Case BriefsHigh Courts

Bombay High Court: The Division Bench of Prasanna B. Varale and S.M. Modak, JJ., held that in a matter of circumstantial evidence, the law doesn’t require a particular number of circumstances to establish the chain, it only depends on nature.

The issue involved in the present appeal was:

Whether the link between the incident of murder and the accused is established on the basis of proved circumstances?

Present matter was based on circumstantial evidence.

It was expressed that, Law does not require a particular number of circumstance so as to establish the chain. It altogether depends upon the nature of the transaction. 

In the present matter, there were a few circumstances relied upon by the prosecution and the Additional Sessions Judge believed those circumstances and drew an inference about the guilt of the accused of committing murder of his own wife Nirmala. Accused was convicted under Section 302 of Penal Code, 1860 and the said judgment has been challenged in the present appeal.

Accused and his wife were labourers. On the day of the incident both the accused and deceased went from duty a little early due to stomach pain of accused and then slept. On next day when the first informant went to wake them up, he saw Nirmala’ dead body. Accordingly, he lodged the complaint.

Circumstances on which the prosecution relied upon were as follows:

  1. Last seen theory.
  2.  Motive
  3. Noticing soaked blood stains on the clothes of the accused.
  4. Absconding himself from the spot of the incident even though his wife is murdered.

Supreme Court has already laid down golden principles while appreciating circumstantial evidence. They still hold good. So the following are the principles:-

  1. a) The circumstance relied upon must be fully established.
  2. b) They must be consistent with the hypothesis of guilt of the accused.
  3. c) They should be conclusive in nature. Only inference about guilt of the accused is to be inferred.
  4. d) There should be complete chain of evidence so as not to lead any doubt about involvement of the accused.

Trial Court blamed the accused for not giving explanation. In Court’s opinion, Trial Court committed fault on two aspects first trial court forgot the difference between suspicion and proof.

Secondly, trial court forgot to put to the accused circumstance of ‘last seen together’ as evidenced by PW-2 first informant.

In view of the above reasons, Bench decided to set aside the conviction and laid down the following reasons:

ON THE POINT OF LAST SEEN TOGETHER

Last seen circumstance has to be proved just like any other circumstance. The only difference is once the prosecution will prove that both the deceased and accused were found last together then certainly it is for the accused to explain about whereabouts or what has happened about his companion. In this exercise the time of last seen and time of death also plays important.

For the above-stated, Supreme Court’s decision in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 was referred.

SPOT OF INCIDENT

Bench stated that it was very much clear that the spot was not situated within four walls of the house but an open space. There was reason to believe that the open space was not surrounded by walls but a place accessible. In view of the said, Court stated that it had to see whether there was a burden on accused to explain how deceased was found there in a dead condition.

Section 313 of the Code of Criminal Procedure empowers the Court to put questions in two eventualities.

One is optional and it may be at any stage of proceeding. Whereas 2nd is mandatory, and it is after prosecution witnesses were examined. Under the said Section, protection was also given to accused from possible punishment which may occur if he has refused to answer or given a false answer.

Whether this Court can remand the matter back to the trial Court for the purpose of putting that circumstance to the accused?

A similar situation arose before the Supreme Court in Nar Singh v. State of Haryana, (2015) 1 SCC 496.

There is no straight-jacket formula for deciding which course of action could be adopted, therefore it remains a question of fact.

In the present case, Bench was not inclined either to remit the matter or to put the questions to the accused.

While deciding the matter on merits, Bench stated that it has almost been 5 years since the accused was behind the bar. Further, even if the circumstance of the last seen together was considered, Court did not think that other circumstances were sufficient to prove the guilt of the accused. Court opined that prejudice was caused to the accused.

It was noted that the accused was denied the opportunity to give an explanation resulting in causing prejudice to him.

MOTIVE

“Suspecting the character of the deceased” was the motive suggested by the prosecution.

Motive is the purpose/reason for which offence is committed. Motive crops up in the mind of the culprit. We can understand the motive, only when it is manifested by some conduct. If the accused scolds, become angry and even beats the deceased it is manifestation.

A trifling act may make another person angry and a blunder may not make a person angry. So, it is difficult to opine which objectionable acts may compel another to take law into his own hand

No doubt man always wants his wife to be loyal to him and if wife has shifted loyalty towards another person, her husband never likes. It is true for wife also.

PW-4-Muktabai mother of the deceased was not eyewitness to this beating by the accused. Except her, there was no other witness. The said statement was not sufficient to believe about the reason for scolding and the group head’s opinion about cordial relations was also important as he resided in the immediate vicinity, hence Trial Court wrongly inferred about motive.

ARREST OF ACCUSED 

When the accused was arrested, bloodstains were noticed on his clothes.

Police Officers are not a layman. They are the officers having the responsibility to carry out the investigation as per the police manual and as per the provisions of the Criminal Procedure Code. They need to substantiate their stand on the basis of documents which are created simultaneously.

In the present case, the witness police did not make any correspondence on the arrest of the accused, neither made any Panchama. Except the bare words of the two witnesses, there is nothing in writing.

High Court found no explanation coming forward from the prosecution for not creating and not producing the single document to show the entire exercise.

Trial Court’s decision about the arrest of the accused was also found to be flawed.

CAUSE OF DEATH 

Bench expressed that merely because there was a huge time gap in between the timing of last seen together and probable timing of death, the evidence of last seen together could not be rejected in all cases.

WEAPON OF OFFENCE

As no one saw the assault Bench stated that it did not know how the accused had used the weapon koyta. Weapon Koyta was found at the spot when spot panchanama was carried out.

Prosecution had sufficiently proved the circumstances of last seen together.

The circumstance of motive was not proved, evidence on the point of arrest and seizure of clothes was not trustworthy. So, Court felt that the chain of circumstances was not established.

Hence, High Court held that there was Grave suspicion on accused that he had committed the murder of his own wife. As everyone knew that suspicion could not take place of proof, therefore, Court was unable to subscribe to the view taken by the trial court.[Sandip Baburao Waidande v. State of Maharashtra, 2021 SCC OnLine Bom 560, decided on 09-04-2021]


Advocates before the Court:

Mr Amit Mane (Legal aid) for the appellant.

Mrs M. M. Deshmukh, learned APP for the Respondent.

Op EdsOP. ED.

Introduction 

This article deals with the concept of discharge in summon cases. The trial of summons case is dealt under Chapter XX of the Criminal Procedure Code, 1973 (hereinafter “CrPC”). There is no special section which exclusively provides for discharge of an accused in summons triable cases. Although in warrant cases discharge word is used but under Chapter XX no such word is used. Now the question which arises is that whether the concept of discharge is absent in summons triable cases? Is it mandatory for a court to proceed with the trail irrespective of any genuine defence the accused has to make while explaining to him the substance of accusation under Section 251 CrPC? Is it proper to provide an accused with the privilege of discharge in warrant triable cases and to deny the same in summons triable cases?  This article examines the provision of discharge in summon triable cases. Is “discharge” included under Section 251 CrPC? To understand this, it is important to first consider the meaning of discharge.

Meaning of Discharge under Criminal Procedure Code

The word “discharge” has been used under various sections of CrPC. The word “discharge” is used under Sections 398, 227, 239, 245 and 249 CrPC. In simple terms it can be said that discharge means refusing to proceed further after issue of process[1]. However, none of these sections deal with summons case. Here it is made clear that summons case means cases in which the punishment is of maximum two years.[2] Summons case can be tried either by instituting a complainant case by any private person and secondly, by registration of a FIR by the police in which State becomes a party.

In complaint cases after the process under Sections 200 and 202 is completed then either the Magistrate issues process under Section 204 CrPC[3] or dismisses the case under Section 203 CrPC[4]. In police case too the court issues process when cognizance is completed. When a notice or summon is given to an accused then in such cases a time is fixed by the court for explanation of substance of accusation under Section 251 CrPC. To understand this section, Section 251 is produced verbatim:

  1. Substance of accusation to be stated.—When in a summons case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.[5]

So, once a notice or a summon is issued to an accused person he or she shall be asked as to whether he or she pleads guilty or not. In case if the accused does not plead guilty, then the Magistrate is required to jot down the defence which the accused makes. Now the question which arises is that whether noting down the defence and listening to the defences of an accused is a mere formality. If the court anyhow has to proceed to explain the substance of accusation then what is the purpose of giving an accused the chance to speak out his defence. If the mind of a Judge is already prejudiced and even after considering the defences of the accused, he or she goes on to explain the substance of accusation then I think there is no need to note down the defences made by an accused under Section 251  CrPC.

