 1184, decided on 07.12.2021]


For appellant: Advocate Rishi Malhotra

For State: Addl. AG Bansuri Swaraj

*Judgment by: Justice R. Subhash Reddy

Case BriefsSupreme Court

Supreme Court: Explaining the principles of sentencing policy, the 3-judge bench of NV Ramana, CJ and Surya Kant* and AS Bopanna, JJ has held that while there are practical difficulties in achieving absolute consistency in regards to sentencing, the awarding of just and proportionate sentence remains the solemn duty of the Courts and they should not be swayed by nonrelevant factors while deciding the quantum of sentence.

Principle of proportionality

Explaining the principle of proportionality, the Court said that this principle of commensurate sentencing treats offenders as agents capable of evaluating their own illegal conduct and the social censure associated with it, which is communicated to them by imposing a proportionate sentence. The exercise for assessing ‘proportionality’ is thus dependent upon the gravity of the offence which is determined according to –

(a) mischief caused or risk involved in the offense;

(b) the overall conduct of the offender and;

(c) motives ascribed to the felon.

The Court also stressed upon the guarantee of even-handedness before the law(s), as enshrined in Article 14 of the Constitution and said that the equality of treatment so as to eliminate discriminatory practices in the award of sentencing, is integral to the canons of proportionality.

It, however, clarified that,

“… we cannot be incognizant of the fact that there are practical difficulties in achieving absolute consistency in regards to sentencing. It must be candidly acknowledged that there is an element of discretion present while adjudicating the issue of sentence, however, the same cannot be exercised in an unprincipled manner. This Court has explicitly ruled out the practice of awarding disproportionate sentences, especially those that showcase undue leniency, for it would undermine the public confidence in efficacy of law.”

What should the Courts do? 

Noticing that the sentencing policy keeps pace with changing time, the Court said that the primary emphasis while deciding the quantum of sentence should lie on the gravity or penal value of the offense. However, other guiding elements of rehabilitative justice model, including, appreciation of grounds for mitigation of sentence also deserve to be duly considered within the permissible limits of judicial discretion.

“The awarding of just and proportionate sentence remains the solemn duty of the Courts and they should not be swayed by nonrelevant factors while deciding the quantum of sentence. Naturally, what factors should be considered as ‘relevant’ or ‘non-relevant’ will depend on the facts and circumstances of each case, and no straight jacket formula can be laid down for the same.”

[Surinder Singh v. State, 2021 SCC OnLine SC 1135, decided on 26.11.2021]

*Judgment by: Justice Surya Kant

Know Thy Judge | Justice Surya Kant

Also read:

Explained| Is ‘motive’ an indispensable ingredient for proving the charge of attempt to murder?

Case BriefsSupreme Court

Supreme Court: In the case where two different criminal appeals were being heard against two sets of accused, on account of one of them absconding, and decided against two different judgments based upon evidence recorded in separate trials, though for the commission of the same offence, the 3-judge bench of Dr. DY Chandrachud, Vikram Nath* and BV Nagarathna, has held that the Madras High Court fell into an error while passing a common judgement, based on evidence recorded in only one trial, against two sets of accused persons having been subjected to separate trials.

Why the High Court’s judgment was erroneous

Holding that the High Court ought to have distinctly considered and dealt with the evidence of both the trials and then to decide the culpability of the accused persons, the Court said,

“The essence of the above synthesis is that evidence recorded in a criminal trial against any accused is confined to the culpability of that accused only and it does not have any bearing upon a co-accused, who has been tried on the basis of evidence recorded in a separate trial, though for the commission of the same offence.”

Additional Solicitor General Vikram Banerjee had submitted before the Court that the accused could not allege prejudice in the present case as the evidence is the same in both the cases.

The Court, however, couldn’t agree with the submission and said that whether prejudice or not, the fact remains that the High Court committed an error of law in dealing with the evidence of one trial for deciding both the appeals arising out of two separate trials.

Stating that it cannot proceed on presumption and assume that everything was identical word to word, Court explained that,

“The role of each accused cannot be said to be the same. The same witnesses could have deposed differently in different trials against different accused differently depending upon the complicity or/and culpability of such accused. All these aspects were to be examined and scrutinised by the Appellate Court while dealing with both the appeals separately and the evidence recorded in the respective trials giving rise to the appeals.”

Whether to remand one case or both to the High Court for fresh decision

The Supreme Court decided to send back both the matters to the High Court and said that by remanding only the case in which the evidence was not considered and proceeding to decide the other case itself, no fruitful purpose would be served and in fact, it would be an exercise resulting in complications and contradictions and even conflicts.

“If we proceed to hear one appeal wherein the evidence has been considered by the High Court and we agree with the same, then it would influence the High Court in deciding the other matter on remand. Further, even if we could hold back this appeal and await decision of the High Court in the matter which we remand, then also the High Court would not be able to take an independent decision and would be influenced by the judgment as we would be entertaining one appeal. Moreover, if we allow one of the appeals which we are holding back, then, nothing may remain for the High Court to decide.”

