Supreme Court: Explaining the law on “last seen together”, the bench of Dr. DY Chandrachud and Bela M. Trivedi*, JJ has held that in order to convict an accused under Section 302 IPC the first and foremost aspect to be proved by prosecution is the factum of homicidal death. If the evidence of prosecution falls short of proof of homicidal death of the deceased, and if the possibility of suicidal death could not be ruled out, the accused cannot be convicted merely on the basis of the theory of “Last seen together”.
“The suspicion howsoever strong cannot take place of proof.”
The Court was deciding the case where a young couple belonging to different castes were found hanging from a tree after having gone missing for days. The love affair of Brinda and Kanhaiya did not sit well with Brinda’s father and uncle. While Brinda and Kanhaiya went missing on 02.12.1994, no missing report was lodged. Their decomposed bodies were found hanging from a cashew tree in a cashew nursery on 11.12.1994. It was alleged that Brinda’s uncle had killed both of them and had kept the bodies in the house upto 04.12.1994, after which he had taken the bodies to the cashew nursery and had hung them on a cashew tree to give it the shape of them having committed suicide.
A witness had allegedly last seen Kanhaiya with the accused 10 days prior to the date on which the bodies were found. The witness had stated that the accused had called Kanhaiya and took him to his house where he, along with four co-accused, allegedly in furtherance of common intention pressed his neck and committed his murder. Thereafter, the two co-accused committed the murder of Brinda. One of the co-accused Videshi had also made an extra-judicial confession pointing towards the guilt of the accused.
It was argued by the counsel of the accused that the testimony of the witness who had allegedly last seen Kanhaiya, having been called by the accused, was recorded after 4 months of the incident. Even as per the case of the prosecution, the said incident of calling Kanhaiya by the appellant was 10 days prior to the date on which the dead bodies were found in the Cashew Nursery, and there being long time gap between the day the deceased was allegedly last seen with the appellant and the day when his dead body was found, it was very risky to convict the accused solely on such evidence. He further submitted that the doctor who had performed the postmortem had also opined that the cause of death was asphyxia as a result of hanging and the nature was suicidal. Thus, in absence of any clear or cogent evidence against the appellant, both the courts had committed gross error in convicting the appellant.
The Court took note of the following rulings on the ‘last seen together’ theory:
Bodhraj v. State of Jammu and Kashmir, (2002) 8 SCC 45: The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.
Arjun Marik v. State of Bihar, 1994 Supp (2) SCC 372: The only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused, and therefore no conviction on that basis alone can be founded.
Hence, having regard to the totality of evidence on record, the Court held that the High Court had committed gross error in convicting the accused for the alleged charge of 302 read with 34 of IPC, relying upon a very weak kind of evidence of extra judicial confession allegedly made by the co-accused Videshi, and the theory of “Last seen together” propounded by the prime witness.
The Court observed that no evidence worth the name as to how and by whom the deceased Brinda was allegedly murdered was produced by the prosecution. Under the circumstances, it was held that the prosecution had miserably failed to bring home the charges levelled against the accused beyond reasonable doubt. The Court, hence, acquitted the accused of all the charges levelled against him.
The spirit of Rule of Law is that the law must prevail and not the power centers.” – Prof. B.B. Pande
Eastern Book Company organized a launch of “Criminal Law & Criminal Justice: Advanced Legal Writings”, a book by Professor BB Pande, on February 26th, 2022, co-hosted by National Law University, Delhi. The book is the result of a one-of-a-kind endeavor, targeted primarily at extending the frontiers of criminal law and criminal justice.
The event was attended by India’s leading jurists, attorneys, and academics, including Justice MN Venkatachaliah, Former Chief Justice of India, Justice Madan B Lokur, Former Judge, Supreme Court, Prof Upendra Baxi, Emeritus Professor of Law, University of Warwick and Delhi, Prof Issa Shivji,Professor Emeritus of Public Law & First Julius Nyrere Professor of Pan African Studies, University of Dar es Salaam, Prof (Dr) MP Singh, Distinguished Professor of Public Law, Jindal Global University, Mr Gopal Subramanium, Senior Advocate and Mr Siddharth Luthra, Senior Advocate. Following the inaugural event, Professor Srikrishna Deva Rao, Vice-Chancellor of NLU Delhi, chaired a panel discussion on Criminal Law and Criminal Justice.
About the book
The book has 12 chapters, divided into 4 parts, namely
History and evolution of Western & Indian Criminal Law/Systems
The elements & essential principles of criminal law/liability.
The critiques of the formal criminal law systems and their resurrection.
The forgotten and ignored premise of the processual justice.
The first nine papers are about substantive criminal law, and the last three are about procedural law. Each chapter delves into a specific key subject in terms of critical inquiries/issues.
