Criminal Trial Archives

Explained| Can sentence of a murder convict be reduced to sentence already undergone which was less than life imprisonment?

Supreme Court: In a murder case, where the Madhya Pradesh High Court had reduced the sentence to sentence already undergone which was less than imprisonment for life, the bench of MR Shah* and Krishna Murari, JJ has held that such order is contrary to Section 302 IPC as there cannot be any sentence/punishment less than imprisonment for life, if an accused is convicted for the offence punishable under Section 302 IPC.

In the case at hand, though the High Court had maintained the conviction of the accused for the offence under Sections 147, 148, 323 and 302/34 of the IPC, it had reduced the sentence by giving benefit of right to private defence to the accused, to the sentence already undergone by him i.e. approximately seven years and ten months.

The Supreme Court held that such reduction of sentence is impermissible and unsustainable.

“The punishment for murder under Section 302 IPC shall be death or imprisonment for life and fine. Therefore, the minimum sentence provided for the offence punishable under Section 302 IPC would be imprisonment for life and fine. There cannot be any sentence/punishment less than imprisonment for life, if an accused is convicted for the offence punishable under Section 302 IPC. Any punishment less than the imprisonment for life for the offence punishable under Section 302 would be contrary to Section 302 IPC.”

The Court, hence, quashed and set aside the judgment of the High Court and restored the order of the Trial Court and directed the accused to be arrested and to undergo life imprisonment. The Court gave eight weeks’ time to the accused to surrender before the concerned Court/Jail Authority.

[State of Madhya Pradesh v. Nandu, CRIMINAL APPEAL NO. 1356 OF 2022, decided on 02.09.2022]

*Judgment by: Justice MR Shah

For State: Deputy Advocate General Ankita Chaudhary

Case Briefs Supreme Court

‘At least two of the issues require reconsideration’; Supreme Court agrees to hear review petition of PMLA verdict

Supreme Court: As Congress MP Karti P. Chidambaram has sought review of the 3-judge bench verdict on the Prevention of Money Laundering Act, 2002, the 3-judge bench of NV Ramana, CJ and Dinesh Maheshwari and CT Ravikumar, JJ has agreed to hear the review petition after observing that prima facie, it appears that at least two of the issues raised in the petition require consideration. The Court has hence issued notice in the matter.

In the judgment dated 27.07.2022 in Vijay Madanlal Choudhary v. Union of India, 2022 SCC OnLine SC 929, the bench of AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar, JJ has, in 545-pages-long judgments, has dealt with various aspects of the Prevention of Money Laundering Act, 2002 and has upheld the validity of certain impugned provisions by holding that the same have reasonable nexus with the object sought be achieved i.e. combatting the menace of money laundering.

While the judgment runs into 545 pages, the key takeaways of the judgment are:

Unlike FIR, the Enforcement Case Information Report need not be formally registered. It is also not mandatory to supply it to the accused.
The twin conditions provided under Section 45, though restrict the right of the accused to grant of bail, do not impose absolute restraint on the grant of bail. Not just regular bails but this section also applies to anticipatory bail.
The Court has suggested that the feasibility of placing ED Manual on the official website of ED may be explored.
The power of arrest given to high-ranking officials under Section 19 is not arbitrary.
The summon issued under Section 50 is in connection with the inquiry regarding proceeds of crime which may have been attached and pending adjudication before the Adjudicating Authority. It is not necessarily for initiating a prosecution against the noticee as such and hence, not violative of Articles 20(3) and 21 of the Constitution.
The inclusion of minor offences as scheduled offence is reasonable as the offence of money-laundering is an independent offence and the persons involved in the commission of such offence are grouped together as offenders under this Act. There is no reason to make distinction between them insofar as the offence of money-laundering is concerned.
Same reasoning has been applied to uphold Section 4 that makes no distinction between person directly involved in the process or activity connected with the proceeds of crime and the other not so directly involved. It has been held that the punishment under Section 4 is not in relation to the predicate offence, but offence of money-laundering under Section 3 of the 2002 and hence valid.
The vacancies at the appellate Tribunal must be filled at the as otherwise the aggrieved persons have to rush to the High Court on every occasion which indeed is avoidable.
Whether the amendments to PMLA are Finance Bill/Money Bill is a question already pending for consideration by a larger bench in another case. Hence, it was not taken up in this case.

The comprehensive analysis of the judgment can be read here.