The Court also noticed that the single Judge of the High Court has apparently not adopted the correct procedure prescribed under law and therefore, the judgment of the High Court needs to be set aside. “Once a common judgment is set aside for one appeal, it cannot be upheld for another appeal. There cannot be a severance of the judgment particularly when it arises in a criminal case, where the rights of the accused are as important as the rights of a victim.”

Remanded both the matters to the High Court for a fresh decision, the Court made clear that all the questions of law and fact would remain open before the High Court and the parties would be free to address the High Court on all issues both on law and facts.

[AT Mydeen v. Assistant Commissioner, Customs Department, 2021 SCC OnLine SC 1017, decided on 29.10.2021]


For appellants: Senior Advocate R. Basant and S. Nagamuthu and advocate K.K. Mani,

For respondent: Vikramjit Banerjee, Additional Solicitor General

*Judgment by: Justice Vikram Nath

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud* and BV Nagarathna, JJ has formulated “broad, general” principles governing rules for granting parole and furlough, holding that parole and furlough are distinct in nature and that although furlough can be claimed without a reason, the prisoner does not have an absolute legal right to claim furlough.

Interpreting the Bombay Furlough and Parole Rules, made pursuant to Section 59 of the Prisons Act 1894, the Court noticed that the same do not confer a legal right on a prisoner to be released on furlough.

“The grant of furlough is regulated by Rule 3 and Rule 4. While Rule 3 provides the eligibility criteria for grant of furlough for prisoners serving different lengths of imprisonment, Rule 4 imposes limitations. The use of the expression “may be released” in Rule 3 indicates the absence of an absolute right. This is further emphasised in Rule 17 which states that said Rules do not confer a legal right on a prisoner to claim release on furlough. Thus, the grant of release on furlough is a discretionary remedy circumscribed by Rules 3 and 4 extracted above.”

The principles laid down by the Court are:

  • Furlough and parole envisage a short-term temporary release from custody;
  • While parole is granted for the prisoner to meet a specific exigency, furlough may be granted after a stipulated number of years have been served without any reason;
  • The grant of furlough is to break the monotony of imprisonment and to enable the convict to maintain continuity with family life and integration with society;
  • Although furlough can be claimed without a reason, the prisoner does not have an absolute legal right to claim furlough;
  • The grant of furlough must be balanced against the public interest and can be refused to certain categories of prisoners.

Important Rulings on the difference between Furlough and Parole

State of Maharashtra v. Suresh Pandurang Darvakar, (2006) 4 SCC 776

While both parole and furlough are temporary releases from confinement, parole is granted only for a specific purpose. A prisoner is entitled to apply for furlough once he has served the minimum years of sentence as stipulated in Rule 3.

The “furlough” and “parole” have two different purposes. It is not necessary to state the reasons while releasing the prisoner on furlough, but in case of parole reasons are to be indicated in terms of Rule 19. But release on furlough cannot be said to be an absolute right of the prisoner as culled out from Rule 17. It is subject to the conditions mentioned in Rules 4(4) and 6. Furlough is allowed periodically under Rule 3 irrespective of any particular reason merely with a view to enable the prisoner to have family association, family and social ties and to avoid ill-effect of continuous prison life. Period of furlough is treated as a period spent in the prison. But Rule 20 shows that period spent on parole is not to be counted as remission of sentence. Since the furlough is granted for no particular reason, it can be denied in the interest of society; whereas parole is to be granted only on sufficient cause being shown.

State of Haryana v. Mohinder Singh, (2000) 3 SCC 394

“… when a prisoner is on parole his period of release does not count towards the total period of sentence while when he is on furlough he is eligible to have the period of release counted towards the total period of his sentence undergone by him.”

Asfaq v. State of Rajasthan, (2017) 15 SCC 55

A parole can be defined as conditional release of prisoners i.e. an early release of a prisoner, conditional on good behaviour and regular reporting to the authorities for a set period of time. It can also be defined as a form of conditional pardon by which the convict is released before the expiration of his term. Thus, the parole is granted for good behaviour on the condition that parolee regularly reports to a supervising officer for a specified period. Such a release of the prisoner on parole can also be temporarily on some basic grounds. In that eventuality, it is to be treated as mere suspension of the sentence for time being, keeping the quantum of sentence intact. Release on parole is designed to afford some relief to the prisoners in certain specified exigencies.

Furlough, on the other hand, is a brief release from the prison. It is conditional and is given in case of long-term imprisonment. The period of sentence spent on furlough by the prisoners need not be undergone by him as is done in the case of parole. Furlough is granted as a good conduct remission.

Key differences highlighted in the judgment are:

  • Both parole and furlough are conditional release.
  • Parole can be granted in case of short-term imprisonment whereas in furlough it is granted in case of long-term imprisonment. Duration of parole extends to one month whereas in the case of furlough it extends to fourteen days maximum.
  • Parole is granted by Divisional Commissioner and furlough is granted by the Deputy Inspector General of Prisons.
  • For parole, specific reason is required, whereas furlough is meant for breaking the monotony of imprisonment.
  • The term of imprisonment is not included in the computation of the term of parole, whereas it is vice versa in furlough.
  • Parole can be granted number of times whereas there is limitation in the case of furlough.
  • Since furlough is not granted for any particular reason, it can be denied in the interest of the society.

