Case BriefsHigh Courts

Madras High Court: Expressing that, a convict cannot enjoy all the liberties as are available to a common person, otherwise there would no difference between a law-abiding citizen and a law-violating prisoner, the Division Bench of Munishwar Nath Bhandari, ACJ and Pushpa Sathyanarayana and P.D. Audikesavalu, JJ., held that,

The leave for a specific purpose which may be for undergoing infertility treatment, as such, may not be considered for having conjugal relationship in common parlance, but for extraordinary reason, thus we (High Court) can safely hold that the 1982 Rules itself protect the rights of the prisoner guaranteed under Article 21 of the Constitution of India to the extent it is required.

Background

A Division Bench had passed an order referring the following two questions for consideration by a Larger Bench:

(i) Whether the denial of conjugal rights to a convict prisoner would amount to denial of such a right to his/ her spouse and thereby, violative of Article 21 of the Constitution of India? and

(ii) Whether the State can be directed to favourably consider the request of a convict prisoner for emergency leave or ordinary leave for the purpose of having conjugal relationship with his/her spouse, though the Tamil Nadu Suspension of Sentence Rules, 1982 does not envisage this?

The questions were referred to in view of the order of Division Bench granting temporary leave for a period of two weeks to the convict. The said petition was preferred by the wife of the detenu, to grant leave to the convict for 30 days to have conjugal relationship, as they were not having a child from the wedlock and the petitioner was advised to have infertility treatment along with her husband.

The Division Bench had granted temporary leave to the convict and the sentence was suspended for the said period and accordingly, the respondents were directed to release the husband subject to certain conditions.

Later the petitioner filed a fresh petition to seek 6 weeks of leave to her husband for which Division Bench noticed that there was no provision in the Tamil Nadu Suspension of Sentence Rules, 1982 for grant of emergency or ordinary leave for a convict to have a conjugal relationship with spouse.

In view of the above circumstances, the matter was referred to Larger Bench.

Analysis and Discussion

Whether the denial of conjugal rights to a convict would amount to the denial of rights guaranteed under Article 21 of the Constitution of India?

It is no doubt true that Article 21 of the Constitution of India guarantees protection of life and personal liberty. In the present matter, the petitioner’s husband was tried in a criminal case and had been convicted for life imprisonment.

As per the facts of the case, the petitioner’s husband was granted leave for a period of two weeks, which he availed and further filed a petition seeking 6 weeks leave for undergoing the infertility treatment.

The Punjab and Haryana High Court, in Jasvir Singh v. State of Punjab, 2014 SCC OnLine P&H 22479, had considered the issue of conjugal rights of the convict and had made a reference to the provisions of the Prisons Act, 1894 and the Supreme Court decision in Sunil Batra v. Delhi Admn., (1978) 4 SCC 494. Further, the petition was decided holding conjugal rights of the prisoner to be a fundamental right guaranteed under Article 21 of the Constitution of India.

High Court expressed that the provisions of the 1982 Rules do not provide leave for having a conjugal relationship with spouse.

“…if a provision for leave to have conjugal relationship is provided, the prisoner may ask for the leave invariably on that ground and, that too, time and again.”

The Bench added that, it cannot, however, mean that under all circumstances except those specified in Rule 20(i) to (vi) and Rule 20(viii) of the 1982 Rules leave can be denied, rather Rule 20(vii) of the 1982 Rules provides for grant of leave for any other extraordinary reasons, which can be of the nature referred in this case, i.e., for undergoing infertility treatment. However, leave on that ground cannot be sought time and again.

Whether the wife of the convict can seek to leave to enable her, and the convict husband undergo infertility treatment to beget a child and whether it would fall under the category of extraordinary reasons?

High Court opined that petitioner’s request to undergo infertility treatment in a circumstance when the convict had no child from the wedlock forms and extraordinary reason for grant of leave.

Therefore, petitioner case fell under Rule 20(vii) of the 1982 Rules.

If leave for having conjugal relationship is recognized to be a right under Article 21 of the Constitution of India, the prayer of similar nature can be made by the accused or his/her spouse time and again to have conjugal relationship.

Answers to the Questions referred:

(i) The denial of conjugal relationship of the convict for specific purpose may amount to denial of the fundamental right guaranteed under Article 21 of the Constitution of India. The specific purpose may be infertility treatment or some similar reason, but it should not be construed to be a fundamental right for having conjugal relationship as a course. This would make a difference between the law abider and violator in regard to rights guaranteed under Article 21 of the Constitution of India.