The writings aim to provide the reader with a better grasp of the dynamics of the criminal law/criminal justice and rule of law from a broad perspective, spanning nations and periods. They reflect the normative and grassroots legality of criminal law and criminal justice. The goal of these writings is to provide a critical understanding on problems that are underrepresented in legal curricula. They have a broader and more critical perspective on criminal law and criminal justice issues that is not constrained by course requirements. The Writings will be ground-breaking in terms of upgrading the knowledge base in the criminal law and criminal justice subjects for students, instructors, and researchers.
As Ms. Harpreet Kaur (host) was describing the book, she mentioned the preface of the book which said that the idea of the book, had been in the professor’s mind since the last six decades of teaching criminal law, which has now culminated into the present book. Furthermore, she described the book as having included all professor’s case files and incorporated writings of legal scholars. “The book is meant for a wider audience and not only for professors and researchers but also for people who are interested in embellishing their criminal knowledge”, she added.
Book release and Panel Discussion
Mr. Surendra Malik, Chief Editor, Supreme Court Cases began his speech by welcoming all of the panellists. He formally welcomed and thanked Justice M.N. Venkatachaliah for being present for the launch, “He has written a very enlightened and descript introduction to the book”, Mr Malik added.
Extract from the introduction
“Prof. Pande’s thoughts speak of philosophical foundations and shape of the system of criminal justice of the future. The uniqueness of Prof. Pande’s Writing lies in their ability to traverse from the primitive criminal law/criminal justice concepts to the contemporary forms … holding immense value equally for the law student, researcher, lawyer and the Judge.”
― Justice M.N. Venkatachaliah
“I have always maintained this belief and I keep telling people that they gain certain insights & knowledge in their field as a professor or as a judge. So, whatever we can give, we must put it in a form of a book and it doesn’t matter who publishes it.” (sic), Mr Surendra Malik said. He humorously added that he had been telling Prof. BB Pande for years to write a book, but the maximum that he could get were a few articles out of him. “Prof BB Pande must be happy (on the release of the book), but I am even more excited,” he said.
Mr Malik shared his feelings that teachers have a unique role to play in students’ life because they can say things dispassionately and a lot of what they say with clarity, will help both students and researchers. He further added that it will be helpful to the judges as well, as judges can’t speak in a way to teach someone, they simply deliver the judgment . “Teachers also need a good textbook. This is the view of Prof. Kelkar as well” , he stated (Prof Kelkar has authored many books with EBC, including many bestsellers on Criminal Procedure Code).
Mr Malik explained how Prof BB Pande approached him with his book’s idea, and how he went on to complete writing 12 chapters of the book. Mr Malik was ecstatic about it, and he spoke about the process of producing the book. He also praised the team who worked on this book, as without them the book would not have been completed. “This book has material which is not to be found anywhere else”, he said with confidence.
After the address by Mr Malik, the book was officially released by panellists. Thereupon, Prof BB Pande addressed the audience by saying “I have my perception that every teacher & equally a perceptive author, is expected to be essentially a good learner” He talked about three lessons he had learned in his six decades of experience, that is: “Criminal law, like any other branch of law, can be better understood and explained by its history or past rather than the contemporary text or its present form alone. Secondly, Criminal law discourse is full of contradictory or antimonial narratives which impel the reader to search beyond the limited normative boundaries or the half baked rationalizations.” He further explained his learnings with the help of a few examples and theories. Thirdly, “Criminal law is to be taught and understood as a species of law that is bound by its own elemental scheme” he added. He explained this third lesson with a quote by Ellen Norris, which said, “Speaking about critical criminal law thinkers, they view the law as a social, historical and an ethical phenomenon but they also think about law as law.” These were the three lessons of respecting the history of law, he explained.
“In learning Criminal Law, it must be noted that it is never fully resolved instead it is half resolved” – Prof. B.B Pande
In his introductory remarks, Professor Pande discussed the disparities between classroom instruction of criminal law and experienced reality. He talked about how his hands-on experience with criminal law at Beggars Court and Tihar Prison was beneficial. “It helped me grasp that the law as it appears in court and legislation is simply one facet of legal reality. The other operational side, as seen by law enforcement agencies such as the police, prosecution, judges, and attorneys, as well as the genuine stakeholders; the accused and victims of crime remains unaddressed in classroom criminal law education. This is the wider component of criminal law that I attempted to cover in-depth in my book,” he explained.
Prof. Sri Krishna Deva Rao, Vice-Chancellor, National Law University, Delhi, addressed the audience again, expressing his deep thanks for serving as the session’s moderator. As it was difficult to summarise the book in a few lines, he attempted to speak about certain aspects of the subject, “How criminal law evokes a passionate dialogue than any other branch of law, particularly because of its impact on life, liberties & freedoms of individuals caught in the web of the criminal justice system…There are people behind the dockets, not just case numbers.” he continued.
Mr Rao quoted Prof. B.B Pande and exclaimed a part from Kabir ke dohe, “tu kagaz ki likhi mein kehta meri aankhon ki dekhi”
Prof Rao ended his address by asking questions to Prof Issa Shiv Ji. After Prof. Issa Shivji was given the floor to discuss the work, he first complimented Prof Pande on the publication. He also addressed all of the panellists as his friends in the most modest manner. He discussed why he enjoyed reading this book because it is not just a succession of claims but has been presented in a discursive manner; the book brings up arguments among many schools of thought and beliefs, which piqued his attention.