[State of Gujarat v. Narayana, 2021 SCC OnLine SC 949, decided on 20.10.2021]



For State of Gujarat: Tushar Mehta, Solicitor General

For Respondent: Advocate Sanjiv Punalekar

*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Cases ReportedSupreme Court Cases

In Sharad Birdhichand Sarda v. State of Maharashtra(1984) 4 SCC 116, the bench of S. Murtaza Fazal Ali, A. Varadarajan and Sabyasachi Mukherjee, JJ laid down the following five golden principles i.e. the panchsheel of the proof of a case based on circumstantial evidence:

(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. There is not only a grammatical but a legal distinction between ‘may be proved’ and “must be or should be proved”. It is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

Read more…

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud*, Vikram Nath and BV Nagarathna, JJ has lucidly laid down the principles governing the power of the Courts to direct re-trial, Joint Trial and Separate trial and has held retrial and joint trial can be ordered only in exceptional circumstances.

Principles governing Retrial

  1. The Appellate Court may direct a retrial only in ‘exceptional’ circumstances to avert a miscarriage of justice;
  2. Mere lapses in the investigation are not sufficient to warrant a direction for retrial. Only if the lapses are so grave so as to prejudice the rights of the parties, can a retrial be directed;
  3. A determination of whether a ‘shoddy’ investigation/trial has prejudiced the party, must be based on the facts of each case pursuant to a thorough reading of the evidence;
  4. It is not sufficient if the accused/ prosecution makes a facial argument that there has been a miscarriage of justice warranting a retrial. It is incumbent on the Appellant Court directing a retrial to provide a reasoned order on the nature of the miscarriage of justice caused with reference to the evidence and investigatory process;
  5. If a matter is directed for re-trial, the evidence and record of the previous trial is completely wiped out; and

The following are some instances, not intended to be exhaustive, of when the Court could order a retrial on the ground of miscarriage of justice :

a) The trial court has proceeded with the trial in the absence of jurisdiction;

b) The trial has been vitiated by an illegality or irregularity based on a misconception of the nature of the proceedings; and

c) The prosecutor has been disabled or prevented from adducing evidence as regards the nature of the charge, resulting in the trial being rendered a farce, sham or charade.

Ukha Kolhe v. State of Maharashtra, (1964) 1 SCR 926 [Constitution Bench]

“An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of re-trial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons. [..]”

Principles governing joint trial and separate trials

State of Andhra Pradesh v. Cheemalapati Ganeswara Rao, AIR 1963 SC 1850

“… a separate trial is the rule and a joint trial is the exception. However, in case the accused persons commit different offences forming a part of the same transaction, a joint trial would be the rule unless it is proved that joint trial would cause difficulty”

  1. Section 218 provides that separate trials shall be conducted for distinct offences alleged to be committed by a person. Sections 219 – 221 CrPC provide exceptions to this general rule. If a person falls under these exceptions, then a joint trial for the offences which a person is charged with may be conducted. Similarly, under Section 223 CrPC, a joint trial may be held for persons charged with different offences if any of the clauses in the provision are separately or on a combination satisfied;
  2. While applying the principles enunciated in Sections 218 – 223 CrPC on conducting joint and separate trials, the trial court should apply a two-pronged test, namely, (i) whether conducting a joint/separate trial will prejudice the defence of the accused; and/or (ii) whether conducting a joint/separate trial would cause judicial delay.
  3. The possibility of conducting a joint trial will have to be determined at the beginning of the trial and not after the trial based on the result of the trial. The Appellate Court may determine the validity of the argument that there ought to have been a separate/joint trial only based on whether the trial had prejudiced the right of accused or the prosecutrix;
  4. Since the provisions which engraft an exception use the phrase ‘may’ with reference to conducting a joint trial, a separate trial is usually not contrary to law even if a joint trial could be conducted, unless proven to cause a miscarriage of justice; and
  5. A conviction or acquittal of the accused cannot be set aside on the mere ground that there was a possibility of a joint or a separate trial. To set aside the order of conviction or acquittal, it must be proved that the rights of the parties were prejudiced because of the joint or separate trial, as the case may be.

[Nasib Singh v. State of Punjab,  2021 SCC OnLine SC 924, decided on 08.10.2021]



Amicus curiae: Senior Advocate D Bharat Kumar

For appellant: Advocate Vipin Gogia

For State of Punjab: Advocate Uttara Babbar

For other accused: Advocates Nishesh Sharma, Narender Kumar Verma

*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud*, Vikram Nath and BV Nagarathna, JJ has held that a Preliminary Enquiry is not mandatory in all cases which involve allegations of corruption.

The Court said that in case the information received by the CBI, through a complaint or a “source information”, discloses the commission of a cognizable offence, it can directly register a Regular Case instead of conducting a Preliminary Enquiry, where the officer is satisfied that the information discloses the commission of a cognizable offence.

Holding that the institution of a Preliminary Enquiry in cases of corruption is not made mandatory before the registration of an FIR under the CrPC, Prevention of Corruption Act or even the CBI Manual, the Court said that issuing a direction to that affect will be “tantamount to stepping into the legislative domain.” 