(ii) The State can be directed to consider the request of convict for emergency leave or ordinary leave for the purpose given while answering the question No. (i). The emergency leave or ordinary leave would be for the purpose given under the 1982 Rules and if any extraordinary reason exist, then the State need to consider the aforesaid as and when a request is made by the convict or his relative for grant of ordinary leave for extraordinary reasons. The emergency leave or ordinary leave cannot be claimed as a right for having conjugal relationship without an exceptional reason. This demarcation is necessary as the curtailment of some rights of a prisoner on account of his conviction to the extent indicated above does not offend Article 21 of the Constitution of India.[Meharaj v. State, 2022 SCC OnLine Mad 381, decided on 20-1-2022]


Advocates before the Court:

For the Petitioner: Mr R.Narayanan

For the Respondents: Mr Shunmugasundaram Advocate General assisted by Mr A. Damodaran Addl. Public Prosecutor for 1st respondent

: Mr Hasan Mohamed Jinnah State Public Prosecutor assisted by Mr S. Santhosh Government Advocate (Criminal Side) for respondents 2 to 4

:Mr Avinash Krishnan, CGSC for 5th respondent

: Mr N. Dilip Kumar Amicus Curiae

Case BriefsSupreme Court

Supreme Court: In a case where the bench of AM Khanwilkar* and Sanjiv Khanna, JJ was called upon to decide whether it is mandatory to issue a primary notice under Section 6 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 to the convict and not merely to the relatives of the convict who hold the properties proposed to be forfeited, the Court has elaborately interpreted the provision and has held that Section 6(1) of the 1976 Act nowhere provides that it is “mandatory” to serve the convict or detenu with a primary notice under that provision whilst initiating action against the relative of the convict.

The Court explained that,

“Section 6(1) posits that notice must be given to the person who is holding the tainted property and is likely to be affected by the proposed forfeiture of the property. The person immediately and directly to be affected is the person who is the recorded owner of the property and in possession thereof himself or through some other person on his behalf.”

What does the law state?

Section 4 prohibits holding of illegally acquired property. It provides that the person to whom the Act applies shall not hold any illegally acquired property and there is a corresponding duty on the Competent Authority to initiate process after due inquiry under Section 18 of the 1976 Act for   forfeiture of such property — whether acquired before the commencement of the Act or thereafter.

This process has to be initiated by the Competent Authority by issuing notice under Section 6 to such person who holds the properties proposed to be forfeited being illegally acquired properties. That person may hold the property either by himself or through any other person on his behalf.

If the property is held by person concerned, the notice under Section 6(1) needs to be issued to such person to whom the Act applies calling upon him to disclose the sources of his income, earnings or assets out of which or by means of which he has acquired such property, the evidence on which he relies and other relevant information and particulars.

Analysis of Section 6

The notice under Section 6(1) is required to be issued to any person to whom the Act applies.  As is evident from Section 2(2) of the 1976 Act, the Act applies not only to convict or detenu, but also to their relative, associate including holder of any property being Section 2(2)(c), 2(2)(d) and 2(2)(e) respectively.  The purpose of issuing notice is to enable the person concerned (noticee) to discharge the burden of proof as propounded in Section 8 of the 1976 Act. It is then open to him to prove that the property referred to in the notice is his legally acquired property.

“Held” – Explained

The expression “held” in Section 6 means that the person is entitled to possession of property being owner of the property in the relevant record or even because he is in  legal possession thereof.   In other words. A person may be holding the property also when he (at the relevant time) is in legal possession of the stated property, even if he is not a recorded owner thereof. In either case, it would be a matter within the ambit of expression “held” occurring in Section 6 of the 1976 Act.

Further, the noticee may hold the property either by himself or through any other person on his behalf.

Mere legal possession by the person holding the property

In a given case, however, if the property is held by a person owing to merely being in legal possession   thereof, but the ownership of the property at the relevant time is that of the convict or detenu or his/her relative, as the case may be, it would become necessary for the Competent Authority to not only give notice to the person in possession of the property in question but also to the person shown as owner thereof in the relevant records.

Subsequent purchase of property from the convict or detenu

In a case where the person shown as owner in the relevant records had purchased the subject property from the convict or detenu and is a subsequent purchaser, notice is required to be issued to both — the present owner and the erstwhile owner (convict or detenu), as the case may be. However, if the ownership of the property in the relevant records at the relevant time is that of the person in possession, and not being the convict or detenu, the question of issuing notice to the latter would serve no purpose. The convict or detenu cannot be heard to claim any right in such property including proprietary rights and for the same reason, he is not expected to discharge the burden of proof under Section 8 of the 1976 Act as to whether it is his legally acquired property nor can he be said to be the person affected with the proposed action of forfeiture as such.

De facto possession by “such other person”

If the illegally acquired property is held in the name of the relative, but the de facto  possession thereof is with some other person, who is not covered by the expression “person” as given in Section 2(2), in such a case primary notice under Section 6 is required to be issued to the relative of the convict or detenu and copy thereof served upon “such other person” who is in de facto possession thereof (albeit for and on behalf of the relative of the convict or detenu).

“Even in this situation, notice to the convict or detenu may not be necessary much less mandatory. For, the 1976 Act applies even to the relative of the convict or detenu holding illegally acquired property either by himself or through any other person on his behalf.”

“Such other person” will be a person other than a person to whom the Act applies being merely a holder of illegally acquired property on behalf of the person to whom Act applies. Thus, he may be a person other than a person referred to in Section 2(2) of the 1976 Act.

“The legislative intent is to cover “such other person” so as to reach up to “illegally acquired property” of the convict/detenu and unravel/lift the veil created by the person to whom the Act applies.”

This is to ensure that the persons to whom the Act applies referred to in Section 2(2), do not use mechanism to shield illegally acquired properties from the proposed action of forfeiture.