This can be better understood in the light of Malloch v. Aberdeen Corpn.[6], wherein Lord Reid held that right to be heard is available to a dismissed teacher who was not registered as required by the education authority. In defence it was submitted before him that to have afforded a hearing to the appellant before dismissing him would have been a useless formality because whatever he might have said could have made no difference. However the Court held that “If that could be clearly demonstrated it might be a good answer. But I need not decide that because there was here … a substantial possibility that a sufficient number of the commission might have been persuaded not to vote for the appellant’s dismissal.”[7]

In this light one must understand that the law of nature is based on the “ultimate principle of fitness with regard to the nature of man as a rational and social being.[8] The principle of audi alteram partem goes back many centuries in our law and appears in a multitude of judgments of Judges of the highest authority. It means that no one can be condemned unheard. Right to hear is included under Article 19 of the Indian Constitution.[9] Interpreting Section 251 CrPC as not to include discharge is not a good law. Sometimes certain words are not specifically written in the statute book but the court has time and again said that literal interpretation of the statute which is against the constitutional principles and which will lead to injustice has to be avoided. The intention of the legislature is primarily to be gathered from the language used which means that attention should be paid to what has been said.[10]

Doctrine of Interpretation of Statute

To analyse and understand Section 251 CrPC in a better way what is required is to look into the rules of interpretation of the statute. “The fact is that the difficulties of so-called interpretation arise when the legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the Judges have to do is, not to determine that the legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, if the point had been present.”[11]

In Sakiri Vasu v. State of U.P.[12] the Supreme Court held on 7-12-2007 at para 18:

  1. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus, where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution.

Considering the abovementioned case one can say that if a Magistrate has an implied power to explain the substance of accusation under Section 251 CrPC then it includes within it the implied power of discharge as without considering the option of discharge the very purpose of noting down the defence of accused becomes meaningless. In the same judgment[13] it was further held at para 19 by referring to Crawford[14] that the reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. If these details could not be inserted by implication, the drafting of legislation would be an indeterminable process and the legislative intent would likely be defeated by a most insignificant omission.

In Kesavananda Bharati Sripadagalvaru v. State of Kerala[15]  Ray, J. pointed out that a word gets its “colour” in the context in which it is used. So, the purpose in which the accused is allowed to make defences under Section 251 CrPC is to empower the Judges to consider such defences and discharge the accused if prima facie case is not made out after considering those defences.

At para 20 of Sakiri Vasu [16] the Supreme Court held that in ascertaining a necessary implication, the Court simply determines the legislative will and makes it effective. What is necessarily implied is as much part of the statute as if it were specifically written therein[17]. So, merely non-mentioning of the word “discharge” under Section 251 CrPC will not mean that in a summons case the accused cannot make any discharge.

In the words of Justice Cardozo:

“It is true that codes and statutes do not render the Judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled…. There are hardships and wrongs to be mitigated if not avoided. Interpretation is often spoken of as if it were nothing but the search and the discovery of a meaning which, however obscure and latent, had nonetheless a real and ascertainable pre-existence in the legislator’s mind. The process is, indeed, that at times, but it is often something more. The ascertainment of intention may be the least of a Judge’s troubles in ascribing meaning to a statute….”[18]

These words of Justice Cardozo finds its meaning in Arvind Kejriwal v. Amit Sibal[19].  It was held that the provisions contained in CrPCare not exhaustive. In administering justice as prescribed by CrPC, there are necessarily two shortcomings: First, there are cases and circumstances, which are not covered by the “express provisions of the Code”, wherein justice has to be done. The reason is that the legislature can foresee only the most natural and ordinary events; and no rules can regulate for all time to come, so as to make express provision against all inconveniences, which are infinite in number, and so that their dispositions shall express all the cases that may possibly happen. Second, the prescribed rules of procedure may be abused, or so used as to give a mere formality, the significance of substantive effect and thus obstruct, instead of facilitating, the administration of justice as in the present case.

The very purpose of explanation of substance of accusation and listening to the defences made by an accused under Section 251 CrPC is to give an opportunity to the accused to say something in his defence. So, the power to discharge at the stage of Section 251 is inherent in the court who has issued summons to the accused either by considering police report or under Section 204 CrPC. In this regard in Badshah v. Urmila Badshah Godse[20] the Supreme Court has laid down:

“13.3. Thirdly, in such cases, purposive interpretation needs to be given to the provisions of Section 125 CrPC. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve “social justice” which is the constitutional vision, enshrined in the Preamble to the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of the social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society.”

Further the Court stated:

“14. … It is, therefore, respectfully submitted that ‘social context judging’ is essentially the application of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. Apart from the social-economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the Judge has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication. “[21]

At para 18[22] it was stated that:

“18. The court as the interpreter of law is supposed to supply omissions, correct uncertainties, and harmonise results with justice through a method of free decision — libre recherche scientifique i.e. “free scientific research”.”

So, after considering the social context adjudication and doctrine of implied power both provides that an accused can be discharged at the stage of Section 251 CrPC. Let us consider few cases related to these doctrines.

Cases Related to Doctrine of Implied Power

The Supreme Court held that “An express grant of statutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective. Thus in ITO v. M.K. Mohammad Kunhi[23], this Court held that the Income Tax Appellate Tribunal has implied powers to grant stay, although no such power has been expressly granted to it by the Income Tax Act.”[24] Cases where doctrine of implied power was used to infer the implied power where the statutes does not mention about the same,– Union of India v. Paras Laminates (P) Ltd.[25], RBI  v. Peerless General Finance and Investment Co. Ltd.[26],  Gujarat Maritime Board v. Haji Daud Haji Harun Abu[27], J.K. Synthetics Ltd. v. CCE[28], , State of Karnataka v. Vishwabharathi House Building Coop Society[29],  etc.

The General Clauses Act, 1897 provides for the construction of orders, rules, etc. made under enactments. Section 20 of the Act says:

  1. 20. Construction of notifications, etc. issued under enactments.—Where, by any Central Act or regulation, a power to issue any notification, order, scheme, rule form or bye-law is conferred, then expressions used in the notification, order, scheme, rule, form or bye-law, if it is made after the commencement of this Act, shall, unless there is anything repugnant in the subject or context, have the same respective meanings as in the Act or Regulation conferring the power.

Doctrines of implied power has been used to interpret Section 125 CrPC. In Savitri v. Govind Singh Rawat[30] the Supreme Court held that the power conferred on the Magistrate under Section 125 CrPC[31] to grant maintenance to the wife implies the power to grant interim maintenance during the pendency of the proceeding, otherwise she may starve during this period. The same principle has been used to interpret Section 156(3) CrPC[32]. The Court in Sakiri Vasu[33] held that:

“24. In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) CrPC to order registration of a criminal offence and/or to direct the officer in charge of the police station concerned to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) CrPC, we are of the opinion that they are implied in the above provision.”[34]

Cases Related to Discharge in Summons Triable Offences

In Municipal Council, Raipur v. State of M.P.[35] the Supreme Court upheld the discharge of an accused in summons case. To understand the case better let us have a look to the facts of the case. A complaint was filed by the officer concerned before the Special Magistrate and Presiding Officer, Labour Court under Section 3(1) of the Motor Transport Workers Act, 1961[36], who issued summons to the accused, namely, the Municipal Council and the Chief Municipal Officer, Municipal Council, Raipur. The accused appeared by counsel and filed preliminary objections. Before the Magistrate two points were taken: (1) that the Municipal Council was not a “motor transport undertaking” within Section 2(g) of the Act[37]; and (2) that the Council was exempted under Section 38 of the Act[38] insofar as it uses the vehicles for transporting sick or injured persons and for maintenance of public order i.e. for transporting night soil and refuse of the town free of charges. The Magistrate accepted these contentions and dismissed the complaint and discharged the accused persons. This order of discharge was upheld by the Sessions Court and was again challenged in High Court where the High Court too upheld the discharge by the Magistrate in the summons case. Again before the Supreme Court out of the three objections taken, one was that whether a revision lies under Section 439 CrPC[39]. The contention was that the accused had been acquitted and not discharged and, therefore, only an appeal under Section 417 CrPC lies. The Supreme Court held:

“4….we agree with the High Court that the order of the Magistrate was an order of discharge and not of acquittal. It is true that it is a summons case and no formal charge is necessary to be framed under Section  242 CrPC, but even so, here when the accused appeared, before anything was done the accused filed a preliminary objection and no particulars of the offence of which the accused was charged were even stated to him”..