However, it was made clear that holding the aforesaid will not take away from the value of conducting a Preliminary Enquiry in an appropriate case.

“The registration of a Regular Case can have disastrous consequences for the career of an officer, if the allegations ultimately turn out to be false. In a Preliminary Enquiry, the CBI is allowed access to documentary records and speak to persons just as they would in an investigation, which entails that information gathered can be used at the investigation stage as well. Hence, conducting a Preliminary Enquiry would not take away from the ultimate goal of prosecuting accused persons in a timely manner. However, we once again clarify that if the CBI chooses not to hold a Preliminary Enquiry, the accused cannot demand it as a matter of right.”

Important rulings

Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1

If the information received discloses the commission of a cognizable offence at the outset, no Preliminary Enquiry would be required. Further, the scope of a Preliminary Enquiry is not to check the veracity of the information received, but only to scrutinize whether it discloses the commission of a cognizable offence.

Union of India v. State of Maharashtra, (2020) 4 SCC 761

The Court reversed the decision of a two Judge Bench in Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 [Read more] which had, inter alia, held that “a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act 1989 and that the allegations are not frivolous or motivated”.

The three Judge Bench held that such a direction was impermissible since neither the CrPC nor the Atrocities Act mandate a preliminary inquiry.

“In case a cognizable offence is made out, the FIR has to be outrightly registered, and no preliminary inquiry has to be made (…). The direction would mean that even if a complaint made out a cognizable offence, an FIR would not be registered until the preliminary inquiry is held. In case a preliminary inquiry concludes that allegations are false or motivated, FIR is not to be registered, in such a case how a final report has to be filed in the Court. Direction 79.4 cannot survive for the other reasons as it puts the members of the Scheduled Castes and Scheduled Tribes in a disadvantageous position in the matter of procedure vis-à-vis to the complaints lodged by members of upper caste, for latter no such preliminary investigation is necessary. In that view of the matter it should not be necessary to hold preliminary inquiry for registering an offence under the Atrocities Act, 1989.”

Read more…

Charansingh v. State of Maharashtra,  (2021) 5 SCC 469

An enquiry at pre-FIR stage is held to be permissible and not only permissible but desirable, more particularly in cases where the allegations are of misconduct of corrupt practice acquiring the assets/properties disproportionate to his known sources of income. After the enquiry/enquiry at pre-registration of FIR stage/preliminary enquiry, if, on the basis of the material collected during such enquiry, it is found that the complaint is vexatious and/or there is no substance at all in the complaint, the FIR shall not be lodged.

However, if the material discloses prima facie a commission of the offence alleged, the FIR will be lodged and the criminal proceedings will be put in motion and the further investigation will be carried out in terms of the Code of Criminal Procedure. Therefore, such a preliminary enquiry would be permissible only to ascertain whether cognizable offence is disclosed or not and only thereafter FIR would be registered. Therefore, such a preliminary enquiry would be in the interest of the alleged accused also against whom the complaint is made.

Read more…

[CBI v. Thommandru Hannah Vijayalakshmi, 2021 SCC OnLine SC 923, 08.10.2021]



For CBI: Aishwarya Bhati, Additional Solicitor General

For respondents: Senior Advocates Siddharth Luthra and Siddharth Dave

*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: In a case where a 14-year-old had committed suicide after his PTI Teacher had allegedly “harassed and insulted him in the presence of everyone”, the bench of SA Nazeer and Krishna Murari*, JJ has held that the suicide note suggested that it was a rhetoric document, penned down by an immature mind and that it was the hypersensitive temperament of the deceased which led him to take such an extraordinary step. The Court said that the action of the teacher, otherwise would not ordinarily induce a similarly circumstanced student to commit suicide.

The Court explained that,

“A simple act of reprimand of a student for his behaviour or indiscipline by a teacher, who is under moral obligations to inculcate the good qualities of a human being in a student would definitely not amount to instigation or intentionally aid to the commission of a suicide by a student.”

What was the case about?

  • The FIR Stated that the boy, a class 9 student, was under deep mental pressure because the appellant (the GEO, PTI Sir) had harassed and insulted him in the presence of everyone and he was not willing to go to school on 25.04.2018 but was persuaded to go to school by his parents.
  • The boy was informed that the parents have been called to school next day and this brought him under further severe pressure and tension.
  • In the FIR and as also the statement of the complainant recorded by the police, no reasons or cause for the appellant to harass and insult the victim were spelled out nor there are any details with respect to any action on the part of the appellant by which the deceased boy might have felt being harassed and insulted.
  • The PT Teacher, apart from imparting Physical Training to the students, was also charged with the duty of maintaining discipline in the school which included keeping a watch upon students and oversee that they are attending the classes instead of bunking the same and moving around in the school premises without permission.
  • It was alleged that the boy generally used to bunk his classes and was warned by the appellant and other school staff a number of times.
  • On 14 19.04.2018, he was caught by the appellant bunking classes and moving around the school campus without any cause or permission and a warning was given to him.
  • On 25.04.2018, he was caught bunking classes and again the appellant issued him a warning and on account of persistent act of bunking classes, reported the same to the Principal of the School, who informed the parents of the boy to come to the school.
  • The boy committed suicide on 26.04.2018.

