Case BriefsSupreme Court

Supreme Court:  The 3-judge bench of SA Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ has reiterated that the Courts should not thwart any investigation unless no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on.

Referring to the decision in State of Haryana v. Bhajan Lal, (1992) Supp. (1) SCC 335, the Court said,

“(…) the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint, the quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint.”

In S.M. Datta v. State of Gujarat, (2001) 7 SCC 659 the Court cautioned that criminal proceedings ought not to be scuttled at the initial stage.

“Quashing of a complaint should rather be an exception and a rarity than an ordinary rule.  (…) if a perusal of the first information report leads to disclosure of an offence even broadly, law courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere.”


FIR against Skoda Auto Volkswagen over alleged use of cheat devices


Skoda Auto Volkswagen India Private Limited is engaged in the business of manufacture, import and sale of passenger vehicles in India. The 3rd Respondent in the case lodged an FIR, alleging that he had bought 7 Audi Brand cars from the authorised dealers of the manufacturing Companies and knowing fully well that their vehicles have been installed with cheat devices, the manufacturer had prepared wrong records and documents.

The Petitioner moved Allahabad High Court seeking quashing of the FIR alleging that the FIR is based entirely upon the order of the NGT, which is the subject matter of two civil appeals before the Supreme Court.

Allahabad High Court rejected the prayer for quashing of the FIR. However, the High Court protected the officers of the petitioner against arrest till the submission of the Report under Section 173(2) Cr.P.C. subject however to the condition that they shall cooperate in the investigation.

Not satisfied with a mere protection against arrest and the refusal of the Allahabad High Court to quash the FIR, the petitioner argued before the Supreme Court:

  1. That the Police cannot investigate an issue, the substratum of which is sub judice before this Court in the civil appeals arising out of the order of the NGT; and
  2. That the High Court failed to take note of the long delay on the part of the 3rd Respondent in lodging the complaint and
  3. That the VAHAN Portal of the Government shows the purchase of only 3 vehicles as against the claim of the 3rd Respondent to have purchased 7 vehicles.

Why the Supreme Court refused to quash FIR


On Issue 1

Should pendency of the Civil Appeals and the interim order passed by Supreme Court be taken as a deterrent for anyone else to lodge a police complaint and seek an investigation?

Two original applications came to be filed before the NGT in the year 2015, alleging that the manufacturers of the vehicles in question were employing deceit devices. This coincided with the issue of notice by the Automotive Research Association of India to the manufacturers. The   applicants before the NGT did not seek any relief for themselves, as purchasers of vehicles. The reliefs sought by the applicants before the NGT were broad and general. Hence,

“ (…) the order of the NGT, passed on the applications filed by certain individuals not claiming as purchasers of vehicles, cannot   be   taken   as   an   impediment   for   an   individual   who purchased cars from the manufacturers, to lodge a complaint, if he has actually suffered on account of any representation made by the manufacturers.”

Further, the interim order passed by the Supreme Court not to take any coercive steps has to be understood only in the context of the aforesaid directions of the NGT which became the subject matter of the Civil Appeals.

Can police investigate into the same set of allegations which form the subject matter of proceedings pending adjudication before Supreme Court?

The question whether such devices are installed in the cars purchased by the 3rd respondent herein and the question whether there was any representation in this regard to the petitioner, are all questions of fact, peculiar and particular to the 3rd respondent herein. NGT had no occasion to examine the cars purchased by the 3rd respondent herein.

The Court said,

“At this stage no one can presume whether the defence of the manufacturer to the police complaint will be purely on a question of fact or purely on a question of law or on mixed questions of fact and law.”

  • If the petitioner takes a defence that no such devices were installed in the cars purchased by the 3rd respondent or that there was no (mis)representation in this regard, it will be a pure question of fact, which cannot be gone into in a quash petition.
  • If the petitioner takes a defence that the installation of such devices, though true, does not violate any law, then it will be a pure question of law.

The Court said that the action initiated by the Automotive Research Association of India in November 2015 and the proceedings that went on before the National Green Tribunal from the year 2015 to the year 2019, have to be seen in the light of the Dieselgate Scandal[1]. All of them were part of the global outrage that actually concerned the damage caused to the environment by the emissions from the cars allegedly fitted with manipulative devices.

The proceedings before the NGT were not intended to address issues relating to individuals, such as

(i) whether any emissions manipulation software, called in common parlance as ‘defeat devices’ were installed in the vehicles purchased by certain individuals; and

(ii) whether any representation was made to the purchasers of the cars in which such devices had been installed, about the emission efficiency level of the cars

Hence, the Court rejected the contention that the substratum of the police complaint is something that is already the subject matter of adjudication before this Court in the appeals arising out of the order of the NGT. It held that the High Court has been fair to the petitioner, by granting protection against arrest till the filing of the report under section 173(2) of the Code.

On Issue 2

Mere delay in lodging the complaint, cannot by itself be a ground to quash the FIR. The law is too well settled on this aspect to warrant any reference to precedents.

On Issue 3

The Court did not go into the third issue as it is a question of fact which has to be established only in the course of investigation/trial.

[Skoda Auto Volkswagen India Private Limited v. State of Uttar Pradesh, SPECIAL LEAVE PETITION (CRIMINAL) NO.4931 OF 2020, decided on 26.11.2020]


*Justice V. Ramasubramanian has penned this judgment 

For Petitioner: Senior Advocate Dr. Abhishek Manu Singhvi

For 3rd Respondent: Senior Advocate Maninder Singh

[1] In September-2015, allegations of installation of manipulation devices by car manufacturers emerged from the US Environmental Protection Agency triggering investigations in several European Union States. After claims were lodged and legal action initiated, the German Federal Motor Transport Authority appears to have given permission in June-2016 for the recall of about 2 million vehicles across Europe. In the light of these developments, one of the manufacturers entered into an agreement with the US Environmental Protection Agency in December-2016 giving certain options to the customers. These and the subsequent developments, which attained notoriety as the diesel-gate 18 scandal, led to the German Federal Court of Justice (Bundesgerichtshof-BGH) giving a ruling on May 25, 2020 in favour of the car owners for damages.
Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and BR Gavai, JJ has held that not obtaining prior consent of the State Government under Section 6 of the the Delhi Special Police Establishment Act, 1946 (DPSE Act) would not vitiate the investigation unless the illegality in the investigation can be shown to have brought about miscarriage of justice or caused prejudice to the accused.


Background of the case


In the present case, a joint surprise raid was conducted by the CBI in factory premises of Fertico Marketing and Investment Private Limited and it was found that the coal purchased under the FSA was sold in the black market. It was further found by CBI that this was done in connivance with the unknown government officials which led to loss of Rs.36.28 crore to the Central Government. Hence, an FIR was registered by CBI for the offences punishable under Sections 120B and 420 of the IPC and Section 13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the PC Act’) against Anil Kumar Agarwal, Director of said company and unknown officials of the District Industries Centre (DIC), Chandauli.

During the course of investigation, it was found that two officers namely Ram Ji Singh, the then General Manager, DIC, Chandauli and Yogendra Nath Pandey, Assistant Manager, DIC, Chandauli were also part of the conspiracy. Investigation revealed that these two officials had abused their official positions and fraudulently and dishonestly sent false status reports regarding working conditions of the accused companies and thereby, dishonestly induced the Northern Coalfields Limited to supply coal on subsidized rates, for obtaining pecuniary advantage. Hence, a Post-Facto sanction was granted on 7th September 2018.


Arguments


Appellants

The appellants submitted that in the absence of the consent of the State Government under Section 6 of the DSPE Act, the DSPE (CBI) had no powers to conduct investigation in view of the provisions contained in Section 6 of the DSPE Act and that failure in obtaining the consent prior to registration of the FIR would go to the root of the matter and vitiate the entire investigation. It was submitted that an offence under Section 120B of the IPC read with Section 13(1)(d) of the Prevention of Corruption Act cannot stand unless there is a meeting of minds between public servant and the private individuals and as such, an FIR could not be registered. Hence, that investigation in a matter which concerns the conspiracy between the private individual and the public servant, the same would not be permitted unless there is a valid consent under Section 6 of the DSPE Act. Further, the Post-Facto sanction granted on 7th September 2018, would not cure the defect of obtaining the prior consent.

State

The State of Uttar Pradesh has accorded a general consent for extension of powers and jurisdiction of the Members of DSPE, in whole of the State of Uttar Pradesh for investigation of offences under the Prevention of Corruption Act, with the rider that no such investigation shall be taken up in cases relating to the public servants, under the control of the State Government except with the prior permission of the State Government. As such, insofar as the private individuals are concerned, there is no embargo with regard to registration of FIR against them inasmuch as, no specific consent would be required under Section 6 of the DSPE Act.

Further, public servant under the control of the State Government, if not named in the First Information Report, but if, in the further investigation, is found to be involved in the said crime, the prior permission of the State Government would not be required for investigation and the Post-Facto consent was sufficient.


Analysis


The Court noticed that though Section 5 of DPSE Act enables the Central Government to extend the powers and jurisdiction of Members of the DSPE beyond the Union Territories to a State, the same is not permissible unless, a State grants its consent for such an extension within the area of State concerned under Section 6 of the DSPE Act.

Vide notification dated 15th June 1989, the State of Uttar Pradesh accorded a general consent thereby, enabling the Members of DSPE to exercise powers and jurisdiction in the entire State of Uttar Pradesh with regard to investigation of offences under the Prevention of Corruption Act, 1988 and also to all or any of the offence or offences committed in the course of the same transaction or arising out of the same facts.

On appeal filed by the private individuals

“As such, for registration of FIR against the private individuals for the offences punishable under the Prevention of Corruption Act and other offences under the IPC, committed in the course of the same transaction or arising out of the same facts, the Members of DSPE have all the powers and jurisdiction. As such, we find absolutely no merits in the appeals filed by the private individuals.”

On appeal filed by the public officers

“… there are no pleadings by the public servants with regard to the prejudice caused to them on account of non-obtaining of prior consent under Section 6 of the DSPE Act qua them specifically in addition to the general consent in force, nor with regard to miscarriage of justice.”