However, if “such other person” is claiming ownership of the property through the relative of the convict or detenu in relation to illegally acquired property, who was earlier owner thereof upon receipt of notice under Section 6(2) can certainly impress upon the Competent Authority that he is a purchaser in good faith for adequate consideration of the stated property. Such a plea can be considered by the   Competent Authority on its own merits.

Requirement of “reasons to believe”

Notice under Section 6(1) cannot be issued in respect of properties for which the Competent Authority has no evidence or material to record “reasons to believe” that the properties were acquired from the assets or money provided by the convict/detenu. The satisfaction should be based upon objective material and not mere feeling or inkling.

“The requirement is deliberately legislated as a check against frivolous and rowing inquiries based upon mere suspicion and pretence.”

Recording of the reasons to believe and satisfaction of the aforesaid conditions is an important condition precedent – a sine qua non – and its violation would have legal consequences. It is a jurisdictional requirement, which, unlike a procedural requirement, would affect the proceedings if not complied with. Therefore, in such cases, the question of no prejudice is unavailable as the provision for issue of notice and satisfaction of the precondition for the issue of notice, i.e., “reasons to believe”, is mandatory and not optional or directory.

Conclusion

Section 6(1) of the 1976 Act nowhere provides that it is “mandatory” to serve the convict or detenu with a primary notice under that provision whilst initiating action against the relative of the convict.  Indubitably, if the illegally acquired property is held by a person in his name and is also in possession thereof, being the relative of the convict and who is also a person to whom the Act applies, there is no need to issue notice to the convict or detenu much less primary notice as held by the High Court in the impugned judgment.  For, Section 6(1) posits that notice must be given to the person who is holding the tainted property and is likely to be affected by the proposed forfeiture of the property.  The person immediately and directly to be affected is the person who is the recorded owner of the property and in possession thereof himself or through some other person on his behalf.  In the latter case, the burden of proof under Section 8 is not to be discharged by the convict or detenu, but by the person who   holds   the illegally acquired property either by himself or through any other person on his behalf.

The expression “such other person” in Section 6(2) is, thus, referable to a person falling in class “through any other person on his behalf”. That is the person to whom the Act applies, as noted in the opening part of Section 6(1) of the Act.  In such a case, the convict or detenu is not expected to nor can be called upon to discharge the burden of proof under Section 8.

[Income Tax Officer v. V. Mohan, 2021 SCC OnLine SC 1240, decided on 14.12.2021]


Counsels

For appellants:  Additional Solicitor General of India Aman Lekhi and Senior Advocate AK Srivastava

For Respondents: Advocate Atul Shankar Vinod


*Judgment by: Justice AM Khanwilkar

Know Thy Judge| Justice AM Khanwilkar

Patna High Court
Case BriefsHigh Courts

Patna High Court: Noticing discrepancies in the Trial the Division Bench of Ashwani Kumar Singh and Anil Kumar Sinha, JJ., acquitted a woman accused of killing a 2 year old kid.

The appellant was alleged to have killed 2 year old child of the defendant whose body was found rolled in a gendra (a locally made mattress of textile in Bihar) and a plastic bag. The whole case of prosecution was based on circumstantial evidence, i.e., gendra in question belonged to the accused, frequent quarrel between accused and parents of the deceased, sniffer dog going to the house of the accused etc. The Trial Court found the accused guilty and convicted him for the offences punishable under Sections 302 and 201 of Penal Code, 1860.

Was admission made by son of the accused admissible?

Regarding the confession made by the son of the appellant was concerned, wherein he had, while in custody of IO, admitted that his mother had killed the victim boy, the Bench stated that statements made by an accused before the police amounts to confession are barred under Section 25 of the Evidence Act, 1872 and an extra-judicial confession by itself is a very weak type of evidence.

Can a person be convicted of a crime based on the evidence gathered by the police sniffer dog?

Noticing that the Trial Court had convicted the appellant on the evidence of a sniffer dog, the Bench opined, though the police was allowed to use the services of a sniffer dog for investigation, but merely because the dog entered the house of the appellant in her absence, the same could not be treated to be evidence sufficient enough to establish the guilt of the appellant and the appellant could not be convicted only on the basis of evidence gathered by the police sniffer dog.

Moreover, the circumstance that the sniffer dog entered the house of the appellant after smelling the place where the body of the deceased was thrown was not brought to the notice of the appellant while examining her by the Trial Court under Section 313 of the CrPC. Hence, the said circumstance could not have been taken into consideration as the accused was not granted opportunity to explain the circumstances. The Bench said,

If the questions on incriminating circumstances have been ignored by the trial court, then it is an illegality and amounts to an abuse of the process of Court.

Hence, circumstances which were never put to the appellant while examining her under Section 313 of the CrPC could not have been used for convicting and sentencing her.

Findings and Conclusion

Opining that to sustain a conviction on circumstantial evidence, the factual circumstances should be so established and only inference to the said circumstances must be that of the guilt of the accused, incompatible with any other hypothesis, the Bench took note that the gendra, which was seized by the police was never put before the Magistrate for an identification parade. Moreover, the Bench remarked, “gendra is a common item which is found in every house.”