What did the Supreme Court say?

Abetment of suicide

What is required to constitute an alleged abetment of suicide under Section 306 IPC is there must be an allegation of either direct or indirect act of incitement to the commission of offence of suicide and mere allegations of harassment of the deceased by another person would not be sufficient in itself, unless, there are allegations of such actions on the part of the accused which compelled the commission of suicide.

Further, if the person committing suicide is hypersensitive and the allegations attributed to the accused is otherwise not ordinarily expected to induce a similarly situated person to take the extreme step of committing suicide, it would be unsafe to hold the accused guilty of abetment of suicide. Thus, what is required is an examination of every case on its own facts and circumstances and keeping in consideration the surrounding circumstances as well, which may have bearing on the alleged action of the accused and the psyche of the deceased.

Can reprimand by teacher amount to abetment of suicide?

The disciplinary measures adopted by a teacher or other authorities of a school, reprimanding a student for his indiscipline would not tantamount to provoking a student to commit suicide, unless there are repeated specific allegations of harassment and insult deliberately without any justifiable cause or reason.

“‘Spare the rod and spoil the child’ an old saying may have lost its relevance in present days and Corporal punishment to the child is not recognised by law but that does not mean that a teacher or school authorities have to shut their eyes to any indiscipline act of a student. It is not only a moral duty of a teacher but one of the legally assigned duty under Section 24 (e) of the Right of Children to Free and Compulsory Education Act, 2009 to hold regular meetings with the parents and guardians and apprise them about the regularity in attendance, ability to learn, progress made in learning and any other act or relevant information about the child.”

Hence, if, a student is simply reprimanded by a teacher for an act of indiscipline and bringing the continued act of indiscipline to the notice of Principal of the institution who conveyed to the parents of the student for the purposes of school discipline and correcting a child, any student who is very emotional or sentimental commits suicide, the said teacher cannot be held liable for the same and charged and tried for the offence of abetment of suicide under section 306 IPC.

Absence of any specific allegation or material on record

  • In the absence of any material on record even, prima-facie, in the FIR or statement of the complainant, pointing out any such circumstances showing any such act or intention that he intended to bring about the suicide of his student, it would be absurd to even think that the appellant had any intention to place the deceased in such circumstances that there was no option available to him except to commit suicide.
  • In the absence of any specific allegation and material of definite nature, not imaginary or inferential one, it would be travesty of justice, to ask the appellant-accused to face the trial. A criminal trial is not exactly a pleasant experience and the appellant who is a teacher would certainly suffer great prejudice, if he has to face prosecution on absurd allegations of irrelevant nature.

Rhetoric Suicide note

It was a note consisting of three pages with following written on each separate paper :-


02nd page – ‘NEEDED JUSTICE’


The Court noticed that the suicide note was rhetoric document, penned down by an immature mind.

“A reading of the same also suggests the hypersensitive temperament of the deceased which led him to take such an extraordinary step, as the alleged reprimand by the accused, who was his teacher, otherwise would not ordinarily induce a similarly circumstanced student to commit suicide.”

[Geo Varghese v. State of Rajasthan,  2021 SCC OnLine SC 873, decided on 05.10.2021]



For appellant: Advocate Abhishek Gupta

For respondents: Advocates Dr. Manish Singhvi and Aditya Kumar Chaudhary

*Judgment by: Justice Krishna Murari

Know Thy Judge| Justice Krishna Murari

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and AS Bopanna, JJ has held that merely because someone is the Chairman/Managing Director/Executive Director/Deputy General Manager/Planner & Executor, automatically they cannot be held vicariously liable, unless there are specific allegations and averments against them with respect to their individual role in a criminal case.

Factual Background

The Court was dealing with a case wherein it was alleged that all the accused had conspired with common intention to lay the pipeline beneath the schedule properties belonging to the complainant without any lawful authority and right whatsoever.

It is pertinent to note that original accused no.1 was a company incorporated under the Companies Act, original accused nos. 2 & 3 being Chairman and Managing Director of Accused no.1- company and accused no.4 was arrayed as an accused being Deputy General Manager (Civil & Env.) of accused no.1. Accused No.5 was the Planner and Executor of the project work of accused no.1. Likewise, accused no. 6 was also a company incorporated under the Companies Act, accused nos. 7 & 8 were arrayed as an accused being Chairman and Executive Director respectively of accused no.6. Accused no.9 was the Site Supervisor of accused no.6 and accused no.10 was the Sub-Contractor under accused no.6 and accused nos. 11 to 13 were the employees of accused no.10.