The Court, hence, found no reason to interfere with the finding of the High Court with regard to not obtaining prior consent of the State Government under Section 6 of the DSPE Act.

[Fertico Marketing and Investment Pvt. Ltd. v. Central Bureau of Investigation, 2020 SCC OnLine SC 938, decided on 17.11.2020]

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Alok Aradhe and H.T. Narendra Prasad JJ., allowed the appeal stating that the Tribunal is not expected to take or adopt a nicety of a civil or criminal case.

The facts of the case are that the deceased was proceeding on his motorcycle on Mysuru Road when he was dashed against by a Hero Honda motorcycle and due to the impact he fell down, sustained injuries and finally succumbed to them. The claimants filed a petition under Section 166 of Motor Vehicle Act, 1988 i.e. MV Act for want of compensation which was rejected on grounds of failure to prove the claim before the Tribunal. Aggrieved by the said impugned order, present appeal has been filed.

Counsel for the appellants submitted that the Tribunal has erred in the impugned judgment because the accident occurred due to rash and negligent riding of the Hero Honda motorcycle by its rider and the Tribunal failed to appreciate the eyewitnesses.

Counsel for the respondents submitted that the Tribunal is justified in dismissing the claim petition because after considering the evidence of the parties and the materials placed on record it was clear that the deceased died due to self fall and the offending vehicle is not involved in the accident.

The Court relied on the judgment Mangla Ram v. Oriental Insurance Company Ltd., (2018) 5 SCC 656 wherein it was observed that:

“In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant eyewitness was discarded by the Tribunal and that the respondent, in that case, was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied.”

The Court further observed that under the Motor Vehicles Act, the standard of proof is much below than what is required in a criminal as well as in the civil case.

The Court thus held that the impugned judgment was decided only on the basis of the police report and failed to consider the evidence of the eyewitnesses. Hence, the Court remanded the matter for reconsideration.

In view of the above, appeal was allowed.[Rukmini v. N.C. Chandru, MFA No. 332 of 2017, decided on 02-11-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Andhra Pradesh High Court: Lalitha Kanneganti, J., addressed a matter wherein the accused was arrested without warrant alleged to have posted certain material amounting to promote enmity, hatred and ill-will.

The instant criminal petition was filed to quash the FIR wherein the petitioner was accused 1 was alleged to have committed the offences punishable under Sections 120-B, 153-A, 505(2) of Penal Code, 1860.

Respondent 2 who is the Social Media Coordinator of MLA of Mangalagiri Constituency lodged a complaint alleging that the petitioner who belonged to Telugu Desam Party and Admin of Neti Andhra.com posted certain material on the website by promoting enmity, hatred and ill-will between different groups on the ground of political propaganda with a conspiracy by using the name of Alla Ramkrishna Reddy, MLA of Mangalagiri Assembly Constituency and Advisor to Government Ajay Kallam and requested to take action against the petitioner.

In light of the above complaint, the present crime was registered.

Petitioners Counsel submitted that the investigation was politically motivated and has been conducted with a pre-determined and pre-meditated objective to arm-twist, harass and humiliate the petitioner by depriving of his right to free speech and expression.

The said crime was registered without issuing any notice under Section 41-A CrPC, since all the offences were punishable below 7 years and remanded to judicial custody.

Counsel further added that the act of the police in arresting the accused is in clear violation of the guidelines issued by the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

This Court and Supreme Court in catena of cases held that in order to constitute the ingredients of Section 153-A of IPC, it is necessary that at least two such groups or communities should be involved. Merely enticing the feelings of one community or group without any reference to any other group cannot attract the offence under Section 153-A IPC.

In the instant case, there were no two groups involved as per Section 153-A IPC. The Advisor to the Government and the MLA group cannot be construed as two groups.

Section 505(2) of IPC: Statements creating or promoting enmity, hatred or ill-will between classes.

The counsel for the petitioner submitted that in light of the law laid down by Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 that allegations in the complaint prima facie do not constitute the offences punishable under Section 505(2), 153A and 120B of IPC.

Supreme Court in Arnesh Kumar’s case observed that arrest brings humiliation, curtails freedom and cast scars forever. Lawmakers as well as the police must know about this. The need for caution in exercising the drastic power of arrest has been emphasized time and again.

High Court observed that, in light of the law laid down in Arnesh Kumar’s case, even though the punishment for the offence is below 7 years, the discretion is with the police officer either to arrest the accused or to issue notice contemplated under Section 41-A CrPC.

Further, the Bench noted that, while authorising the detention the magistrate shall record reasons and failure to comply with the directions shall apart from rendering the police officer concerned for departmental action, he shall also be liable for Contempt of Court to be instituted before the High Court.

Even the magistrate will be liable for departmental action by the High Court. 

“Who will police the police” when the police are giving go-by to all guidelines while arresting the accused and producing for remand, the Magistrate shall not mechanically authorise the remand, but shall satisfy that there are sufficient grounds supported by material on which the accused need to be remanded. 

— Justice Krishna Ayyar

In spite of the clear guidelines by the Supreme court, some of the police officials continue to make indiscriminate arrests, immediately after registering the complaint without proper investigation.

Prima Facie, the Court opined that the reasons stated in the remand report were not in consonance with the guidelines issued by the Supreme Court, therefore Bench invited a report along with the record from the magistrate on what basis Section 41A of CrPC was dispensed with and the accused was remanded.

All the further proceedings shall stay in view of the above discussion.

Matter to be posted on 26-11-2020.[Jangala Sambasiva Rao v. State of A.P., IA No. 2 of 2020, decided on 28-10-2020]

Legislation UpdatesNotifications

Government of Punjab vide Notification No. S.O. 52/C.A.25/1946/S.6/2020 withdraws the general consent accorded to the members of the Delhi Special Police Establishment.

In view of revocation of all previous general consents issued earlier, prior consent of the Government of Punjab shall be required, hereinafter, on a case-to-case basis for investigation of any offence or class of offences under Section 3 of the Delhi Special Police Establishment Act, 1946, by the Delhi Special Police Establishment.


Government of Punjab

[Notification dt. 06-11-2020]

Case BriefsHigh Courts

Orissa High Court: A Division Bench of Mohammed Rafiq and B. R. Sarangi, JJ.,  dismissed the petition and vacated the interim order.

 The facts of the case are such that the petitioner is a private limited company, registered under Companies Act was awarded the work “Construction of HL bridge over river Suktel on Tamian to Mundalsar road in the district of Bolangir under Biju Setu Yojana” vide agreement dated 26-02-2014 and the completion date was fixed to 25-02-2016 but it was completed before scheduled dated and handed over on 07-09-2015. Once the work completed and it was open for public transportation few horizontal cracks were to be seen and while the petitioner company was called for restoration work, the nationwide lockdown was announced and due to it being left unattended in the middle of the work, ‘span’ collapsed killing and injuring two persons respectively. Consequently, the petitioner was blacklisted and charged under various sections of the Penal Code, 1860 which stands challenged and pending adjudication. However, now Lokayukta has registered suo motu case against the petitioners and observed that a recently constructed bridge was collapsed resulting in death of two labourers and demanded a fair enquiry to be submitted exercising its power under Section 20(6) of the Odisha Lokayukta Act, 2014, and directed to file status report of the same within a period of three months from the date of passing of the order. Hence the instant application was filed challenging the order of Lokayukta.

Counsel for the petitioner submitted that as there are petitions pending adjudication before Court and the petitioner is also facing criminal charges, Lokayukta also causing an enquiry is prejudicial to the interest of the petitioner and the order passed is without complying the principles of natural justice and, thereby, the said order cannot sustain in the eye of law.

Counsel for the respondent the Lokayukta has only directed for investigation by the Vigilance authority, which is within the complete domain of the Lokayukta under Section 20(6) of the Odisha Lokayukta Act, 2014. If the Lokayukta has been empowered under the statute to issue such direction for investigation, the same should not be interfered with by this Court by passing an interim order and seeks that such interim order should be vacated and allow the Lokayukta to proceed with the matter in accordance with the law.

The Court observed that even though the order of blacklisting the contractor has been challenged before this Court and the matter is pending adjudication, and the contractor himself is facing criminal case lodged against it for such negligence in the work, but that ipso facto cannot disentitle the Lokayukta to cause an enquiry under the provisions of the Odisha Lokayukta Act, 2014 for alleged corruption in the matter of execution of the work itself.

The Court held that if the direction has been given to find out the lapses caused on the part of the government servant and such direction has been issued under Section 20(6) of the Odisha Lokayukta Act, 2014, this Court does not find any illegality or irregularity by issuing such direction by the Lokayukta.

In view of the above, petition is not entertained and accordingly dismissed.[Ram Kumar Agrawal Engineers (P) Ltd. v. Odisha Lokayukta,  2020 SCC OnLine Ori 774, decided on 16-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Jyotsna Rewal Dua JJ. disposed of the petition giving relief to the students and awarding litigation expenses as compensation to be paid by the defaulting respondent college.

The instant petition was filed by students seeking the return of their original documents submitted to Himalayan School of Nursing, being run by the Himalayan Group of Professional Institutions, under the aegis of Maa Saraswati Education Trust, registered in the State of Haryana at the time of admission in course GNM i.e. General Nursing & Midwifery Diploma. Even after having approached the authorities on multiple occasions, the college failed to provide the original documents and later confessed to not having them in their possession and the same to be seized by CBI.

Counsel for the respondent submitted that the original certificates are not in their possession and has been seized by CBI. In view of this, Court asked CBI to file a reply. The reply by CBI stated that during search proceedings, files were found and seized for further investigation qua Himalayan Group of Professional Institutions, Kala Amb, Tehsil Nahan, District Sirmaur, H.P., before the Court of Special Magistrate (CBI)-cum-CJM, Shimla.

The Court relied on various judgments emphasizing the evolution of education and its importance, namely Tamil Nadu v. K. Shyam Sunder, (2011) 8 SCC 737 and observed when educator gets down to hand twisting and blackmailing by retaining the original certificates and other documents of its students so as to ensure that their wings are clipped and they do not migrate to any other college or for that matter leave the college.

The Court directed the CBI to retain the photocopies for investigation and return the original documents to the students to prevent any further mental trauma.