Your cheat sheet to Supreme Court’s 545 pages long Money Laundering verdict

Also read: Supreme Court holds “twin conditions” under Section 45 of PMLA reasonable: Applicability to anticipatory bail, non-cognizable offences discussed; Exception highlighted

Video Explainer: Your cheat sheet to Supreme Court’s 545 pages long Money Laundering verdict

[Karti P. Chidambaram v. Directorate of Enforcement, 2022 SCC OnLine SC 1084, order dated 26.08.2022]

For Petitioner(s): Senior Advocates Kapil Sibal, Dr. Abhishek Manu Singhvi, Sidharth Luthra, Advocates Arshdeep Singh Khurana, Prateek Chadha, Adit Pujari, Amit Bhandari, Akshat Gupta, Harsh Mittal, Harsh Srivastava, Madhavi Agarwal, Rupali Samuel, Shubhangni Jain, Pankaj Singhal, Hitesh Rai, Aditya Chopra, Ayush Agarwal, Tannavi Sharma, Shally Bhasin (AOR)

For Respondent(s): Solicitor General Tushar Mehta, Advocates M. K. Maroria (AOR), Deepabali Dutta, Kanu Agarwal, Zoheb Hossain, Rajat Nair

Case Briefs Supreme Court

Prosecution version helps man accused of murdering brother get benefit of provocation exception; SC holds that accused may rely on prosecution case for discharge of burden

Supreme Court: In an interesting case, where a man was convicted for murder of his younger brother, the bench of Sanjiv Khanna* and Bela M. Trivedi, JJ has converted the conviction from Section 302 to Part I of Section 304 of the IPC after holding that to discharge the burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court.

In the case at hand, the appellant was convicted for killing his younger brother. He had then himself went to the police station and confessed the crime, albeit, the confession is inadmissible as proof of confession is prohibited under Section 25 of the Evidence Act, 1872. The weapon i.e. the pick-axe and the blood stained shirt of the appellant were recovered based on the appellant’s disclosure.

According to the testimonies of various family members and the neighbours, the deceased was an alcoholic who barely interacted with the family, and used to torment, abuse and threaten the appellant. This fact was relied upon by the prosecution to establish the motive. On the night of the occurrence, the deceased had consumed alcohol and had told the appellant to leave the house and if not, he would kill the appellant. The appellant had also tried to commit suicide.

In is in the light of these facts, that the Supreme Court explained that,

“The prosecution must prove the guilt of the accused, that is, it must establish all ingredients of the offence with which the accused is charged, but this burden should not be mixed with the burden on the accused of proving that the case falls within an exception. However, to discharge this burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court.”

Hence, applying the prosecution version in the appellant’s defence, it was noticed that there was sudden loss of self-control on account of a ‘slow burn’ reaction followed by the final and immediate provocation. There was temporary loss of self-control as the appellant had tried to kill himself by holding live electrical wires. Therefore, it was held that the acts of provocation on the basis of which the appellant caused the death of his brother, were both sudden and grave and that there was loss of self-control.

Applying the provocation exception, the Court converted the conviction of the appellant from Section 302 to Part I of Section 304 of the IPC. Further, considering that the appellant has already suffered incarceration for over 10 years, as he has been in custody since 27th September, 2011, the Court modified the sentence of imprisonment to the period already undergone. In addition, the appellant would have to pay a fine of Rs. 1,000/- and in default, will undergo simple imprisonment for a period of six months. On payment of fine or default imprisonment, the appellant will be released forthwith, if not required to be detained for any other case

[Dauvaram Nirmalkar v. State of Chhattissgarh, 2022 SCC OnLine SC 955, decided on 02.08.2022]

*Judgment by: Justice Sanjiv Khanna

Case Briefs Supreme Court

Supreme Court holds “twin conditions” under Section 45 of PMLA reasonable: Applicability to anticipatory bail, non-cognizable offences discussed; Exception highlighted

Supreme Court: The 3-judge bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ has, in 545-pages-long judgments, has dealt with various aspects of the Prevention of Money Laundering Act, 2002 and has held that the twin conditions provided under Section 45 of the 2002 Act, though restrict the right of the accused to grant of bail, do not impose absolute restraint on the grant of bail. The discretion vests in the Court which is not arbitrary or irrational but judicial, guided by the principles of law as provided under Section 45 of the 2002 Act.

The Twin Conditions under Section 45 for release on bail

that there are reasonable grounds for believing that the accused is not guilty of such offence; and
that he/she is not likely to commit any offence while on bail.

The Court has held that the provision in the form of Section 45 of the 2002 Act, as applicable post amendment of 2018, is reasonable and has direct nexus with the purposes and objects sought to be achieved by the 2002 Act to combat the menace of money-laundering having transnational consequences including impacting the financial systems and sovereignty and integrity of the countries.

