Case BriefsHigh Courts

Jammu and Kashmir High Court: The Division Bench of Dhiraj Singh Thakur and Puneet Gupta, JJ., dismissed the application seeking suspension of sentence and for grant of bail to the applicant/appellant on the ground of delay.

The applicant had submitted that he had been put in jail for more than thirteen years. Noticing that the appeal against the order of conviction and sentence dated 23-07-2020 was filed on 06-08-2020. The issue with regard to suspension of sentence and grant of bail on account of delay in disposal of the criminal appeal had been considered by a coordinate bench of this court in Rakesh Kumar v. State of J&K, CRA No. 12 of 2018, wherein the Bench had relied on   Akhtari Bi v. State of M.P., (2001) 4 SCC 355, where the Supreme Court had held that speedy justice was a fundamental right flowing from Article 21 of the Constitution. It was held that a right accrued in favour of the accused to apply for bail in a case where there was delay in the disposal of the trial and appeals in criminal cases. It was further held that if an appeal was not disposed of within a period of 5 years for no fault of the appellant, such convicts may be released on bail on conditions as may be deemed fit and proper by the Court. In computing the period of 5 years the delay for any period, which is requisite in preparation of the record and the delay attributable to the convict or his counsel can be deducted. It was, further clarified that there may be cases where even after the lapse of 5 years the convicts may, under the special circumstances of the case, be held not entitled to bail pending the appeals filed by them.

Noticing that the appeal was preferred in the year 2018 and therefore, 5 years period had not been completed and even otherwise assuming the said period was over, the Bench said that even then it could not have mechanically granted bail without considering whether the delay in the disposal of the appeal was attributable to the appellant. Considerations as mentioned in the case of Akhtari Bi, for refusal of bail beyond 5 years also indicate that grant of bail at the expiry of five years pendency did not follow as a matter of routine. The nature, gravity and seriousness of the offence would also have to be seen. Hence, the Bench held that since five years had not elapsed from the date of the filing of the present appeal and the matter was already listed in the final hearing column, no ground was made out for suspending the sentence and granting bail in the present case.

[Raghubir Singh v. UT of J&K, 2021 SCC OnLine J&K 375, decided on 28-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court:

Counsel for the Applicant: Adv. Anil Gupta

Counsel for UT of J&K: AAG Aseem Sawhney

Case BriefsHigh Courts

Madhya Pradesh High Court: Atul Sreedharan, J., allowed a bail application of the applicant who was charged for offences under sections 420,467,468,471,472,474 read with section 120B of Penal Code, 1860. Investigating agency in the case was the Economic Offences Wing, Bhopal (EOW).

The complainant along with others had registered the FIR against the applicant and other co-accused persons. The property in question was a piece of land admeasuring 93.37 acres, the owner died leaving behind seven legal heirs. In the FIR it was alleged that t Mohammad Sharif had executed the power of attorney dated 17-01-1989 without the knowledge of the 6 legal heirs and altered the remaining paragraphs of the power of attorney and thereby committed forgery. It was also alleged that Mohammad Sharif, in connivance with other accused persons, executed various sale deeds in favour of his family members and friends one of them being the applicant and she was sought to be arrested that day for this alleged offence that was committed thirty-one years ago.

Observation and Analysis:

Case after case this court has observed that the District Judiciary is extremely tight-fisted when it comes to granting bail. Applications are routinely dismissed on cyclostyled grounds that the offence alleged is serious or that the investigation is still in progress or that the accused may influence the witnesses.

The Court shared figures with regard to pendency of bail applications before the three benches of the High Court and the number of Criminal Appeals that have been withdrawn by the appellants (still undergoing their sentence and who have not got the benefit of suspension of sentence), number of criminal appeals withdrawn from the High Court in the year 2020. The Court pointed out that huge burden of bail matters that has been shifted to the High Court, but the District Judiciary can hardly be held responsible because of professional hardships they may have to face, if they indeed start deciding bail applications applying the principle of “Bail and not Jail”.

The Court drew the attention of District Judiciary to the overcrowding of jails in the State. The Court discussed the case of Joginder Kumar v. State of U.P., (1994) 4 SCC 260 where the Supreme Court had extensively discussed the power of the police to affect an arrest. The Court further in full detail discussed the recent judgment of the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 where the Court had scathingly indicted the police for still bearing a colonial mindset and disdain for the liberty of the citizen.

The Court passed certain directions in order to ensure that the directions passed by the Supreme Court in Arnesh Kumar’s case were scrupulously implemented and followed by the police and the Judicial Magistrates in Madhya Pradesh:

 Directions to the Police

  1. where for an offence, the maximum imprisonment provided is up to 7 years, the accused shall not be arrested by the police as an ordinary course of action. Unless it is a special statute mandating such an arrest.
  2. Before effecting an arrest in such a case, the police would have to record its reasons that the arrest was essential to prevent such person from committing any further offence, or for a proper investigation of the case, or to prevent the accused from causing the disappearance of evidence or on the basis of credible apprehension that the accused would tamper with evidence or prevent a witness from disclosing such facts to the court or to the police which thereby necessitates the arrest of the accused.
  3. The State Police is directed to format and prepare a check list of pre-conditions fulfilled by the police under section 41(1)(b)(ii) of the Cr.P.C, while arresting an accused for offences bearing a maximum punishment up to 7 years. It is mandatory to supply a copy of the check list along with the remand application, to the Magistrate authorised to further remand the accused to police or judicial custody.
  4. Where decision is taken not to arrest the accused, the police shall forward an intimation to the Magistrate within two weeks of the registration of the FIR. This period may be extended by the Superintendent of Police of the district concerned with reasons to be recorded in writing.
  5. Where interrogation of the accused is required, notice in terms of section 41A Cr.P.C or s. 160 Cr.P.C be served on the accused within two weeks from the date of registration of the FIR which may be extended by the Superintendent of Police of the district concerned for reasons to be recorded in writing.
  6. Where the police does not arrest the accused and upon notice u/s. 41A or 160 Cr.P.C, the accused appears before the police and assists the police in the course of investigation, in such a situation, the police are not to arrest the accused unless, there exists compelling reasons which must be recorded, as given in paragraph 31.2.
  7. If the police does not perform as required of them as hereinabove, it would constitute contempt of the order passed by this court in addition to such other action, which may be taken against the erring officer on the administrative side.

Directions to the Judicial Magistrates:

  1. The Magistrate, while exercising powers of remand, shall ascertain if the arrest effected by the police satisfies the requirements of section 41 of the CRPC as provided in paragraph 11.2 of Arnesh Kumar’s case (see paragraph 17 supra).
  2. The Magistrate shall ascertain the availability of the check list as ordered by the Supreme Court in paragraph 11.3 of Arnesh Kumar’s case.
  3. If there is non-compliance of paragraph 11.2 and/or 11.3 of Arnesh Kumar’s case, the Magistrate shall not authorise the further detention of the accused and shall release forthwith as the arrest itself is unlawful and therefore, his detention would also be rendered unlawful on account of the police not having fulfilled the requirements of section 41 of CRPC.
  4. It is mandatory for the Magistrate authorising detention to record his independent satisfaction and also ensure in his order of remand that his satisfaction for further remand of the accused stands satisfied in compliance of paragraph 11.4 of Arnesh Kumar’s judgement.
  5. The Magistrate shall also satisfy himself whether specific reasons have been recorded for the arrest of the accused and whether those reasons are relevant, raising a reasonable conclusion that one of the conditions for further detention of the accused as an under trial is satisfied.
  6. Failure on the part of the Magistrate to perform as directed hereinabove, my see the initiation of proceedings against such Magistrate on the administrative side.

While considering an application for bail, the following may be kept in mind;

  1. Whether, granting bail to the under-trial would result in him attempting to overawe and influence the witness or influence the course of investigation, either by threat of dire consequences or by monetary inducement?
  2. Whether, the probability of the under-trial, upon his release, committing another crime while on bail, would be germane while considering grant of bail to recidivists or repeat offenders?
  3. Whether, there is a probability upon the release of the accused on bail that he would fall victim of any vengeful action by the Complainant?
  4. Whether, the release of the accused on bail would raise a reasonable apprehension of breach of peace, and social or civil unrest, on account of the nature of the offence alleged against him?
  5. Whether, the accused would destroy the evidence yet to be collected during investigation, upon his release on bail?
  6. Whether, the overwhelming nature of prima facie evidence against the accused is such that he may be tempted to abscond and evade the process of justice all together if he is enlarged on bail?

The Court allowed the bail application and requested the office to circulate the directions to all the districts and disseminate to the lowest functionary, the directions given by this Court.

[Zarina Begum v. State of M.P., 2021 SCC OnLine MP 961, decided on 13-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

For the applicant: Mr Sankalp Kochar and Mr Aman Dawra

For the respondent: Mr A. Rajeshwar Rao

Case BriefsSupreme Court

Supreme Court: The Division Bench of Dr. Dhananjaya Y. Chandrachud* and M. R. Shah, JJ., pronounced an important judgment which came out to be a significant development regarding law relating to bail. The Bench not only criticized the practice of lower Courts of attaching caveat for not treating the decision as precedent, but also emphasized on need for reasoned disposal of bail matters. The Bench expressed,

“Whether an order granting a bail is a precedent on grounds of parity is a matter for future adjudication if and when an application for bail is moved on the grounds of parity on behalf of another accused…it is for that court before whom parity is claimed to determine whether a case for the grant of bail on reasons of parity is made out.”