The Court further relied on a judgment titled Maharishi Dayanand University v. M.L.R. Saraswati College Education, (2000) 7 SCC 746 and held that petitioner students to be compensated for the legal expenses and hence Rs 50,000 each to be paid by the institution to the students.

In view of the above, the petition stands disposed off.[Twinkle Pundir v. State of H.P., 2020 SCC OnLine HP 1845, decided on 06-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Gujarat High Court: Ilesh J. Vohra, J., heard a matter related to offences alleged under Sections 376 (2) (n), 377, 406, 498(A), 323, 294(b), 506(2) and 114 of the Penal Code, 1860 and under Section 4 of the Dowry Prohibition Act which was filed seeking to quash and set aside the impugned FIR and consequential proceedings.

The wife in the FIR had alleged that her husband right from day one of their marriage indulged in sexual acts with her against her wishes and raped her. It was alleged that, her sister-in-law and her three daughters as well as another sister in law though residing outside the country or in other States in India, also harassed her on domestic issues and demanded dowry, as a result, the complainant came to her parental home at Ahmedabad.

The Court prima facie was of the view that it was a matrimonial dispute between the husband and wife and ingredients for the alleged offence were not made out qua the applicants. Even the allegations of dowry and harassment are also prima facie not established against the present applicants as the applicants are residing in their respective States and country since long considering the law laid down in Ravinder Singh v. Sukhbir Singh, (2013) 9 SCC 245 where it was held,

            “the inherent power of the court in dealing with an extraordinary situation is in the larger interest of administration of justice and for preventing manifest injustice being done. Thus, it is a judicial obligation on the court to undo a wrong in course of administration of justice and to prevent continuation of unnecessary judicial process. It may be so necessary to curb the menace of criminal prosecution as an instrument of operation of needless harassment. A person cannot be permitted to unleash vendetta to harass any person needlessly. Ex debito justitiae is inbuilt in the inherent power of the court and the whole idea is to do real, complete and substantial justice for which the courts exist. Thus, it becomes the paramount duty of the court to protect an apparently innocent person, not to be subjected to prosecution on the basis of wholly untenable complaint”.

The Court further opined that at the stage of investigation, the High Court cannot exercise its inherent jurisdiction to quash the proceedings unless it is found that, allegations do not disclose the commission of cognizable offence or the power of investigation is being exercised by the police mala fidely or where noninterference would result in miscarriage of justice as held in Jehan Singh v. Delhi Administration, (1974) 4 SCC 522. The Court granted interim relief making the matter returnable on 27-11-2020.[Steffi Waring v. State of Gujarat, 2020 SCC OnLine Guj 1531, decided on 09-10-2020]


Suchita Shukla, Editorial Assistant ahs put this story together

Case BriefsHigh Courts

Andhra Pradesh High Court: A Division Bench of Rakesh Kumar and J. Uma Devi, JJ., while ordering CBI investigation in regard to defamatory posts being put up against the Judiciary on social media sites, observed that,

“Petitioner i.e. High Court of Andhra Pradesh is being attacked by some corner with some oblique motive.”

High Court

Petitioner i.e. High Court, whose shoulder is heavily burdened with the responsibility of mainly protecting the right of a citizen guaranteed under Part III of the Constitution of India, is itself before this Court with inward pain due to indirect/direct attack on it by some of the malefactors.

News Trend: Abuse the High Court & Judges

This Court has since April, 2020 noticed that a new trend has developed in the State of Andhra Pradesh which is to abuse the High Court and its Judges on different social media sites along with interviews on electronic media.

No platform for Judges

Judges do not have any platform to prove their sincerity, integrity, etc. even in a case they are otherwise abused or insulted.

Contempt of Courts Act, 1971

Provisions of the Contempt of Courts Act, 1971, in a case of willful disobedience/insult to the Court, one can be dealt with, but the fact remains that penal provisions under the Contempt of Courts Act are though enough to deter persons, who have some faith in the system; but not enough to deter such malefactors in making unwarranted allegations against the Judiciary or Judges.

Waging War –> Judiciary

It has been noted that the person occupying high posts are indulging in waging war against the State of Andhra Pradesh’s Judicial system. The said war against the judicial system will certainly create unnecessary doubt in the citizen’s mind leading to crippling the entire system.

Article 226 of the Constitution of India

In view of the above background, the Andhra Pradesh High Court, Amravati has preferred to invoke the writ jurisdiction under Article 226 with a view to protecting its entity from the attack of some antisocial elements in the State.

Increase in defamatory posts on social media

After filing two complaints by the Registrar General of the High Court of Andhra Pradesh for the offences under Sections 505 (2) and 506 of the Penal Code, 1860, instead of a decline in posting defamatory posts on social media, it started increasing.

In an earlier incident, one of the alleged accused Kondareddydhanireddy, YSRCP had shared a defamatory post against one of the Judges of the Andhra Pradesh High Court.

In the present context, the Judges have been abused in view of some of the orders passed by this Court.

Impact | Orders against State Government and its functionaries

On 22-05-2020, different benches of this Court had passed different orders against the orders and actions of the State Government and its functionaries.

Immediately after the passing of the above-stated orders, social media was flooded with objectionable posts. Even the persons occupying high positions went to the media and gave interviews against the High Court and its Judges, that too, from the party office belonging to a political party, which is in power.

Investigation

Petitioners Counsel tried to persuade the Court that against the Judiciary, which is one of the main pillars of the democracy, such scathing attack is being made with impunity, which requires immediate intervention and thorough investigation; and, as such, it was prayed to entrust the investigation into the aforesaid matter to an independent investigating agency.

He further submitted that since the attack has been made by the persons occupying high positions and associated with the Government, there was no possibility of an independent and fair investigation at the hands of the State Government controlled agency.

Bench in view of the above directed to entrust all the FIRs to the Central Bureau of Investigation.

Court added that,

While conducting an investigation, it would be necessary to examine as to whether such attacks on Judiciary were made as a result of a larger conspiracy or not.

If it is noticed that it was due to the result of larger conspiracy, the CBI is required to take appropriate action against such culprits irrespective of the post and position.

Court while concluding its decision directed that CBI immediately after taking up investigation may take steps so that all the defamatory posts available on social media, i.e., private respondents, may be struck down and may also take steps to block such users in accordance with the law.

CBI shall submit its report in a sealed cover to the Court within 8 weeks.

The matter has been lited for 14-12-2020.[High Court of Andhra Pradesh at Amaravati v. State of Andhra Pradesh, 2020 SCC OnLine AP 1019, decided on 12-10-2020]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Sonia Gokani and N.V. Anjaria, JJ., on 28-09-2020 during the proceedings of the Vadodara Custodial Death matter once again made sure that no stone was left unturned to go to the root of the matter stating that,

            “Let no stone be left unturned and every possible attempt be made to go to the root of the matter. There must not be any scope of either laxity or soft paddling at any stage of investigation which is not only impermissible, but would also prove to be deleterious for the system.”

The petitioner had filed the petition aggrieved by the fact that his father was missing since 10-12-2019. He had further stated that he had repeatedly approached the respondent-police authorities and also gave written applications, but no heed was paid to his requests and not a single reply was received with regard to the whereabouts of the corpus, till date. He was said to have a retail business of clothes and by obtaining a parking pass from the Western Railway cycle stand, he was doing his business. It was alleged that on 09-12-2019, his father had gone to Vadodara Railway Station to get his bicycle and from there he was taken to Fatehganj Police Station for interrogation and since then, they had not heard of him. The Court on 19-06-2020 had ordered that the corpus be PRODUCED before the court, on the returnable date; however, the police could not trace the missing person. Consequently, a Fir was filed for the offences punishable under Sections 302, 201, 203, 204 and 34 of the Penal Code, 1860 against some police officers. The Court had ordered that the investigation be handed over to the CID Crime so that there was no loss of vital evidence on 05-08-2020.

The Court on 28-09-2020 in the presence of a senior officer from State CID Mr Girish Pandya assessed the road map of investigation provided by the officer where he also informed that once the Court of JMFC permits the Lie Detection Test, as and when deemed appropriate during the course of the investigation, further scientific tests also shall be requested for. The Court further said that periodical reporting shall also be needed till the whereabouts of the corpus was found with substantive and scientific proof. The specifically reminded the investigation officer that,

            “truth is the motto and object of every investigation and in the instant case, all the accused are police personnel who are supposed to be well versed with all possible tactics to overreach the process of law, extraordinary care would be expected on his part.”

The matter is scheduled to be heard on 15-10-2020 where the case diary shall be shared with the Court along with the progress in the investigation, 24 hours advance.[Sheikh Salim Shekhbabu v. State of Gujarat, R/Special Criminal Application No. 2595 of 2020, order dated 28-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and Indira Banerjee, JJ has directed a de novo investigation into the suspicious death of National Law University (NLU)-Jodhpur student Vikrant Nagaich in 2017.

BACKGROUND OF THE CASE

The third-year law student, Vikrant was found dead on August 14, 2017, under unnatural circumstances near a railway track opposite the university. As per the authorities, the student committed suicide due to alleged depression.

Neetu Kumar Nagaich, the mother of the deceased student, had sought transfer of the investigation in the case from the Rajasthan police to the Central Bureau of Investigation (CBI). She approached the court and accused the state police of “lackadaisical and callous manner of the probe” into the FIR lodged on June 29, 2018, with Jodhpur’s Mandore police station. She has sought an independent inquiry while complaining of a shoddy probe with probable collusion to shield some influentials.

She that the FIR in the case was not registered for a period of 10 months from the date when the incident occurred, and was reluctantly filed thereafter. Three years since, the investigation is at a standstill with no progress and no chargesheet filed in the case, stated the plea. In the plea, she added that the state was “criminally negligent in the investigation” or was “trying to cover” up for the perpetrators or had some malafide intention.