It is also important to note that similar twin conditions have been provided in several other special legislations validity whereof has been upheld by the Supreme Court being reasonable and having nexus with the purposes and objects sought to be achieved by the concerned special legislations. Besides the special legislation, even the provisions in the general law, such as 1973 Code stipulate compliance of preconditions before releasing the accused on bail. The grant of bail, even though regarded as an important right of the accused, is not a mechanical order to be passed by the Courts. The prayer for grant of bail even in respect of general offences, have to be considered on the basis of objective discernible judicial parameters as delineated by this Court from time to time, on case-to-case basis.

Non-cognizable offence

The Court has rejected the argument that the scheduled offence in a given case may be a non-cognizable offence and yet rigors of Section 45 of the 2002 Act would result in denial of bail even to such accused.

Stating that such an argument was founded on clear misunderstanding of the scheme of the 2002 Act, the Court observed that the offence of money-laundering is one wherein a person, directly or indirectly, attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime. The fact that the proceeds of crime have been generated as a result of criminal activity relating to a scheduled offence, which incidentally happens to be a non-cognizable offence, would make no difference.

“The person is not prosecuted for the scheduled offence by invoking provisions of the 2002 Act, but only when he has derived or obtained property as a result of criminal activity relating to or in relation to a scheduled offence and then indulges in process or activity connected with such proceeds of crime. Suffice it to observe that the argument under consideration is completely misplaced and needs to be rejected.”

Anticipatory Bail

Holding that Section 45 applies to anticipatory bail as well, the Court explained that anticipatory bail is nothing but a bail granted in anticipation of arrest, hence, the principles governing the grant of bail in both cases are more or less on the same footing, except that in case of anticipatory bail the investigation is still underway requiring the presence of the accused before investigation authority. Thus, ordinarily, anticipatory bail is granted in exceptional cases where the accused has been falsely implicated in an offence with a view to harass and humiliate him. Therefore, it would not be logical to disregard the limitations imposed on granting bail under Section 45 of the 2002 Act, in the case of anticipatory bail as well.

“Investigation in an economic offence, more so in case of money-laundering, requires a systematic approach. Further, it can never be the intention of the Parliament to exclude the operation of Section 45 of 2002 Act in the case of anticipatory bail, otherwise, it will create an unnecessary dichotomy between bail and anticipatory bail which not only will be irrational but also discriminatory and arbitrary. Thus, it is totally misconceived that the rigors of Section 45 of the 2002 Act will not apply in the case of anticipatory bail.”

The Court went on to state that it would be preposterous and illogical to hold that if a person applies for bail after arrest, he/she can be granted that relief only if the twin conditions are fulfilled in addition to other stipulations predicated in the 1973 Code; but another person, who is yet to be arrested in connection with the same offence of money-laundering, will not be required to fulfil such twin conditions whilst considering application for grant of bail under Section 438 of the 1973 Code.

It was observed that any other view would be counterproductive and defeat the purposes and objects behind the stringent provision enacted by the Parliament for prevention of money-laundering and to combat the menace on account of such activity which directly impacts the financial systems, including the sovereignty and integrity of the country.

Hence, in whatever form the relief is couched including the nature of proceedings, be it under Section 438 of the Criminal Procedure Code, 1973 or for that matter, by invoking the jurisdiction of the Constitutional Court, the underlying principles and rigors of Section 45 of the 2002 must come into play and without exception ought to be reckoned to uphold the objectives of the 2002 Act, which is a special legislation providing for stringent regulatory measures for combating the menace of moneylaundering.

Exception to strict compliance of the twin conditions

The Court held that Section 436A CrPC, which has come into being on 23.6.2006 vide Act 25 of 2005, is an exception to the strict compliance of the twin conditions under Section 45 of the 2002 Act, which was inserted recognizing the deteriorating state of undertrial prisoners so as to provide them with a remedy in case of unjustified detention.

As the Section 436A of the 1973 Code was inserted after the enactment of the 2002 Act, it would not be appropriate to deny the relief of Section 436A of the 1973 Code which is a wholesome provision beneficial to a person accused under the 2002 Act. However, Section 436A CrPC, does not provide for an absolute right of bail as in the case of default bail under Section 167 CrPC. For, in the fact situation of a case, the Court may still deny the relief owing to ground, such as where the trial was delayed at the instance of accused himself.

The Court explained that this provision is comparable with the statutory bail provision or, so to say, the default bail, to be granted in terms of Section 167 CrPC consequent to failure of the investigating agency to file the chargesheet within the statutory period and, in the context of the 2002 Act, complaint within the specified period after arrest of the person concerned. In the case of Section 167 of the 1973 Code, an indefeasible right is triggered in favour of the accused the moment the investigating agency commits default in filing the chargesheet/complaint within the statutory period. The provision in the form of Section 436A CrPC, as has now come into being is in recognition of the constitutional right of the accused regarding speedy trial under Article 21 of the Constitution.