Accused No.1 intended to lay water pipeline by the side of Mangalore-Bajpe Old Airport Road abutting the schedule properties. Accused No.2 on behalf of accused No.1 appointed accused No.6 as a contractor for execution of the said project of laying the water pipe line. Accused No.6 in turn authorized accused Nos. 7 and 8 to execute and oversee the said work. They in turn had appointed accused No.9 as site supervisor and the accused No.10 being the sub-contractor engaged accused Nos. 11 to 13 as labourers. Accused Nos. 4 and 5 were entrusted the work of supervision and overseeing the pipeline works carried out by accused Nos. 6, 7 and 8 through accused Nos. 9 and 10 to 13. Accused Nos. 6 to 8 had put into service heavy machineries and excavators and their vehicles for carrying out the work. It was contended that accused Nos. 2 to 5 and 7 to 13 had conspired with common intention to lay the pipeline beneath the schedule properties belonging to the complainant without any lawful authority and right whatsoever. In furtherance thereof, they had trespassed over the schedule properties 3 and demolished the compound wall which was having the height of 7 feet and foundation of 2 feet to a distance of 500 metres. They had cut and destroyed 100 valuable trees and laid pipeline beneath the schedule properties.

It was contended that

“… the accused have committed the act of mischief and waste and caused pecuniary loss of more than Rs.27 lakhs to the complainant. All the accused are jointly and severally liable to make good the loss to the complainant.”


The bench noticed that except the bald statement that accused nos. 2 to 5 and 7 & 8 have conspired with common intention to lay the pipeline within the schedule properties belonging to the complainant, without any lawful authority and right whatsoever and in furtherance they have committed to trespass into the schedule properties of the complainant and demolished the compound wall, there were no other allegations that at that time they were present.

There were no further allegations that at the command of A2 to A5 and A7 & A8, the demolition of the compound wall has taken place. All of them are merely arrayed as an accused as Chairman, Managing Director, Deputy General Manager (Civil & Env.), Planner & Executor, Chairman and Executive Director respectively.

“Therefore, as such, in absence of any specific allegations and the specific role attributed to them, the learned Magistrate was not justified in issuing process against accused nos. 1 to 8 for the offences punishable 12 under Sections 427, 447, 506 and 120B read with Section 34 IPC.”

The Court held that issuing summons/process by the Court is a very serious matter and therefore unless there are specific allegations and the role attributed to each accused more than the bald statement, the Magistrate ought not to have issued the process.

Here are some authorities on the power of the magistrate of summoning of an accused in a criminal case:

Sunil Bharti Mittal v. Central Bureau of Investigation, (2015) 4 SCC 609

“No doubt, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.


When the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect.”

Read more: Order issuing summons to Sunil Mittal and others in 2G Scam case by Special Judge, CBI, set aside

GHCL Employees Stock Option Trust v. India Infoline Limited, (2013) 4 SCC 505

In the order issuing summons, the learned Magistrate has to record his satisfaction about a prima facie case against the accused who are Managing Director, the Company Secretary and the Directors of the Company and the role played by them in their respective capacities which is sine qua non for initiating criminal proceedings against them.

Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668

“13. Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.”

Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749

“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the 14 Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

[Ravindranatha Bajpe v. Mangalore Special Economic Zone Ltd, 2021 SCC OnLine SC 806, decided on 27.09.2021]



For original complainant: Advocate Shailesh Madiyal

For accused persons: Advocates Nishanth Patil and P.P. Hegde

*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsSupreme Court

Supreme Court: In a case where a man was allegedly murdered by his wife and colleague, the bench of Dr. DY Chandrachud* and BV Nagarathna, JJ has refused to grant bail to the colleague on the ground that he cannot claim parity with the co-accused, i.e. the wife of the deceased, who was granted bail on the ground that she had a child of eleven months with her in jail. The Court noticed that the allegations in the FIR and the material that has emerged from the investigation indicated that a major role has been attributed to him in the murder of the deceased and hence, no bail was warranted.

Three important rulings on principles governing grant of bail

Ram Govind Upadhyay v. Sudharshan Singh, (2002) 3 SCC 598

“Grant of bail though being a discretionary order — but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained.”

Some of the considerations for grant of bail are:

(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”

Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496

It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

  1. whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
  2. nature and gravity of the accusation;
  3. severity of the punishment in the event of conviction;
  4. danger of the accused absconding or fleeing, if released on bail;
  5. character, behaviour, means, position and standing of the accused;
  6. likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and
  7. danger, of course, of justice being thwarted by grant of bail.

Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, 2021 (6) SCC 230

Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance.

Read more: “Consent of parties cannot obviate the duty of the High Court to indicate its reasons”; Supreme Court explains the law on Bail

[Mahadev Meena v. Raveen Rathod, 2021 SCC OnLine SC 804, decided on 27.09.2021]



For appellant: Advocate Chitrangda Rastravara

For first respondent: Senior Advocate Siddhartha Dave

*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: Explaining the difference between the degree of proof in a criminal proceedings and departmental proceedings, the bench of Hemant Gupta* and V. Ramasubramanian, JJ has held that the burden of proof in the departmental proceedings is not of beyond reasonable doubt as is the principle in the criminal trial but probabilities of the misconduct.

Here’s the elaborate law laid down by the Supreme Court in this point:

State of Haryana v. Rattan Singh, (1977) 2 SCC 491

In a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility.

“It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. (…) The simple point is, was there some evidence or was there no evidence — not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny.”

Union of India v. P. Gunasekaran, (2015) 2 SCC 610

“In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal.”