In K.M. Mathew v. State of Keralar[40] the Supreme Court set aside the order of High Court stating that it is too technical. However, in Adalat Prasad v. Rooplal Jindal[41] the three-Judge Bench of the Supreme Court overruled the ruling of K.M. Mathew[42]. Before coming to Adalat Prasad case[43] it is important to look into the fact of the case of K.M. Mathew[44]. The Magistrate issued summons to the accused under Section 500[45] read with Section 34[46] IPC. On the date of appearance the accused pleaded not guilty. The appellant requested the Magistrate to drop the proceedings against him, before the evidence was recorded, contending that there was no averment in the complaint that he had perused the material or edited before its publication or that it was published with his knowledge or consent. The Magistrate considering thi­­s defence by the accused dropped the proceedings against the accused.

But the High Court quashed the proceeding ruling that there is no provision in the Code for dropping the proceedings against any accused and so it was challenged by the accused in the Supreme Court.  Allowing the appeal, the Supreme Court held in favour of the accused. It was made clear that the power to drop proceedings against the accused cannot be denied to the Magistrate. Explaining further the Court held that Section 204 CrPC indicates that the proceedings before the Magistrate  commences upon taking cognizance of the offence and the issue of summons to the accused. When the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code. But the need to try the accused arises when there is allegation in the complaint that the accused has committed the crime.  If there is no allegation in the complaint involving the accused in the commission of the crime, it is implied that the Magistrate  has no jurisdiction to proceed against  the accused.[47]

Further while discussing the right of the accused the Court held that:

“7. It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision required for the Magistrate to drop the proceedings or rescind the process.  The order issuing the process is an interim order and not a judgment.  It can be varied or recalled. The fact that the process has already been issued is no bar to   drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused.”[48]

Although the word “discharge” was wholly absent in K.M. Mathew case[49] and it was held that proceedings can be dropped by the Magistrate without any specific provisions. This ratio was overruled by Adalat Prasad[50] stating that there was no basis for recalling the process issued by a court, which happens after due consideration even if it was an interim order, and the only basis for challenging this order was by moving the High Court under Section 482 CrPC however, it can be said that since the concept of discharge was not the basis of these cases so to conclude that under Section 251 CrPC an accused cannot be discharged is not a proper law. Adalat Prasad case[51] is not an authority to discharge the accused under Section 251 CrPC.

In Raujeev Taneja v. NCT of Delhi[52], a summoning order under Section 138 of the Negotiable Instruments Act[53] was challenged before the Court. Sunil Gaur, J. relying upon Bhushan Kumar v. State (NCT of Delhi)[54] and Krishna Kumar Variar v. Share Shoppe[55] directed the accused to urge the plea before the learned trial court at the stage of framing of notice whereupon the trial court shall deal with the pleas raised herein by passing a speaking order and if the trial court proceeds to drop the proceedings qua petitioners, then the Supreme Court’s decision in Adalat Prasad v. Rooplal Jindal[56] would not stand in the way of the trial court to do so. The relevant portion of the said judgment in Krishna Kumar Variar[57]  is reproduced hereunder:

“4. In our opinion, in such cases where the accused or any other person raises an objection that the trial court has no jurisdiction in the matter, the said person should file an application before the trial court making this averment and giving the relevant facts. Whether a court has jurisdiction to try/entertain a case will, at least in part, depend upon the facts of the case. Hence, instead of rushing to the higher court against the summoning order, the person concerned should approach the trial court with a suitable application for this purpose and the trial court should after hearing both the sides and recording evidence, if necessary, decide the question of jurisdiction before proceeding further with the case.

  1. 5. For the reasons stated herein above, the impugned judgment and order is set aside and the appeal is allowed. The appellant, if so advised, may approach the trial court with a suitable application in this connection and, if such an application is filed, the trial court shall after hearing both the sides and after recording evidence on the question on jurisdiction, shall decide the question of jurisdiction before further proceeding with the trial.”[58]

In Kamala Rajaram v. D.Y.S.P. office of the SP (Rural)[59] the Kerala High Court  laid down that under these circumstances notwithstanding the dictum in Adalat Prasad v. Rooplal Jindal[60] held that:

  1. The larger question whether Section 251would justify discontinuance of the proceedings in all summons cases whether instituted on a police report or otherwise need not be considered in this case. Suffice it to say that in a summons case instituted otherwise than upon a complaint, Section 251read with Section 258 CrPC does clothe the learned Magistrate with the requisite power to discontinue further proceedings and release the accused at the stage of Section 251 CrPC or later if the learned Magistrate feels that the allegations and the materials placed before him do not justify continuance of the proceedings against the indictede. Directing continuance of proceedings when allegations and materials collected do not justify such continuance will be the worst form of injustice.[61]

In S.K. Bhalla v. State[62] the Delhi High Court makes it clear that the facts of this case are distinct from the facts of Adalat Prasad case[63]. Explaining further it said that in Adalat Prasad case[64] the learned Metropolitan Magistrate had recalled the summoning order by allowing the application under Section 203 CrPC after the issue of process under Section 204 CrPC. However, in the instant case, Respondents 2 to 4 have been discharged by the learned trial court at the stage of serving of notice under Section 251 CrPC. At this subsequent stage, the learned Metropolitan Magistrate was of the view that the charge-sheet/complaint did not disclose necessary ingredients of the offence under Section 509 IPC[65], as such, he discharged Respondents 2 to 4 for the commission of abetment of offence under Section 509 IPC.

At para 15 of S.K. Bhalla case[66] the Court further explained the implications of Section 251 CrPC.   Section 251 CrPC deals with the stage subsequent to issue of process under Section 204 CrPC in a summons trial case. This section casts a duty upon the Magistrate to state to the accused person the particulars of the offence allegedly committed by him and ask him whether he pleads guilty. This can be done by the Magistrate only if the charge-sheet/complaint/preliminary evidence recorded during enquiry discloses commission of a punishable offence. If the charge-sheet/complaint does not make out a triable offence, how can a Magistrate state the particulars of non-existing offence for which the accused is to be tried. Therefore, it is inherent in Section 251 of the Code of Criminal Procedure that when an accused appears before the trial court pursuant to summons issued under Section 204 CrPC in a summons trial case, it is bounden duty of the trial court to carefully go through the allegations made in the charge-sheet/complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty, otherwise, he is bound to discharge the accused.

Same justification was given in a case by the Patna High Court[67]. The petitioners had prayed for quashing the order dated 12-12-2011 passed by the Judicial Magistrate, 1st Class, Danapur in Complaint Case No. 1235 C of 2008 by which and whereunder he had rejected the petition dated 12-8-2011 filed on behalf of the petitioners on the ground that in summon triable cases there is no provision for discharge of the accused from the proceeding. By an oral order, Hemant Kumar Srivastava, J.  held that upon bare perusal of the impugned order dated 12-12-2011, it is obvious that the learned Judicial Magistrate did not consider the points raised on behalf of the petitioners at the time of explanation of accusation rather he dismissed the petition filed on behalf of the petitioners only on the ground of maintainability completely ignoring the observation given by the Court in Cr. Misc. No. 29286 of 2009. It is here clarified that in Misc. No. 29286 of 2009 the High Court had directed the JM-I to consider the defence of the accused during the time of explanation of substance of accusation and it had disposed of the petition under Section 482 CrPC filed before it. The High Court in many cases has asked the accused who have filed quashing of summoning order under Section 482 CrPC to argue their cases at the stage of framing notice.