KEY FACTS TAKEN INTO CONSIDERATION BY THE COURT

  • The occurrence took place in the intervening night of 13.08.2017 and 14.08.2017.
  • The inquest proceedings under Section 174 Cr.P.C. were registered on 14.08.2017 but remained inconclusive, and in view of the closure report deserves to be consigned. The death of the deceased was initially sought to be passed off as accidental by collision with a train or suicidal due to depression.
  • The F.I.R. under Section 302, IPC was registered very much belatedly on 29.06.2018, albeit reluctantly, only at the persistence of the petitioner and her husband after they repeatedly approached the higher authorities.
  • Even thereafter the investigation remained at a standstill till the filing of the counter affidavit before this Court as recent as 03.07.2020 with the respondents insisting that the death was accidental and that the nature of injuries could not attribute a homicidal death.
  • Earlier the husband of the petitioner had also petitioned the High Court where till 20.07.2019 the respondents insisted that the death was accidental in nature.
  • The Supreme Court had, on 08.07.2020, directed the completion of investigation within 2 months, after which a ‘very lengthy’ investigation closure report was placed before the Court us taking a stand that though the death was homicidal there was no clue.

COURT’S OBERVATIONS

The Court said that the High Court, despite noticing the long pendency of the investigation, took a misguided approach that the petitioner had not expressed suspicion against any one and neither had he alleged biased against the Investigating Officer, to pass an open ended order to investigate the case and file a report. Hence, the investigation remained inconclusive for nearly three long years with the investigating agency sanguine of passing it off as an accidental death without coming to a firm conclusion avoiding to complete the investigation.

The Court noticed that when, on 08.07.2020, it directed that the investigation be concluded within a period of two months and the final report be placed before it, suddenly a very lengthy investigation closure report was filed taking a stand that though the death was homicidal there was no clue. It, hence, said that

“The closure report is therefore, to our mind, a clear hasty action leaving much to be desired regarding the nature of investigation, because if a detailed investigation had already been done as is sought to be now suggested, there is no reason why a final report could not have been filed by the investigating agency in the normal course of events and needed an order to do so from this Court. The entire investigation and the closure report therefore lack bonafide.”

It was, hence, of the opinion that the interest of justice therefore requires a de novo investigation to be done, to sustain the confidence of the society in the rule of law irrespective of who the actors may be.

DIRECTIONS

  • closure report set aside and a de novo investigation by a fresh team of investigators to be headed by a senior police officer of the State consisting of efficient personnel well conversant with use of modern investigation technology also directed.
  • No officer who was part of the investigating team leading to the closure report shall be part of the team conducting de novo investigation.
  • fresh investigation must be concluded within a maximum period of two months and the police report be filed before the court concerned whereafter the matter shall proceed in accordance with law.

[Neetu Kumar Nagaich v. State of Rajasthan, 2020 SCC OnLine SC 741, decided on 16.09.2020]

Op EdsOP. ED.

Introduction

Extracting a contradiction or an omission which amounts to a contradiction is an art of the cross-examiner and the method to prove it is a science. Any contradiction if proved in accordance with the provisions of the Evidence Act, 1872 can impeach the credibility of the witness and can help in rejecting the evidence of the prosecution in criminal trials and of the other side in civil trials. Contradictions have to be proved in accordance with the procedure prescribed under the Evidence Act, 1872 otherwise it would have no evidentiary value and would not be admissible. A witness can be contradicted with its previous statements either made by him in writing or reduced into writing by someone.

In criminal trials, statements recorded by the Police during the course of any investigation cannot be used for any purpose during the trial except to contradict the witness as provided under Section 145[1] of the Evidence Act, 1872. The police officer has the power to examine the witnesses who are acquainted with the facts and circumstances of the case as provided under Section 161[2] of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”). The investigating officer will invariably reduce into writing any statement made by the witness before him in accordance with Section 161(3) of the Code of Criminal Procedure, 1973 and the said statements will be a part of the final report (charge-sheet) to be submitted under Section 173 of the Code to the Magistrate concerned. Section 162[3] of the Code provides that such statements made to the police officer by any person is not required to be signed and it further imposes a bar for use of such statements for any other purpose except as provided under the proviso to the said section.

The statements recorded under Section 161(3) of the Code are not substantive piece of evidence and the Court cannot suo motu make use of such statements in case if the testimony of the witness made during the trial is not consistent with the statement made before the police during the course of investigation. The object of Section 162 of the Code is to protect the accused against overzealous police officers and untruthful witness.  In almost every other trial the witnesses are either turning hostile or are giving exaggerated testimonies. Sometimes clever witness in their examination-in-chief conforms to what they have stated earlier to the police, but in the cross-examination introduces statements in a subtle way contradicting in effect what they stated in the examination-in-chief. In either case, for the defence as well as for the prosecution it becomes important to bring the earlier part of the statement which is inconsistent with the deposition, on the record of the case as otherwise it cannot be used for any purpose and the court will not be in a position to refer to it.

If the witness turns hostile and resiles from his earlier statement made before the police, then it becomes important for the Public Prosecutor to bring that part of the earlier statement on record of the trial and the manner is provided under Section 145 of the Evidence Act, 1872 read with the proviso to Section 162 of the Code. If the earlier part of the statement where the witness has supported the case of the prosecution is not brought on record and if the contradiction between the testimony in court and the earlier statement is not proved then the said statement though supporting the case of the prosecution would not be used for any purpose by the court. How much evidentiary value to attach to the earlier statement is for the court to decide on the sound principles of appreciation of evidence however it is foremost important to bring it on record. Similarly, if there are material improvements or contradictions or omissions which amount to contradictions found in the deposition then it would be necessary for the defence to bring the earlier statement made before the police on record and to further prove it in accordance with the manner prescribed under Section 145 of the Evidence Act, 1872. It is only after such contradictions are brought on record and thereafter proved the question would come of evaluating the testimony. Therefore, it becomes very important for both the prosecution as well as the defence to first bring the contradiction on the record and thereafter to prove it in accordance with the manner prescribed.

The Supreme Court while hearing a criminal appeal noticed certain inadequacies and deficiencies in recording of evidence during the criminal trial across the country. To deal with such deficiencies the Supreme Court issued suo motu[4] notice to Registrar General of all the High Courts, Chief Secretaries, Advocate General, etc. of all State/Union Territories to arrive at uniform best practices across the country. One of such inadequacy and deficiency which the Supreme Court noticed was regarding ‘Marking of Contradictions’. The Supreme Court in its order observed that “A healthy practice of marking the contradictions/omissions properly does not appear to exist in several States”.

 Divan, J. in his judgment in the matter of State of Gujarat v. Hiralal Devji[5] emphasised on the duty of the Presiding Judge to draw the attention of the advocate to the provisions of the Evidence Act so that the contradiction is proved in accordance with the provisions of law.  Divan, J. observed:

We also wish to emphasise that in many Sessions cases when an advocate appointed by the court appears and particularly when a junior advocate, who has not much experience of the procedure of the court, has been appointed to conduct the defence of an ‘accused person, it is the duty of the Presiding Judge to draw his attention to the statutory provisions of Section 145 of the Evidence Act…”

Let us examine what is contradiction and when can an omission amount to a contradiction and how it can be proved during the trial.

Contradiction: Meaning and Purpose

The word ‘contradict’ according to the Oxford Dictionary means “to affirm to the contrary; to be directly opposed to; to go counter to; to deny categorically”. The word contradiction is not defined under the Evidence Act or under the Code. Contradiction means “A state or condition of opposition in things compared; variance, inconsistency, contrariety”. The Cambridge Dictionary defines the word contradiction as “the act of saying something that is opposite or very different in meaning to something else what is said earlier”. To illustrate:

‘X’ states in the witness box that ‘Y’ stabbed ‘Z’;

But before the Police ‘X’ stated that ‘A’ stabbed ‘Z’.

This is a pure and simple case of contradictory statements. Contradictions have to be brought on record during cross-examination of the witness.

The purpose of cross-examination is three-fold, one is to test the veracity of the statement made by a witness in his examination-in-chief, second is to shake/impeach his credit[6] and third is to elicit from that witness any relevant facts which may be favorable to the case for the cross-examiner. Right to cross- examine the witness by the accused is the cardinal rule of a fair trial which is a fundamental right of every accused, similarly it is the duty of the court trying the accused to satisfy itself regarding the reliability/credibility of the witness. In order to impeach the credibility of the witness one of the methods provided under Section 155 of the Evidence Act is to bring out the proof of former statement inconsistent with any part of his evidence in court, which is liable to be contradicted. So, in order to impeach the credibility of the witness, if there is any inconsistency in the deposition with the earlier statement then the proof of the former statement has to be brought on record and thereafter it has to be proved.

In some cases, an omission to state a fact or circumstance in the statement under Section 161(3) of the Code, may amount to contradiction during the deposition in court, if the omission appears to be significant and otherwise relevant. The condition for the omission to amount to contradiction is that what is stated in deposition becomes irreconcilable with what is omitted and impliedly negatives its existence.

Let us understand when omission would amount to contradiction by an example: ‘X’ made a statement before the police under Section 161(3) of the Code, that he saw ‘A’ stabbing ‘C’ to death;

In the witness box, he states that he saw ‘A’ and ‘B’ stabbing ‘C’ to death.

‘X’ omitted to mention that he saw ‘A’ and ‘B’ both stab ‘C’ to death.

Not mentioning the name of ‘B’ in the statement before the Police amount to significant and relevant omission as it is not comprehensible that a witness who saw two persons stab ‘C’ would mention in the statement before the Police that he saw only one person stab ‘C’ to death and therefore in such situations omissions can also amount to contradiction and will have to be proved in the manner prescribed. If the statement before the Police does not come on record of the trial and if the court is not in a position to refer to it then it would lead to a miscarriage of justice. If the statement before the Police is brought on record and thereafter proved in accordance with the procedure then the court will be in a position to imply that B was not present. Therefore, whenever there is an inherent repugnancy between the testimony and the statement before the Police, then even an omission can become a contradiction.

Let us take an example of inherent repugnancy to understand the concept. If a witness makes a statement before the Police and the officer records the statement under Section 161(3) of the Code wherein:

The witness mentions that he saw ‘X’ shooting ‘Y’ dead with a gun,

During the trial, he deposes that he saw ‘Z’ stabbing ‘Y’ dead;

Both statements cannot stand together and are inherently repugnant. Third category of omissions resulting into contradiction would be where a negative aspect of a positive recital is found in the statement.