Before addressing the questions, he recounted the history of both countries and discussed social inequality and differing laws. Prof Shivji discusses British colonialists’ experiences in India and how they used this knowledge to criminal law in Tanzania. He began by noting, “Individualisation is an essential process in which Law plays a significant part,” and he went on to remark, “Back then, a civil wrong like non-payment of tax became a criminal infraction by colonialists.”
Prof Rao then proceeded to Mr Siddharth Luthra, Senior Advocate with his questions. Mr Luthra, awed by the opportunity to share the platform with his mentors, speaks about his law school experience and how he planned to pursue a master’s degree in the field. “The study of human nature is the practise of criminal law,“ he remarked. “We are continuously dealing with human nature, and the source and foundation of a lot of criminalisation must be thoroughly examined,” he continued. He described how his father informed him that practising criminal law is the study of human nature, which he still believes. He commended the work of Prof BB Pande, adding, “It is not for the faint of heart, and it demands a sense of knowing.” Later, he discussed the death sentence in India, stating that we, as Indians, criminalise all forms of behaviour and, if not, we enhance the penalty. In India, litigation might be pending for up to 20 years. “Is this justice?” he questioned. “In our nation, there are no punishment guidelines. So here is where pandemonium is born,” he said.
During his presentation to the audience, he emphasised his dissatisfaction with all of the country’s legal schools, claiming that they exclusively produce products for the Supreme Court. We must urge kids to go out and learn about the criminal justice system in action. “We are merely creating and encouraging students to become Supreme Court attorneys while disregarding the most important aspect; comprehending the realities of criminal law and the Indian system is more top-heavy.“ Trial lawyers are highly regarded everywhere else. “A lawyer’s first encounter with criminal law is with the police, learning evidentiary law at the trial level,“ he explained.
“One must continue learning and be a constant reader.”- Mr Gopal Subramaniam
“I wish I had the power to name a galaxy, I wish I could sort of say that the Milky Way belongs to him, if anyone taught me what compassion is and what law about compassion is, I will never be able to repay that debt to Professor BB Pande,” Mr Gopal Subramaniam said to Prof Pande with great affection. “We require a new worldview and tools to comprehend the law.” Because there is no inherent audit, and we want new instruments capable of changing human awareness.” he explained. He concluded his speech by thanking the audience and expressing his gratitude for the opportunity to be present with three of his great professors and expressed that, “De facto equality is not about identifying gender, it is far more, including mental equality”.
“There are four kinds of Justices i.e. Justice according to the Law, Justice beside the law, Justice beyond the Law, and Justice beneath the Law.” Prof Upendra Baxi stated.
He also acknowledged Mr Surendra Malik’s and EBC’s contribution to legal education. During the panel discussion, Professor Upendra Baxi criticised the Indian criminal justice system, saying, “What we teach in criminology in India is a deception, it is a scam on the public. In India, there is no criminal justice system; instead, we have criminal administration of justice… Except in India, no one gets sentenced to prison for punishment. As punishment, one is sentenced to prison (the important term being “as”). The punishment under the Indian Penal Code is just a prohibition on moving outside. Even in prison, all fundamental rights should be respected, including the freedom to travel outside,” (sic) he stated.
Some books are to be tasted, some are to be swallowed, and some are to be chewed and digested. This is one of those books. – Justice Madan B Lokur
In his statement to the panel, Justice Madan B. Lokur stated, “Compassion and sensitivity are crucial in criminal law.However, we are now ignoring (these) concerns. We have given up on compensation for people who have been wrongfully held or charged, and there is no police accountability. Should the cops be permitted to get away with this?”
“Our criminal justice system prefers to keep individuals in jail. Bail is not being granted, and the accused is not being served with a charge sheet. The procedure itself has become a punishment, and the accused is generally the victim,” Justice Lokur observed. “Criminal law, as I view it, has undergone a huge transformation in terms of processes and judgments in the last few years.” In other situations, such as those involving the UAPA, the law has been flipped on its head. Is it due to judicial hesitation, or is it due to the judiciary’s incapacity to recognise what is going on the ground?The judiciary must break free from the ivory towers,” he concluded.
Finally, Prof Rao requested Prof Pande to make closing remarks regarding the book. “It was a significant day because we learned about criminal law from three separate perspectives: academics, the judiciary, and practising attorneys,” he remarked. He went on to say that the goal is to welcome and inspire fresh thinking in criminal law beyond its current, restricted viewpoint and that the spirit of the Rule of Law is that the law must win over power centres. The event concluded with a vote of thanks by Prof BB Pande.