Finally in Arvind Kejriwal v. Amit Sibal[68] the Court dealt with Section251 CrPC. It was held:

10. It cannot be said that, in the above circumstances, courts have no power to do justice or redress a wrong merely because no express provision of the Code can be found to meet the requirements of a case. All courts, whether civil or criminal, possess, in the absence of express provision in the Code for that purpose, as inherent in its very constitution, all such powers as are necessary to do the right and to undo a wrong in the course of the administration of justice. This is based on the principle, embodied in the maxim quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest — when the law gives a person anything, it gives him that, without which, it cannot exist. The High Court has, in addition thereto, and in view of its general jurisdiction over all the criminal courts subordinate to it, inherent power to give effect to any order of any such court under the Code, and to prevent the abuse of process of any such Court, or otherwise to secure the ends of justice.”

This judgment was challenged before the Supreme Court.[69] The Court has not gone into the merit of the case as both the parties had consented to revert the matter back to the High Court and the Supreme Court has refused to say anything on the merit of the case. It can therefore be concluded that the petition of discharge under Section 251 CrPC can well be considered by the courts in India.


* LLM (NET qualified), currently associated with Bihar Judiciary.

[1] See Sohan Lal v. State of Rajasthan, (1990) 4 SCC 580, 592-593, para 30

[2] See Sections  2(w) and (x) of the Criminal Procedure Code, 1973.

[3] http://www.scconline.com/DocumentLink/7tuON2N4.

[4] http://www.scconline.com/DocumentLink/U6oAwGb7.

[5] http://www.scconline.com/DocumentLink/uP4Sg656.

[6] (1971) 1 WLR 1578 : (1971) 2 All ER 1278, 1283 (HL)  .

[7] Id., 1582-1583.

[8] See Pollock, The History of the Law of Nature, reprinted in Jurisprudence and Legal Essays, 124 (1961).

[9] http://www.scconline.com/DocumentLink/74roly04.

[10]  N.S. Bindra, Interpretation of Statutes 4 (9th Edn. ,2002).

[11] See Gray, The Nature and Sources of Law, 176 (2nd Edn.).

[12]  (2008) 2 SCC 409, 414.

[13] Ibid.

[14] See Crawford observes in his Statutory Construction (3rd Edn.) at p. 267.

[15] See (1973) 4 SCC 225.

[16] Supra Note 12.

[17]Ibid.

[18] See Cardozo Benjamin N. (1921), The Nature of the Judicial Process, The Storrs Lectures Delivered at Yale University.

[19] 2014 SCC OnLine Del 212.

[20] (2014) 1 SCC 188.

[21] Ibid

[22] Ibid.

[23] AIR 1969 SC 430.

[24] Supra Note 12  at para 21.

[25] (1990) 4 SCC 453.

[26] (1996) 1 SCC 642.

[27] (1996) 11 SCC 23.

[28] (1996) 6 SCC 92 .

[29] (2003) 2 SCC 412, 432.

[30] (1985) 4 SCC 337  .

[31] http://www.scconline.com/DocumentLink/TGeyaIg2.

[32] http://www.scconline.com/DocumentLink/CJ6W1i2V.

[33] Supra Note 12.

[34] Ibid.

[35] (1969) 2 SCC 582

[36] http://www.scconline.com/DocumentLink/gu4Ta7V0.

[37] http://www.scconline.com/DocumentLink/60m314oL.

[38] http://www.scconline.com/DocumentLink/7tKlYJpX.

[39] http://www.scconline.com/DocumentLink/vK8FcNA1.

[40] (1992) 1 SCC 217  .

[41] (2004) 7 SCC 338 .

[42] Supra Note 40.

[43] Supra Note 41.

[44] Supra Note 40.

[45] http://www.scconline.com/DocumentLink/O87Hni6W.

[46] http://www.scconline.com/DocumentLink/7mc674C3

[47]  Supra Note 40.

[48] Ibid at para 7.

[49] Supra Note 40.

[50] Supra Note 41.

[51] Ibid.

[52] 2013 SCC OnLine Del 6528

[53] http://www.scconline.com/DocumentLink/1g6m30k5.

[54](2012) 5 SCC 424. The Supreme Court observed that it is the bounden duty of the trial court in S. 251 CrPC to satisfy whether the offence against the accused is made out or not and to discharge the accused if no case is made out against him.

[55] (2010) 12 SCC 485 .

[56] Supra Note 41.

[57] Supra Note 55.

[58] Ibid.

[59] 2005 SCC OnLine Ker 302.

[60] Supra Note 41.

[61]  Supra Note 59, para 8.

[62]  2011 SCC OnLine Del 2254.

[63] Supra Note 41.

[64] Ibid.

[65] http://www.scconline.com/DocumentLink/oEscOU97.

[66] Supra Note 62, para 15.

[67] Awadhesh Singh  v.  State of Bihar, 2012 SCC OnLine Pat 1738.

[68] 2014 SCC OnLine Del 212.

[69] Amit Sibal  v. Arvind Kejriwal, (2018) 12 SCC 165 .

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., issued guidelines pertaining to deal with cases wherein accused persons are absconded leading to the pendency of cases in subordinate courts.

Pendency of cases

Petitioners Counsel submitted that an FIR was registered and final report for the same was taken by the lower Court for offence under Sections 147, 148, 341, 302 of Penal Code, 1860. Further, It was stated that since some of the accused persons were absconding, the case was being kept pending for the last 8 years without being committed to the appropriate Court.

Adding to the above, Counsel also stated that the petitioner was aged about 70 years, but no progress in the lower Court took place, instead of splitting up the case, it kept on being adjourned on the ground that the accused persons were not present or that the non-bailable warrant was pending.

Analysis and Decision

Accused Persons Absconding

Court noted the fact that several petitions have been filed before the Court wherein case have been kept pending in light of certain accused persons being absconding and subordinate Courts finding the said issue have been finding the same to be a hurdle while dealing with the cases.

The above-stated issue leads to the pendency of the case.

Hence, the Court found this to be the right time to issue certain guidelines for the Court below to deal with the cases in which accused persons have been absconding.

Criminal Rules of practice and Circular Orders, 1958 provides for dealing with cases where the accused persons have absconded.

Guidelines

Guidelines to be kept in mind while dealing with cases of absconding accused:

  1. Where the Court has issued process for the appearance of an accused and the same could not be served and if the Court is satisfied that the accused is in absconding, the Court may, after having waited for a reasonable time, proceed under Section 82 of the CrPC.
  2. If the case involves a single accused against whom proceedings have been initiated under Section 82 of the Code, the Court shall shift the case from relevant register to the register of long-pending cases.
  3. When there are several accused persons in a case and only some of them have appeared or have been produced before the Court and if the Court is satisfied that the presence of other accused cannot be secured within a reasonable time, having due regard to the right of such of the accused in attendance to have the case against them enquired into or tried without delay, the Court may split up the case if it is satisfied that such splitting up will cause no prejudice either to the prosecution or to the accused in attendance and proceed with the enquiry or trial as regards the accused who are in attendance.
  4. While splitting up the case as referred, the Court shall assign a fresh number to the split-up case relating to the absconding accused and enter the same in the relevant register of the current year.
  5. In a case exclusively triable by Sessions Court, when there are several accused persons and only some of them have appeared or have been produced before the Court, the Magistrate Court shall follow the same procedure mutatis mutandis till the stage of splitting up of case.
  6. Magistrate Court shall thereafter comply with the provisions of Section 207 or Section 208, as the case may be, insofar as the accused in attendance and commit the case to the Court of Session.
  7. Sessions Court shall be reported about the split-up of the case and the Sessions Court shall assign a number to the split-up case, enter the same in the sessions Register and communicate the number to the Magistrate Court forthwith. The Magistrate Court shall also indicate this number in brackets along with the fresh number assigned to the split-up case relating to the absconding accused.
  8. As and when the absconding accused appears and is produced before the Magistrate Court, the Magistrate Court shall comply with clause (vi) and while committing the case to the Court of Session shall indicate the number assigned by the Sessions Court for the split up the case.
  9. Clauses (i) to (vii) above shall apply, as far as may be to cases where an accused person has appeared but has subsequently absconded.
  10. If the accused has absconded after committal of the case, the Sessions Judge shall follow the same procedure under clauses (ii) to (iv).

Practice provisions of Section 299 CrPC

High Court also stressed upon the need to put in practice the provisions of Section 299 CrPC by the trial courts which deals with recording of evidence in the absence of accused.