Hence, holding that there was no cogent evidence to suggest that the gendra in which the body of the deceased was rolled belonged to the appellant, the Bench opined that the prosecution had miserably failed to prove each of the links in the chain of circumstances beyond reasonable doubts against the appellant.

Accordingly, the Trial Court’s order was set aside and the appellant was acquitted of the charges levelled against her. [Soni Devi v. State of Bihar, 2021 SCC OnLine Pat 2289, decided on 15-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance:

For the Appellant: Anirudh Kumar Sinha, Advocate and Santosh Kumar, Advocate

For the Respondent-State: Ajay Mishra, APP

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Ashok Menon, J., directed release of a 60-year-old man convicted in 14 criminal cases taking into account that the convict had already undergone 15 years of imprisonment and would have to be in jail for more than 18 years since sentence in all the cases were running consecutively.

Background

The petitioner, convicted in 14 criminal cases pertain to offences like theft, housebreaking, lurking house trespass by night, theft of property from inside the house, etc had approached the Court seeking order to direct his punishments run concurrently. It was the case of the petitioner that he had pleaded guilty and was convicted in all the cases for a period ranging between 6 months imprisonment to 5 years imprisonment and had been in prison since 10-04-2003.

The petitioner contended that being indulged in different cases committed at different periods of time and pending before different courts, none of the courts exercised the discretion under Section 427 CrPC to order the sentences to run concurrently. In such case, the sentences were to run consecutively one after the other, thus, he would has to remain behind bars for 30 years and 6 months. Stating his old age and ill health the petitioner stated that his continued detention was illegal and therefore, specific orders may be made directing the jail authorities to release him.

Reliance was placed by the petitioner on the decision of Supreme Court in State of Maharashtra v. Najakat, (2001) 6 SCC 311 wherein it was observed that for granting the benefit of set-off under Section 428 of the CrPC, the pre-trial detention of the accused has to be in the same case and not in a different case as is held by the Supreme Court. It was the case of the petitioner that he had pleaded guilty in all the cases and in consequence that he was awarded different sentences ranging from six months to five years of imprisonment and had been in custody now for a period of more than 15 years.

As per the report filed by the Superintendent of Central Prison & Correctional Home, after adjusting the set off granted by the Court, the remaining sentences would have to run consecutively and under those circumstances, the petitioner had not completed his term of imprisonment in all the cases.

Observation and Decision

Opining that the very fact that power under Section 482 of the CrPC is vested only in the High Court is a safeguard for the power being not abused, the Bench expressed that utmost care and caution is required while invoking the powers. Quoting its decision in Moosa v. Sub Inspector of Police, 2005 SCC OnLine Ker 605, the Bench stated, the object of exercise of power being to prevent abuse of process of court and also to secure the ends of justice, it follows that ends of justice are higher than the ends of mere law.

Reliance was placed by the Court on the Supreme Court’s decision in Benson v. State of Kerala, (2016) 10 SCC 307 wherein the Court had held that the normal rule regarding consecutive running of sentence is subject to a qualification and it is within the power of the Court to direct that the subsequent sentence shall run concurrently with the previous sentence. Accordingly, the Supreme Court had directed that sentences imposed in different theft cases should run concurrently.

Noticing that in Benson’s case the Supreme Court considered the fact that the petitioner was involved in several cases and that he would has to undergo imprisonment for three decades in case the sentences were to be undergone consecutively, the Bench opined that in the instant case, the facts were almost similar and the petitioner had already undergone more than 15 years imprisonment and the maximum imprisonment that was awarded to him in one case was only 5 years. Therefore, considering the fact that the petitioner had not even contested the cases and had pleaded guilty, in consequence of which he was sentenced to imprisonment and that he was more than 60 years old and would has to be in prison for more than 18 years, the Bench exercised jurisdiction under Section 482 of the CrPC and directed to release the accused recording that he had undergone the sentence in all the crimes in which he was convicted.[Sivanandan v. State Of Kerala, 2021 SCC OnLine Ker 2822, decided on 20-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the petitioner: Adv.V.John Sebastian Ralph, Adv. Jefrin Manuel, Adv. K.J.Joseph Ernakulam And Adv. V.John Thomas

For the Respondent: Pp. C.S.Hritwik

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal J., allowed the petition and held that forfeiture of earned remission of a convict is violative of fundamental rights under Article 21 of the Constitution of India.

The facts of the case are such that the petitioner is a convicted prisoner undergoing sentence in Central Jail, Bilaspur for commission of offences under Sections 302, 307 and 149 of Penal Code, 1860. It was alleged that petitioner was found in possession of prohibited article, a prison offence under Section 45 of the Prisons Act, 1894, the Octagon Officer submitted his report to the Jailor, made a recommendation to the Jail Superintendent which was then simply approved by the Jail Superintendent on the same date and as such, the order of forfeiture of 10 days of petitioner’s earned remission was passed. The petitioner has assailed the said order on the ground that such forfeiture of his earned remission, without affording him an opportunity of hearing, is in violation of his fundamental right guaranteed under Article 21 of the Constitution of India.