Factual Matrix of the Case

The High Court of Gujarat had granted bail to six persons who had been implicated in five homicidal deaths.  The genesis of the incident was that the accused had all come to the scene of offence with pistols, dhariyas and knives and that initially Vishan (A-6) and two others had fired from their rifles as a result of which five persons fell to the ground. Some of these accused were alleged to have assaulted with dhariyas and lathis over the head and body of deceased. The incident resulted in the death of five persons. Among the twenty-two accused were Vishan Heera Koli (A-6), Pravin Heera Koli (A-10), Sidhdhrajsinh Bhagubha Vaghela (A-13), Kheta Parbat Koli (A-15), Vanraj Karshan Koli (A-16) and Dinesh Karshan Akhiyani (Koli) (A-17).

On 22-10-2020, the High Court had granted bail to A-13 on the primary basis that he was armed with wooden stick and no substantial role was assigned to him. Also, there had been substantial changes in the genesis of the incident including the nature of the weapons in statement of the informant. And the allegation in the FIR was that A-6 had fired several rounds from a rifle together with other persons, the subsequent statement would indicate that the injuries had been caused not as a result of the use of firearms but by a sharp weapon. The reliance was placed by the Court on Sanjay Chandra v. CBI, 2012 (1) SCC 40, for granting bail. Later on, other accused were granted bail based on parity.

Observation and Analysis by the Court

The singular absence in the judgment of the High Court was consideration regarding nature and gravity of the crime. The incident which took place on 09-05-2020 resulted in five homicidal deaths. The orders of the High Court were conspicuous in the absence of any awareness or elaboration of the serious nature of the offence. The Bench stated, “The perversity lies in the failure of the High Court to consider an important circumstance which has a bearing on whether bail should be granted.”

In Ram Govind Upadhyay v. Sudharshan Singh, the nature of the crime was recorded as “one of the basic considerations” which has a bearing on the grant or denial of bail. The Court, in that case had held that, “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.”

We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction.

The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon 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.”

In granting bail to the six accused, the High Court has committed a serious mistake by failing to recognize material aspects of the case, rendering the orders of the High Court vulnerable to assail on the ground of perversity. The first circumstance which should have weighed with the High Court but which has been glossed over is the seriousness and gravity of the offences. Post Mortem reports had indicated extensive nature of the bodily injuries. The Bench expressed, “whether the deaths occurred as a result of bullet wounds or otherwise can make no difference on whether a case for the grant of bail was made out once a plain reading of the cross FIR indicates both the presence of the accused and the execution of their plan to assault the side of the informant with the weapons which were in the possession of the accused.”

On Caveat regarding not to the Order as Precedent

The Bench disapproved the practice of attaching caveat not be treat the order as a precedent to claim bail on the basis of parity. It stated that whether parity could be claimed by on the basis of the order granting bail to A-13 ought not to have been pre-judged by the Single Judge who was dealing only with the application for the grant of bail to A-13. The observation that the grant of bail to A-13 shall not be considered as a precedent did not constitute judicially appropriate reasoning. The Bench opined, “Whether an order granting a bail is a precedent on grounds of parity is a matter for future adjudication if and when an application for bail is moved on the grounds of parity on behalf of another accused. In the event that parity is claimed in such a case thereafter, it is for that court before whom parity is claimed to determine whether a case for the grant of bail on reasons of parity is made out.”

Does consent of parties obviate the duty of Courts to Give Reasoned Orders?

The High Court, while granting bail to Vishan (A-6) added that that the Counsel for the parties “do not press for a further reasoned order”. The grant of bail is a matter which implicates the liberty of the accused, the interest of the State and the victims of crime in the proper administration of criminal justice. It is a well-settled principle that the Court granting bail cannot obviate its duty to apply a judicial mind and to record reasons, brief as they may be, for the purpose of deciding whether or not to grant bail. The consent of parties cannot obviate the duty of the High Court to indicate its reasons why it has either granted or refused bail. This is for the reason that the outcome of the application has a significant bearing on the liberty of the accused on one hand as well as the public interest in the due enforcement of criminal justice on the other.

Lastly, the Bench added that the recording of reasons in a judicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice. The impugned orders were held to be tainted with perversity and hence, were set aside. The appeal was allowed and the all the accused were to surrender forthwith.

[Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana Makwana, 2021 SCC OnLine SC 335, decided on 20-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice Dr Dhananjaya Y. Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Appearance before the Court by:

For the Appellant: Sr. Adv. Vinay Navare, Adv. Jaikriti S Jadeja,

For the Accused: Adv. Purvish Malkan, Adv. Nikhil Goel, Adv. J S Atri and Adv. Haresh Raichura

For the State: Adv. Aniruddha P Mayee

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Dhananjaya Y. Chandrachud and M.R. Shah*, JJ., recently held in an interesting case that evaluation of evidence on merits is not permissible at the stage of considering the application for discharge and the same is beyond the scope of revisional jurisdiction of the High Courts. The Bench explained,

“At the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible.”

The High Court of Rajsthan, in exercise of its revisional jurisdiction had quashed the order passed by the Special Judge, Prevention of Corruption Act. The High Court had set aside the charges framed by the Special Judge against the respondent-accused for the offence under Section 7 of the Prevention of Corruption Act  and consequently had discharged the accused of the alleged offence.

Factual Matrix of the Case

The respondent-accused was serving as a Patwari, when it was alleged by the complainant that  that for the purpose of issuing Domicile Certificate and OBC Certificate of his son, but the Patwari in lieu of endorsing his report demanded a bribe of Rs.2,800. Prsuant to the said complaint an investigation was conducted and the accused was chargesheeted on reaching to the findings that there was a prima facie case made out under Section 7 of the PC Act.

Feeling aggrieved and dissatisfied the accused preferred revision application before the High Court whereby the High Court had discharged the accused.

It was submitted by the state that the High Court had committed a grave error in evaluating the transcript/evidence on merits which at the stage of considering the application for discharge is not permissible and is beyond the scope of the exercise of the revisional jurisdiction. It was further submitted that the accused had been charged for the offence under Section 7 of the PC Act and even an attempt is sufficient to attract the offence under Section 7 of the PC Act.

Stand taken by the Respondent

The defense raised by the respondent-accused was that, he had refused to issue residence certificate for Rajsthan and caste certificate in favor of complainant having come to know about the complaint being the permanent resident of Agra and that the complainant wanted a false residence certificate and caste certificate illegally. It was submitted that in fact the respondent-accused gave a report rejecting the request of the complainant and there was nothing pending before the accused and the decision regarding his application was already taken.

The respondent submitted that at the time of conversation two persons were present, (1) the complainant – Jai Kishore; and (2) Devi Singh. And the so far as the complainant was concerned, the accused categorically refused to accept any bribe. However, it was alleged that  the appellant had tried to confuse and mislead the Court by mixing the conversation of Devi Singh regarding his dues of Rs.4,850-/ to the bank against which he had paid Rs.2,000/- and the remaining amount of Rs.2,850/- was due to the bank. Thus, neither there was any acceptance nor there was any demand of bribe and the High Court has rightly discharged the accused. The reliance was placed on Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, it had been held that, by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him will give rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused.

Findings of the Court

At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The Bench opined that the High Court had exceeded in its jurisdiction and had acted beyond the scope of Section 227/239 Cr.P.C. While discharging the accused, the High Court had gone into the merits of the case and had considered whether on the basis of the material on record, the accused was likely to be convicted or not. For the aforesaid,

“The High Court has considered in detail the transcript of the conversation between the complainant and the accused which exercise at this stage to consider the discharge application and/or framing of the charge is not permissible at all.”

At the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible. At this stage, it is to be noted that even as per Section 7 of the PC Act, even an attempt constitutes an offence. Therefore, the High Court has erred and/or exceeded in virtually holding a mini trial at the stage of discharge application.

Lastly, the Bench stated, defence on merits is not to be considered at the stage of framing of the charge and/or at the stage of discharge application. In view of the above, the impugned judgment and order was held unsustainable in law and the same was quashed and set aside. The order passed by the Special Judge of framing charge against the accused under Section 7 of the PC Act was restored.

[State of Rajsthan v. Ashok Kumar Kashyap, 2021 SCC OnLine SC 314, decided on 13-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice M. R. Shah

Appearance before the Court by:

For the State: Adv. Vishal Meghwal

Case BriefsSupreme Court

Supreme Court: In a 38 year old case relating to murder the 3-Judge Bench of Rohinton Fali Nariman, Hemant Gupta* and B.R. Gavai, JJ., had held

“The ossification test conducted in year 2020 when the appellant was 55 years of age cannot be conclusive to declare him as a juvenile on the date of the incident.”

The instant appeal had been preferred against the order of High Court of Judicature at Allahabad, wherein the Court had dismissed the appeal filed by the appellant against his conviction under Section 302 read with Section 34 of Penal Code, 1860. The appellant had reached the Supreme Court with the contention that he was juvenile on the date of incident i.e. 20-07-1982. In support of plea of juvenility, he had relied upon family register maintained by the Panchayat, Aadhaar Card and an order passed by the High Court in the year 1982 by which the High Court had granted him bail on the basis of report of the Radiologist that the age of the appellant at that time was between 15½ – 17½ years.

Later on, perusal to an order of Supreme Court a Medical Board consisting of five doctors was constituted which had opined in the report dated 08-09-2020 that at present the age of applicant was around 40-55 years. Relying on the said report the High Court opined that,

“The occurrence took place on 20-07-1982 i.e. 38 years ago. When age of the appellant is determined on all hypothetical calculations i.e. (55-38=17 years) (40-38= 2 years) and taking the average of difference between maximum and minimum age i.e. 48-38 = 10 years, then it falls below 17 years.”