  • Record the order which proves that the accused has absconded and there is no immediate prospect of his arrest.
  • Depositions of prosecution witnesses may be recorded and attest and file the same in the split-up case for the purpose of furnishing it to the absconded accused as and when they appear.
  • The above-stated deposition can be given in evidence against the accused in any inquiry or trial for the offence with which he is charged, provided that the witness is either dead or he is incapable of giving evidence or his attendance would cause unreasonable delay, expense or inconvenience.[Exception to the principle embodied in Section 33 of Evidence Act.]
  • The evidence which is recorded against an absconded accused can be read when he is apprehended later and tried even if such evidence is not tendered in his presence, on the fulfilment of the above-said conditions.

Supreme Court’s decision in Nirmal Singh v. State of Haryana, (2000) 4 SCC 41 and Jayendra Vishnu v. State of Maharashtra, (2009) 7 SCC 104 were referred.

The above-stated Judgments were referred to as the said decisions provide a very clear picture on the ambit and scope of Section 299 CrPC.

High Court directed the Court below to follow the above guidelines and proceed further immediately to ensure that the accused is committed to the appropriate Court, as expeditiously as possible. [H. Aarun Basha v. State, 2018 SCC OnLine Mad 12845, decided on 19-12-2018]


Advocates who appeared in the instant matter:

For Petitioner: Mr M.Babu Muthu Meeran

For Respondent: Mr M.Mohamed Riyaz, Additional Public Prosecutor

Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., observed that,

“The practice of pronouncing Judgments in appeal against conviction in absence of the accused, thereby dismissing the appeal and then directing the trial Court to issue warrant, requires to be deprecated.”

The instant application was filed by the original accused for suspension of substantive sentence, during the pendency of revision imposed against him by Judicial Magistrate after holding him guilty of committing an offence punishable under Section 138 of the Negotiable Instruments Act.

Bench stated that at first it is required to be seen, as to whether before admitting the revision and while dealing with the present application whether it is necessary first to direct the applicant to surrender himself.

It appears that the Appellate Court in the present case pronounced the Judgment on 04-05-2019 in absence of the appellant-accused.

Section 387 of CrPC deals with Judgment of subordinate Appellate Court and it provides that the rule contained in Chapter XXVII as to the judgment of a Criminal Court of original jurisdiction shall apply, so far as may be practicable, to the judgment in appeal of a Court of Session or Chief Judicial Magistrate.

“…if directions/ order is passed by the Appellate Court for exemption of the accused, then only the Judgment can be pronounced in absence of the accused; otherwise his presence should be secured before the Judgment is pronounced.”

No doubt, sub section (7) of Section 353 of the Code provides, that no judgment delivered by any Criminal Court shall be deemed to be invalid by the reason only in absence of any party, however, the Appellate Court cannot insist upon invoking sub section (7) of Section 353 of the Code if there was no endeavour on its part to secure the presence of the accused.

Court stated that it is the Appellate Court’s duty to see that the Judgment in an appeal against conviction should be pronounced in presence of the accused (only exception as enumerated in Section 353 (6) of the Code) and to take such appellant in custody upon the confirmation of the conviction.

Coming to the question of whether in the present case, Court could direct the revision applicant to surrender himself before the Appellate Court and then take up revision for hearing, Bench stated that the answer for the said question was in the Supreme Court’s decision of Bihari Prasad Singh v. State of Bihar, (2000) 10 SCC 346.

In the above-cited case, the following question was considered:

Whether the High Court while exercising its jurisdiction can refuse to hear or entertain the matter on the ground that the accused has not surrendered?

Following was observed:

“Under the provisions of the Criminal Procedure Code, there is no such requirement though many High Courts in this country have made such provision in the respective rules of the High Court. But it is stated to us that there is no such rule in the Patna High Court Rules. In that view of the matter the High Court was not justified in rejecting the application for revision solely on the ground that the accused has not surrendered.”

In view of the above discussion, Court held that the revision application cannot be rejected on the ground that the accused did not surrender and therefore, there was no bar on considering the present application.

What was the basic crux and background of the matter?

The complainant stated he had extended loan amount, from time to time, and the disputed cheque was given by the accused in the discharge of said legal debt or liability. Accused took a defence that he had already given certain cheques in possession of the complainant and one of the said cheques was misused. He led evidence and in his defence he tried to show, that the presumption under Section 139 of the Negotiable Instruments Act had been rebutted by him.

Court found the above to be an arguable case and hence held that the revision deserves to be admitted.

Bench directed for the suspension of the substantive part of the sentence till the revision was decided.[Fazal Khalil Ahemad Shaikh v. Nadkishor Ramnivasji Agrawal, Criminal Application No. 2743 of 2019, decided on 13-02-2020]

Case BriefsHigh Courts

Karnataka High Court: Sreenivas Harish Kumar, J., while dismissing a criminal petition for enlargement on bail, said, “There are prima facie materials against the petitioner; Section 37 of the NDPS Act is very much attracted.”

Brief Facts

1. That the Police Inspector received credible information on 11-6-2020 that about six persons living in a house were possessing narcotic substances such as ganja, MDMA, ecstasy tablets and LSD strips and they were about to sell those substances.
2. That subsequently, the Police Inspector conducted a raid on that house, seized the substances and arrested those persons.
3. That the present criminal petition is instituted to enlarge the petitioners on bail, on the ground (i) non-compliance of standing instructions; FSL report pending (ii) no registration of FIR prior to search (iii) contraband substances were not seized from the ‘conscious possession’ of the accused.

Observations

1. The panchanama discloses recording of reasons by the police officer for not being able to apply for search warrant and also compliance of proviso to Section 42(1) of the NDPS Act. It further states that the search was made in the presence of a gazetted officer, therefore there is due compliance of all the requirements envisaged under NDPS Act.

2. With respect to the contention that, the substances seized were not in the ‘conscious possession’ of the accused, the Court said,

“If a bag containing contraband is found in the house of the accused, it goes without saying that the first impression of an ordinary prudent man is that the bag belongs to the accused and he must be aware of its contents. If he takes a stand that he was not aware of the contents, the burden is on him to establish it.”

3. Ben Okoro v. State of Karnataka, Crl. P. No. 8644 of 2017, In this case, bail was granted to the accused taking note of the fact that the qualitative and quantitative report was not obtained within 15 days as per standing Instruction No. 1/1988.

4. Kelsi Katte Mohammed Shakir v. Superintendent of Customs, Crl. P. No. 5402 of 2018, The position in the above-mentioned case was reiterated.

5. However, in Nonso Joachin v. State of Karnataka, following the Supreme Court decision in Supdt., Narcotics Control Bureau, Chennai v. R. Paulsamy, (2000) 9 SCC 549, The Court said,

“If the investigation officer could not obtain the FSL report within 15 days, it is not so significant that too when there are other materials indicating the existence of prima facie materials about the involvement of the petitioners in commission of offences.”

6. The Court while citing, Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, the Court made the following observation,

“The focus is on the duty of Station House Officer once he receives information about commission of offence, that means the information should disclose a crime being already committed. And in such a situation, if the crime is cognizable, the Station House Officer is bound to register FIR without wasting time. But the secret information does not disclose a crime being committed, it only alerts the police about a crime which is about to occur. The police officer who receives such information has to proceed to spot for preventing the crime or to take such other measures that the situation demands. Thereafter if he prepares a report, it may be treated as FIR for further course of action.”

Decision
Observing that there are prima facie materials against the petitioner, the Court dismissed the instant criminal petition on the lack of merits. [Tasleem N.P v. State of Karnataka, 2020 SCC OnLine Kar 1533, decided on 01-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Karnataka High Court: M.G. Uma, J., setting aside the conviction order by the fast track Court, allows compromise between the parties.

The appellant-accused in the present case has been tried and convicted by the fast track Court against the offences punishable under Sections 324, 325, 504, 506 and 307 of Penal code, 1860

Counsel for the complainant submitted that the dispute between the complainant and the accused has been compromised and hence the charges may be compounded and the appellant-accused be acquitted accordingly. Additional Advocate General opposed the application stating that the offences under Sections 324 and 307 IPC are not compoundable. Supreme Court decision in, Yogendra Yadav v. State of Jharkhand, (2014) 9 SCC 653 and Gian Singh v. State of Punjab, (2012) 10 SCC 303 was relied on by the counsel for the appellant, wherein it was held, “High Courts can quash criminal proceedings under section 482 even though the offence alleged is non-compoundable if parties have amicably settled their dispute and victim has no objection. Further, this would depend on the fact of each case. Offences which involve moral turpitude, grave offences like rape, murder cannot be effaced by quashing proceedings because they have harmful effect on society and are not restricted to two individuals or groups.”