“We have to learn about Criminal Law and not see it with the eyes of the State.” – Prof. B.B. Pande
The book is the result of Professor B.B Pande’s academic and practical understanding of criminal law and the criminal justice system in India and overseas. It is a thought-provoking book that investigates the moral and legal philosophy of criminal justice and focuses on the complex and current difficulties confronting India’s criminal justice system. The book is relevant not just for criminal law practitioners and academics, but also for anybody looking to extend their criminal justice knowledge in both substantive and procedural criminal law.
About the author
Prof. B.B. Pande is a prominent professor at the National Law University in Delhi, as well as a Visiting Professor at the Dr. Ram Manohar Lohiya National Law University in Lucknow. Prof. Pande’s research spans the fields of penal sociology, criminal law and procedure, and criminology. He began teaching at Jabalpur University in 1962 and joined Delhi University as a Professor of Law in 1988. He has worked as a Consultant (Research) for the National Human Rights Commission (NHRC) in New Delhi from December 2005 to December 2007. In 1988, 1992, 1995, and 1997, he was given a Fellowship by the Max Planck Institute of International and Foreign Penal Law in Freiburg, Germany. In 2003, he was awarded the Senior Social Scientist Award (1995) and the Kumarappa Reckless Award (2002) by the Indian Society of Criminology.
Since 2000, he has served on many Advisory Committees and as a UNDP Expert Consultant to the Kingdom of Nepal’s Rule of Law and Judiciary Reform programs. He was a Visiting Professor at the University of Dar es Salam in Tanzania (East Africa) from 1981 to 1983, the University of Cardiff in Wales (1998), and the University of Hong Kong (1998). Criminal Law, Criminal Procedure, Law of Evidence, Criminology, Juvenile Justice, Human Rights, and Jurisprudence are among his areas of expertise.
Supreme Court of Canada: A full bench comprising, Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ unanimously ruled that imposing consecutive sentences under Section 745.51 of the Criminal Procedure Code, violates Section 12 of the Canadian Charter of Rights and Freedoms. It was observed that “Not only do such punishments bring the administration of justice into disrepute, but they are cruel and unusual by nature and thus contrary to s. 12 of the Charter. They are intrinsically incompatible with human dignity because of their degrading nature, as they deny offenders any moral autonomy by depriving them, in advance and definitively, of any possibility of reintegration into society.”
Facts and contentions of the case:
On January 27, 2019, Alexandre Bissonnette opened fire on the worshippers that were gathered in the Great Mosque of Québec for evening prayer. Six people were killed and five were seriously injured. He pleaded guilty to all charges against him, including six counts of first degree murder.
According to the Canadian Law, a person who has committed murder will be sentenced minimum to life imprisonment and would be eligible for a parole after 25 years of period of ineligibility.
The State pleaded for the imposition of Section 745.51 as the accused had committed multiple murders. This provision allows the periods without eligibility for parole for each murder conviction to be served back-to-back (consecutively). Bissonnette challenged the constitutional validity of the section. The trial court made an attempt to provide remedy for the provision by bear reading it and granting the courts to choose an additional period of ineligibility for 40 years before applying for parole. The court of appeal declared the provision unconstitutional and held that the accused serve a 25-year parole ineligibility period on each count before being able to apply for parole.
Observations made by the Supreme Court
While dismissing the appeal filed against this judgment of the Court of Appeal, the Supreme Court made the following observations:
Such punishments bring the administration of justice into disrepute, but they are cruel and unusual by nature and thus contrary to s. 12 of the Charter. They are intrinsically incompatible with human dignity because of their degrading nature, as they deny offenders any moral autonomy by depriving them, in advance and definitively, of any possibility of reintegration into society.
Sentences of imprisonment for life without a realistic possibility of parole may also have devastating effects on offenders, who are left with no incentive to rehabilitate themselves and whose incarceration will end only upon their death.
For the objective of rehabilitation to be meaningful, every inmate must have a realistic possibility of applying for parole, at the very least earlier than the expiration of the minimum ineligibility period of 50 years stipulated in the impugned provision for cases involving first degree murders.
Imposing consecutive 25 year parole ineligibility periods is unconstitutional must not be seen as devaluing the life of each innocent victim.
Everyone would agree that multiple murders are inherently despicable acts and are the most serious of crimes, with consequences that last forever. This appeal is not about the value of each human life, but rather about the limits on the state’s power to punish offenders, which, in a society founded on the rule of law, must be exercised in a manner consistent with the Constitution.
Along with the aforementioned observations, the court pointed out that the Parliament may not prescribe a sentence that negates the objective of rehabilitation in advance, and irreversibly, for all offenders. The penological objective is intimately linked to human dignity, that every individual has the capacity to reform and re-enter the society. In the light of this conclusion, the Court unanimously declared section 745.51 invalid from the time it was enacted in 2011. Resultantly, the law that existed before the date will continue to apply.