Example of this third category would be when in the recorded statement under Section 161(3);

The witness states that a dark man stabbed ‘X’,

whereas in the witness box the witness deposes that a fair man stabbed ‘X’.

As explained in the judgment of Tahsildar Singh v. State of U.P.[7], sometimes a positive statement may have a negative aspect and a negative one a positive aspect. When the witness says that ‘a man is dark’ which is a positive statement, it also means that ‘the man is not fair’, which is a negative aspect of the statement and which is implied in the positive statement. These are the three categories of omissions which may amount to contradiction and will have to be proved during the trial.

The benefit of proving contradictions correctly can be explained by demonstrating the judgment of State of Madhya Pradesh v. Banshilal Behari[8], it was a case of a double murder with 3 eyewitnesses, where the trial court sentenced the accused to death and the High Court acquitted the accused as the credibility of the witnesses were impeached by proving the contradictions on the record. The eyewitness during his deposition in the witness box stated as under:

“that when he went inside the house along with Mst. Bhanwari Bai, he saw the accused, standing there with his sword embedded in the neck of Banwari.”

The High Court disbelieved this fact because the witness in his statement to the Police made no mention that he saw the accused, standing there with his sword thrust in the neck of Banwari.

The High Court observed reagrding omission and how it was a contradiction in the following words:

“He was confronted with this omission under Section 145 of the Evidence Act, but he could offer no satisfactory explanation. Wigmore in his Treatise of Evidence has observed that failure to assert: a fact when it would have been natural to assert it, amounts in effect to an assertion of the non-existence of the fact. In such cases an omission amounts to contradiction or inconsistency. Now it is most natural that if this witness had seen the accused in a position to which he testified before the Additional Sessions Judge; he would have certainly stated it before the Police. This omission amounts to contradiction.”

The Court further goes on to explain the effect that if the inconsistency is found in the evidence then his entire evidence will have to be scrutinised carefully and if found unsatisfactory then his entire evidence will have to be rejected. The Court observes as under:

“It is true that the Courts in India have been reluctant to act on the maxim “falsus in uno falsus omnibus”, yet the disregard of the maxim cannot be pushed too far. The whole statement should be scrutinised and if found unsatisfactory, it must be rejected. I venture to suggest that where it is proved that a witness has deliberately lied in material particulars, his evidence will have to be looked upon with considerable suspicion.”

Method of marking previous inconsistent statements to prove contradiction 

Under the rule of best evidence in common law, the question of weight comes after the question of admissibility and the question of admissibility comes after the question of relevancy. The first requirement is that the evidence to be introduced during the trial should be relevant to the charge, second the oral, as well as documentary evidence, should be admissible under the best evidence rule and then comes the question of appreciation or giving weight to such evidence.

For bringing the contradiction on record, the cross-examiner can ask a witness about any previous inconsistent statements he may have made, but if the statement was to be brought on record during trial, the witness must be shown the document before he could be asked whether he had said something different on another occasion[9]. This common law principle requiring the cross-examiner to confront a witness with the contents of a prior inconsistent statement before the introduction of extrinsic statement was laid down in the famous case of Queen Carolines in the year 1820. The witness must be confronted with the time, place, persons present and the substance of an impeaching statement before extrinsic evidence could be admitted as proof that the statement had been made. The Rule in Queen Carolines caselaid down the requirement that a cross-examiner, prior to questioning the witness about his own prior statement in writing, must first show it to the witness.”[10] The same rule finds place in Section 145 of the Evidence Act, 1872. The rule is based on the principle of fair-play and is essential for proving the contradiction regarding any inconsistency in the previous statements.

In the judgment of Bal Gangadhar Tilak v.  Sriniwas Pandit[11], the Bombay High Court provides the purpose of bringing the attention of the witness before using the documents or earlier statements to impeach his credit. The High Court observes that On general principles it would appear to be sound that if a witness is under cross-examination on oath he should be given the opportunity, if documents are to be used against him, to tender his explanation and to clear up the particular point of ambiguity or dispute. This is a general, salutary, and intelligible rule, and where a witness’s reputation and character are at stake the duty of enforcing this rule would appear to be singularly clear.”

Let us understand the true meaning and purport of Section 162 of the Code for making use of the statements recorded by the Police as evidence during trial. It is in essence allowing the use of statements recorded by the Police during the course of investigation to be used in evidence for a limited purpose. The first proviso to Section 162(1) makes an exception to the use of the statements recorded under Section 161(3), but it is an exception most jealously circumscribed under the proviso itself. “Any part of his statement” which has been reduced to writing may in certain limited circumstances be used to contradict the witness who made it. The High Court of Patna in the judgment of Badri Chaudhary v. Emperor [12], while interpreting the amendment to Section 162 of the Code of 1898 (which is almost identical to Section 162 CrPC, 1973) stated the limitation regarding the exception to the use of the statements in evidence. It held as under:

“The limitations are strict: (1) only the statement of a prosecution witness can be used; and (2) only if it has been reduced to writing; (3) only a part of the statement recorded can be used; (4) such part must be duly proved; (5) it must be a contradiction of the evidence of the witness in Court; (6) it must be used as provided in Section 145, Evidence Act, that is, it can only he used after the attention of the witness has been drawn to it or to those parts of it which it is intended to use for the purpose of contradiction,…”

Statements before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act that is by drawing attention to the parts intended for contradiction.  Under Section 145 of the Evidence Act, the attention of the witness has to be called to those parts of it which are to be used to contradict him. The Supreme Court in the judgment of V. R. Mishra  v. State of Uttarakhand [13] at para 19 has reiterated the procedure for bringing the contradiction on record of the trial. The procedure prescribed is as under:

Let us first understand the procedure for proving a pure and simple contradiction and then we will examine how to prove an omission which amounts to contradiction.

Once the examination-in-chief is completed by the Public Prosecutor and the witness deposes something contradictory to the previous statement then during cross-examination by the defence:

  • His attention has to be drawn to that part of the statement made before the Police which contradicts his statement in the witness box.
  • The attention of the witness drawn to that part must reflect in the cross-examination.
  • While recording the deposition of the witness, it becomes the duty of the trial court to ensure that the part of the police statement/case diary with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination.
  • Ideally the relevant portions of case diary/statement used for contradicting a witness must be extracted fully in the deposition. If the same is cumbersome at least the opening and closing words of the contradiction in the case diary statement must be referred to in the deposition and marked separately as a prosecution/defence exhibit.
  • If he admits to have made the previous statement then no further proof is necessary to prove the contradiction. The contradiction is brought on record and it is proved. It can be read while appreciating the evidence.
  • But if the witness after going through the earlier statement denies having made that part of the statement then it must be mentioned in the deposition.
  • By this process the contradiction is merely brought on record, but it is yet to be proved.
  • Thereafter when the investigating officer or the officer who recorded the said statement is examined in the court, his attention should be drawn to the passage marked for contradiction.
  • After going through the police statement if he says that the witness had made that statement then the contradiction can be said to have been proved.
  • If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the Court cannot suo motu make use of statements to police not proved in accordance with Section 145 of the Evidence Act.

During the examination-in-chief, if the witness does not support the case of the prosecution and ultimately, he is declared hostile by the court then with the permission of the court the Public Prosecutor will have to cross-examine the witness. The method of proving the contradiction and bringing the earlier statement on the record would be the same as mentioned above. If the Public Prosecutor does not confront the witness with earlier statements the contradiction would not be on record and he will not be in a position to prove it through the investigating officer. This has been held by 4-Judge Bench judgment of the Supreme Court in Tara Singh v. State[14] wherein it is held as under:

“….if the prosecution wishes to go further and use the previous testimony to the contrary as substantive evidence, then it must in my opinion, confront the witness with those parts of it which are to be used for the purpose of contradicting him. Then only can the matter be brought in as substantive evidence under Section 288. As two of the eyewitnesses were not confronted in the manner required by Section 145, their statements will have to be ruled out, and if that is done, the material on which the conviction is based is considerably weakened.”

Further, the Supreme Court in the judgment of State of Rajasthan v. Kartar Singh[15] has held that if the witness resiles completely from its earlier statement than, if the entire previous statement is read over to the witness and then confronted with the said statement that would be in compliance with Section 145 of the Evidence Act. The Supreme Court observed that it would have been pointless to draw the witness attention to each sentence and ask his explanation because the explanation would have been the same that it was false and given under pressure of police. However, the earlier statement will have to be read over in order to comply with the requirement of Section 145 of the Evidence Act. If a clever witness faithfully conforms to what he stated earlier to the police or in the committing court, but in the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief then such witness can be cross-examined by the prosecution as held by the Supreme Court in the judgment of Dahyabhai Chhaganbhai Thakkar  v. State of Gujarat[16].

Method of marking previous inconsistent statements to prove omission which amounts to contradiction  

Omissions may have vital bearing upon the truth of the story given. But to prove the omission there is a slightly different technique. In the case of omission of the most vital and relevant aspect the contradiction is implied and is not so direct. In order to confront with the earlier statement there is nothing in the earlier statement which is contradictory as the witness might have improved his version during the testimony. So first the contradiction will have to be brought by asking questions in cross-examination which are permitted under Section 162 of the Code. Let us understand this by an illustration which is explained in the landmark judgment of Tahsildar Singh (supra):

  • ‘X’ makes a statement before the Police that “When I arrived at the scene I saw ‘A’ running away, chased by ‘B’ and caught by ‘C’”.
  • In the witness box ‘X’ says that “When I arrived at the scene, I saw A take out a dagger from his pocket, stab ‘D’ in his chest and run away. He was chased by ‘B’ and caught by ‘C’.

Here is an example of omission of two facts in the statement before the Police:

  • ‘A’ takes out a dagger from his pocket;
  • ‘A’ stabbed ‘D’ in his chest;

The said omissions are vital. It is not believable that the witness who says ‘A’ took out a dagger and stabbed D in the chest would not mention such a crucial and important fact. Further, it is also not possible that a police officer investigating the case would miss out on such a crucial piece of information. Therefore, it can be implied that the witness has improved his version and is not giving out the correct facts and therefore the omission becomes a contradiction.