Further, the earlier order of the present Court was referred, where the decision in S.S. Joshi v. State of Haryana, 2003 Crl. L.J. 2028 was obeyed, allowing a compromise petition by setting aside the judgment of conviction by the trial court.

The Court while setting aside the conviction of the accused allowed the compounding of offences and ordered the deposition of fine as ordered by the trial court.[Yesaiah v. State of Karnataka, Criminal Appeal No. 2603/2012, decided on 3-09-2020]

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

Punjab and Haryana High Court: Harnaresh Singh Gill, J., rejected the bail application filed by the applicant-accused in connection with the FIR registered for offence punishable under Sections 22 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS).

The facts, in brevity, are that the intoxicant tablets were recovered from the car in which the applicant was sitting which led to the filing of the above stated FIR.

Counsel for the applicant, Manpreet Ghuman has contended that the recovery has been effectuated in the present case and the applicant has been languishing in police custody for the past seventeen months. Also, the challan has been presented along with the filing of the charges hence the purpose to keep the applicant behind bars has turned redundant.

Counsel for the respondent, M.S. Nagra vehemently objected to the bail application stating that the intoxicant tablets that were recovered in the present matter were of commercial quantity hence, it is not fit that the applicant be granted bail.

Upon careful perusal of the facts, circumstances and arguments advanced the Court observed that an accused does not get entitled to bail merely because of the fact that a challan has been presented or charges have been framed. It’s an inadequate ground especially in the present case where the amount of intoxicant tablets recovered from the applicant falls under the category of commercial quantity. Section 37 of the NDPS Act has specifically barred the grant of bail to an accused in case of a commercial quantity being involved.

In view of the above, Court rejected and dismissed the application for lack of merit. [Prem Singh v. State of Punjab, 2020 SCC OnLine P&H 1341, decided on 26-08-2020]

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J., denied bail to the applicant in connection with the FIR registered for offence punishable under Section 30(a) of the Bihar Prohibition and Excise Act, 2016.

The factual matrix is such that the applicant left his motorcycle and ran away while being chased by the police and later the police recovered 108 bottles of illicit liquor from a sack on the motorcycle.

Counsel for the applicant, Usha Rai contended that the applicant has been falsely implicated due to village politics and was never caught. It was submitted that both the bike and the sack do not belong to the applicant. There is not even a single witness to corroborate the event that transpired on that day, yet the applicant has been in custody for the past seven months.

The counsel for the respondent, Harendra Prasad vehemently opposed the bail submitting that there are many witnesses to corroborate the prosecution’s case and have confirmed the applicant’s involvement in liquor trade including the local Chowkidar who was a witness to the act which gives rise to the present matter. Moreover, the counsel drew the Court’s attention towards the incorrigible nature of the applicant, substantiating the same by stating that the applicant has several cases registered against him with six of them under the Excise Act itself. The counsel pleaded that it’s evident from the applicant’s history that he has been misusing the privilege of bail and committing offences of the same nature repeatedly.

Upon careful perusal of the facts, circumstances and arguments advances, the Court observed that it is clear that the applicant has been indulging himself in the same activity again and again, being accused of offences of similar nature and thus does not deserve bail in the present case.

In view of the above, the Court rejected the application for bail.[Santosh Pandey v. State of Bihar, 2020 SCC OnLine Pat 1230, decided on 21-08-2020]

Case BriefsHigh Courts

Jharkhand High Court: Anubha Rawat Chaudhary J., upheld and modified the Judgment given by Trial Court on grounds of the accused being found guilty of the offence under Section 354, 506 and 509 of Penal Code, 1860.

The facts in a nutshell are that the informant was chased by the accused while she used to go for tuitions at a computer center. He used to wait for her at the bus stand and chase her, make illicit comments, ask her to marry him by showing her money, convincing her to be in an illicit relationship with him. The informant refused and asked him to behave himself but to no avail as he still kept doing the same and threatened to kill her.

Later, the informant confided in her family regarding the set of events and the father and brother caught the accused red-handed and registered an FIR against him under Sections 354, 506 and 509 of Penal Code, 1860. He was tried in the trial court and sentenced to imprisonment plus fine. Hence, the instant revision application was filed for the intervention of the High Court and the order of conviction to be set aside.

Counsel for the petitioner Ashish Kumar submitted that no case under Section 354 can be made out as the petitioner never held the informants hand and hence the charges are false and the ingredients of the section are not satisfied and hence the offence cannot be made out in the eyes of law. He further submitted that accused has been convicted based on the examination of two witnesses which is not sufficient for a fair trial as the two witnesses were the informant and her brother who are highly interested witnesses in the present case. The counsel further prayed the court to take a lenient view on the point of conviction as the age of the accused on the date of conviction was 42 years and his present age is 52 years, hence the sentence is liable to be looked into and modified by the court. He has also argued that when the FIR was registered the act of holding hand/ touching the informant was not mentioned which was added later in the prosecution case and therefore the accused has been falsely implicated in the present case.

Counsel, Pankaj Kumar prayed for no interference as there was no inconsistency in the finding of the facts, the examination of the witnesses, or appreciation of the evidence, thereby being no illegality or perversity in the impugned judgment.

The Court after hearing both sides relied on a Judgment of the Supreme Court titled State of Punjab v. Major Singh, AIR 1967 SC 63 held that the act of physical touching in the present case does not affect the order of conviction as other basic ingredients of Sections 354, 506 and 509 of IPC is clearly made out. It also held that the argument that the act of touch was not made out during filing of FIR but later in the prosecution case stands no ground as FIR is not an encyclopedia of the entire prosecution case.

In view of the above, the sentence is modified and criminal revision application disposed off. [Shyam Gupta v. State of Jharkhand, 2020 SCC OnLine Jhar 718, decided on 07-08-2020]

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., granted bail to an accused involved in the Delhi-Riots in view of the principles of bail.

Applicant accused for offences under Sections 147, 148, 149, 427 and 436 of the Penal Code, 1860. Applicant has been in judicial custody since 03-04-2020 till date.

By the present application, bail has been sought.

An FIR was registered in February, wherein according to the police, a mob engaged in rioting and destruction of property in certain areas of North-East Delhi during which the property of Mohd. Shanawaz  was burnt down, whereupon he file a complaint around 10 days after the incident.

State alleged that the applicant was one of the persons involved in arson and rioting as stated above and the same is the reason for him being in judicial custody.

4 more cases have been listed wherein the applicant was implicated and all the cases arose from the episodes of rioting that happened in North-East Delhi in February 2020.

While opposing the bail, Amit Prasad, SPP and Tarang Srivastava, APP submitted that the applicant’s identity and presence stands confirmed by the snapshot/video-graphs of the CCTV footage from Rajdhani Public School as well as from the applicant’s own cellphone.

Applicant’s CDRs also confirmed his location at the scene of the crime at the relevant time; that the complainant’s statements also point to the involvement of the applicant; and that in his statement Ct. Vikas has in fact identified the applicant.

“Court considered the effect of Pre-trial detention has on an accused, especially on his right to brief and consult his lawyers and to prepare his defence, in order to afford to the accused a real and not merely chimerical right to fair trial, as guaranteed under Article 21 of the Constitution.”

Hence, in view of the above and applying the law and principles of bail granted regular bail subject to the following conditions:

  • Personal Bond shall be furnished of Rs 50,000 with two sureties.
  • Applicant shall not leave the National Capital Region without Court’s permission.
  • Applicant shall present himself on every alternate Saturday between 11 am and 11:30 am before the Investigating Officer.
  • Applicant shall furnish to the Investigating Officer/SHO a cellphone number on which the applicant may be contacted at any time.
  • If the applicant has a passport, he shall surrender the same to the Trial Court.
  • Applicant shall not contact, nor visit, nor offer any inducement, threat or promise to the first informant/complainant or to any of the prosecution witnesses.

