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