The Bench reiterated legal position that plea of juvenility could be raised at any stage even after finality of the proceedings before the Court. However, the Bench further observed that There were minor variations in law as the Rule 12(3) (a)(i) and (ii) of Rules, 2007 had been clubbed together with slight change in the language and Section 94 of the new Act did not contain the provisions regarding benefit of margin of age to be given to the child or juvenile as was provided in Rule 12(3)(b) of the Rules.

Reliance was placed on Mukarrab v. State of Uttar Pradesh, (2017) 2 SCC 210, wherein the Supreme Court while observing that, a blind and mechanical view regarding the age of a person could not be adopted solely on the basis of the medical opinion by the radiological examination, had held that,

“The ossification test cannot be regarded as conclusive when the appellants have crossed the age of thirty years.”

Since the medical report in support of the bail order was not available, the Bench stated that such order granting bail could not be conclusive determination of age of a person.

Determination of Age in the absence of conclusive Proof

First attempt to determine the age was by assessing the physical appearance of the person when brought before the Board or the Committee. In case of a person around 18 years of age, the ossification test could be said to be relevant for determining the approximate age of a person in conflict with law. However, when the person was around 40-55 years of age, the structure of bones could not be helpful in determining the age.

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, the Supreme Court had held that in context of certificate required under Section 65B of the Evidence Act, 1872, as per the Latin maxim, lex non cogit ad impossibilia, “law does not demand the impossible”. Thus, when the ossification test could not yield trustworthy and reliable results, such test could not be made a basis to determine the age of the person concerned on the date of incident. Therefore, in the absence of any reliable trustworthy medical evidence to find out age of the appellant, the Court stated that the ossification test conducted in year 2020 when the appellant was 55 years of age cannot be conclusive to declare him as a juvenile on the date of the incident.

Noticing that an application was submitted by the appellant himself for obtaining an Arms Licence prior to the date of the incident, where he had given his date of birth as 30-12-1961 which would make him of 21 years of age on the date of the incident i.e. 20-07-1982, the Court opined that,

“The appellant could not be treated to be juvenile on the date of incident as he was more than 21 years of age as per his application submitted to obtain the Arms Licence.”

Non Applicability of Falsus in Uno, Falsus in Omnibus in India

The Supreme Court in Ilangovan v. State of T.N., (2020)10 SCC 533, held, “The doctrine of Falsus in Uno, Falsus in Omnibus merely involves the question of weight of evidence which a court may apply in a given set of circumstances but it is not what may be called “a mandatory rule of evidence”. Therefore, merely because a prosecution witness was not believed in respect of another accused, the testimony of the said witness could not be disregarded qua the present appellant as the said maxim was not applicable in India. Further, it was not necessary for the prosecution to examine all the witnesses who might have witnessed the occurrence.

Hence, in the light of above considerations and the fact that the Trial Court as well as the High Court had appreciated the entire evidence to return a finding of guilt against the appellant, the instant appeal was dismissed.

[Ram Vijay Singh v. State of U.P., 2021 SCC OnLine SC 142, decided on 25-02-2021]


Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Appearance before the Court by:

For the Appellant: Senior Advocate Gopal Sankaranarayanan and Advocate Pranav Sachdeva

For the Respondent: Advocate Goel

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan*, R. Subhash Reddy and MR Shah, JJ has reiterated that an application by a person who is in no way connected with the criminal proceeding or criminal trial under Section 482 Cr.P.C. cannot ordinarily be entertained by the High Court.

Background

The Court was dealing with a case wherein a person (respondent no. 2) who is “a social activist and an advocate” and “a person having an urge to positively contribute to the society in all possible ways” had filed application under Section 482 Cr.P.C in an ongoing case against one Sanjai Tiwari under Prevention of Corruption Act, 1988, seeking direction to Special Judge to expedite and conclude Special Trial. He, further, stated in his application that although FIR was lodged in 2006 but it got delayed by tactics opted by the accused persons. “The Vigilance Department completed the investigation after about 14 years and still the accused persons are trying to get away from the charges.”

On 09.09.2020, the High Court disposed of the said application directing the Court concerned “to expedite the proceedings of the aforesaid case and conclude the same, at the earliest possible, on day to day basis without granting any unnecessary adjournment to either of the parties, in accordance with law, provided there is no impediment.”

Analysis

In order to answer the issue relating to locus of a third party to challenge the criminal proceedings or to seek relief in respect of criminal proceedings of accused, the Court referred to the judgment in Janata Dal vs. H.S. Chowdhary and others, (1993) 1 SCC 756, wherein it was held,

“Even if there are million questions of law to be deeply gone into and examined in a criminal case of this nature registered against specified accused persons, it is for them and them alone to raise all such questions and challenge the proceedings initiated against them at the appropriate time before the proper forum and not for third parties under the garb of public interest litigants.”

The Court further noticed that criminal trial where offences involved are under the Prevention of Corruption Act have to be conducted and concluded at the earliest since the offences under Prevention of Corruption Act are offences which affect not only the accused but the entire society and administration. It is also well settled that the High Court in appropriate cases can very well under Section 482 Cr.P.C. or in any other proceeding can always direct trial court to expedite the criminal trial and issue such order as may be necessary.

“A criminal trial of an accused is conducted in accordance with procedure as prescribed by the Criminal Procedure Code. It is the obligation of the State and the prosecution to ensure that all criminal trials are conducted expeditiously so that justice can be delivered to the accused if found guilty.”

However, in the present, the proceeding initiated by respondent No.2 did not appear to be a bona fide proceeding. He is in no way connected with initiation of criminal proceeding against the appellant.

“The present is not a case where prosecution or even the employer of the accused have filed an application either before the trial court or in any other court seeking direction as prayed by respondent No.2 in his application under Section 482 Cr.P.C.”

Hence, noticing that the respondent No.2 has no locus to file the application which was not clearly maintainable, the Court held that the impugned judgment of the Allahabad High Court dated 09.09.2020 cannot be sustained.

The Court, however, observed that it will be open for the trial court to expedite the criminal trial, the offences being the offences under the Prevention of Corruption Act, 1988, subject to any order passed by the High Court in pending proceedings.

[Sanjai Tiwari v. State of Uttar Pradesh, 2020 SCC OnLine SC 1027, decided on 16.12.2020]


*Justice Ashok Bhushan has penned this judgment.

Case BriefsHigh Courts

Telangana High Court: P. Naveen Rao, J., while addressing the instant matter observed that,

“When a citizen comes to the High Court alleging infringement of his right to life, liberty and privacy by opening a rowdy sheet, the Court can look into whether the decision of the police to have surveillance on the petitioner is justified and supported by the material on a record or it was initiated only to harass and humiliate the individual.

It is to be noted that mere involvement in a crime may not per se require surveillance on that person.”

Kasula Nandam is said to be the protected tenant and in possession of land to an extent, Acs.6.32 guntas in Sy. No. 170 of Kapra village, having obtained occupancy rights certificate in the year 1979.

The petitioner who used to run a cloth shop was appointed as the General Power of Attorney holder to look after the above-stated property. Further, he stated that there are several bogus claimants over the said land.

Petitioner added that several false claims on the land were made by lodging complaints against the petitioner over a period of time.

On the ground of registration of crimes, and pending trial before the Criminal Courts, rowdy sheet is opened and in the guise of the opening of the rowdy sheet, respondent-Police are keeping close surveillance on the movements of the petitioner, affecting his right, liberty and privacy.

Respondent-Police alleged that there is ample evidence alleging that the petitioner has been grabbing private and Government Lands by way of illegal means, that due to fear of the petitioner, no one is coming forward to lodge a complaint.

Hence, in view of the public interest and to safeguard the residents of the area, where the petitioner is residing, and to curb his unlawful activities, the rowdy sheet is opened.

Whether the Police are justified in opening the rowdy sheet against the petitioner?

Enforcement of law and order is the most important state function. Enforcement of law and order includes taking all preventive measures to ensure that no untoward incident happens and peace and tranquillity is not affected. To prevent a breach of peace and tranquillity, it is permissible for the police to take all measures possible.

It was noted that for the purpose of keeping surveillance, Police Standing Order 601 enables opening a Rowdy Sheet in the concerned police station. After the opening of the rowdy sheet, close surveillance is enforced on the concerned person

Court observed that,

Opening of Rowdy Sheet and thereon keeping close surveillance on the person would certainly infringe upon the right to life, liberty and privacy of the individual concerned.

A person is entitled to lead his life with dignity and self-respect and does not want an outsider to intrude in his private affairs and to probe into his movements.

Thus, there are two competing interests in preventive measures. On the one side is right guaranteed by Article 21 of the Constitution of India, which is sacrosanct and on the other side is the primacy of enforcement of law and order, maintenance of peace and tranquillity, which is the primary responsibility of the State through its police force. Compelling public interest may require intrusion into the privacy of a person.

Bench further observed that the principles governing the opening of Rowdy Sheet vis-a-vis the right to life and liberty, it is necessary to consider whether by opening rowdy sheet against the petitioner, respondent police have violated the mandate of Article 21 of the Constitution of India and whether their decision is supported by reasons warranting requirement to open rowdy sheet.

Crimes that the petitioner was involved in included Sections 447 IPC (criminal trespass); 427 IPC (Mischief); 506 IPC (criminal intimidation); 420 IPC (cheating and dishonestly inducing delivery of property); 468 IPC (forgery for purpose of cheating); 471 IPC (using as genuine a forged document); 452 IPC (House trespass after preparation for hurt, assault or wrongful restraint); 120-B IPC (criminal conspiracy) and 34 IPC (Act done by several persons in furtherance of common intention).

The above-stated would show that the petitioner was in the habit of being involved in crimes, disturbing peace and tranquillity.