Counsel for the petitioner submitted that remission forfeited by the Jail Superintendent on account of a prohibited article found in possession of the petitioner, which is a prison offence under Section 45(12) of the Prisons Act, 1894, is absolutely unjust and improper and is in violation of petitioner’s fundamental right under Article 21 of the Constitution of India as no enquiry was conducted by the Jail Superintendent as contemplated in Rule 734 of Chhattisgarh Prisons Rules, 1968 nor the petitioner was afforded an opportunity of hearing in that enquiry, as such, the impugned order passed by the Jail Superintendent deserves to be set aside.

Counsel for the respondents submitted that the impugned order and submit that the instant petition deserves to be dismissed.

Amicus curiae relied on judgment Anand Rao v. Inspector General of Prisons, 1982 MPLJ 73 (DB) and submitted that without following the due procedure as prescribed in Rule 734 of Chhattisgarh Prisons Rules, 1968, petitioner’s earned remission could not have been forfeited.

The Court relied on judgment Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 and observed, it is quite vivid that in the instant case, the enquiry has only been made by the Octagon Officer and the report has been submitted to the Jailor, who has then recommended forfeiture of petitioner’s 10 days of earned remission to the Jail Superintendent, but without giving an opportunity to the petitioner to explain his conduct, penalty of forfeiture of earned remission has been imposed upon him by the Jail Superintendent as he agreed to the recommendation made by the Jailor for forfeiting 10 days of remission earned by the petitioner.

The Court thus held that no such opportunity has been granted to the petitioner to explain his conduct and even otherwise, no enquiry was conducted by the Jail Superintendent while forfeiting petitioner’s earned remission as pursuant to the recommendation made by the Jailor, petitioner’s 10 days’ earned remission has been forfeited, which is violative of petitioner’s fundamental right guaranteed under Article 21 of the Constitution of India.

In view of the above, petition was allowed.[Suraj Gupta v. State of Chhattisgarh, 2021 SCC OnLine Chh 448, decided on 26-02-2021]


Arunima Bose, Editorial Assistant has put this story together.

Hot Off The PressNews

As reported by ANI, Delhi High Court has set 06-02-2020 as the date on which Manu Sharma’s plea will be heard with respect to his release.

Manu Sharma is the convict in the Jessical Lal Murder Case who has been sentenced to life imprisonment and has been serving the same since April 1999.

In the petition, Manu Sharma has stated that he is aggrieved by the Delhi Government’s September order upholding the recommendation of the Sentence Review Board, which decides the release of prisoners sentenced for life.

Petition called out the board’s decision to be “unfair, arbitrary and impartial”.His release has been declined by the Board since last three occasions.

Jessica’s sister Sabrina Lall had written a letter to Tihar Jail stating that she had no objection with Manu Sharma’s release.


[Source: ANI]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Manmohan and Sangita Dhingra Sehgal, JJ., held that the appeal filed by the complainant (father of the deceased victim) against the judgment of the trial court, challenging the inadequacy of sentence awarded to the convict, was not maintainable.

The convict was sentenced to life imprisonment for the commission of offences under Sections 302 and 364-A IPC. The complainant (father of the deceased victim), feeling aggrieved by the inadequacy of sentence, filed the instant appeal contending that the sentence awarded to the convict should be sentenced to the death penalty.

C.L. Gupta, Advocate made contentions on behalf of the complainant. Per contra, Amit Gupta, APP, appearing for the State, argued that the appeal was not maintainable.

The High Court reiterated that it is settled law that an appeal is a creature of a statue and cannot lie under any inherent power. It was noted that the proviso to Section 372 CrPC (no appeal to lie, unless otherwise provided) confers upon the victim, the right to prefer an appeal against the order of the Criminal Court in the following three instances: (a) Acquittal of the accused person; (b) Conviction of the accused person for a lesse offence; and (c) Imposition of inadequate compensation.

Relying on a catena of decisions, including that of the Supreme Court in National Commission for Women v. State (NCT of Delhi), (2010) 12 SCC 599, the High Court restated: “An appeal by the victim under Section 372 CrPC, is not maintainable if it only challenges the order on sentence on the ground that it imposes inadequate punishment.”

In view of such a mandate of law, the High Court held that the instant appeal was not maintainable, which was, therefore, dismissed. [Pravinder Kansal v. State (NCT of Delhi), 2019 SCC OnLine Del 11508, decided on 27-11-2019]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Rajiv Narain Raina, J. allowed the petition to grant furlough to the petitioner and quashed the impugned order passed by the District Magistrate disallowing the same. 

The instant petition was made with the prayer that the petitioner be granted the benefit of furlough for a period of two weeks to enable him to meet his family members. The petitioner was convicted under Section 302 of the Penal Code.

The application of the petitioner for furlough was rejected on the grounds that the petitioner had recently availed parole period from 12.06.2019 to 28.06.2019. The District Magistrate, Karnal refused to recommend furlough to the petitioner to meet his family. The Divisional Commissioner, Karnal Division, Karnal by applying the provisions of Section 6 (1) of the amended Act of 2012 of the Haryana Temporary Good Conduct Prisoners (Temporary Release) Act, 1988 supported the stance of the District Magistrate.