While this was argued before the Court that this view would impact the objectives of the 2002 Act and is in the nature of super imposition of Section 436A CrPC over Section 45 of the 2002 Act and that the same logic may be invoked in respect of other serious offences, including terrorist offences which would be counterproductive, the Court was unimpressed.

It observed,

“For, it is the constitutional obligation of the State to ensure that trials are concluded expeditiously and at least within a reasonable time where strict bail provisions apply. If a person is detained for a period extending up to one-half of the maximum period of imprisonment specified by law and is still facing trial, it is nothing short of failure of the State in upholding the constitutional rights of the citizens, including person accused of an offence.”

It was hence, held that Section 436A CrPC needs to be construed as a statutory bail provision and akin to Section 167 of the 1973 Code.

[Vijay Madanlal Choudhary v. Union of India, SPECIAL LEAVE PETITION (CRIMINAL) NO. 4634 OF 2014, decided on 27.07.2022]

*Judgment by: Justice AM Khanwilkar

For private parties: Senior Advocates Kapil Sibal, Sidharth Luthra, Dr. Abhishek Manu Singhvi, Mukul Rohatgi, Amit Desai, S. Niranjan Reddy, Dr. Menaka Guruswamy, Aabad Ponda, Senior Counsel 9Siddharth Aggarwal, Mahesh Jethmalani, N. Hariharan, Vikram Chaudhari, and Advocates Abhimanyu Bhandari and Akshay Nagarajan,

For Union of India: Tushar Mehta, Solicitor General of India and S.V. Raju, Additional Solicitor General of India

Case Briefs Supreme Court

Trial Court not a ‘mere post office’; must apply its mind while framing charges: SC unimpressed with discharge of murder accused based on postmortem report only

Supreme Court: Explaining the importance of the role of Trails Courts, especially, with respect to framing of charges, the bench of AM Khanwilkar, Abhay S. Oka and JB Pardiwala*, JJ has held that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law.

Factual Background

Allegedly, the accused persons formed an unlawful assembly and laid an assault on the appellant and his family members after trespassing into his residential property and started damaging the tin fence. When the appellant tried to restrain the accused persons from causing any further damage, they all started assaulting the appellant by giving fisticuffs. One even hit the appellant with a wooden log. When the wife and the daughter-in-law of the appellant came to rescue him, the accused persons caught hold of them and beat them up. Both the women were then dragged as a result the clothes of the the wife of the appellant got torn thereby outraging her modesty. The wife, due to the injuries suffered by her, had to be shifted to a hospital where she was soon declared dead. The cause of death of the deceased as assigned in the post mortem was “cardio respiratory failure”.

Trial Court and High Court orders

The trial court thought fit to discharge the accused persons of the offence of murder punishable under Section 302 of the IPC and proceeded to frame charge against the accused persons for the offence of culpable homicide punishable under Section 304 of the IPC. The High Court of Jammu and Kashmir also thought fit to affirm the order passed by the trial court discharging the accused persons of the offence of murder.

Supreme Court’s analysis and decision

The Court observed that the trial court discharged the accused persons from the offence of murder and proceeded to frame charge for the offence of culpable homicide under Section 304 of the IPC by only taking into consideration the medical evidence on record. The trial court as well as the High Court got persuaded by the fact that the cause of death of the deceased as assigned in the postmortem report being the “cardio respiratory failure”, the same cannot be said to be having any nexus with the alleged assault that was laid on the deceased.

Holding that such approach of the trial court is not correct and cannot be countenanced in law, the Court explained that the post mortem report, by itself, does not constitute substantive evidence.

“Whether the “cardio respiratory failure” had any nexus with the incident in question would have to be determined on the basis of the oral evidence of the eye witnesses as well as the medical officer concerned i.e. the expert witness who may be examined by the Prosecution as one of its witnesses.”

Explaining why the postmortem report of the doctor is not substantive evidence, the Court observed that it is the previous statement based on doctor’s examination of the dead body and the doctor’s statement in court is alone the substantive evidence.

“The postmortem report can be used only to corroborate his statement under Section 157, or to refresh his memory under Section 159, or to contradict his statement in the witness-box under Section 145 of the Evidence Act, 1872.”

Observing that the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination, the Court said that once the expert’s opinion is accepted by the Court, it is not the opinion of the medical officer but of the Court.

Keeping this position of law in mind, the Court held that in the case at hand, the prosecution should have been given opportunity to prove all the relevant facts including the post mortem report through the medical officer concerned by leading oral evidence and thereby seek the opinion of the expert. It was too early on the part of the trial court as well as the High Court to arrive at the conclusion that since no serious injuries were noted in the postmortem report, the death of the deceased on account of “cardio respiratory failure” cannot be said to be having any nexus with the incident in question.