The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

Under Articles 226/227 of the Constitution of India, the High Court shall not:

  • reappreciate the evidence;
  • interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
  • go into the adequacy of the evidence;
  • go into the reliability of the evidence;
  • interfere, if there be some legal evidence on which findings can be based.
  • correct the error of fact however grave it may appear to be;
  • go into the proportionality of punishment unless it shocks its conscience.

Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., (2005) 7 SCC 764

  • In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused “beyond reasonable doubt”, he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of “preponderance of probability”.
  • Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules.
  • In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings.

Noida Entrepreneurs Association v. NOIDA, (2007) 10 SCC 385

The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public, whereas, the departmental inquiry is to maintain discipline in the service and efficiency of public service.

[Union of India v. Dalbir Singh, 2021 SCC OnLine SC 768, decided on 21.09.2021]

*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Case BriefsHigh Courts

Karnataka High Court: M. Nagaprasanna J. allowed the criminal petition and quashed the impugned order dated 30-07-2016 passed by Additional Civil Judge, Udupi.

The facts of the case are such the wife of respondent 2/complainant borrowed finance from the Karnataka State Finance Corporation (‘the Corporation’) for establishing Sri Durga Printers and Sri Durga Printers Conventional Hall but failed to pay the loan amount on time pursuant to which the property of respondent 2 was brought to sale by way of public auction. The petitioner became the highest bidder of the property and the property was directed to be handed over to him when the complainant made objections to the auction on the ground that the property was worth more than Rs 55/- lakhs had been sold at Rs 29/- lakhs by the Corporation. Thereafter, the complainant registered an FIR against the petitioner alleging that the petitioner had threatened him with life to not interfere with the auction proceedings. Based on the complaint for the alleging offence punishable under Section 506 of the Penal Code, 1860 i.e. IPC, investigation was conducted and ‘B’ report was filed. The petitioner filed a protest petition against acceptance of ‘B’ report under Section 200 of Criminal Procedure Code i.e. Cr. PC. The Magistrate recorded the sworn statement of the complainant and on perusal of the report, directed registration of criminal case against the petitioner for offence punishable under Section 506 of the IPC and summons issued. It is at this stage, the petitioner approached this Court in the subject criminal petition.

Counsel for petitioner Mr K. N. Nitish submitted that the entire allegation against the petitioner would not make out an offence punishable under Section 506 IPC, the petitioner is innocent of the property that was put to auction and because the petitioner purchased the property belonging to the complainant, the complainant to harm the petitioner has registered the criminal case. It was also submitted that the Magistrate while rejecting ‘B’ report and directing registration of the criminal case, did not apply his mind with regard to the offence alleged or the ‘B’ report and has mechanically ordered registration of the criminal case.

Counsel for respondent Ms B.G. Namitha Mahesh submitted that since the Police have conducted investigation and the Court has not accepted the ‘B’ report, it is a matter for trial and the Magistrate at this stage need not apply his mind as everything would be at large in the trial. The petitioner can as well prove his innocence in the trial Court and this Court at this stage should not interfere or interject the criminal trial.

The Court observed that Section 503 IPC, which defines ‘criminal intimidation’ would direct that whoever threatens another person with any injury to his person, reputation or property by an act, he is not legally bound to do and executes certain threats, commits criminal intimidation. Therefore, the intention of the petitioner ought to have been to do any injury to the complainant, his reputation or property. If the complaint is seen qua Section 506 of the IPC, it does not link any action of the petitioner to Section 503 of the IPC, for an offence punishable under Section 506 of the IPC.

The Court further observed that as narrated in the complaint, the property of the complainant was sold by the Corporation for a very less price and the loan was adjusted to the auction money. It is only because the petitioner was the auction purchaser of the property, though, through legal means, the complaint is registered by the complainant. Therefore, there cannot be a better case of giving a criminal colour to a legal act of the Corporation.

The Court relied on judgment Chandrapal Singh v. Maharaj Singh, (1982) 1 SCC 466 wherein it was observed

……a tendency to perjure is very much on the increase and unless by firm action courts do not put their foot down heavily upon such persons the whole judicial process would come to ridicule. We see some force in the submission but it is equally true that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court. Complainant herein is an Advocate. He lost in both courts in the rent control proceedings and has now rushed to the criminal court. This itself speaks volumes. Add to this the fact that another suit between the parties was pending from 1975. The conclusion is inescapable that invoking the jurisdiction of the criminal court in this background is an abuse of the process of law and the High Court rather glossed over this important fact while declining to exercise its power under Section 482, Cr.P.C.”

The Court further observed that merely because a complainant files a protest petition and gives a statement with regard to his protest petition, the Magistrate ought not be swayed away by such protest petition. It is incumbent upon the learned Magistrate to consider ‘B’ report, protest petition and the evidence on record and record his finding as to why he rejects the ‘B’ report and accepts the protest petition. Application of judicious mind by the learned Magistrate while setting the criminal trial in motion, in cases particularly where protest petition is filed against the ‘B’ report by the complainant, becomes sine qua non, failing which, the order taking cognizance notwithstanding the ‘B’ report, becomes a routine exercise. Reasons to be recorded in such circumstances need not be elaborate but must bear application of mind.