Supreme Court of Canada: The instant matter revolved around a challenge to the constitutionality of Section 33.1 of the Criminal Code which dealt with the unavailability of self-induced intoxication as a defence for criminal acts like assault etc. The bench of the Court comprising of Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ., in an unanimous decision, held that, Sec. 33.1 violates S. 7 of the Canadian Charter of Rights and Freedoms by allowing a conviction without proof of mens rea or proof of voluntariness. It was observed that, “Section 33.1(1) of the Criminal Code eliminates the defence of self-induced intoxication akin to automatism applied to violent offences… Section 33.1 does not create a new predicate act offence of self-induced extreme intoxication or a new criminal negligence offence. The accused faces the full stigma of conviction and the full brunt of punishment for the general intent offence.”
Facts of the Case: The appellant [hereinafter ‘B’], at a house party, had consumed ‘magic mushrooms’ which is a hallucinogen. The consumption of the drug led to ‘B’ losing his grip over reality. As per ‘B’, he was not simply drunk or high: while capable of physical movement, he was in a psychotic state and had no willed control over his actions.
He broke into the nearby house of a stranger and attacked the occupant, causing permanent injuries. He further broke into another residence and the occupants called the police. Consequently, ‘B’ was charged with break and enter and aggravated assault, and mischief to property.
Contentions: The appellant contended that he is not guilty of the offences by reason of automatism. The appellant’s contentions were corroborated by the expert witnesses who confirmed that ‘B’ had no voluntary control over his conduct at the time.
The respondent (the Crown) invoked S. 33.1 of the Criminal Code preventing ‘B’ from relying on self-induced intoxication akin to automatism as a defence to the charge of aggravated assault. The respondents stated that the Canadian Parliament added S. 33.1 in response this Court’s ruling in Henri Daviault v. Her Majesty the Queen, 1994 SCC OnLine Can SC 83, wherein the majority had confirmed a common law rule that intoxication is not a defence to crimes of general intent.
The respondents, however, prayed to the Court to interpret S. 33.1 as validly imposing liability for violent crimes based on a standard of criminal negligence
Observations: Perusing the facts and contentions of the case, Justice Kasirer (who delivered the unanimous decision) observed that the impugned provision does not establish a proper measure of criminal fault by reason of intoxication; instead, it imposes liability for the violent offence if an accused interferes with the bodily integrity of another “while” in a state of self-induced intoxication rendering them incapable of consciously controlling their behaviour.
Given the gravity of the issue, the Court some salient observations –
It was held that the provision is violative Canadian Charter of Rights and Freedoms because an accused person under the impugned provision is not being held to account for their conduct undertaken as free agents, instead, the accused is called to answer for the general intent crime that they cannot voluntarily or wilfully commit. “To deprive a person of their liberty for that involuntary conduct committed in a state akin to automatism — conduct that cannot be criminal — violates the principles of fundamental justice in a system of criminal justice based on personal responsibility for one’s actions. On its face, not only does the text of S. 33.1 fail to provide a constitutionally compliant fault for the underlying offence set out in its third paragraph, it creates what amounts to a crime of absolute liability.”
The Court observed that the impugned provision also transgresses the right to be presumed innocent until proven guilty guaranteed by S. 11(d) of the Charter. To convict the accused, the Crown must prove all the essential elements of an offence beyond reasonable doubt.
The Court noted that the rights of victims of intoxicated violence, in particular the rights of women and children, should be considered at the justification stage under S. 1 of the Charter rather than informing the analysis of a possible breach of the accused’s rights under S. 7. “Balancing competing Charter rights under the breach analysis should occur where the rights of the accused and another party conflict and are directly implicated by state action. The equality, dignity and security interests of vulnerable groups informed the overarching public policy goals of Parliament but they are best considered under S. 1”.
Along with the aforementioned observations, the Court pointed out that the Parliament has before itself a strong record that highlights the strong correlation between alcohol and drug use and violent offences, in particular against women. The issues regarding ensuring the equality, dignity, and security rights of all victims of intoxicated violence must be looked upon thoroughly by the Parliament, therefore it is all the more necessary that the Crown must show on a balance of probabilities that the limits of Ss. 7 and 11(d) of the Charter brought by S. 33.1 are reasonable and demonstrably justified under S. 1 of the Charter. “Given the patent risk that S. 33.1 may result in the conviction of an accused person who had no reason to believe that their voluntary intoxication would lead to a violent consequence, S. 33.1 fails at the proportionality step and thus cannot be saved under S. 1”.
[R. v. Brown, 2022 SCC 18, decided on 13.05.2022]
Sucheta Sarkar, Editorial Assistant has reported this brief.
Eastern Book Company is happy to announce the release of Criminal Law and Criminal Justice: Advanced Legal Writings by Prof BB Pande. This book is an outcome of a unique initiative aimed at broadening the horizons of the criminal justice system.
The idea for this book arose out of Prof C Raj Kumar’s invitation to deliver a set of lectures for an Optional Elective Course at the OP Jindal Global University last summer. The commitment arising out of the acceptance of the invitation led the author to organise and give shape to criminal law and criminal justice ideas with which he had been toying with for almost six decades as a teacher of criminal laws.