Hence, the Court held that,

Having regard to the crimes registered against the petitioner and that he was facing trial in five cases, it cannot be said that the Police action in opening rowdy sheet amounts to abuse or misuse of power and authority, and cannot be said as one made in the illegal exercise of power and without application of mind.

While dismissing the petition, Bench made it clear that while keeping surveillance, Police shall ensure that it is minimal, not obtrusive and not to impinge upon his privacy.[M. Laxman v. State of Telangana,  2020 SCC OnLine TS 1600, decided on 03-12-2020]

Op EdsOP. ED.

Abstract

To obtain an identification of the suspect, police uses several modes like visual, audio, scientific and test identification parade. Although numerous jurisdictions have made improvements to their identification procedures in recent years, a large share of jurisdictions have still not made significant reforms. Although some courts have been making better use of the scientific findings on eyewitness identification, most courts are still using an approach that is largely unsupported by scientific findings. This paper focuses on the study of study of how eyewitness evidence is perceived in the criminal justice system. The paper highlights the relevancy and admissibility of identification of the accused in Court, having regard to the criminal burden of proof, the frailties of eyewitness identification evidence and the problems in the line-up procedures employed by the police.

।. INTRODUCTION

The issue of identification is one for you to decide as a question of fact”.[1]

Identification evidence is highly persuasive to triers of fact. There is an intuitive sense that when someone witnesses a stranger commit a crime, he or she should be able to remember that face. After all, we see and remember faces every day. However, more than four decades of research has revealed this assumption to be flawed, there is clear evidence that witnesses often struggle with accurately recognising the face of a stranger perpetrator[2]. Indeed, although eyewitness testimony can be an important and valuable form of evidence, eyewitness identification errors are a leading cause of wrongful convictions in many countries[3].

The evidence which requires particular attention is identification evidence, which resembles confession evidence in being, at the same time, both extremely compelling and potentially unreliable. Witnesses are frequently required to identify persons whom they have only seen fleetingly and often in confused circumstances. The identification of the perpetrator is often the only issue that needs to be determined in a criminal trial[4].

Mistaken identity may often occur in good faith, but the effects can be extremely serious for the defendant and, for this reason, there is an obvious need for caution in relation to such evidence. As with evidence of lies by the defendant, the hazards associated with identification evidence are addressed by means of a Judge’s direction, but there are additional safeguards which apply where the identification has been made by means of a formal procedure conducted under police supervision, such as an identification parade[5].

In its 1993 Report, the Royal Commission on Criminal Justice spoke of the compromise that has to be struck between crime control and due process values, so that “the risks of the innocent being convicted and the guilty being acquitted are as low as human fallibility allows”[6]. There are references to the need to strike a reasonable balance between the protection of a suspect’s rights and allowing the police the freedom to do their job throughout the Report, leaving the reader with the impression that if we could find this rather mystical balance, then all would be well.

II. MEANING OF IDENTIFICATION

‘Identification’ is the proof in a legal proceeding that a person, document, or other thing is that which is alleged to be. Identification is the evidence of identity[7]. Phipson states that “it is often important to establish the identity of a person who a witness testifies that he saw on a relevant occasion. Sometimes, the witness will testify that he had seen the person before, or even know the person well, and therefore recognised the person observed on the relevant occasion”.[8] The identity of a person can be established by the evidence of persons who know him[9].

III. SIGNIFICANCE OF IDENTIFICATION EVIDENCE

Many times crimes are committed under the cover of darkness when none is able to identify the accused. The commission of crime, in those cases, can be proved by establishing the identity of accused. Identification evidence is seen to be inherently fragile. In Alexander v. R[10], Mason, J. stated that:

“Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognising on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed.”

The identification evidence has for some time been regarded as potentially dangerous for the simple reason, that mistakes are easy to make where identification is concerned.[11] Before we notice the circumstances proving the case against the accused and establishing the identity beyond reasonable doubt, it has to be borne in mind that approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity. Further, the evidence is required to be appreciated having regard to the background of entire case and not in isolation.[12]

In another case[13], where the question was raised whether evidence is permitted even in absence of formal proof by the Executive Magistrate concerned? The Court held that the fact that the Executive Magistrate concerned did not prove the Test Identification Parade does not make it inadmissible.

IV. TURNBULL GUIDELINES ON IDENTIFICATION

In response to widespread concern over the problems posed by cases of mistaken identification, the Court of Appeal in R v. Turnbull[14] laid down important guidelines Judges in trials that involve disputed identification evidence.

Where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification(s). The  Judge should tell the jury that:

i. caution is required to avoid the risk of injustice;

ii. a witness who is honest may be wrong even if they are convinced they are right;

iii. a witness who is convincing may still be wrong;

iv. more than one witness may be wrong;

v. a witness who recognises the defendant, even when the witness knows the defendant very well, may be wrong.

The  Judge should direct the jury to examine the circumstances in which the identification by each witness can be made. Some of these circumstances may include:

i. the length of time the accused was observed by the witness;

ii. the distance the witness was from the accused;

iii. the state of the light;

iv. the length of time elapsed between the original observation and the subsequent identification to the police.

V. IDENTIFICATION EVIDENCE UNDER INDIAN LAW

Section 9 of the  Evidence Act, 1872 is concerned with the admissibility of facts which are necessary to explain a fact in issue or relevant fact. The section deals with that kind of evidence which if considered separate and distinct from other evidence would be irrelevant; but if it is taken into consideration in connection with some other facts, proved in the case it explains and throws light upon them[15]. As per Section 9, facts which establish the identity of accused are relevant[16]. This section does not deal with testimonial identity. Circumstantial evidence of identity are dealt within this section[17].

Where the court has to know the identity of anything or any person, any fact which establishes such identity is relevant. Personal characteristics such as age, height, complexion, voice, handwriting, manner, dress, blood group, knowledge of particular people and other details of personal history are relevant facts[18].

Identification proceedings are facts which establish the identity of an accused person as the doer of a particular act, and would be relevant under Section 9; but only if evidence of such identification is given by the witness. On the question of the admissibility of the evidence, the Supreme Court[19] held that “if a Magistrate speaks of facts which establish the identity of anything, the said facts would be relevant within the meaning of Section 9 of the Evidence Act; but if the Magistrate seeks to prove statements of a person not recorded in compliance with the mandatory provisions of Section 164 CrPC, such part of the evidence, though it may be relevant within the meaning of Section 9 of the Evidence Act, will have to be excluded.”

VI. MODES OF IDENTIFICATION

In a case involves disputed identification evidence, and where the identity of the suspect is known to the police, various methods like finger/thumb impression, voice, digital, comparison of writing, identification parade by police are used for the purpose of establishing facts showing identity of accused and properties which are the subject-matter of alleged offence. All the modes are discussed broadly as follows:

(i) Test Identification Parade (popularly known as TIP)

One of the methods used for establishing the identity of a person as the doer of a particular act is by means of identification parades[20]. In a case which involves disputed identification evidence a parade must be held if the suspects ask for one and it is practicable to hold one. A parade may also be held if the officer in charge of the investigation considers that it would be useful, and the suspect consents. The main purpose of an identification parade is to confirm the identity of the accused and help the police in their investigation[21]. The utility of the evidence created by an identification parade was explained by the Supreme Court in  Ramanthan v. State of Tamil Nadu[22]. The Court opined that “Identification parades have been in common use for a very long time for the object of placing suspect in a line up with other persons for identification. It enables the investigating officer to ascertain whether the witnesses had really seen the perpetrator of the crime and test their capacity to identify him and thereby to fill the gap in the investigation regarding the identity of the culprit.”

(a) Procedure of TIP

A crime is reported to the police. Some description might have been given of the suspect. In any event, the police investigate and arrest a particular person as the culprit. Then the complainant is taken to the police station to identify him i.e. to pick him out of a group of persons of similar complexion and stature. If the complainant picks him out then the police know that the witness is telling the truth and also that they are on the right track.

The Magistrate conducting the Test Identification Parade (TIP) is directed to take two photocopies of TIP report under his direct supervision and after certifying the same, hand over one to I O with specific directions that contents of such report should not be divulged to any person till charge sheet under Section 173, CrPC is filed. Second photocopy shall be retained by the Magistrate as “confidential” record in a sealed cover for future requirements, if necessary[23].

To conduct the procedure in an appropriate manner, special rooms for conduct of Test Identification Parade in all the prisons in the State shall be made. Such rooms shall have one side view glass separating those lined up for parade, on one hand and witness and the Magistrate, on the other — Witness and Magistrate should not be visible to those who are lined up, but, suspect and dummies should be visible clearly to the witness and the Magistrate. Enclosure in which the suspect and dummies are lined up shall be illumined and should also have ante room for them to change their attire[24].

(b) Value of TIP

Evidence of Test Identification Parade is not substantive evidence whereas evidence given in the court, is. However, when a witness correctly identified the accused at the parade but not in court the evidence of the Magistrate, who conducted the test parade that the witness correctly identified the accused at the parade, supported by the remarks of the trial  Judge regarding the demeanour of the witness that he was frightened and was unable to recognise the accused at the trial, was sufficient to convict the accused[25].

Identification of the accused made in court, is substantive evidence, where as identification of the accused in test identification parade is though a primary evidence but not substantive and the  same can be used only to corroborate the identification of accused by the witness in court[26].

Further, it is pertinent to note that the holding of TI parade is not compulsory. Where the witnesses were well acquainted with the accused and the incident was also widely covered by media, it was held that non-holding of TI parade was not fatal to the prosecution case[27]. As to when an identification parade may be necessary was explained by the Supreme Court in Jadunath Singh v. State of U.P.,[28]  that “ Of course, if the prosecution fails to hold an identification parade on the plea that the witnesses already knew the accused well and it transpires in the court of trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case. It seems to us that if there is any doubt in the matter, the prosecution should hold an identification parade”.