However, in order to bring the contradiction on record first, the omission will have to be converted into a contradiction by asking the question in the cross-examination which will bring out the contradiction. The cross-examination in the case of omission becomes very important and it should be aimed at bringing out the contradiction between the statements. Let us understand what kind of questions would be admissible and what would not be admissible.

In the above case the cross-examiner may ask:

  1. I put it to you that when you arrived at the scene ‘A’ was already running away and you did not actually see him stab ‘D’ as you have deposed?
  2. No, I saw both the events.
  3. If that is so, why is your statement to the police silent as to stabbing?
  4. I stated both the facts to the Police.
  5. I am showing you from the original record your statement before the police where you have mentioned “When I arrived at the scene I saw ‘A’ running away, chased by ‘B’ and caught by ‘C’”
  6. I had stated but the Police did not write accordingly.

So the first thing to do is to convert the omission by putting a question which will bring out the contradiction. What is required is to take the statement of the police as it is and establish a contradiction between that statement and the evidence in court. If the cross-examination does anything else but to bring out the contradiction then it is barred under Section 162 of the Code and such questions will not be allowed to be put to the witness. Questions which cannot be asked are as follows:

  1. What did you state to the Police?
  2. Did you state to the police that A stabbed D?

Such questions cannot be asked as they attempt to get a fresh version of the witness and not a contradiction. Contradiction under Section 162 of the Code should be between what a witness asserted in the witness box and what he stated before the police officer. After bringing the contradiction on record the next step is to ask the Investigating officer or the officer who recorded the statement of the witness under Section 161(3) the question regarding whether he had given such a statement before the officer. If the officer states that the witness had not mentioned the said facts then the omission is proved during the trial.

Conclusion

The importance of proving contradiction in accordance with the manner prescribed is absolutely important and very crucial for practicing in the trial courts. If contradictions are proved as per the procedure then it can have a considerable impact on the trial. The illustrations given above are to highlight the best practice to prove contradictions. However, cross-examinations may vary from case to case and on the facts and circumstances as well as on counsel to counsel as well as on statements to statements.


*Jeet J Bhatt is a practicing Advocate at Gujarat High Court. He can be reached at jeetbhatt@gmail.com

[1] Section 145. Cross-examination as to previous statements in writing.— A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

[2]Section 161. Examination of witnesses by police.– (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

[3] Section 162. Statements to police not to be signed: Use of statements in evidence.– (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872 ); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act. Explanation.- An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

[4]In Re: To issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials, 2017 SCC OnLine SC 298.

[5] 1963 SCC OnLine Guj 32

[6]Section 146 of the Evidence Act, 1872

[7] 1959 Supp (2) SCR 875

[8]  1957 SCC OnLine MP 83

[9]Queen Carolines Case, (1820) 2 Brod& Bing 287,

[10]United States v. Cottrell, 1986 U.S Dist. LEXIS 19272 (E.D. Pa.Oct, 9, 1986)

[11] 1915 SCC OnLine PC 16

[12] 1925 SCC OnLine Pat 148

[13] (2015) 9 SCC 588

[14] 1951 SCR 729

[15](1970) 2 SCC 61

[16] (1964) 7 SCR 361

Case BriefsHigh Courts

Madras High Court: B. Pugalendhi, J., while addressing a petition, observed that,

“An impartial investigation is the basic requirement for any investigation. A fair investigation is also a part of constitutional right guaranteed under Articles 20 & 21 of the Constitution of India.”

“Majority of people are now hailing the police encounters and majority of people are now opting for other modes of redresses, like Kangaroo Courts, etc.”

Respondent had filed a final report against the Appellant for the offence under Sections 341, 302 and 394 r/w 397 of Penal Code, 1860.

Trial Court did not find the appellant guilty for the offence under Section 394 r/w 397 IPC but found him guilty for the offence under Section 341 and 304 (ii) IPC.

Property Dispute

Deceased Senthil had a property dispute with the family of one Ponnusamy.

Ponnusamy’s brothers Udayar and Jeyaraman; and one Sabarimalai surrounded the deceased was stabbed.

Mohideen Basha, Counsel for the appellant and Robinson, Government Advocate [Crl Side].

Decision

Bench noted certain lapses in the investigation of the present case.

High Court called the CD file to find out the manner in which the investigation was conducted.

Further, the Court stated that the investigation agency acted in a casual manner, so as to bury the truth and the real accused, who committed the brutal murder on a poor man escape from the clutches of law.

Hence, the appeal was allowed and the conviction and sentence imposed on the appellant were set aside.

Supreme Court’s decision in Popular Muthiah v. State, (2006) 7 SCC 296, was also cited.

The investigation must be unbiased, honest, just and in accordance with the law. The purpose of the investigation is to bring out the truth of the case before the Court of law.

In the present matter, it has been obliterated and the investigation has proceeded in a causal manner as to the whims and fancies of the investigation agency.

Court added that,

“1000 culprits can escape, but, one innocent person should not be punished.”

The available materials, in this case, expose the perfunctory and designed investigation and therefore, this Court is left with no other option except to interfere with the judgment of conviction passed by the trial Court.

A Crime is a public wrong, which involves the public rights of the community as a whole and also harmful to the society in general.

Criminal Justice System

It was also stated that the responsibility of the investigation agency in the criminal justice system plays a major role and they are, in fact, the kingpins in the criminal investigation system.

We are taking pride that the Tamil Nadu State Police is one of the best investigation agencies in the World and it is because of the exemplary service rendered by our police officers.

We cannot allow this reputation of the agency to be eroded by some irresponsible officers.

— Madras High Court

Further, the High Court also observed that the Tamil Nadu Police Reforms Act was enacted in the year 2013, yet it has not been implemented in letter and spirit.

Investigation

An investigation is not a mechanical work, which can be conducted in a casual manner, it requires expertise, knowledge and technical skills to collect the materials, which could unearth the truth.

Concluding the decision, Court stated that the accused can be declared innocents and can be set at liberty, either on the merits of the case or on the lapses committed by the Department. If it is on the lapses committed by the Department, steps should be taken on the side of the Department to avoid the same.

An innocent person does not deserve to suffer the turmoil of long drawn litigation, spanning over a decade or more.

Court placed certain queries for the State and DGP to give their response which are as follows:

i) How the investigation officers are equipped with the knowledge and expertise in conducting a criminal investigation and how it is ensured by the superior officials?

ii) Whether any disciplinary proceedings have been initiated as against the officials, who are responsible for acquittal because of their perfunctory investigation?

iii) How the superior officers, namely, the Deputy Superintendent of Police, Additional Superintendent of Police, Superintendent of Police, Deputy Inspector General of Police and Inspector General of Police are monitoring the investigation?

iv) In the case of lapses in the investigation, whether the investigation officer alone is responsible or the higher officials, who are expected to monitor the investigation, are also responsible?

v) The steps taken by the Government in fully implementing the decision of the Supreme Court in Prakash Singh v. Union of India, (2006) 8 SCC 1 and the Tamil Nadu Police Reforms Act, 2013, in letter and spirit, in all the police stations.

vi) The steps taken by the Government in implementing the decision of the Supreme Court in State of Gujarat v. Kishanbhai, (2014) 5 SCC 108.

vii) The steps taken by the Government and the Department, to implement the amendments made to Sections 161, 164 and 275 CrPC?

viii) The steps taken by the Government and the Department, to implement the amendments to Sections 161, 164 and 275 CrPC, pursuant to the direction of the Division Bench of this Court in Satheesh Kumar’s case (supra).

ix) Whether the Circulars issued by the Director-General of Police then and there are strictly complied with? In the event of non-compliance, whether any disciplinary proceedings are contemplated against them and if so, the details thereof.

x) Whether the circulars issued by the Director-General of Police are readily available in all the police stations, in the form of a manual and whether they are available in the common platform, such as websites, so that, it can be accessed by the general public?

xi) The existing mechanism to enhance the quality of investigation among the investigation officers and the ways and means to enhance the same as to the present-day scientific advancements.

xii) The possibility of issuing a checklist including the steps to be carried out by the investigation officers, step by step, depending upon the nature of crime and the applicability and training using advanced scientific techniques, like fixing the accused using call details and tower location, etc., and how such collected details be marked/produced before the Court.

xiii) Why not compensation of Rs 10,00,000 be awarded to the victim in this case, who suffered because of the perfunctory investigation, which could be recovered from the investigation officers, namely, PW 12, Thiru N. Muthukumar; and PW 14, Thiru Poun and the Deputy Superintendent of Police, Sivagangai concerned?

xiv) The Secretary to Government, Home, Excise and Prohibition Department; and the Director-General of Police, Chennai, shall give their comments/proposal as to the present case and the further course of action, if any, in view of the fact that ten years have lapsed since the commission of offence.

xv) Ways and means to address the issue raised & to effectively overcome the same.

xvi) Any other suggestions to avoid the acquittals due to such perfunctory investigations, in future, so as to regain the losing glory of the Department.

The present matter listed for 22-09-2020. [Balamurugan v. State, 2020 SCC OnLine Mad 2165, decided on 08-09-2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: Rajeev Kumar Shrivastava, J., allowed the anticipatory bail application of the accused-applicant in connection with the FIR registered for offence punishable under Sections 420 and 34 of the Penal Code, 1860.

The applicant has an apprehension of his arrest resultant of the FIR bearing No. 131/2019 for the offence punishable under the aforementioned sections of the IPC, hence this application.

Counsel representing the applicant, Rajendra Singh Parmar has contended that the applicant has been falsely framed as he has not committed any offence. The applicant’s hard earned reputation would take a beating if he is arrested. The applicant has expressed his willingness to abide by any condition that may be imposed by the Court in the present matter. The counsel has relied on the case titled Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 while pleading for grant of bail to the applicant.

Counsel for the respondent, B.S. Gour vehemently objected to the application and prayed for its rejection.

After careful perusal of the facts, circumstances and arguments advanced, the Court found the above-stated case to be extremely relevant and relied on the same while delivering its Judgment. Relevant paragraphs from Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 have been reproduced below-

“7.1. From a plain reading of the provision under Section 41 CrPC, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.

7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest.

7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. Before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC 9. Another provision i.e. Section 41-A CrPC aimed to avoid unnecessary arrest or threat of arrest looming large on the accused requires to be vitalised. This provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.”