In view of the above, application was disposed of. [Mohd. Anwar v. State of (NCT) Delhi, 2020 SCC OnLine Del 900, decided on 04-08-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of D.N. Patel, CJ and Prateek Jalan, J., allowed a writ petition that sought supply of status report/report of the Jail Superintendent/reply filed on behalf of the prosecution at the time of hearing bail applications.

Why has the present Public Interest Litigation been filed?

To pass directions for supply of status reports/report by the Jail Superintendent on behalf of the prosecution at the time hearing bail applications under Sections 437, 438 and 439 CrPC before the Metropolitan Magistrates and Sessions Judges to accused/counsel for the accused.

Contentions

Siddharth Luthra, Senior Counsel for the petitioner submitted that in several cases, reports are being called from Jail Superintendent in bail matters. The same are being relied upon by the Courts, but the copies thereof are not being supplied to the accused.

Further he pointed out various matters where orders have been passed, dismissing the bail application preferred by the accused by relying upon the report given by the Jail Superintendent.

Bench

Court on perusal of the above, stated that, Senior Counsel Rahul Mehra has submitted that there is no specific statement, looking to the orders which were annexed to the effect that in spite of demand, the accused has not been supplied a copy of the report of the Jail Superintendent.

Standing Counsel for the State pointed that normally, the report of the Jail Superintendent is given to the Court.

Ordinarily, as a general rule, it ought to be kept in mind by the Courts that whenever any report is called for from the Jail Superintendent and is given to the Court either directly or through APP, copy thereof should be given to the applicant of the bail application.

— High Court

Further the Court added that every rule has its own exceptions and, depending upon the facts and circumstances of the case, there may be some cases where the report cannot be so supplied.

However, as a general rule, copy of the report given by the Jail Superintendent as well as the report given by the Investigating Officer should be supplied to the applicant so that accused can properly understand the reasons given therein and defend their case in the Court of Law.

Thus, with the above observations, petition was disposed of. [Chirag Madan v. UOI, 2020 SCC OnLine Del 699 , decided on 29-06-2020]

Case BriefsForeign Courts

Supreme Court of Canada: While deciding issues like application of entrapment framework to dial-a-dope investigations and whether, in the instant case, the police had reasonable suspicion that accused or phone numbers were engaged in drug trafficking at time police provided opportunity to commit offences, the 9 Judge Bench of Wagner C.J., and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ., with a ratio of 5:4, held that Police need ‘good reason’ to suspect that someone answering a phone is involved in drug dealing before asking them to sell drugs. The Court observed that the police should be able to show the Courts that they had a “reasonable suspicion” that a certain crime was happening. Needing reasonable suspicion makes sure that Courts can review police actions to check whether they are acting properly.

The issues revolved around 2 entrapment cases. In the involving Ahmad (hereinafter A), the police got a tip that someone named “Romeo” was selling drugs over the phone. The officer called “Romeo’s” phone number. He didn’t know if the tip was trustworthy. He had a short conversation with “Romeo,” who agreed to sell him the narcotics. The police set up a meeting on basis of this call with “Romeo” and when the he turned up, he was searched and then arrested. “Romeo” turned out to be A. In the second case involving Williams (W), a police officer got information from another officer that someone named “Jay” was selling drugs. The information also came from a tip. The officer didn’t know if the information was trustworthy or recent. Another officer called Jay’s number to buy cocaine. “Jay” agreed to meet and sold him the drugs. “Jay” turned out to be W. The police arranged another drug deal eleven days later and a month later, police arrested W. The question was that whether both the cases constitute entrapment or not.

As per the majority, comprising of Abella, Karakatsanis, Brown, Martin and Kasirer JJ., observed that a court must examine all of the circumstances, and not merely the language used during the call, in order to determine whether police had formed ‘reasonable suspicion’ by the time the opportunity was provided. It was further noted that police don’t have ‘reasonable suspicion’ if they just have a tip and don’t know if it is reliable. They can develop reasonable suspicion by investigating if a tip is reliable before calling. The Court observed that in both the cases the police didn’t have reasonable suspicion before calling the phone numbers. However A wasn’t entrapped because police developed a good reason to suspect he was selling drugs while talking to him on the phone. They did this before they asked to buy drugs from him. The police didn’t confirm the tip during the phone call in W’s case though; therefore W was entrapped because the police asked to buy drugs from him before they had a good reason to suspect he was selling drugs. Dissenting in part, Wagner C.J. and Moldaver, Côté and Rowe JJ., observed that the rules of entrapment display incoherence, thus the framework needs revision. Under the revised policy, the focus should be on the police acting pursuant to a bona fide inquiry where they meet three requirements- firstly their investigation must have been motivated by genuine law enforcement purposes; secondly, they must have had a factually-grounded basis for their investigation beyond a mere hunch; and thirdly, their investigation must have been directed at investigating a specific type of crime within a tightly circumscribed location. [ R v. Ahmad, 2020 SCC 11, decided on 29-05-2020]

Case BriefsHigh Courts

Punjab & Haryana High Court: Surinder Gupta, J. dismissed a petition dealing with the question whether accused under Negotiable Instruments Act, 1881 should be allowed to give his evidence in affidavit similar to that of a complainant.

The petitioner was facing trial in a complaint filed under the provisions of NI Act and sought permission from the trial court to submit his evidence through affidavit but the trial court refused to grant permission for the same while relying on observations in case of Mandvi Cooperative Bank Limited v. Nimesh B Thakore, (2010) 3 SCC 83.

Counsel for the petitioner, R.S. Rai argued that in the case of India Bank Association v. Union of India, (2014) 5 SCC 590 the accused was granted permission to submit his evidence on affidavit with the guideline that accused may submit his affidavit unless there is a justified ground to deny such permission. Further, the counsel argued that the order of trial court relying on observation of Mandvi Cooperative Bank Limited case was not sustainable.

While denying the petition and holding the order of trial court valid, the High Court stated the observation laid down by the Supreme Court in the case of Mandvi Cooperative Bank Limited that there is a basic difference in the nature of evidence of complainant and accused in a case of dishonoured cheque and it is wrong and unjustified to draw analogy between both, the Supreme Court opined that accused may not be able to provide any evidence and if any evidence is provided the nature of it may not be necessarily documentary and the defence will try to lead other kinds of evidences to rebut the presumption that the issuance of cheque was not in the discharge of any debt or liability. The Supreme Court discarded the observation laid down by High Court that Section 145(1) lays down the provision of filing an affidavit by the complainant so it can be assumed that accused can also file a similar affidavit.

Further, the Court opined that in case of Indian Bank Association the Supreme Court was dealing with the issue of setting guidelines/directions to be followed by the courts while trying complaints under Section 138 of the Negotiable Instrument Act that deals with dishonoured cheque and insufficiency in funds.

It was held that the law laid down in the Mandvi Cooperative Bank Limited case had not been dissented. Thus, the decision of the trial court was upheld and the petition was dismissed. [Rajni Dhingra v. Sanjeev Chugh, 2019 SCC OnLine P&H 2464, decided on 05-11-2019]

Case BriefsHigh Courts

Bombay High Court: K.R. Shriram, J., while dismissing the criminal appeal filed by the State against the order of the trial court acquitting the accused of charge under Section 392 of Penal Code, 1860, reiterated that there is a double presumption of innocence in favour of the accused who has been acquitted from the offence as charged by the trial court.

In the instant case, the accused was charged with committing an offence of robbery punishable under Section 392 IPC. On the conclusion of the trial, he was, however, acquitted by the trial court. Aggrieved by the said order of acquittal, the State preferred the instant appeal.

The High Court, on perusal of the evidence, found that the prosecution was not able to prove its case against the accused beyond reasonable doubt and, therefore, no interference was warranted with the order of the trial court. Pertinently, the Court reiterated the law relating to presumption of innocence that runs in favour of the accused. It was observed:

“There is an acquittal and therefore, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured acquittal, the presumption of their innocence is further reinforced, reaffirmed and strengthened by the trial court. For acquitting the accused, the Trial Court observed that the prosecution had failed to prove its case.”

Also, in relation to the nature of proof to be adduced in a criminal case, the Court restated:

“When the evidence adduced did not conclusively lead to the guilt of the accused and only pointed needle of suspicion towards the accused and nothing more, he cannot be committed because suspicion is no substitute for proof in criminal trial.”