The Court observed that there was no report in the impugned order stating that the release of the petitioner on furlough would involve a breach of the security of the State or he would pose a danger to society or create law and order problems. The court also noted that the petitioner had already undergone about 10 years and 5 months as under trial and after his conviction. Moreover, the petitioner had already availed the benefit of parole in the month of June, 2019 and he surrendered in time after the parole period was over.

After considering the aforementioned facts and taking into account the aforesaid relevant consideration, the court deemed it appropriate to grant the benefit of furlough to the petitioner for a period of two weeks.

In view of the above-noted facts, the instant petition was allowed with the direction that the District Magistrate concerned, would impose such conditions as may be required to secure the presence of the petitioner in jail after the period of furlough, is over and done with and the temporary release would not be misused. [Deepak Sharma v. State of Haryana, 2019 SCC OnLine P&H 2089, decided on 19-10-2019]

Case BriefsHigh Courts

Allahabad High Court: The Bench of Dinesh Kumar Singh, J., released the accused on probation by granting him the benefit of Section 4 of the Probation of Offenders Act, 1958.

The facts of the case were that the accused was booked under Sections 323, 452 and 326 IPC and was convicted by the Trial Court in this regard. Shiv Ganesh Singh, Advocate on behalf of the appellant, submitted that since the appellant was not convicted previously for any offence, the Trial Court ought to have invoked the provisions of the Probation of Offenders Act, 1958. It was further submitted that the Trial Court did neither invoke the provisions of the Act, 1958 nor the provisions of Section 360 CrPC while sentencing the accused-appellant. Neither did it give any special reason in the impugned judgment and order of conviction for not giving the benefit of provisions of Section 360 CrPC or the provisions of Act, 1958. Thus the order suffered from serious illegality being violative of provisions of Section 361 CrPC and, therefore, it cannot be sustained. Section 361 of the Code is required to be applied with or without the beneficial provisions i.e. Section 360 of the Code or provisions of the Act, 1958. It was further stated that if the Court chose not to apply either of these provisions, it was required to give special reasons for not applying the beneficial provision otherwise accused offender would be eligible for provisions of Section 360 of the Code or Section 3 or 4 of the Act, 1958. The accused-appellant had a statutory right for claiming the benefit of beneficial legislation.

The Court, in view of the facts and circumstances, held that the appeal should be dismissed by upholding the conviction of the accused-appellant. However, he was granted the benefit of Section 4 of the Act, 1958. He was released on probation. [Durgesh Chandra v. State of U.P, 2019 SCC OnLine All 2176, decided on 15-05-2019]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: The Bench of  Deepak Roshan, J. allowed a petition insofar as it modifies the sentenced to undergo the imprisonment for the period already undergone him. 

In the present case the petitioner was found guilty for the offence under Section 3(a) of Railway Property (Unlawful Possession) Act and was sentenced to undergo simple imprisonment for 2 years and also directed to pay a fine of Rs 2000 and in default of payment of fine, he was further directed to undergo simple imprisonment for six months. The learned counsel for the petitioner submitted that he remained in custody for nearly one year and eight months and he has already suffered much as such some leniency may be accorded to the petitioner.

The Court held that the prosecution has proved its case beyond all shadow of reasonable doubts. But the fact that the petitioner remained in custody for more than one and a half years and the case is pending since 1994, has certainly made the petitioner suffer who remained in custody. Therefore, the Court found it “expedient in the interest of justice that the order of sentence already undergone will suffice for the ends of justice for the alleged offence”.[Fahim Khan v. State of Jharkhand, 2019 SCC OnLine Jhar 457, decided on 03-05-2019]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and R.G. Avachat, JJ., pronounced an order while extending the provisions of Section 335 CrPC to the appellant in order to detain him in Yerwada Mental Hospital and setting aside the impugned order of conviction and sentence under Section 302 IPC.

The present challenge was made to the judgment and order passed by learned Additional Sessions Judge, Udgir. Appellant had been convicted for the offence of murder, punishable under Section 302 IPC.

Factual matrix of the present case is that the deceased was a daily wage earner and at times used to sell Pepsi candies as a hocker in summer. On one such day, appellant asked the deceased for a Pepsi candy for free but the deceased refused for the same. Result of the said circumstances was that the appellant picked up a stone and lynched the deceased due to which on reaching the hospital the deceased lost his life.

Appellant was arrested after the above-said facts took place in the form of an FIR filed by deceased’s uncle. Trial Court framed charge and appellant pleaded not guilty and claimed to be tried. His defence was that of insanity.

Learned Counsel for the appellant stated that appellant did not have intention to kill the deceased and therefore it would at most be an offence of culpable homicide not amounting to murder, punishable under Section 304 Part-B of the Indian Penal Code. On appreciation of the evidence in the case, the trial court found the appellant to have caused culpable homicide and found it to be a case of murder. In the trial court’s view, appellant failed to make out defence of his insanity.

Conclusion & Analysis

The High being not in agreement with the trial court’s finding addressed the issue of legal insanity with an in-depth analysis of Section 299 IPC, Sections 105 and 101 Evidence Act and reference was taken from the case of Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563. 