The Court thus held The registration of FIR could not have been done by the Police without at the outset referring the matter to the learned Magistrate. This is yet another infirmity in the entire proceedings. Therefore, on the aforesaid reasons with regard to the application of mind on the part of the learned Magistrate and registration of FIR being violative of Section 155 of the Cr.P.C. the entire proceedings stand vitiated.”

[Nagaraj Rao v. State, Criminal Petition No. 8922 of 2017, decided on 17-08-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: A Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ. took the liberty of disagreeing with one of the most famous lines penned down by the Bard of Avon (William Shakespeare), to suggest that “Much indeed is in a name“. The Supreme Court reiterated the necessity of referring to guidelines regarding inadequacies and deficiencies in criminal trials. The Court also took note of the Draft Rules of Criminal Practice, 2021 which dictate the manner in which depositions must be translated. The Court observed that:

“The practice of translating any relevant document must not differ so significantly across forums and submissions by parties to cast severe aspersions on evidence, which may otherwise be not warranted. Idiosyncrasies of colloquial terms, used for naming an accused, could well be the difference between conviction and acquittal of an accused. “

The Court felt constrained to note few errors (typographical or otherwise) with regard to the FIR, witness statements and supplementary statements, presented at different stages in the instant case. These documents had variations either in translation or transcription, when supplied to the Court. The confusion created by multiple versions of statements and depositions in the projection of either side compelled the Court to reiterate the necessity of referring to the guidelines. The Court quoted relevant portion from its earlier order in To Issue Certain Guidelines Regarding Inadequacies & Deficiencies in Criminal Trials, In re, 2021 SCC OnLine SC 329, which reflected the precise concerns which the Court faced in appreciating the evidence presented:

“The Court noticed common deficiencies which occur in course of criminal trials. … These related, amongst others, to the manner in which documents (i.e. list of witnesses, list of exhibits, list of material objects) referred to are presented and exhibited in the judgment, and the lack of uniform practices in regard to preparation of injury reports, deposition of witnesses, translation of statements, numbering and nomenclature of witnesses, labeling of material objects, etc. These very often lead to asymmetries and hamper appreciation of evidence, which in turn has a tendency of prolonging proceedings, especially at the appellate stages.”  


The Court was deciding an appeal filed against the judgment of the Bombay High Court whereby the appellant’s conviction in a murder case was upheld. The crime was committed in January 2009, when a group of ten-twelve persons murdered one Balu by attacking him with dangerous weapons. The FIR was filed by one Arun who tried to save Balu but was himself injured in the assault. Notably, the appellant was not named in the FIR but was described by his build and appearance. He faced trial with other co-accused and was convicted for several offences under the Penal Code, 1860. The High Court upheld his conviction. Aggrieved, the appellant approached the Supreme Court.

Discussion and Observations

Main argument of the appellant was that he was not amongst the accused named in the FIR, and as the prosecution did not arrange for Test Identification Parade, his identity as an accused could not have been clearly established.

Considering the record, the Court found that while the FIR did not disclose name of the appellant as one of the accused, however, the eye-witnesses identified the appellant in supplementary statements. They named the appellant and ascribed specific role in the attack. The appellant was identified as Lalu who assaulted with a sword. He first injured Arun who tried to save Balu, and after that assaulted Balu with the sword.

Notably, the eye-witnesses referred the appellant ‘Lala’ as ‘Lalya’ at several places. On this, the Court opined that the colloquial variation was no so far removed so as to render the identification unreliable, particularly when no other person by such name was amongst the accused group. The Court, however, made a very interesting remark:

“Much indeed is in a name as in this case if we may take the liberty of disagreeing with one of the most famous lines penned down by the Bard of Avon, ‘What’s in a name’. “

The Court was of the view that though the FIR was silent on the name of the appellant, it could not throw out the prosecution case on such a basis as other reliable evidence was available in the case. It was observed:

“The FIR is certainly the starting point of the investigation, but it is well within the rights of the prosecution to produce witness statements as they progress further into the investigation and unearth the specific roles of accused persons. The FIR as is known, only sets the investigative machinery, into motion.”

The eye-witnesses ascribed the same specific role to the appellant and narrated the events in same chronology, without material discrepancies. In view of such positive identification by the eye-witnesses, the Court was of the view that Test Identification Parade was not necessary, as the identity of the appellant was known to the witnesses. The Court said that appellant’s conviction was not vitiate on this ground. Reliance was placed on Munshi Singh Gautam v. State of M.P., (2005) 9 SCC 631.

Conclusion and Decision

The Court concluded that identity of the appellant as one of the members of the attacking group and his specific role in the assault was established beyond doubt. There was cogent evidence that the appellant was part of the conspiracy in assault which led to death of Balu and injuries to Arun. As such, the conviction of the appellant could not be faulted.

In the result, the Court found no grounds to interfere with the judgment of the High Court, and consequently dismissed the appeal. [Lala v. State of Maharashtra, 2021 SCC OnLine SC 631, decided on 24-8-2021]

Tejaswi Pandit, Senior Editorial Assistant has reported this brief.