In a case[29], where identification parade was held after an inordinate delay of about five weeks from the arrest of the accused, the explanation for the delay was not trustworthy. Plea as to the non-availability of a Magistrate in a city like Bombay though the investigating agency was not obliged to get the parade conducted from a specified Magistrate, was not accepted. It was held that the accused was entitled to benefit of doubt.

Thus, the identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact[30].

(ii) Video Identification

In the paper-based world, law assumes a process which is mutually understood and observed by all the parties. Almost without thinking, a four-part process takes place, involving acquisition, identification, evaluation and admission. When we try to apply this process to digital evidence, we see that we have a new set of problems[31]. Nowadays, in most countries live parades have now been largely replaced by video parades, an innovation that has been made possible by the development of sophisticated computer systems used to compile video images from a standardised database of moving video clips[32]. In Britain, two different IT systems are in widespread use to provide video identification: VIPER (Video Identification Parade Electronic Recording) and PROMAT (Profile Matching). Each system has its own database of images. VIPER lineups are prepared in a standardised format comprising approximately 15-second clips of each person shown in sequence one after another. The sequence starts with a head and shoulders shot of the person looking directly at the camera, who slowly turns their head to present a full right profile followed by a full left profile. Finally, the person returns to looking directly into the camera in a full-face pose. Each image is checked for quality control by the centralised National VIPER Bureau.

The relevancy of identification of the suspect by a witness who was not present at the scene of the crime, but knew the suspect and recognised him on video recording depends upon whether the witness needed for this purpose special skills and experience[33].

(iii) Visual/Eyewitness Identification

An eyewitness is one, who saw the act, fact or transaction to which he testifies. A witness is able to provide graphic account of the attack on the deceased can be accepted as eyewitness[34].  Identification of an accused in court by an eyewitness is a serious matter and the chances of false identification are very high[35].

In cases involving eyewitness identification evidence, the logical starting point is the integrity principle, which “states that the agents of law enforcement should not use, and the courts should not condone, methods of investigating crime that involve breaches of the rules”.[36] This promotes fairness to defendants and a moral consistency from the State: in responding to law-breaking the State should follow its own laws and rules.

Eyewitness evidence is usually the main type of evidence on which convictions are based[37]. There seems to be a general assumption by lay triers of fact that eyewitness testimony is one of the safest bases for any identification; there have certainly been convictions based on very weak visual-identification evidence[38]. In fact visual-identification evidence is often unreliable, and is therefore a potentially hazardous way of connecting a person to an offence. The classic example is where a witness testifies that he saw the offence being committed by a stranger some distance away, for a relatively short period of time, in far from ideal conditions. But it is not just such `fleeting glance’ identification evidence which can lead to miscarriages of justice.

The reliability of the witness’s opinion depends entirely on the reliability of the visible features of the first image which were actually seen and mentally recorded by him (which in turn depends on the extent to which he was paying attention, his physical and psychological powers of perception at that time and his memory) together with the reliability of his comparison of the stored image with the visible features of the second image.

Identifying witnesses may focus on broad impressions or features which stimulate their own subjective preferences rather than on the multitude of specific physical details, so markedly different facial characteristics between the offender and the accused may go unnoticed while vague similarities may be given undue weight. The problem becomes even more acute when the identifying witness and the identified person (the offender) are from different racial groups or generations. Another problem, which may arise in a case of purported recognition, is that of `unconscious transference’ where the witness confuses the offender with a different person seen in some other context. Conversely, if the witness claims never to have seen the offender before, the reliability of his identification is likely to decrease with time as his memory fades[39]. the eyewitness may be honestly mistaken but sincerely convinced that his identification is correct. In R v. Fergus[40] for example, the sole prosecution witness was said to have felt an `invincible conviction in the correctness of his identification’ of the accused even though the witness had poor eyesight, did not take much notice of the offender’s face and first described the offender as 5′ 11” tall with a light complexion and stubble, when the accused was 5′ 7” tall, dark-skinned and had not yet started shaving.

The conventional forensic tool for revealing weaknesses in testimony is cross-examination, but where visual-identification evidence is concerned this tool may be singularly ineffective and, ironically, may indirectly buttress the witness’s testimony.

Alarmingly, research shows “that approximately 40% of eyewitness identifications are mistaken”.[41]” Further, “it is estimated there may be more than 10,000 people a year wrongfully convicted, most of whom were convicted as a result of mistaken identification.”[42] This has led many in the criminal justice system to finally realise what others concluded long ago: eyewitness identification evidence is “hopelessly unreliable.” Unreliability, in turn, leads to a dual problem: not only is an innocent person likely to be convicted, but the true perpetrator necessarily goes free, often to commit additional crimes.[43]

Despite its hopeless unreliability, eyewitness identification evidence has proven to be an extremely powerful tool for the prosecution. The reality is that jurors are “unduly receptive to identification evidence and are not sufficiently aware of its dangers.”[44] Nothing is more convincing to jurors than a live witness who takes an oath and confidently proclaims that he saw the defendant commit the crime. In fact, the level of confidence exhibited by an eyewitness has been found to be the most powerful predictor of guilty verdicts.

In a case, where it was not certain that the visual recognition of the appellants by the complainant on a fateful night was unhindered and unhampered especially when he was fired at first and allegedly saw the occurrence under stress of a threat, the court acquitted the appellants of the charge by extending them the benefit of doubt[45].

Thus, the appreciation of the evidence of eyewitness depends upon[46]:

– The accuracy of the witness’s original observation of the events which he described, and

– The correctness and extent of that he remember and his veracity.

(iv) Forensic Identification

When false eyewitness identifications and wrongful convictions are discovered, they are usually exposed through post conviction DNA testing. However, in the vast majority of criminal cases, DNA evidence has either been destroyed[47] or, more commonly, never even existed in the first place[48]. This, of course, poses a significant problem for the innocent defendant convicted based primarily on eyewitness evidence.

Erroneous eyewitness identifications have plagued our criminal justice system since its inception. When DNA evidence became a prevalent tool for law enforcement in the 1980s, not only did it assist prosecutors in obtaining convictions, but it also reopened prior convictions that were obtained based primarily on eyewitness testimony. Studies now reveal that erroneous eyewitness identifications “are the single greatest cause of wrongful convictions in the United States, and are responsible for more wrongful convictions than all other causes combined.”[49] In fact, in 80% of the first one hundred post conviction DNA exoneration, the underlying wrongful convictions were based primarily, if not solely, on false identifications.[50]

In these DNA exoneration cases, the DNA evidence proved to a scientific certainty that the defendant did not commit the crime charged and had been wrongfully convicted. But even today, most innocent defendants do not have the luxury of DNA evidence to prove their innocence. For example, in some cases the police do not collect or properly preserve the available DNA evidence.[51]

(v) Voice Identification

Voice itself may be an issue in a criminal case, inasmuch as it may itself be a personal characteristic upon which an identification of a criminal depends. It thus seems appropriate that we have in recent years seen the coining of the word ear-witness for the witness who heard, rather than saw[52], something:

In obscene phone calls, bomb hoaxes, ransom demands, hooded rape, robberies, muggings, or in crimes committed in darkness, the perpetrator’s voice may be the only definite piece of evidence available to aid police investigation and court conviction. That most research into witness testimony and identification has been conducted in the visual realm reflects the fact that most identification situations involve a witness using visual cues. The preponderance of such research serves to obscure the fact that in many instances both visual and verbal information is available and in many others only verbal cues exist. The awareness of the existence of the last two types of criminal situation dictates that research into human abilities to recognise voices should not be neglected but rather be rapidly pursued.[53]

With visual-identification evidence, however, there is the very real possibility of error on account of the circumstances surrounding the witness’s initial perception of the offender’s voice (and the medium through which it was heard), the witness’s ability to remember the way the offender spoke and, in particular, his ability accurately to compare the offender’s voice with that of the accused[54].

It was recognised by New Zealand’s Court of Appeal in R v. Waipouri[55],  that voice-identification evidence is generally less reliable than visual-identification evidence and that even greater caution is required when relying on it. In R v. Roberts[56] the Court of Appeal received expert evidence to the effect that a voice identification is more likely to be wrong than a visual identification, that ordinary people are as willing to rely on identification by ear-witnesses as they are on identification by eye-witnesses and that the identification of a stranger’s voice is a very difficult task, even if the opportunity to listen to the voice was relatively good. Accordingly, in cases where the prosecution is permitted to adduce such evidence the jury must be given a direction analogous to that established for visual-identification evidence in  R v. Turnbull[57] .

Further, by analogy with the position for visual-identification evidence where the jury compares a photographic image of the offender with the accused, the jury should be given an appropriate warning when they are asked to compare a recording of the offender’s voice with the accused’s voice[58].

In an Indian case[59], where the witnesses were not closely acquainted with the accused, they claimed to have identified him from his short replies such evidence was held to be unreliable. In another case[60], in a charge of conspiracy for murder, the voice of the accused was recognised by the witness as he demanded money and he was already acquainted with the voice from earlier time. The evidence was held to be relevant.

Recently, the Supreme Court in Dola  v. State of Odisha,[61] observed that it is true that the evidence about the identification of a person by the timbre of his voice depending upon subtle variations in the overtones when the person recognising is not familiar with the person recognised may be somewhat risky in a criminal trial.