Accordingly, finding no fault with the order passed by the Trial Judge, the High Court held that the instant appeal deserves dismissal. [State of Maharashtra v. Shivaji Haribhau Jirase, 2019 SCC OnLine Bom 4130, decided on 11-11-2019]

Case BriefsHigh Courts

Allahabad High Court: A petition was filed before a Division Bench comprising of Ramesh Sinha and Dinesh Kumar Singh, JJ., for quashing an FIR registered under Sections 409, 419, 420, 467, 468, 471, 477A, 201, 218 and 120-B/34 IPC and 13(2) Prevention of Corruption Act, 1988.

Facts of the case were that an FIR was filed against petitioner in 2006 and the investigation was pending even after 12 years. Petitioner submitted that a similar petition had been filed by accused where an interim order was passed in his favour, therefore, he is also entitled for the same. Petitioner contended that from perusal of FIR it could not be said that any offence was made out against him. Petitioner also stated the fact that investigation of the case was yet not been completed.

High Court after considering the facts and circumstances of the case and submissions of petitioner directed the investigating officer to complete the investigation and submit police report before the Court. Further, the direction was issued to not arrest the petitioner before the completion of investigation and submission of the report under Section 173(2) Criminal Procedure Code, 1973. [Bharti Singh v. State of U.P., 2018 SCC OnLine All 1933, order dated 11-10-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Dipak Misra, C.J. and A.M. Khanwilkar and D.Y. Chandrachud, JJ. upheld the bail granted to a rape offender by the Hon’ble Hyderabad High Court.

In the present petition, the learned bench of the Supreme Court Judges by emphasising on the essence of “consent” in a sexual relationship heard the contentions of the parties and arrived on a decision. The accused was charged under Sections 376, 342, 493, 506 and 354 (C) of the Indian Penal Code for which he was granted anticipatory bail by the sessions judge which was further cancelled on the ground that the accused had hidden the fact of his involvement in the 2G Spectrum case and the stated order was affirmed by the High Court.

The High Court on receipt of the bail application filed by the accused had granted bail with a bond of Rs. 50,000.  For the granted bail, the learned counsel of the appellant submitted that the allegations on the accused were of grave nature involving rape of an aspiring actress and on filing a complaint in that regard, she came across a large number of threats at her end in order to withdraw the filed complaint.

On considering the submissions of the parties, Supreme Court agreed and found “no fault” on the part of  the High Court in granting anticipatory bail to the accused as the ground of the complainant in the issue was of rape, though it had been noted that the complainant had visited the accused on her own will which lead the Court towards the “consensual” relationship between the complainant and the accused. Therefore, the Supreme Court without making any further delay in the present case stated that bail once granted should not be cancelled unless or a cogent case based on a supervening event is being made out. Further, bail granted was not cancelled, though the bond was modified to Rs. 10 lakhs. [X v. State of Telangana,2018 SCC OnLine SC 549, decided on 17-05-2018]

Case BriefsHigh Courts

Calcutta High Court: A  Division Bench comprising of Joymalya Bagchi and Ravi Krishan Kapur, JJ.  disposed of the criminal appeal filed by the appellant by ordering his further examination under Section 313 CrPC.

In the case at hand, most of the prosecution witnesses turned hostile. However, the trial judge relied on the dying declaration of the victim, who, according to PW 15- the doctor who treated the victim, had suffered burn injuries due to the pouring of hot mustard oil. Learned counsel for the appellant was before the High Court assailing the said dying declaration on various grounds including that such circumstance was not placed before the appellant during his examination under Section 313 CrPC.

The High Court perused the record and found that in fact such circumstance was not put to the appellant during his examination. The Court held it to be settled law that any circumstance which may be used against an accused must be placed to him during his examination under Section 313. Such an exercise is not an empty formality but a facet of natural justice. While deciding the appeal, the Court was not unmindful of the fact that every infraction of the aforesaid requirement would not vitiate the trial. However, if such infraction is of a grave nature, and prejudices the accused or occasions failure of justice, it shall result in a mistrial. In the instant case, the Court noted, most of the PWs turned hostile, and as such, the dying declaration if believed by the court, would be the most vital circumstance pointing towards guilt of the appellant. In such circumstances, the Court ordered the further examination of the appellant under Section 313 by putting questions before him in relation to the dying declaration. The Sessions Judge was directed to complete the exercise within four weeks. [Sk. Anowar v. Moinak Bakshi, 2018 SCC OnLine Cal 3896, dated 22-6-2018]

Case BriefsHigh Courts

Rajasthan High Court: A Single Judge Bench comprising of Vijay Bishnoi J., while allowing to take the voice sample of the accused pronounced that “when the criminals are using the modern technologies to commit the crime, it is not justified to restrain the police or investigating agency to counter it”.

The accused in the present case had indiscriminately fired gunshots at the residence of two persons and for the same reason, an FIR was registered by the victims. It was also noted that immediately after the filing of the FIR victims had received phone calls pertaining to life threats. In the course of the investigation, police had arrested two persons and for that purpose, an identification test was called for, but the victim again received calls from Italy through Voice over Internet Protocol (VOIP).

On arrest of the accused person, police felt that the information given on the part of the respondent may not be admissible and for that reason the police authorities had filed an application before the Additional Chief Magistrate to give directions to the respondent for submission of his voice sample which was rejected on the basis of ‘no consent” of the respondent. Courts below had rejected the application of the respondent for the collection of the voice sample.

The Hon’ble High Court, on analysing the contentions  placed in reference to the issue for recording of the voice sample of the accused, explained its stance by relying on the Supreme Court judgment of  Ritesh Sinha v. State of U.P., (2013) 2 SCC 357, in which it was well settled that if an accused person is compelled to give his voice sample it is no violation of his rights under Article 20(3) of the Constitution of India and the law is silent on the same. Therefore, the Court by explaining the various aspects of this issue and allowing the criminal misc. petition stated that the police cannot be restrained from taking voice sample of respondent for establishing his involvement in the crime. [State of Rajasthan v. Vikramjeet Singh, 2018 SCC OnLine Raj 1343, dated 23-05-2018]

Case BriefsHigh Courts

Orissa High Court: While deciding the issue that whether it would be proper to quash the criminal proceedings against the petitioner in an offence of abduction and gang rape especially when prima facie materials on record concerning his complicity in the crime have been collected during course of investigation, but the co-accused persons have been acquitted of all the charges on the ground that the victim and other independent witnesses have not supported the prosecution case, the Bench of S.K. Sahoo, J., dismissing the petition, held that a Court cannot quash the criminal proceedings against the petitioner forming an assumption on the ground that the co-accused persons have been acquitted as the victim did not support the prosecution case.

As per the facts, the petitioner and other co- accused persons was charged under Sections 363/366/376(2) (g) read with Section 34 IPC and Section 3 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, for abducting and gang raping a married woman. The victim however turned a hostile witness, as a result of which the co- accused persons were acquitted. Arupananda Das, Addl. Government Advocate for the State put forth before the Court that during course of investigation and from the statements of the victim, prima facie case was found against the petitioner and accordingly, charge sheet was submitted. Thus merely because the victim did not support the prosecution case during trial in respect of the co-accused persons, the same cannot be a ground to quash the criminal proceeding against the petitioner.

Perusing the facts of the case, the Court observed that it is a case of abduction and gang rape of a married lady, and even though the victim turned hostile during the trial of the co- accused persons, it cannot be said that she will do the same during the trial of the petitioner. The Court noted that if the accused against whom accusation of abduction and gang rape is there remains absconding, and watches the criminal proceeding in respect of the co-accused persons and after such proceeding ended in acquittal, he comes out of his shell feeling that in view of the acquittal of the co-accused persons, the prosecution case against him will become weak and if the Court accepts his plea on the basis of the evidence adduced in the trial of the co-accused persons and quashes the proceeding against him, then it would be a travesty of justice. Thus it cannot be said that the continuance of the criminal proceeding against the petitioner would be an abuse of process. The Court thereby refused to invoke the inherent power under Section 482 of CrPC. [Ajay Kumar Sethi v. State of Orissa, 2018 SCC OnLine Ori 275, decided on 09-04-2018]