Thus, in light of the above stated,  along with circumstances of the case, it was stated that there was no enmity between the deceased and the appellant and appellant had lynched the deceased for such a trivial issue. Further, as for representations regarding appellant’s mental health, PW-8 had testified that once appellant along with other villagers had visited a temple where he had hit his wife with a watermelon for no reason. Therefore in Court’s opinion, such acts could not be attributed to the person of sound mind.

Court stated that “the appellant may not have been found medically insane.  We, however, found him legally insane. The fact that none of the family members of the appellant stood by him during the proceeding before the trial court speaks in volume.”

Disagreeing with the decision of the trial court, the High Court held that the appellant did not know the nature of the act that would otherwise have constituted the offence of murder, and therefore impugned order is set aside by declaring the appellant legally insane and detaining him in Yerwada Mental Hospital as per the provisions of Section 335 CrPC. [Balaji Kishan Nagarwad v. State of Maharashtra, 2019 SCC OnLine Bom 116, decided on 30-01-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of Mukta Gupta, J. dismissed a petition for grant of furlough holding that convicts under Narcotic Drugs and Psychotropic Substances Act, 1985 are not entitled to the same.

The petitioner was convicted for an offence punishable under the NDPS Act and was undergoing a sentence of imprisonment. He applied before the Competent Authority for grant of furlough. However, his application was rejected. Aggrieved thereby, he filed the present petition seeking a grant of furlough.

The High Court noted that according to Rule 1224 of the Delhi Prison Rules, 2018 which came into force w.e.f 1-1-2019, persons convicted for sedition, terrorist activities and under NDPS Act will not be entitled to furlough. While holding that the petitioner was not entitled to the relief sought for, the Court observed that, “furlough is a kind of remission granted as a reward for good conduct, unlike parole which can be granted in exigencies of a situation as well.” Consequently, the petition was dismissed. [Deepender Kumar v. State, 2019 SCC OnLine Del 6773, decided on 23-01-2019]

Case BriefsHigh Courts

Bombay High Court: The Bench M.G. Giratkar, J. reversed the judgment of Chief Judicial Magistrate, Yavatmal whereby the criminal revision applicant was convicted for the offences under Section 7(i) read with Section 2 (ia)(a) punishable under Section 16(1)(a)(ii) of the Prevention of Food Adulteration Act, 1954.

Applicant was the owner of a shop. The Food Inspector visited his shop and took samples of chilly powder. It was divided into three parts and sealed in bottles. One part was sent to Public Analyst and after receiving his report complaint was filed before the CJM. Charges were framed and after trial, the applicant was convicted by the CJM as mentioned above. Aggrieved thereby, he filed the present revision application.

The High Court noted that offences under PFA Act are to be proved strictly by following mandatory rules laid down in PFA Rules, 1955. Rule 14 deals with the manner of sending samples for analysis which is mandatory provision. In the present case, the Food Inspector neither personally cleaned the jars nor directed any other person to clean them when samples were taken. This resulted in non-compliance of Rule 14. Furthermore, Rule 22 which is also a mandatory provision was also not complied with. In case of chilly powder, the quantity of sample to be sent to Public Analyst must be 500 grams. However, in the present case, only 250 grams sample as sent. Also, the Public Analyst Report did not show that the powder was injurious to health. In such view of the matter, the court allowed the revision application and acquitted the applicant. [Santosh v. State of Maharashtra, 2019 SCC OnLine Bom 88, dated 22-01-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Sunil Gaur, J. disposed of a criminal revision petition by granting the benefit of probation to the petitioner while upholding his conviction.

The petitioner was convicted for offences punishable under Sections 323, 325 and 34 IPC. He was sentenced by the trial court to undergo simple imprisonment for 3 years along with fine of Rs 5000. Appellate Court maintained the conviction of the petitioner but reduced the sentence to rigorous imprisonment for 1 year with fine of Rs 1000. Aggrieved thereby, the petitioner preferred the present petition.

The petitioner was represented by Humza Islam, Khalid Akhtar and Mohd. Shadam, Advocates. They referred to lacunae evidence of complainant party and other evidence on record. Submissions were that the petitioner was a teenager at the time of the incident, he faced agony of trial for more than 10 years, there was no previous conviction to his discredit, etc.

The High Court, on considering the matter, found that there was no basis to interfere with the concurrent finding of the courts below regarding conviction of the petitioner. However, on aspect of the sentence, the Court was of the opinion that the appellate court ought to have considered petitioner’s case for grant of probation. In light of submissions made on behalf of the petitioners as aforesaid along with the fact that the petitioner was the sole bread-earner of his family, the Court set aside the sentence imposed on the petitioner while upholding the conviction. The petitioner was granted benefit of probation and was directed to be released forthwith if not wanted in any other case. [Nazim v. State, 2018 SCC OnLine Del 13187, Order dated 21-12-2018]

Case BriefsForeign Courts

South Africa High Court, Western Cape Division: Two matters came for review before a 2-Judge Bench comprising of DM Thulare AJ; MJ Dolamo J, where the proceedings were held considering the accused as major but they were found to be minor.

One of the accused pleaded guilty and thereby he was convicted under Section 112(1)(a) of the Criminal Procedures Act, 1977. While mitigation of sentences were being held it was brought before the court that the accused was minor as a consequence of which he was released and the matter was postponed for the determination of the correct age of the accused.  The second accused was found guilty and accordingly sentenced where his age was not determined.