(vi) Previous Identification

Where, in criminal proceedings, a witness gives evidence identifying the accused as the person who committed the offence charged, evidence of a previous identification of the accused by that witness may be given, either by the witness himself or by any other person who witnessed the previous identification[62], for example a police officer who conducted a formal identification procedure such as a video identification or an identification parade, as evidence of consistency[63].

R v. Christie[64], is the leading authority that when a witness gives evidence identifying the defendant as the offender, evidence may also be given that he has previously identified the accused. In principle, the previous identification could fall foul of three exclusionary rules – the hearsay rule, the rule against self-serving statements and the rule against non-expert opinion evidence.

Till date, no case has fully examined and explained the reasons for the admissibility of evidence about previous identifications. The most comprehensive examination was in Christie, but that is authority only for the proposition that the credibility of a witness who identifies the accused in court may be supported by evidence that he has identified him previously. It does not allow evidence of the prior identification unless the identifier gives evidence identifying the accused[65].

The Indian Supreme Court[66] observed that identification evidence of accused cannot be relied upon, especially when identification in court is not corroborated either by previous identification in identification parade or any other evidence, conviction of accused cannot be based upon it.

VII. VALUE OF IDENTIFICATION EVIDENCE

A statement identifying someone as the offender may be admissible as a dying declaration, or as a part of the res gestae, or as a previous inconsistent statement, provided the conditions for admissibility of evidence under those principles are satisfied. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine[67].

In a recent judgment, the Court observed that test identification parade is not a substantive evidence. Its purpose is only to help the investigating agency ascertain as to whether the investigation in the case is heading in the right direction or not. There is no provision in CrPC which obliges the investigating agency to hold or confer a right on the accused to claim a test identification parade. Absence to hold it would not make inadmissible the evidence of identification in court[68].

VIII. CONCLUSION AND SUGGESTIONS

Thus, where the prosecution case depends solely on the identification of a single witness, it is particularly important to give a general, clear and simple direction on burden and standard. However, concerning the admissibility of identification evidence, it has been found that although there may be rare occasions when it will be desirable to hold a voir dire (an investigation into the truth or admissibility of evidence), in general the  Judge should decide on the basis of the depositions, statements, and submissions of counsel. Finally, failure on the part of the police to observe the provisions may be taken into account by the court when deciding whether to exclude identification evidence when assessing the weight of such evidence.


* Assistant Professor, Law, KIIT School of Law, Prasanti Vihar, Patia, Bhubaneshwar – 751024; Email:  sarvesh.shahi@kls.ac.in

[1] R v. Donnini, [1973] VR 67.

[2]. Gary L. Wells & Nancy K. Steblay, “Eyewitness Identification Reforms: Are Suggestiveness -Induced Hits and Guesses True Hits?”, Journal of Applied Psychology, 799, 835–844 (2011).

[3]. Heather L. Price, “Judicial Discussion of Eyewitness Identification Evidence” 49 CJBS 209–220 (2017).

[4]. S v. Mdlongwa, 2010 (2) SACR 419 (SCA).

[5]. Chris Taylor, Law Express Evidence, (Pearson, Chennai, 4th Edn., 2009).

[6]. The Royal Commision on Criminal Justice Report (“The Runciman Report”) (1993 London: HMSO)

Cmnd 2263, 2.

[7]. S.R. Myneni, Law of Evidence 84 (Asia Law House, Hyderabad, 3rd  Edn., 2019).

[8]. Phipson, Phipson on Evidence (Sweet & Maxwell, Thomson Reuters, 17th  Edn. 2015).

[9]. Dr. Avtar Singh, Principles of The Law of Evidence  66 (Central Law Publications, Allahabad, 22nd  Edn., 2018).

[10]. (1981) 145 CLR 395 at 426.

[11]. Alan Taylor, Principles of Evidence, 139 (Cavendish Publishing Limited, London,  2nd  Edn,. 2007).

[12]. Visveswaran v. State,  (2003) 6 SCC 73

[13]. Shiv Murat Kol v. State of M.P.,  2018 SCC OnLine MP 336.

[14]. [1977] QB 224.

[15]. Monir, M. Textbook on the Law of Evidence 66 (Universal Law Publishing, Delhi, 11th Edn,. 2018).

[16]. Ram Babu v. State of Uttar Pradesh(2010) 5 SCC 63.

[17]. Batuk Lal, The Law of Evidence 73 (Central Law Agency, Allahabad) 19th Edn., 2012).

[18]. Ashok K. Jain, Law of Evidence 44 (Ascent Publications, New Delhi,  6th Edn,. 2015).

[19]. Deep Chand v. State of Rajasthan,  (1962) 1 SCR 662.

[20]. Vepa P. Sarathi, Law of Evidence 56 (Eastern Book Company, Lucknow, 6th Edn., 2008).

[21]. Gade Lakshmi Mangaraju v. State of A.P., (2001) 6 SCC 205.

[22](1978) 3 SCC 86 at page 96.

[23]. 2017 Cri LJ 5011.

[24]. Ibid.

[25]. Dana Yadav v. State of Bihar, (2002) 7 SCC 295.

[26].Ibid at page 301.

[27]. R. Shaji v. State of Kerala, (2013) 14 SCC 266.

[28].  (1970) 3 SCC 518.

[29].  (1999) 8 SCC 428.

[30]. Malkhan Singh v. State of M.P., (2003) 5 SCC 746.

[31]. Swati Mehta, “Cyber Forensics and Admissibility of Digital Evidence” (2011) 5 SCC J-54.

[32]. Amina Memon, “A Field Evaluation of the VIPER System: a New Technique for Eliciting Eyewitness Identification Evidence” 17 Psychology Crime & Law 711 (2011).

[33]. Jowett, Christian, 2002 NLJ 152: Current Law (Jan) 2003.

[34]. Vishnu Narayan Moger v. State of Karnataka, 1995 SCC OnLine Kar 291.

[35]. Glanville Williams, Proof of Guilt 630 (Harvard Law Review , 3rd Edn 1963).

[36]. Ashworth, A., The Criminal Process: An Evaluative Study (1994 Oxford: Clarendon), 32; see also

Zuckerman, A.A.S., The Principles of Criminal Evidence (1989, Oxford: Clarendon).

[37]. Meintjes van der Walt L ” Judicial Understanding of the Reliability of Eyewitness Evidence: A Tale of Two Cases” PER / PELJ 2016(19).

[38]. R v. Mattan (Deceased) (1998) The Times 5.3.98 (97/6415/S2) (CA) and R v. Ross [1960] Crim LR 127 (CCA).

[39]. Raymond Emson, Evidence 360 (Palgrave Macmillan, 2nd Edn., 2004).

[40].  (1993) 98 Cr App R 313 (CA).

[41]. Amy Luria, “Showup Identifications: A Comprehensive Overview of the Problems and a Discussion of Necessary Changes” 86 Neb. L. Rev. 515, 516 (2008).

[42].  Suzannah B. Gambell, Comment, The Need to Revisit the Neil v. Biggers

Factors: Suppressing Unreliable Eyewitness Identifications, 6 WYO. L. REV. 189 (2006), at 190-91 [discussing Elizabeth F. Loftus & James M. Doyle, Eyewitness Testimony: Civil and Criminal? 4-1 (3rd Edn., 1997)].

[43]. Keith A. Findley, “Toward a New Paradigm of Criminal Justice: How the Innocence Movement Merges Crime Control and Due Process” 41 Tex. Tech L. Rev. 133 (2008).

[44]. Suzannah B. Gambell, Comment, “The Need to Revisit the Neil v. Biggers Factors: Suppressing Unreliable Eyewitness Identifications” 6 Wyo. L. Rev. 189 (2006).

[45]. Mian Sohail Ahmed v. State, (2019) SCC OnLine Pak SC 12.

[46]. Sir John Woodroff & Syed Amir Ali’s Law of Evidence 461. (Butterworths, Allahabad, 17 Edn., 2001).

[47]. Cynthia E. Jones, “The Right Remedy for the Wrongly Convicted: Judicial Sanctions for Destruction of DNA Evidence” 77 Fordham L. Rev. 2893 (2009). (Discussing how poor handling of evidence has resulted in premature destruction in thousands of cases, including in States in which laws have been enacted mandating evidence preservation.).

[48]. Barry Scheck, “Closing Remarks to Symposium, Thinking Outside the Box: Proposals for Change” 23 Cardozo L. Rev. 899 (2002).

[49]. State v. Dubose, 699 N.W.2d 582, 592 (Wis. 2005) (citing Gary L. Wells et al., “Eyewitness Identification Procedures: Recommendations for Lineups and Photo spreads” 22 Law & Hum. Behav. 603,605 (1998).

[50]. Calvin Ter Beek, “A Call for Precedential Heads: Why the Supreme Court’s Eyewitness Identification Jurisprudence is Anachronistic and Out-of-Step with Empirical Reality” 31 Law & Psychol. Rev. 21 (2007).

[51]. People v. Cress, 645 N.W.2d 669, 692 (Mich. Ct. App. 2002).

[52]. Bethany K. Dumas, “Voice Identification in a Criminal Law Context, American Speech”, 65 Duke University Press, 341-348 1990).

[53]. Ray Bull, “Earwitness Testimony” 39 Med. Sci. Law 120-127 (1999).

[54]. Supra note 3.

[55]. [1993] 2 NZLR 410.

[56].  [2000] Crim LR 183 (99/0458/X3).

[57]. [1976] 3 WLR 445 (R v. Hersey [1998] Crim LR 281 (CA), R v. Gummerson, [1999] Crim LR 680 (CA), R v. Chenia, [2003] 2 Cr App R 83 (CA)). .