In view of the above, the Court has allowed the present anticipatory bail application giving the following directions-

“(i) that, the police may resort to the extreme step of arrest only when the same is necessary and the applicant fails to cooperate in the investigation.

(ii) that, the applicant should first be summoned to cooperate in the investigation. If that applicant cooperates in the investigation then the occasion of his arrest should not arise.”

[Rajendra Singh Parmar v. State of Madhya Pradesh, 2020 SCC OnLine MP 1834, decided on 31-08-2020]

Hot Off The PressNews

The Council has noted with distress that coverage of the alleged suicide by a Film actor by many media outlets is in violation of the Norms of Journalistic Conduct and, therefore, advises the Media to adhere to the Norms framed by the Press Council of India.

The Media should not narrate the story in a manner so as to induce the general public to believe in the complicity of the person indicted. Publishing information based on gossip about the line of investigation by the official agencies on the crime committed is not desirable. It is not advisable to vigorously report crime related issues on a day to day basis and comment on the evidence without ascertaining the factual matrix. Such reporting brings undue pressure in the course of fair investigation and trial.

The Media is advised to refrain from giving excessive publicity to the victim, witnesses, suspects and accused as it will amount to invasion of their privacy rights. Identification of witnesses by the Media needs to be avoided as it endangers them to come under pressure from the accused or his associates as well as investigating agencies.

The Media is advised not to conduct its own parallel trial or foretell the decision to avoid pressure during investigation and trial.

Further, the reporting of the alleged suicide by the actor by some of the newspapers is also in violation of the norms formulated by the Council for reporting on suicide. The norm prohibits publishing stories about suicide prominently and advises the media not to unduly repeat such stories. The media is expected not to use language which sensationalise or normalises suicides or presents it as a constructive solution to the problems. The Media is advised not to use sensational headlines or use photographs, video-footage or social media links while reporting on suicide cases.


Press Council of India

[Press Release dt. 28-08-2020]

Case BriefsHigh Courts

Bombay High Court: A Full Bench of Dipankar Datta, CJ and R.K. Deshpande and Sunil B. Shukre, JJ., answered the question referred by the Division Bench of this Court with regard to, “Whether a convict who has challenged his conviction under Section 374 of the Code of Criminal Procedure, 1973 is entitled to the benefit of Section 436 A of the Code?”

Court answered in negative and held that the benefit under Section 436-A of the Code of Criminal Procedure is only for the undertrial prisoners.

Bench has been asked to answer a question referred by the Division Bench of this Court in a criminal application wherein applicant sought bail under Section 436-A of Code of Criminal Procedure.

Background of the Case

In 2016, the applicant was convicted for the offences punishable under Sections 506-II, 450, 326, 452, 354-A read with Sections 34, 149, 109 and 114 of the Penal Code, 1860 and also under Section 66E of the Information Technology Act, 2000.

The application was rejected by the Division Bench of this Court by its order passed on 18-11-2016.

On two occasions, the applicant failed to get any reprieve.

Now, the applicant has again renewed his effort to secure his release on bail during the pendency of the appeal, this time on a new ground he sees as available to him in Section 436-A of the Code.

Applicant relies upon Pradip v. State of Maharashtra, 2019 SCC Online Bom 9768 and Mudassir Hussain v. State, 2020 SCC Online J&K 381, and also a few more Judgments.

Question framed by the Division Bench is as under:

“Whether a convict who has challenged his conviction under Section 374 of the Code of Criminal Procedure, 1973 is entitled to the benefit of Section 436 A of the Code?”

Applicant’s Counsel, R.K. Tiwari submitted that the provision of Section 436-A of the Code is beneficial in nature and therefore it deserves liberal interpretation.

If the provision is liberally constructed, it would bring big relief to the convicts whose appeals filed under Section 374 of the Code are pending for final disposal for long years.

Additional Public Prosecutor, T.A. Mirza submitted that language of Section 436-A of the Code is clear and unequivocal admitting of no two interpretations and therefore the rule of liberal construction has no application here.

Decision and Analysis

The situation which went into the birth of Section 436-A was of undertrial prisoners, the primary concern being of their incarceration in jail for a long period of time pending investigation, inquiry or trial, even though the presumption of innocence till found guilty was operating in their favour.

By introducing Section 436-A to the Code, an endeavor was made to remedy the condition of torture and misery of accused persons as undertrial prisoners, relegated to dark corners within jails, away from the hustle and bustle of life activity without jails.

Liberal Construction

The benefit intended to be given by Section 436-A CrPC is for a person who has, during the period of investigation, inquiry or trial under the Code of an offence not being an offence for which capital punishment has been prescribed as one of the punishments, undergone detention for a period extending up to one half of the maximum period of imprisonment specified for that offence under that law.

Benefit under the section has been intended to be given only to the undertrial prisoners.

Sunil B. Shukre, J., answered in negative to the referred question, further stated,

“To be specific, we answer the question in terms that a convict who has challenged his conviction under Section 374 of the Code, is not entitled to the benefit of Section 436-A of the Code.”

R.K. Deshpande, J., while in agreement with the above-stated conclusion opined that there is no absolute right to get released, conferred upon the undertrial prisoner upon fulfillment of the conditions specified under Sectio 436-A CrPC.

An accused completing the period specified under Section 436-A on the date of filing of appeal may not apply under Section 389 of the Code for suspension of sentence and grant of bail, but he can claim the release from detention even without suspension of sentence.

Therefore, to agree with the contention that the accused remain an undertrial prisoner during the pendency of the appeal and the Appellate Court is competent to exercise the power under Section 436-A of the Code.

Dipankar Datta, C.J., while agreeing with the view of learned brothersDeshpande and Shukre, JJ. stated that,

Section 436-A refers to the maximum period of imprisonment specified for the offence in question, and not to the period of imprisonment actually imposed.

Chief Justice opined that Section 436-A CrPC is restricted in its operation to grant bail to an undertrial prisoner ‘during the period of investigation, inquiry or trial’ and does not, ex proprio vigore, apply at the appellate stage.

Thus, CJ concurred with the prima facie view of the Division Bench as well as the opinion of learned brother Deshpande and Shukre, JJ.

“Spirit of Section 436-A, CrPC could be considered by an appellate court while it is seized of an application under Section 389, CrPC and, drawing inspiration from the principle ingrained in the former, to suspend execution of the sentence bearing in mind all relevant factors including the time likely to be taken for disposal of the appeal.”

Therefore, Bench held that since the Division Bench has rejected the applicant’s prayer for suspension of execution of sentence for the third time, it is highly unlikely that any further prayer in the instant matter shall be considered favourably. [Maksud Sheikh Gaffur Sheikh v. State of Maharashtra, 2020 SCC OnLine Bom 878, decided on 28-08-2020]

Case BriefsHigh Courts

Madras High Court: A Division Bench of N. Kirubakaran and V. Velumani, JJ., while addressing the present petition observed that,

“Indian Democracy should not be tainted by criminals.”

“…it is seen that some of the criminal elements are floating political parties on their own with the support of their religion or communities and the same is required to be prohibited.”

The instant petition has been filed by the wife of the detenu against the detention order passed against her husband as he got about 19 cases pending registered against him for various offences.

Amongst the 19 pending cases, one has been registered under Section 102 of Penal Code, 1860, another for the offence under Section 307 of IPC, three cases for the offence of dacoity and 1 under NDPS Act and so on.

In view of the above-stated facts, Court questioned the respondent as to why the investigation has not been properly done and charge sheets are not filed even for the case pending from the year 2009 and directed to file a report regarding the stages of investigation in the cases registered against the detenu as well as the details of pending trial cases.

Respondents stated that out of the 19 cases, detenu has been acquitted only in one case.

Criminal Elements in Puducherry |Political Parties

The media reports make it evident that criminal elements in Puducherry have a close connection and support of political parties.

Political parties are having criminals as their members and also office-bearers.

It is brought to the notice of this Court that many cases are relating to inter-gang rivalries and country-made bombs are used to murder the opposite gang members. In total 5 cases, country-made bombs were hurled by the detenu and his associated.

Further, the court noted that charge sheets have been filed only in two cases in which offences under the Explosives Substances Act, 1908 have been invoked.

The case wherein double-barrel country made gun was used, no charge sheet has been filed.

Detenu and his associates are said to have used country-made bombs for murdering “Velazhagan” on 19-04-2017 and a case was registered under Section 302 IPC and 3 of Explosive Substances Act, 1908 and thereafter the case was transferred to CBCID, Puducherry.

The case for the above-said offence was registered in the year 2017, the sanction for prosecution under the Explosives Substances Act was not granted by the Government.  Only after this Court questioned the attitude of the respondents, the government had granted the sanction last week.

In view of the above-stated position, Court is justified to observe that three years delay in granting sanction for the case registered in the year 2017 is only due to political support enjoyed by the accused.

Even in the 2015 case, the investigation has not gotten over for the past 5 years.

Clout with Political Parties

The above stated would speak about the accused’s clout with political parties, especially ruling parties and police.

Lethargic attitude of the Police

Not filing charge sheet would only show how the police has been lethargic even in the cases involving heinous criminals that too murders by using country-made bombs.

It is reported in media that even some of the Ministers and Legislators are being given security by rowdy gangs.

Safety of people jeopardised

There seems to be a syndicate between the police force, political leaders and rowdy gangs and hence, the safety and security of the people are jeopardised.

Decriminalization of Politics

It has also been reported by media that persons with criminal background are becoming policymakers and the same has to be prevented alongwith cleansing of the system.

The leaders should have a vision for decriminalization of politics.

In view of the above-stated vision, Central Government should come out with comprehensive legislation to prohibit persons with criminal background from contesting elections to Parliament, State legislature and Local Bodies as was observed by the Supreme Court’s Constitution Bench in Public Interest Foundation v. Union of India,(2019) 3 SCC 224.