The book release will be followed by a Panel Discussion on the topic “Criminal Law and Criminal Justice”. The panellists for this event include Justice MN Venkatachaliah, Former Chief Justice of India, Justice Madan B Lokur, Former Judge, Supreme Court, Justice AK Sikri, Former Judge, Supreme Court, Prof Upendra Baxi, Emeritus Professor of Law, University of Warwick and Delhi, Prof Issa Shivji,Professor Emeritus of Public Law & First Julius Nyrere Professor of Pan African Studies, University of Dar es Salaam, Prof (Dr) MP Singh, Distinguished Professor of Public Law, Jindal Global University, Mr Gopal Subramanium, Senior Advocate and Mr Siddharth Luthra, Senior Advocate. The panel discussion will be moderated by Prof. Srikrishna Deva Rao, Vice Chancellor, NLU, Delhi.
Excerpt from the Preface
This book relates to 12 selected criminal law/criminal justice themes that have assumed significance in contemporary times, more particularly in the context of Indian society. As the primary focus of the Writings is on the advanced debates and controversies, the discussions herein have refrained from raising the basic liability issues in the traditional style. However, the rootedness of the advanced debates in the basic elements ensures that the traditional knowledge holders would not feel handicapped in any manner. Therefore, though the Writings would have a greater attraction for those interested in teaching and researches in criminal law/criminal justice issues, even those who are interested in embellishing their criminal law or criminal justice knowledge or broadening the horizons of their understanding of the subjects would stand to gain enormously from this publication. The Writings have tried to incorporate the latest law trends and current research in the field of criminal law and criminal justice and that required falling back upon the writings and publications of the leading scholars of the West and India.
Excerpt from the Foreword
Prof. Pande’s thoughts speak of philosophical foundations and shape of the system of criminal justice of the future.
Uniqueness of Prof. Pande’s Writing lies in their ability to traverse from the primitive criminal law/criminal justice concepts to the contemporary forms … holding immense value equally for the law student, researcher, lawyer and the Judge.”
― Justice M.N. Venkatachaliah
Former Chief Justice of India
Table of Contents
Introduction and Thematic Break Up
A Key to Understanding the Twelve Writings
Part A
HISTORY AND EVOLUTION OF WESTERN AND INDIAN CRIMINAL LAW/SYSTEMS
History of the English and the Roman Criminal Law
History and Early Evolution of the English Criminal Law
History and Evolution of the Indian Criminal Law: Motivations, Structure of the Indian Penal Code
Penal Code as the Rationalised Criminal Law in the Early Colonial and Pre-independence India
Part B
THE ELEMENTS AND ESSENTIAL PRINCIPLES OF CRIMINAL LAW/LIABILITY
The “Actus Reus” Element
The Mens Rea or Guilty-mind Element
Part C
THE CRITIQUES OF THE FORMAL CRIMINAL LAW SYSTEM AND ITS RESURRECTION
Growing Critiques of the Formal Criminal Law System in the Western World
Evaluations of the Critical Criminal Law Writing
Indicators of Resurrection of the Formal Criminal Law Systems in the West and in India
Part D
THE FORGOTTEN AND IGNORED PREMISE OF THE PROCESSUAL JUSTICE
Rationalising the Pre-Trial Processes in India
Strivings for the Creation of Enabling Justicing Conditions
Interlocking Nature of the Procedural Due Process and the Constitutional Due Process
Glossary of the Legal and Colloquial Terms used in the Writings
Supreme Court: Upholding the concurrent findings of High Court as well as Sessions Court and Juvenile Justice Board, the Division Bench comprising of Dhananjaya Y Chandrachud and B.V. Nagarathna*, JJ., passed a detailed verdict to guide determination of juvenility. Rejecting the contention of the appellant that the signatures of respondent on the admission forms of class 1 and class 8 (on the basis of which DoB was recorded for admission in matriculation) were identical and it could not be so on the admission form of class 1 as the respondent was only four and half years old when he was admitted to class 1, the Bench stated,
“Even if the documents seeking admission to class 1 and class 8 were discredited or eschewed, the fact remained that the mark-sheet pertaining to the matriculation supported the presumption that the respondent was less than 16 years of age on the date of incident.”
The respondent, one Nishant Solanki along with other accused was alleged to have attacked upon the appellant and his family causing serious injuries as well as death of appellant’s father and uncle. It had been stated that the accused were carrying a Farsa (battle-axe), lathi and balkaties (caneknives) and attacked the complainant/appellant and the members of his family. The respondent prayed before the Juvenile Justice Board, Baghpat to be declared as a juvenile delinquent, which was allowed by the Board.
The grievance of the appellant was that the respondent had been accused of committing grave offences under sections 147, 148, 149, 323, 307, 302 and 34 of the IPC along with other co-accused, but his claim of juvenility was erroneously allowed by the Board which was later on sustained by the appellate court as well as the Allahabad High Court.