[58]. Bulejcik v. R, (1996) 185 CLR 375 (HCA), R v.O’Doherty, [2003] 1 Cr App R 77 (NICA).

[59]. Inspector of Police v. Palanisamy,  (2008) 14 SCC 495.

[60]. Mohan Singh v. State of Bihar,  (2011) 9 SCC 272.

[61]. (2018) 18 SCC 695

[62]. For the difficulties which arise where the witness fails to identify the accused in court, having previously identified him outside court, see R v. Osbourne and R v. Virtue, [1973] QB 678, CA. 295 (See Ch 10).

[63]. R v. Burke and Kelly, (1847) 2 Cox CC.

[64]. [1914] AC 545.

[65]. Rosamund Reay, Evidence 311 (Old Bailey Press, 3rd Edn., 2001).

[66]. Dana Yadav v. State of Bihar, (2002) 7 SCC 295.

[67]. Malkhan Singh v. State of M.P., (2003) 5 SCC 746.

[68]. Raju Manjhi v. State of Bihar, (2019) 12 SCC 784.

Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J., upheld the decision passed by the Sessions Judge while rejecting the present appeal filed.

In the present case, FIR was lodged by PW 1 complaining that her sister, i.e. the victim (PW 12) was burnt and bitten by the appellant. In lieu of the same case was registered under Section 307 of the Penal Code, 1860 against the appellant.

The  Sessions Judge framed the charge under Section 307 IPC and on the plea of “not guilty” the trial commenced.

At the time of the trial, Sessions Judge examined the appellant under Section 313 of the Code of Criminal Procedure, 1973. Sessions Judge delivered the impugned judgment holding the appellant guilty as charged.

Present appeal challenges the conviction and sentence.

C. Sharma, was the Counsel for the appellant and Thupden Youngda, learned Additional Public Prosecutor, represented the State-respondent.

Victim stated that appellant, who she was in a relationship with, had a fight with her and started damaging the furniture after which she called the police. Appellant picked up the kerosene jar, poured kerosene oil over her and burnt her after lighting a matchbox. Eyewitness tried to douse the fire by putting water and thereafter took the victim to the hospital.

Defence alleged that she had pressurised the appellant to marry him and so they had a discussion and in a fit of anger, poured kerosene upon herself, lighted a matchbox and set herself on fire.

Dr Simmi Rasaily (PW 13) who examined the victim found burn injuries and recorded in her report that there was kerosene smell on her body, which corroborates victim’s deposition.

Deposition of the victim was adequately corroborated by both oral and material evidence. Failure of PW 1 to give certain details about her visit to see the victim at the hospital does not dislodge the fact that she had lodged the FIR after visiting the victim. Further, the only issue raised by the Appellant’s Counsel that required examination is an alleged failure of the prosecution to produce the eyewitness.

“In a criminal trial, an accused person is considered innocent until proven guilty. It is for the prosecution to establish its case beyond all reasonable doubt.”

It was further noted that P. Dewan (DW 1) had recorded the statement of the eyewitness during the appellant’s departmental inquiry which must be given credence.

However, whether what P. Dewan heard and the eyewitness stated in her statement was the truth could have been found only if she had been produced as a witness and subjected to cross-examination. Evidence of P. Dewan is, therefore, hearsay to that extent. Therefore, there is no credible evidence led by the defence to create enough doubt in the mind of the Court to defeat the prosecution case.

High Court with respect to the above stated that the defence evidence does not make probable his innocence in view of the overwhelming evidence led by the prosecution.

Further adding to its observation, Court stated that the victim’s deposition cannot be doubted, her testimony has its own significance.

Therefore, in the present case prosecution has established its case that it was only the appellant who had poured kerosene over the victim and burnt her with the knowledge that if he by that act caused death, he would be guilty of murder and consequently, by such an act, the victim was hurt.

Appeal is rejected in the above terms and Sessions Judge’s judgment of conviction and order on sentence, both have been upheld. [Deepen Pradhan v. State of Sikkim, 2019 SCC OnLine Sikk 195, decided on 30-11-2019]

Case BriefsSupreme Court

Supreme Court: In case where a man tried to rope in other relatives of his wife in a criminal proceeding that he had initiated against his in-laws, the bench of Dr. DY Chandrachud and Hemant Gupta, JJ held that mere disclosing the names of the appellants cannot be said to be strong and cogent evidence to make them to stand trial for the offence under Section 319 of the Code.

Factual Background:

  • The complainant had alleged that his wife lived with her parents, despite several attempts on his part to bring her with him and that his mother-in-law, father-in-law and brother-in-law threatened that their daughter will not live with him and demanded Rs. 30 lakhs towards maintenance otherwise they will lodge a dowry case against him and his mother.
  • He filed the criminal case against his in-laws and other relatives of his wife after his in-laws, along with 47 other relatives, forcibly entered his house and threatened to kill him if he did not pay Rs. 30 lakhs. They also tried to attack him with sickles and sticks.
  • Though in the FIR, Complainant had mentioned that 15 women and 35 men came by vehicles but the names of 11 persons alone were disclosed in the FIR.
  • He then filed an application under Section 319 of the Code to summon the 20 accused persons named in the application as additional accused.

Ruling:

The Court noticed that the present case was basically a matrimonial dispute wherein, the husband who is the Complainant has levelled allegations against the wife and her other family members. In the statements recorded under Section 161 of the Code during the course of investigation, the Complainant and his witnesses have not disclosed any other name except the 11 persons named in the FIR. Thus, the Court said:

“the Complainant has sought to cast net wide so as to include numerous other persons while moving an application under Section 319 of the Code without there being primary evidence about their role in house trespass or of threatening the Complainant. Large number of people will not come to the house of the Complainant and would return without causing any injury as they were said to be armed with weapons like crowbar, knife and ripper etc.”

The Court also noted that the allegations in the FIR were vague and could be used any time to include any person in the absence of description in the First Information Report to identify such person. Stating that the additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence, the Court said:

“Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused.”

[Periyasami v. S. Nallasamy, 2019 SCC OnLine SC 379, decided on 14.03.2019]

Case BriefsHigh Courts

Delhi High Court: While wondering why the wife committed suicide, R.K. Gauba, J., acquitted the husband who was convicted under Sections 304-B and 498-A IPC.

The parties were married to each-other. On basis of the evidence available on record, it could be said that the parties seemed to be living a normal or rather a happy life. A child was born to the couple and just after a few days of celebrating the first birthday of her son, the wife was found hanging in her room in their house. The elder brother of the wife accused the appellant-husband and his family of harassing the deceased for dowry. A case was registered and the husband and his family were tried for the offences under Section 304-B and Section 498-A IPC. The trial court did not find the case against the family member of the husband to be believable and therefore acquitted them. However, the husband was found guilty by the trial court and was convicted under the sections charged with. Aggrieved thereby, the husband filed the present appeal.

The High Court perused the impugned judgment and noted that “it was unfair on the part of the trial court to evidence of the same witnesses against the appellant even while the same had been rejected qua the other accused. It was stated that “the judgment was vitiated by an inherently contradictory approach”. The Court was of the view that the case of the prosecution on a version which had come after 4 days of the suicide, was quite apparently an afterthought. It was observed, while other ingredients of the offence under Section 304-B IPC are made out (the marriage being less than seven years old and the death of the married woman being for unnatural causes), credible evidence providing link as to she being subjected to ill-treatment, leave alone connection with demand or expectation of dowry, are missing”. Holding that the prosecution failed to cover the long journey from suspicion to conclusion inherent in a criminal trial, the Court set aside the trial court’s judgment and acquitted the husband. [Kirti Abrol v. State (NCT of Delhi), 2019 SCC OnLine Del 7407, dated 06-02-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. allowed an application filed under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of a criminal case.

Respondent 2 herein had filed a complaint against petitioner and few other people alleging that he had induced him to invest Rs 28 lakhs in a construction company. The Magistrate took cognizance of the said offence under Sections 120 B, 420 of the Penal Code, 1860 and Section 138 of the Negotiable Instruments Act, 1881 and issued summon against the petitioner. Aggrieved thereby, the instant application was filed.

The petitioner’s case was that there was no material on record to show that he had induced respondent 2 to invest in the company. It was argued that making the petitioner an accused in the case, only because he was a Director of the Company, was abuse of process of the Court.

The Court noted that there being absolutely no allegation against petitioner in the entire complaint with regard to either inducement or entrustment of money or even issuance of cheque; just because he was a Director in the concerned company, it would not make him liable for any of the allegations levelled against other co-accused. It was concluded that prosecution against the petitioner was with malafide intention and only to harass him. Accordingly, the entire criminal proceeding against him was quashed.[Ramanjee Jha v. State Of Bihar, 2019 SCC OnLine Pat 228, Order dated 21-02-2019]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of A.M. Sapre and Indu Malhotra, JJ. while allowing an appeal filed against the judgment of Kerala High Court, stated the factors guiding exercise of discretion by the Judges under Section 231 (2) CrPC and the practice guidelines to be followed by the trial courts while conducting criminal trials.

The trial court, in a criminal case, disallowed the application filed under Section 231 (2) by the accused seeking an adjournment of cross-examination of CWs 1 and 2 to a date after the examination-in-chief-of CWs 2 and 5 was complete. The said order was reversed by the High Court in an appeal filed by the accused. Aggrieved thereby, the appellant filed the present appeal.