In view of the above, the High Court directed the respondent to answer the following queries:

  • How many rowdy gangs are active in Puducherry as well as in other States?
  • How many persons with criminal background are accommodated by various political parties as top office bearers and District Secretaries and the details of the criminal cases registered against those persons and their position in the respective political party?
  • How many History sheets have been opened for the past ten years in Puducherry?
  • How many murders have been committed by Rowdy Gangs in Puducherry as well as in other states?
  • How many cases have been registered so far against the rowdies and what are all the stages of the said cases in Puducherry?
  • Whether witnesses in the said cases are threatened to turn hostile so as to get an acquittal in Puducherry?
  • How many years does it take for a criminal case, especially a murder case to get disposed of in Puducherry?
  • How many persons have been so far detained under the Goondas Act for the past ten years in Puducherry?
  • Whether Rowdy gangs are using illegal arms like Pistols etc., apart from using Explosive Substances?
  • Why not the Central Government enacted a law to prohibit candidates with criminal background contesting the elections to the Parliament as well as State legislatures as suggested by the Constitution Bench of the Supreme Court?
  • Why not the Puducherry Government enact a law like Maharashtra Control of Organized Crime Act, 1999 to control the criminal activities in Puducherry?

The matter is to be listed in 2 weeks. [Jamuna v. Government of India, 2020 SCC OnLine Mad 1828, decided on 13-08-2020]


Also Read:

Candidates with criminal antecedents| Parliament has exclusive jurisdiction to lay down disqualification for membership; Court cannot legislate: SC

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ and Revati Mohit Dere, J., declined to entertain the instant PIL related to the unnatural death of the actor Sushant Singh Rajput seeking the same to be transferred for investigation to the CBI  in light of a decision pronounced by the Supreme Court on 19-08-2020.

Court observed that, Supreme Court by its decision on 19-08-2020 ordered investigation into the unnatural death of the film actor Sushant Singh Rajput to the Central Bureau of Investigation.

Petitioner-in-person submitted that her PIL should be kept pending so that this Court could monitor the investigation to be conducted by the CBI.

Further, the petitioner’s counsel Subhash Jha urged that Advocate General should make a statement that the officers of the CBI shall not be put under quarantine once they arrive in Mumbai.

High Court dismissed the PIL in light of the same being beyond the scope and as far as petitioner’s counsel’s request was concerned, Court stated that they ought no to pass any order based on an apprehension.

Hence, the Court passed the following order:

Having regard to the directions passed by the Supreme Court in its order dated 18-08-2020 entrusting the investigation to the CBI, nothing practically survives for decision on this set of PIL petitions.

[Priyanka Tibrewal v. Union of India, PIL-CJ-LD-VC-37 of 2020, decided on 21-08-2020]


Read More:

Sushant Singh Rajput| Here’s why SC ordered CBI probe into the actor’s death [DETAILED REPORT]

Sushant Singh Rajput death | Bom HC defers hearing till 21st August, 2020 on plea seeking CBI investigation

Case BriefsHigh Courts

Orissa High Court: S.K. Panigrahi J., granted bail to an accused of animal trafficking under Wildlife Protection Act, 1972 on the facts and submissions of the case.

The facts are that on 19.05.2020 patrolling staff of Kuntuni range forest area received information regarding the transportation of pangolin in a scooty having no number plate. The scooty was chased and caught, the live pangolin was rescued and the driver detained on not being able to produce valid documents regarding the same. On further investigation, it was revealed that the present petitioner is also involved. They were registered for alleged offences under Sections 9, 39, 44 and 49 of Wildlife Protection Act, 1972 Amended and punishable under Section 51 of the said Act and is in custody. Hence the instant application is filed praying for bail.

Counsel for the petitioner submitted that the petitioner is a teacher by profession and has been framed and has no complicity in the offence. He further submitted that the accused has no direct link with the crime as he only gave certain phone numbers having no idea about the crime and is fit to be granted bail.

Counsel for the respondents submitted that such offences require to be dealt strictly by court as the pangolins are close to extinction due to being exposed to rampant trafficking and poaching.

After hearing both sides the court held that though animal trafficking is a serious crime and has to be stopped but given due consideration to the present facts and submissions Court granted bail.

In view of the above, application was disposed off.[Shyamsundar Behera v. State of Orissa, 2020 SCC OnLine Ori 595, decided on 10-08-2020]


*Arunima Bose, Editorial Assistant has put this story together

Case BriefsSupreme Court

“When truth meets sunshine, justice will not prevail on the living alone but after Life’s fitful fever, now the departed will also sleep well. Satyameva Jayate.”

Supreme Court: A single judge bench of Hrishikesh Roy, J has held the ongoing investigation by the CBI to be lawful and further directed that if any other case is registered on the death of the actor Sushant Singh Rajput and the surrounding circumstances of his unnatural death, the CBI is directed to investigate the new case as well. Such enabling order will make it possible for the CBI to investigate the new case, avoiding the rigors of Section 6 of the DSPE Act, requiring consent from the State of Maharashtra.

BACKGROUND OF THE CASE

The order came on Rhea Chakraborty’s plea seeking the transfer of an FIR, from Patna to Mumbai, accusing her of abetting in Sushant Singh Rajput’s alleged suicide on June 14, 2020. Chakraborty, who was reportedly Sushant Singh’s girlfriend at the time of his death, has challenged Bihar police’s jurisdiction in the matter, given that the alleged crime took place in Maharashtra. Apprehending that all facets of the death of the his son will not be investigated properly by the Mumbai police, Krishna Kishore Singh has filed the above FIR on 25.07.2020, which led to registration of the case by Rajeev Nagar Police Sation, Patna. Several allegations are leveled against Chakraborty in connection with the suicidal death of the Actor and, therefore, she has filed this Petition for transfer of the proceedings from the Bihar Police to the Mumbai Police Authorities. Bihar Police had, however, recommended for a CBI probe into death case of actor and the Centre has accepted the same.

DETAILED ANALYSIS OF THE JUDGMENT

TRANSFER POWER UNDER SECTION 406 CRPC

The scope of exercise of this power is for securing the ends of justice. The precedents suggest that transfer plea under Section 406 CrPC were granted in cases where the Court believed that the trial may be prejudiced and fair and impartial proceedings cannot be carried on, if the trial continues. The Court held that only cases and appeals (not investigation) can be transferred.

SCOPE OF SECTION 174 CRPC PROCEEDING AND MUMBAI POLICE’s EXERCISE OF POWER THEREOF

The Court noticed that the proceeding under Section 174 CrPC is limited to the inquiry carried out by the police to find out the apparent cause of unnatural death. These are not in the nature of investigation, undertaken after filing of FIR under Section 154 CrPC.

It further said that the Mumbai Police has attempted to stretch the purview of Section 174 without drawing up any FIR and therefore, as it appears, no investigation pursuant to commission of a cognizable offence is being carried out by the Mumbai police. They are yet to register a FIR. Nor they have made a suitable determination, in terms of Section 175(2) CrPC. Hence,

“The inquiry conducted under Section 174 CrPC by the Mumbai police is limited for a definite purpose but is not an investigation of a crime under Section 157 of the CrPC.”

JURISDICTION OF PATNA POLICE TO REGISTER COMPLAINT

The Court held that the Patna police committed no illegality in registering the Complaint. Looking at the nature of the allegations in the Complaint which also relate to misappropriation and breach of trust, the exercise of jurisdiction by the Bihar Police appears to be in order.

“Registration of FIR is mandated when information on cognizable offence is received by the police and at the stage of investigation, it cannot be said that the concerned police station does not have territorial jurisdiction to investigate the case.”

Moreover, the allegation relating to criminal breach of trust and misappropriation of money which were to be eventually accounted for in Patna (where the Complainant resides), could prima facie indicate the lawful jurisdiction of the Patna police.

It has hence, been held that the stage of investigation, they were not required to transfer the FIR to Mumbai police. For the same reason, the Bihar government was competent to give consent for entrustment of investigation to the CBI and as such the ongoing investigation by the CBI is held to be lawful.

INVESTIGATION ENTRUSTMENT TO CBI

“While the CBI cannot conduct any investigation without the consent of the concerned state as mandated under section 6, the powers of the Constitutional Courts are not fettered by the statutory restriction of the DSPE Act.”

The Court noticed that the FIR at Patna was transferred to the CBI with consent of the Bihar government during pendency of this Transfer Petition. However, in future, if commission of cognizable offence under section 175(2) CrPC is determined, the possibility of parallel investigation by the Mumbai Police cannot be ruled out. Section 6 of the DSPE Act, 1946 read with Section 5 prescribe the requirement of consent from the State government, before entrustment of investigation to the CBI.

“As the CBI has already registered a case and commenced investigation at the instance of the Bihar government, uncertainty and confusion must be avoided in the event of Mumbai Police also deciding to simultaneously investigate the cognizable offence, based on their finding in the inquiry proceeding.”

The Court was hence of the opinion that a decision by this Court on the point would confer legitimacy to the investigation.

“… for the innocents, who might be the target of vilification campaign. Equally importantly, when integrity and credibility of the investigation is discernible, the trust, faith and confidence of the common man in the judicial process will resonate.”

COURT’S DIRECTION ON INVESTIGATION

Noticing that as because both states are making acrimonious allegations of political interference against each other, the Court said that the legitimacy of the investigation has come under a cloud. Accusing fingers are being pointed and people have taken the liberty to put out their own conjectures and theories.

“Such comments, responsible or otherwise, have led to speculative public discourse which have hogged media limelight. These developments unfortunately have the propensity to delay and misdirect the investigation.”

The Court was, hence, of the opinion that to ensure public confidence in the investigation and to do complete justice in the matter, it is appropriate to invoke the powers conferred by Article 142 of the Constitution.

It further noticed that while the steps taken by the Mumbai police in the limited inquiry under Section 174 CrPC may not be faulted on the material available before this Court, considering the apprehension voiced by the stakeholders of unfair investigation, this Court must strive to ensure that search for the truth is undertaken by an independent agency, not controlled by either of the two state governments. Most importantly, the credibility of the investigation and the investigating authority, must be protected.

The Court, hence, noted that a fair, competent and impartial investigation is the need of the hour. The expected outcome then would be, a measure of justice for the Complainant, who lost his only son. For the petitioner too, it will be the desired justice as she herself called for a CBI investigation. The dissemination of the real facts through unbiased investigation would certainly result in justice.

[Rhea Chakraborty v. State of Bihar, 2020 SCC OnLine SC 654, decided on 19.08.2020]