Presumption for determining Juvenility
An application claiming juvenility could be made either before the Court or the JJ Board. When the issue of juvenility arises before a Court, it would be under sub-section (2) and (3) of section 9 of the JJ Act, 2015 but when a person is brought before a Committee or JJ Board, section 94 of the JJ Act, 2015 applies. Under Section 94 of JJ Act, if the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Board shall undertake the process of age determination by seeking evidence and the age recorded by the JJ Board to be the age of the person so brought before it shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that person. Hence
“The degree of proof required in such a proceeding before the JJ Board, when an application is filed seeking a claim of juvenility when the trial is before the concerned criminal court, is higher than when an inquiry is made by a court before which the case regarding the commission of the offence is pending (vide section 9 of the JJ Act, 2015).”
On the basis of the documents mentioned section 94 of JJ Act, 2015 a presumption of juvenility may be raised. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side, and if two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. The Bench added,
“Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015.”
Further, when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Evidence Act, 1882 inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.
Determination of Age by the JJ Board
The Certificate-cum-Marks Sheet of the High School issued by the Board of High School and Intermediate Examination U.P., was produced stating that the date of birth of respondent as 25-09-2004. Noticeably, when the respondent sought admission in class 1 no document in respect of birth was given and the date of birth was mentioned orally. The respondent continued his education there till class 8th and the transfer certificate recorded his date of birth as 25-09-2004 and the same was entered in the school records of class 9th. The Principal of the school first attended by the respondent stated that the respondent was a little above four years of age at the time of admission in class 1.
According to the JJ Board, it is only in the absence of the matriculation certificate that determination of age had to be by ossification test or any other latest medical age determination test. The date of the incident was 05-05-2020. Hence, as per the date of birth recorded in matriculation certificate, the respondent was 15 years and 8 months of age as on the date of the incident.
Observations and Findings
Rejecting the contention raised by the appellant that the signatures of respondent on the admission forms of class 1 and class 8 were identical and it could not be so on the admission form of class 1 as the respondent was only four and half years old when he was admitted to class 1, the Bench stated that in the absence of any rebuttal evidence, even if the documents seeking admission to class 1 and class 8 were discredited or eschewed, the fact remained that the mark-sheet pertaining to the matriculation supported the presumption that the respondent was less than 16 years of age on the date of incident.
Differentiating the instant case from the case of Sanjeev Kumar Gupta v. State of Uttar Pradesh,(2019) 12 SCC 370, wherein it was observed that that the date of birth reflected in the matriculation certificate could not be accepted as authentic or credible, the Bench observed that in the Sanjeev Kumar’s case the records maintained by the CBSE were purely on the basis of the final list of the students forwarded by the Senior Secondary School where the second respondent therein had studied from class 5 to 10, while there was clear and unimpeachable evidence of date of birth recorded by the school attended by the respondent till class 4 and which was supported by voluntary disclosure made by the accused therein while obtaining both, Aadhaar Card and driving license. Therefore, the Bench stated that in Sanjeev Kumar’s case, there was clear and unimpeachable evidence of date of birth which had been recorded in the records of the school which the respondent therein had attended till class 4, however, in the instant case in the absence of there being any evidence to negate the date of birth recorded in matriculation certificate same, the criminal revision deserved to be dismissed.
Conclusion
Considering the absence of any other document indicating the date of birth of the respondent contrary to what had been indicated in the matriculation certificate, therefore the Bench denied to differ from the order of the High court which sustained the judgment of the District & Sessions Court as well as of the JJ Board.
[Rishipal Singh Solanki v. State Of Uttar Pradesh, 2021 SCC OnLine SC 1079, decided on 18-11-2021]
Kamini Sharma, Editorial Assistant has put this report together
Appearance by:
For the Appellant: Anupam Dwivedi, counsel
For the State of U.P.: Sharan Thakur, Additional Advocate General
Supreme Court: The bench of MR Shah and BV Nagarathna, JJ has held that merely because some of the persons who might have committed the offences are not charge-sheeted, cannot be a ground to quash the proceedings against the accused charge-sheeted after having found prima facie case against him after investigation.
In the case at hand, the Karnataka High Court had quashed the criminal proceedings against respondent for the offences under Sections 120B, 408, 409, 420 and 149 of IPC, on the ground that in absence of the officers of the drawee bank informing the payee’s banker with reference to dishonour of one of the cheques well within the time stipulated in the Clearing House Rules which amounts to offence under Sections 408 and 409 of IPC, without the presence of two of the accused in the PCR, the charge-sheet could not have been filed only against one accused.
The Supreme Cour, however, held that the same cannot be a ground to quash the criminal proceedings against the accused who was charge-sheeted by the Investigating Officer after thorough investigation.
“Merely because some other persons who might have committed the offences, but were not arrayed as accused and were not charge-sheeted cannot be a ground to quash the criminal proceedings against the accused who is charge-sheeted after a thorough investigation.”
The Court explained that during the trial if it is found that other accused persons who committed the offence are not charge-sheeted, the Court may array those persons as accused in exercise of powers under Section 319 Cr.P.C. However, merely because some of the persons who might have committed the offences are not charge-sheeted, cannot be a ground to quash the proceedings against the accused charge-sheeted after having found prima facie case against him after investigation.