The Supreme Court set aside the judgment impugned particularly in light of the possibility of undue influence and intimidation of witness(es) since the accused were “highly influential political leaders”. While holdings aforesaid, the Supreme Court stated that while deciding an application under the said Section, balance must be struck between the rights of the accused and prerogative of the prosecution to lead evidence. It was further stated that the following illustrative factors must be kept in consideration: (a) possibility of undue influence on or threats to witness; (b)possibility that non-deferral would enable subsequent witnesses giving evidence on similar facts to tailor their testimony to circumvent the defence strategy; (c) possibility of loss of memory of witness; (d) occurrence of delay in trial.

The Court further stated “practice” guidelines to be followed by trial courts in criminal trial which includes: (a) detailed case calendar must be prepared at the commencement of trial that specifies dates on which examination-in-chief and cross will be conducted; (b) testimony of witnesses deposing on the same subject-matter must be proximately scheduled; (c) request for deferral must be preferably made before preparation of calendar; (d) grant of request to be promised on sufficient reasons and date of cross-examination after deferral to be specified; (e) case calendar to be followed strictly and the witnesses to be safeguarded.

The appeal was disposed of in the terms above. [State of Kerala v. Rasheed,2018 SCC OnLine SC 2251 , dated 30-10-2018]

Case BriefsSupreme Court

Supreme Court: Holding that the absence of entries in the General Diary concerning the preliminary enquiry is not per se illegal, the bench of NV Ramana and SA Nazeer said:

“As the concept of maintaining General Diary has its origin under the Section 44 of Police Act of 1861 as applicable to States, which makes it an obligation for the concerned Police Officer to maintain a General Diary, but such non-maintenance per se may not be rendering the whole prosecution illegal.”

The Court noticed that CrPC itself has differentiated between irregularity and illegality. The obligation of maintenance of General Diary is part of course of conduct of the concerned officer, which may not itself have any bearing on the criminal trial unless some grave prejudice going to the root of matter is shown to exist at the time of the trial.

The Court, however, rejected the notion that maintaining the General Diary is not necessary and held that if the Officer has not recorded, then it is for the trial court to weigh the effect of the same for reasons provided therein. It said:

“we are aware of the fact that such non-maintenance of General Diary may have consequences on the merits of the case, which is a matter of trial. Moreover, we are also aware of the fact that the explanation of the genesis of a criminal case, in some   cases, plays an important role in establishing the prosecution’s case.”

[State v. H. Srinivas,  2018 SCC OnLine SC 576, decided on 18.05.2018]

Case BriefsSupreme Court

Supreme Court: Explaining the law on the credibility of the testimony of an interested eye-witness, the bench of NV Ramana and SA Nazeer, JJ held:

“If the evidence of an eyewitness, though a close relative of the victim, inspires confidence, it must be relied upon without seeking corroboration with minute material particulars. It is no doubt true that the Courts must be cautious while considering the evidence of interested witnesses.”

The Court was hearing the appeal of a man who was accused of abusing and attacking a shopkeeper with iron rod who was heading home in the evening with his father. The shopkeeper later succumbed to the injuries on his head. The accused had assaulted the deceased after a prior tussle between them during the daytime at the shop of the deceased over a financial transaction. One iron rod being the weapon of assault was also recovered at the instance of the accused.

The father of the deceased was the sole eye-witness in the case and the therefore, the entire case depended upon the veracity of his testimony. The accused, hence, argued that he was an interested witness and hence, his testimony can be relied on. He also argued that if the eyewitness was present at the time of the incident then why didn’t he receive any injury? To this, the Court answered:

 “It is not necessary that to prove an offence, every eyewitness who had seen the accused hitting the victim should also receive injuries.”

The Court, hence, calling the father of the deceased a ‘natural’ witness to the incident, noticed that the chain of events and the circumstantial evidence thereof completely supports the eyewitness’s statements which in turn strengthens the prosecution case with no manner of doubt.

As a word of caution for the courts, the bench said:

“When analyzing the evidence available on record, Court should not adopt hyper technical approach but should look at the broader probabilities of the case. (…)  Particularly in the criminal cases, from the date of incident till the day they give evidence in the Court, there may be gap of years. Hence the Courts have to take all these aspects into consideration and weigh the evidence. The discrepancies and contradictions which do not go to the root of the matter, credence shall not be given to them. In any event, the paramount consideration of the Court must be to do substantial justice.”

[Khurshid Ahmed v. State of Jammu and Kashmir, 2018 SCC OnLine SC 529, decided on 15.05.2018]

Case BriefsSupreme Court

Supreme Court: Clearing the air over the power of the Courts to order “retrial”, the Court said that though the word “retrial” is used under Section 386(b)(i) Cr.P.C., the powers conferred by this clause is to be exercised only in exceptional cases, where the appellate court is satisfied that the omission or irregularity has occasioned in failure of justice.

In the present the accused in a dowry death case had appealed against his conviction before the Patna High Court. The High Court, however, remitted the case to the Trial Court for retrial on account of certain lapses on the part of Investigating Officer/trial court. Disagreeing with the view of the High Court, the bench of Dipak Misra and R. Banumathi, JJ said that the High Court pointed out certain lapses; but has not stated as to how such alleged lapses has resulted in miscarriage of justice necessitating retrial. Certain lapses either in the investigation or in the ‘conduct of trial’ are not sufficient to direct retrial. The High Court being the First Appellate Court is duty bound to examine the evidence and arrive at an independent finding based on appraisal of such evidence and examine whether such lapses actually affect the prosecution case; or such lapses have actually resulted in failure of justice.

It was further explained that the circumstances that should exist for warranting a retrial must be such that where the trial was undertaken by the Court having no jurisdiction, or trial was vitiated by serious illegality or irregularity due to the misconception of nature of proceedings. An order for retrial may be passed in cases where the original trial has not been satisfactory for some particular reasons such as wrong admission or wrong rejection of evidences or the Court refused to hear certain witnesses who were supposed to be heard. [Ajay Kumar Ghoshal v. State of Bihar, 2017 SCC OnLine SC 74 decided on 31.01.2017]

 

Case BriefsSupreme Court

Supreme Court: Holding that an accused was not entitled to acquittal on the mere ground that the investigation of the matter had been carried out by the very police officer who had also registered the crime, the Supreme Court observed that in the instant case  the search of the appellant at the time of his apprehension was conducted in the presence and under the instructions of a Gazetted Officer. Further, the extracts of depositions of other prosecution witnesses revealed that the said complainant officer was not the only one involved in the investigation.

The Bench comprising of V. Gopala Gowda and Uday Umesh Lalit, JJ.  upheld the Punjab and Haryana High Court’s order dismissing the appeal filed by the appellant against his conviction under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 for being in possession of  1 kg of opium without any permit or licence. Relying on  State v. Rajangam, (2010) 15 SCC 369 wherein the Supreme Court had acquitted the accused on similar ground, the appellant had contended that the investigation was improper and he was entitled to acquittal.

Distinguishing the case on facts, the Court held that the principle as laid down in Megha Singh v.  State of Haryana, (1996) 11 SCC 709 which was followed in State v. Rajangam, (2010) 15 SCC 369 does not get attracted in the instant case. In Megha case, the search had not been  conducted in the presence of a Gazetted Officer, as is required under the statutory provisions unlike the instant case.  [Surender  v. State of Haryana, 2016 SCC Online SC 49 , decided on 19.01.2016]

Supreme Court

Supreme Court: While deciding the question that whether a rejection of an application for recruitment in police force, on grounds of “criminal antecedents” with respect to an acquittal for want of evidence is maintainable, the bench comprising of T.S. Thakur and Adarsh Kumar Goel, JJ said that acquittal on technical grounds or compounding does not amount to exoneration of guilt,thus it is not an “honourable acquittal” and the same can be questioned by a screening committee for recruitment in police force.

In the present case the respondent, had applied for a post in Madhya Pradesh police on “compassionate grounds” which was rejected by superintendent of police owing to respondent’s involvement in criminal cases. The counsel for the respondent cited the guidelines by State of M.P. Dated 5 June 2003 for character verification of applicant  of government services and said the same do not justify the rejection of application of respondent on the face of the fact that he did not concealed his involvement in such cases.

 The Court relied on the observation of the Court in Commissioner of Police v. Mehar Singh, (2013) 7 SCC 685, and said that only screening committee has the experience to decide suitability of such candidates. The principle in departmental inquiry is preponderance of probability in wake of which an acquittal in criminal trial based on technical grounds cannot be termed as “honourable acquittal” and is deemed to be questioned. Police force is a disciplined force and people with questionable rectitude should be stopped from entering right from point of entry, that is, point of recruitment. In absence of any mala fides by appointing authority, its decision rejecting application, cannot be termed irrational.

The Court further dismissed the plea of parity based on other cases and said that Article 14 of Constitution embodies a positive concept and the same cannot be appealed for illegal claims as the doctrine does not envisage negative equality.(State of M.P. V. Parvez Khan2014 SCC OnLine SC 957, decided on 01.12.2014)

High Courts

Allahabad High Court: Explaining the scope of power of the Court under Section 319 CrPC,  Surendra Singh, J. held that just on the basis of evidence adduced before it if it appears to the Court that a person against whom no charge has been framed but his complicity makes it clear that he should be tried along with the other accused then as per S.319 of CrPC, the Court can invoke it’s power to try such person. Further, it was held that as per S. 319(4)(b) CrPC, the accused, subsequently impleaded, is to be treated as if he had been an accused when the Court initially took cognizance of the offence and that the degree of satisfaction that will be required for summoning a person under Section 319 CrPC  would be the same as for framing a charge. The Court also held that under the said provision Trial Court is not required to wait for cross-examination as it can take action on the basis of statement made by the concerned examination-in-chief. Jabardin Khan v. State of U.P.  Criminal Misc. Writ Petition No. – 8865 of 2014, Decided on May 23, 2014                     

 To read the full judgment, click here