Further, whether the case falls under Section 302 or 304 Part II, IPC could have been decided by the trial court only after the evaluation of the entire oral evidence that may be led by the prosecution as well as by the defence, if any, comes on record.

“Ultimately, upon appreciation of the entire evidence on record at the end of the trial, the trial court may take one view or the other i.e. whether it is a case of murder or case of culpable homicide. But at the stage of framing of the charge, the trial court could not have reached to such a conclusion merely relying upon the port mortem report on record. The High Court also overlooked such fundamental infirmity in the order passed by the trial court and proceeded to affirm the same.”

Explaining the settled position of law that in a criminal trial, the prosecution can lead evidence only in accordance with the charge framed by the trial court, the Court said that once the trial court decides to discharge an accused person from the offence punishable under Section 302 of the IPC and proceeds to frame the lesser charge for the offence punishable under Section 304 Part II of the IPC, the prosecution will be thereafter compelled to proceed as if it has now to establish only the case of culpable homicide and not murder. On the other hand, even if the trial court proceeds to frame charge under Section 302 IPC in accordance with the case put up by the prosecution still it would be open for the accused to persuade the Court at the end of the trial that the case falls only within the ambit of culpable homicide punishable under Section 304 of IPC.

The Court was, hence, of the opinion that in the case at hand it would be more prudent to permit the prosecution to lead appropriate evidence whatever it is worth in accordance with its original case as put up in the chargesheet.

[Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 SCC OnLine SC 913, decided on 26.07.2022]

*Judgment by: Justice JB Pardiwala

Case Briefs Supreme Court

‘India needs a Bail Act’: Supreme Court asks Centre to consider the suggestion; lays down guidelines for disposal of Bail Application

“Criminal courts in general with the trial court in particular are the guardian angels of liberty. Liberty, as embedded in the Code, has to be preserved, protected, and enforced by the Criminal Courts. Any conscious failure by the Criminal Courts would constitute an affront to liberty. It is the pious duty of the Criminal Court to zealously guard and keep a consistent vision in safeguarding the constitutional values and ethos.”

Supreme Court: The division bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has asked the Government of India to consider the introduction of an Act specifically meant for granting of bail, as done in various other countries like the United Kingdom.

The Court took note of the statistics that show that jails in India are flooded with undertrial prisoners with more than 2/3rd of the inmates of the prisons constituting undertrial prisoners. Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offense, being charged with offenses punishable for seven years or less. They are not only poor and illiterate but also would include women. Statistics also show that more than 1000 children are living in prisons along with their mothers. Granting bail in such cases is not only in the interest of the accused, but also the children who are not expected to get exposed to the prisons.

The Court observed,

“it certainly exhibits the mindset, a vestige of colonial India, on the part of the Investigating Agency, notwithstanding the fact arrest is a draconian measure resulting in curtailment of liberty, and thus to be used sparingly. In a democracy, there can never be an impression that it is a police State as both are conceptually opposite to each other.”

The Court also noted that the rate of conviction in criminal cases in India is abysmally low and this factor weighs on the mind of the Court while deciding the bail applications in a negative sense.

“Courts tend to think that the possibility of a conviction being nearer to rarity, bail applications will have to be decided strictly, contrary to legal principles. We cannot mix up consideration of a bail application, which is not punitive in nature with that of a possible adjudication by way of trial. On the contrary, an ultimate acquittal with continued custody would be a case of grave injustice.”

The Court observed that the Jurisdictional Magistrate who otherwise has the jurisdiction to try a criminal case which provides for a maximum punishment of either life or death sentence, has got ample jurisdiction to consider the release on bail.

Hence, taking note of the aforementioned considerations and the number of special leave petitions pertaining to different offenses, particularly on the rejection of bail applications, being filed before it, despite various directions issued from time to time, the Court issued the following directions for the investigating agencies as well as for the courts:

a) The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails.

b) The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action.

c) The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail.

d) All the State Governments and the Union Territories are directed to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code while taking note of the order of the High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 of 2018 and the standing order issued by the Delhi Police i.e. Standing Order No. 109 of 2020, to comply with the mandate of Section 41A of the Code.

e) There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code.

f) There needs to be a strict compliance of the mandate laid down in the judgment of this court in Siddharth v. State of U.P., (2021) 1 SCC 676.

g) The State and Central Governments will have to comply with the directions issued by this Court from time to time with respect to constitution of special courts. The High Court in consultation with the State Governments will have to undertake an exercise on the need for the special courts. The vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously.

h) The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release.

i) While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind.

j) An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district judiciary level and the High Court as earlier directed by this Court in Bhim Singh v. Union of India, (2015) 13 SCC 605, followed by appropriate orders. In Bhim Singh, the Court directed that Jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge shall hold one sitting in a week in each jail/prison for two months commencing from 1-10-2014 for the purposes of effective implementation of Section 436-A of the Code of Criminal Procedure.

k) Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being an intervening application. Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application.

l) All State Governments, Union Territories and High Courts are directed to file affidavits/ status reports within a period of four months.