The High Court viewed that terminology used in Section 12, 13 and 14 in Part 3 of Chapter 2 of the Child Justice Act, 2008 were not interpreted and applied in the best interests of children. Court with respect to Section 12 observed that police officer after arrest should have treated a youngster as child unless there were other reasons to the contrary. Further, Section 14 states that where the age of accused is uncertain, it is for the presiding officer to hold enquiry to determine same.  It was found that the presiding officer before whom the accused first appeared failed to determine the age of accused. Finding the Magistrate to be correct who said that the wrong determination of date caused prejudice to the accused conviction was liable to be set aside. Therefore, Court ordered the conviction of first accused and sentence on second accused to be set aside and the matter was remitted back to the magistrate for sentencing under Chapter 10 of Child Justice Act, 2008. [State v. B O, 2018 SCC OnLine ZAWCHC 3, dated 02-11-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Anu Malhotra, J. dismissed an appeal for reduction of sentence of the appellant awarded by trial court. The Court also gave directions essential for reformation of the convict (appellant) incarcerated in Tihar Jail.

The appellant was convicted under Section 6 read with Section 5(m) of POCSO Act along with Section 323 IPC. He was sentenced imprisonment for a period of 14 years under all the sections combined. He had undergone a period of 5 years, 4 months and 2 days. The convict filed the present appeal for seeking reduction of sentence. He was convicted for sexual assault on a two and a half years old victim child.

The High Court, considering all the facts, was of the view that no reduction in period of sentence as awarded by the trial court could be granted to the convict. However, following the precedent, the Court held that carcerial period should be such which reforms the convict. Therefore, the Court thought it essential to issue directions for reformation of the appellant-convict who was incarcerated in Tihar Jail. The Court directed the Superintendent at the Tihar Jail to consider an appropriate program for the appellant ensuring:

  • meditational therapy;
  • educational opportunity, vocational training, developmental program to enable livelihood options;
  • post-release rehabilitation program;
  • protection from being associated with anti-social groups as per Model Prison Manuel, 2016;
  • adequate counseling for sensitising him to understand why he is in prison;
  • conducting psychometric tests;
  • contact with family members as per jail rules.

The appeal was disposed of in the terms above. [Randhir v. State (NCT of Delhi),2018 SCC OnLine Del 10906, decided on 28-08-2018]

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: A Division Bench comprising of Suman Shyam and Achintya Malla Bujor Barua, JJ., decided a criminal appeal wherein the conviction of the appellant-wife under Section 302 IPC for the murder of her husband was altered to culpable homicide not amounting to murder under Section 304(II).

The appellant was alleged to have committed murder by attacking her husband with an axe. Before the trial court, the appellant took a defence that her husband mistakenly fell on the axe which resulted in his death. However, considering all the evidence available, the trial court held her guilty. Further, under Section 106 Evidence Act it was the duty of the accused to prove any fact which was exclusively within her knowledge. The appellant herein did not discharge the onus, and accordingly, she was convicted under Section 302. The appellant challenged the order in appeal.

The High Court perused the record and found that the fact-finding by the trial court did not suffer from any infirmity. The appellant, who was alone with the deceased at the time of the incident, was not able to discharge the burden of proving the fact exclusively within her knowledge. Moreover, nature of injuries suffered by the deceased, as shown in the post-mortem report, made the theory of the deceased falling on the axe, improbable. However, as per appellant’s statement and also statements of prosecution witnesses, the deceased was a drunkard who took up fights with the appellant. On the day of the incident also there was a fight between the appellant wife and her husband. The Court held that the incident was an outcome of the fight which gave grave and sudden provocation to the appellant that resulted in commision of the act. Considering the facts, the Court held that the appellant was a victim of circumstances and deserved the benefit of Exception 1 to Section 300. Accordingly, her conviction was altered from that under Section 302 to Section 304(II) IPC. Appeal was disposed of accordingly. [Suljina Dhan v. State of Assam, 2018 SCC OnLine Gau 645, dated 25-6-2018]

 

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench comprising of Tashi Rabstan, J. allowed the application filed by the applicant-convict for travelling USA for medical check-up and meeting his children.

The applicant was convicted and sentenced under Section 471 of Ranbir Penal Code. In an appeal preferred by the applicant herein against his conviction and sentence awarded by the learned Additional Sessions Judge, the High Court had suspended the sentence awarded to him and also admitted him to bail. The applicant had moved an application before the High Court for grant of permission to travel the United States of America.

The High Court perused the record and noted that even during his trial, the applicant was permitted, on several occasions, to travel abroad for a medical check-up. He never flouted any such permission granted by the trial court. In fact, each time, the applicant had returned before the stipulated time as granted by the courts below. The Court held the reason put forth by the applicant for travelling abroad, i.e. getting a medical check-up and meeting his children, as genuine. In such circumstances, the High Court allowed the application and permitted the applicant to travel USA subject to the conditions imposed. [Rajinder Nath Raina v. State of J&K,2018 SCC OnLine J&K 329, dated 01-06-2018]