[Satender Kumar Antil v. CBI, 2022 SCC OnLine SC 825, decided on 11.07.2022]

*Judgment by: Justice MM Sundresh

Counsels

Senior Advocates Amit Desai, Sidharth Luthra and Additional Solicitor General S.V. Raju.

Case Briefs Supreme Court

Appeal against conviction cannot be dismissed on the ground that the accused is absconding: Supreme Court

Supreme Court: In furtherance of Criminal Justice, the bench of Abhay S. Oka* and MM Sundresh, JJ has held that an appeal against conviction filed by an accused under Sub-Section (2) of Section 374 of the Code of Criminal Procedure, 1973 cannot be dismissed on the ground that the accused is absconding.

In the case at hand, the accused was, on 04.09.2009, convicted by the Sessions Court under Sections 302 and 120B of the Penal Code (IPC) and Section 27(1) of the Arms Act, 1959. An appeal was preferred by the accused before the High Court of Patna. He was later declared absconding. On 25th August 2015, a Division Bench of the Patna High Court dismissed the appeal against conviction without adverting to the merits of the appeal on the ground that the accused was absconding.

The High Court held that though the remedy of an appeal is a valuable right, the appellant forfeited his right to prefer an appeal the moment he escaped from the custody and flagrantly abused the process of law. Such deliberate act on the part of the appellant amounts to defiance of the criminal administration of justice. The High Court went on to observe that,

“… the circumstances of the case before it were exceptional and, therefore, the Court was required to deviate from the settled principle of law that once the appellate court has refused to dismiss the appeal summarily, the same must be heard on merits.”

The Supreme Court, however, did not appreciate such approach of the High Court where it had itself recorded that it was deviating from the settled position of law.

The Court observed that the anguish expressed by the High Court about the brazen action of the appellant of absconding and defeating the administration of justice can be well understood. However, that is no ground to dismiss an appeal against conviction, which was already admitted for final hearing, for non-prosecution without adverting to merits.

The Court, hence, set aside the impugned judgment and remanded the matter to the High Court for consideration on merits.

Considering the fact that the appeal against conviction under Section 302 of IPC is of the year 2009, the Court said that necessary priority deserves to be given to the disposal of the appeal. Requesting the High Court to ensure that appeal is disposed of as expeditiously as possible, preferably within a period of six months, the Court held that

“If the appeal could not be heard within a reasonable time, in that event, the appellant will have to be granted a liberty to apply for suspension of sentence.”

[Dhananjay Rai v. State of Bihar, CRIMINAL APPEAL NO.803 of 2017, decided on 14.07.2022]

*Judgment by: Justice Abhay S. Oka

Case Briefs High Courts

Punjab and Haryana High Court | Proceedings in non-compoundable offences can be quashed on the basis of compromise between accused and victim

Punjab and Haryana High Court: In the case relating to the compundable offence under Section 420 of the Penal Code, 1860 and the non-compoundable offence under Section 13 of the Punjab Prevention of Human Smuggling Act, 2012, Anoop Chitkara, J., invoking the power under Section 482 CrPC, has quashed the FIR on the ground of voluntary compromise between the parties. , During the pendency of the case, the accused and the aggrieved party compromised the matter. After making such a compromise, the petitioner approached the High Court to quash the FIR, impleading the aggrieved person as respondent. The aggrieved persons stated before the JMIC Rajpura that there will be no objection from their side if the court quashes the FIR and the consequent proceedings.

ANALYSIS:

The Court observed that,

both the parties amicably settled the matter between them by making a compromise deed without any coercion, threats, bribes, etc.
the aggrieved party willingly consented to the nullification of the criminal proceeding.
there was no objection from the private respondent.
the occurrence did not affect public peace or tranquility, moral turpitude or harm the social and moral fabric of the society.

Noting that the purpose of criminal jurisprudence is reformatory and aims at bringing peace to family, community and society, the Court was of the opinion that the exercise of the inherent powers for quashing the FIR wasj ustified to secure the ends of justice.

The Court asserted that in the facts peculiar to this case, the prosecution in the non-compoundable offences can be closed by quashing the FIR and consequent proceedings.

THence, it was observed that continuing this proceeding will not give any fruitful purpose. The bail bonds of the petitioner wereaccordingly discharged.

[Sukhwinder Kaur v. State of Punjab and Haryana, 2022 SCC OnLine P&H 1616 , decided on 04-07-2022]

Case Briefs Supreme Court

No conviction based on ‘last seen together’ theory when possibility of suicidal death not ruled out; SC sets man free in a 28-year-old honour killing case

Supreme Court: Explaining the law on “last seen together”, the bench of Dr. DY Chandrachud and Bela M. Trivedi*, JJ has held that in order to convict an accused under Section 302 IPC the first and foremost aspect to be proved by prosecution is the factum of homicidal death. If the evidence of prosecution falls short of proof of homicidal death of the deceased, and if the possibility of suicidal death could not be ruled out, the accused cannot be convicted merely on the basis of the theory of “Last seen together”.

“The suspicion howsoever strong cannot take place of proof.”

The Court was deciding the case where a young couple belonging to different castes were found hanging from a tree after having gone missing for days. The love affair of Brinda and Kanhaiya did not sit well with Brinda’s father and uncle. While Brinda and Kanhaiya went missing on 02.12.1994, no missing report was lodged. Their decomposed bodies were found hanging from a cashew tree in a cashew nursery on 11.12.1994. It was alleged that Brinda’s uncle had killed both of them and had kept the bodies in the house upto 04.12.1994, after which he had taken the bodies to the cashew nursery and had hung them on a cashew tree to give it the shape of them having committed suicide.

A witness had allegedly last seen Kanhaiya with the accused 10 days prior to the date on which the bodies were found. The witness had stated that the accused had called Kanhaiya and took him to his house where he, along with four co-accused, allegedly in furtherance of common intention pressed his neck and committed his murder. Thereafter, the two co-accused committed the murder of Brinda. One of the co-accused Videshi had also made an extra-judicial confession pointing towards the guilt of the accused.

It was argued by the counsel of the accused that the testimony of the witness who had allegedly last seen Kanhaiya, having been called by the accused, was recorded after 4 months of the incident. Even as per the case of the prosecution, the said incident of calling Kanhaiya by the appellant was 10 days prior to the date on which the dead bodies were found in the Cashew Nursery, and there being long time gap between the day the deceased was allegedly last seen with the appellant and the day when his dead body was found, it was very risky to convict the accused solely on such evidence. He further submitted that the doctor who had performed the postmortem had also opined that the cause of death was asphyxia as a result of hanging and the nature was suicidal. Thus, in absence of any clear or cogent evidence against the appellant, both the courts had committed gross error in convicting the appellant.

The Court took note of the following rulings on the ‘last seen together’ theory:

Bodhraj v. State of Jammu and Kashmir, (2002) 8 SCC 45: The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.

Arjun Marik v. State of Bihar, 1994 Supp (2) SCC 372: The only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused, and therefore no conviction on that basis alone can be founded.

Hence, having regard to the totality of evidence on record, the Court held that the High Court had committed gross error in convicting the accused for the alleged charge of 302 read with 34 of IPC, relying upon a very weak kind of evidence of extra judicial confession allegedly made by the co-accused Videshi, and the theory of “Last seen together” propounded by the prime witness.

The Court observed that no evidence worth the name as to how and by whom the deceased Brinda was allegedly murdered was produced by the prosecution. Under the circumstances, it was held that the prosecution had miserably failed to bring home the charges levelled against the accused beyond reasonable doubt. The Court, hence, acquitted the accused of all the charges levelled against him.

[Chandrapal v. State of Chhattisgarh, 2022 SCC OnLine SC 705, decided on 27.05.2022]

*Judgment by: Justice Bela M. Trivedi

Counsels

For appellant-accused: AOR Akshat Shrivastava, Adv Pooja Shrivastava,

For Respondent(s): Dy AG Sourav Roy, Advocates Mahesh Kumar, Kaushal Sharma, Devika Khanna, V D Khanna, VMZ Chambers

Case Briefs

Decide all 350 bail applications in one go, Supreme Court directs Allahabad HC to expeditiously dispose of bail applications in cases pending for 10 years and 14 years

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

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

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

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

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

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

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

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

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

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

Appearance by:

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

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

Kamini Sharma, Editorial Assistant has put this report together

Case Briefs Supreme Court

Even a single crime committed by a ‘Gang’ is sufficient to prosecute an accused under the Gangsters Act: Supreme Court

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

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

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

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

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

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

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

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

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

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

*Judgment by: Justice MR Shah

Counsel

For appellant: Advocate Divyesh Pratap Singh

For State: Advocate Sanjay Kumar Tyagi

For informant: Advocate Shuvodeep Roy

Case Briefs Supreme Court

Acquitted in the criminal case but employer still going ahead with the disciplinary proceeding? Read the law laid down by Supreme Court

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

Factual Background

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

Disciplinary enquiry vis-à-vis Criminal Trial

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

Scope of Judicial Review

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

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

Ruling

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

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

*Judgment by: Justice Dr. DY Chandrachud

Counsels

For appellant: Advocate V N Raghupathy

For Respondent: Advocate Ashwin V Kotemath

Case Briefs High Courts

Dishonour of Cheque | If a cheque is not honoured by issuer and even after a legal notice he doesn’t pay, he is bound to face criminal trial: Del HC

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

Background

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

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

Analysis, Law and Decision

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

Further, the Court observed that,

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

Trite Law

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

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

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

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

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

Advocates before the Court:

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

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

Case Briefs District Court

Tis Hazari Court | If an accused proves that there was non-existence of consideration and debt: Can accused person be acquitted under S. 138 NI Act? Read on

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

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

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

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

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

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

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

Analysis, Law and Decision

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

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

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

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

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

Advocates before the Court:

Bhagat Singh, Counsel for the Complainant

Mukesh Sharma, Counsel for the accused

Case Briefs High Courts

Can gravity of offence be the sole ground to deny bail? Del HC decides in a multi-person scam involving Rs 200 Crores

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

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

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

Factual Matrix

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

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

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

Analysis, Law and Decision

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

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

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

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

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

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

Object of Bail

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

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

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

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

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

Conditions laid down for bail

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

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

Advocates before the Court:

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

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

Case Briefs Supreme Court

Explained| Can proceedings against a charge-sheeted accused be quashed if other suspects have not been charge-sheeted?

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

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

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

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

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

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

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

Counsels

For appellant: Advocate Amith Kumar

For respondent: Advocate H.V. Nagaraja Rao

*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case Briefs Supreme Court

Accused cannot be convicted for conspiracy only on the basis of co-accused’s confession: SC

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

Background

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

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

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

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

Analysis

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

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

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

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

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

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

Ruling on facts

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

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

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

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

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

Counsels

For appellant: Advocate Rishi Malhotra

For State: Addl. AG Bansuri Swaraj

*Judgment by: Justice R. Subhash Reddy

Case Briefs Supreme Court

Criminal Justice| ‘Practically difficult to achieve absolute consistency in sentencing’ but here’s what the Courts should do: SC

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

Principle of proportionality

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

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

(b) the overall conduct of the offender and;

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

It, however, clarified that,

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

What should the Courts do?

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

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

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

*Judgment by: Justice Surya Kant

Know Thy Judge | Justice Surya Kant

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Case Briefs Supreme Court

Explained| Same offence but separate trials – Can appellate court pass common judgment based on evidence recorded in only one trial?

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

Why the High Court’s judgment was erroneous

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

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

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

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

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

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

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

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

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

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

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

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

Counsels

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

For respondent: Vikramjit Banerjee, Additional Solicitor General

*Judgment by: Justice Vikram Nath

Case Briefs Supreme Court

‘Furlough not a legal right’: Supreme Court explains difference between Parole and furlough

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

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

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

The principles laid down by the Court are:

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

Important Rulings on the difference between Furlough and Parole

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

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

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

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

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

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

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

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

Key differences highlighted in the judgment are:

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

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

_________________________________________________________________________________________________________

Counsels:

For State of Gujarat: Tushar Mehta, Solicitor General

For Respondent: Advocate Sanjiv Punalekar

*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

*Judgment by: Justice MR Shah

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*Judgment by: Justice Sanjiv Khanna

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The Twin Conditions under Section 45 for release on bail

Non-cognizable offence

Anticipatory Bail

Exception to strict compliance of the twin conditions

*Judgment by: Justice AM Khanwilkar

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Factual Background

Trial Court and High Court orders

Supreme Court’s analysis and decision

*Judgment by: Justice JB Pardiwala

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*Judgment by: Justice Abhay S. Oka

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*Judgment by: Justice Bela M. Trivedi

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Kamini Sharma, Editorial Assistant has put this report together

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*Judgment by: Justice MR Shah

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Factual Background

Disciplinary enquiry vis-à-vis Criminal Trial

Scope of Judicial Review

Ruling

*Judgment by: Justice Dr. DY Chandrachud

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Background

Analysis, Law and Decision

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Analysis, Law and Decision

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Factual Matrix

Analysis, Law and Decision

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Background

Analysis

Ruling on facts

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Principle of proportionality

What should the Courts do?

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Why the High Court’s judgment was erroneous

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

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Important Rulings on the difference between Furlough and Parole

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