The Court, hence, held that the order passed by the High Court quashing the criminal proceedings against the respondent was unsustainable, both, in law and on facts and directed that the respondent be further prosecuted for the offences for which he was chargesheeted and face trial which shall be dealt with and considered in accordance with law and on its own merits.
[Suvarna Cooperative Bank v. State of Karnataka, 2021 SCC OnLine SC 1210, decided on 09.12.2021]
Supreme Court: Explaining the principles of sentencing policy, the 3-judge bench of NV Ramana, CJ and Surya Kant* and AS Bopanna, JJ has held that while there are practical difficulties in achieving absolute consistency in regards to sentencing, the awarding of just and proportionate sentence remains the solemn duty of the Courts and they should not be swayed by nonrelevant factors while deciding the quantum of sentence.
Principle of proportionality
Explaining the principle of proportionality, the Court said that this principle of commensurate sentencing treats offenders as agents capable of evaluating their own illegal conduct and the social censure associated with it, which is communicated to them by imposing a proportionate sentence. The exercise for assessing ‘proportionality’ is thus dependent upon the gravity of the offence which is determined according to –
(a) mischief caused or risk involved in the offense;
(b) the overall conduct of the offender and;
(c) motives ascribed to the felon.
The Court also stressed upon the guarantee of even-handedness before the law(s), as enshrined in Article 14 of the Constitution and said that the equality of treatment so as to eliminate discriminatory practices in the award of sentencing, is integral to the canons of proportionality.
It, however, clarified that,
“… we cannot be incognizant of the fact that there are practical difficulties in achieving absolute consistency in regards to sentencing. It must be candidly acknowledged that there is an element of discretion present while adjudicating the issue of sentence, however, the same cannot be exercised in an unprincipled manner. This Court has explicitly ruled out the practice of awarding disproportionate sentences, especially those that showcase undue leniency, for it would undermine the public confidence in efficacy of law.”
What should the Courts do?
Noticing that the sentencing policy keeps pace with changing time, the Court said that the primary emphasis while deciding the quantum of sentence should lie on the gravity or penal value of the offense. However, other guiding elements of rehabilitative justice model, including, appreciation of grounds for mitigation of sentence also deserve to be duly considered within the permissible limits of judicial discretion.
“The awarding of just and proportionate sentence remains the solemn duty of the Courts and they should not be swayed by nonrelevant factors while deciding the quantum of sentence. Naturally, what factors should be considered as ‘relevant’ or ‘non-relevant’ will depend on the facts and circumstances of each case, and no straight jacket formula can be laid down for the same.”
Supreme Court: The bench of Dr. DY Chandrachud* and BV Nagarathna, JJ has formulated “broad, general” principles governing rules for granting parole and furlough, holding that parole and furlough are distinct in nature and that although furlough can be claimed without a reason, the prisoner does not have an absolute legal right to claim furlough.
Interpreting the Bombay Furlough and Parole Rules, made pursuant to Section 59 of the Prisons Act 1894, the Court noticed that the same do not confer a legal right on a prisoner to be released on furlough.
“The grant of furlough is regulated by Rule 3 and Rule 4. While Rule 3 provides the eligibility criteria for grant of furlough for prisoners serving different lengths of imprisonment, Rule 4 imposes limitations. The use of the expression “may be released” in Rule 3 indicates the absence of an absolute right. This is further emphasised in Rule 17 which states that said Rules do not confer a legal right on a prisoner to claim release on furlough. Thus, the grant of release on furlough is a discretionary remedy circumscribed by Rules 3 and 4 extracted above.”
The principles laid down by the Court are:
Furlough and parole envisage a short-term temporary release from custody;
While parole is granted for the prisoner to meet a specific exigency, furlough may be granted after a stipulated number of years have been served without any reason;
The grant of furlough is to break the monotony of imprisonment and to enable the convict to maintain continuity with family life and integration with society;
Although furlough can be claimed without a reason, the prisoner does not have an absolute legal right to claim furlough;
The grant of furlough must be balanced against the public interest and can be refused to certain categories of prisoners.
Important Rulings on the difference between Furlough and Parole
State of Maharashtra v. Suresh Pandurang Darvakar, (2006) 4 SCC 776
While both parole and furlough are temporary releases from confinement, parole is granted only for a specific purpose. A prisoner is entitled to apply for furlough once he has served the minimum years of sentence as stipulated in Rule 3.
The “furlough” and “parole” have two different purposes. It is not necessary to state the reasons while releasing the prisoner on furlough, but in case of parole reasons are to be indicated in terms of Rule 19. But release on furlough cannot be said to be an absolute right of the prisoner as culled out from Rule 17. It is subject to the conditions mentioned in Rules 4(4) and 6. Furlough is allowed periodically under Rule 3 irrespective of any particular reason merely with a view to enable the prisoner to have family association, family and social ties and to avoid ill-effect of continuous prison life. Period of furlough is treated as a period spent in the prison. But Rule 20 shows that period spent on parole is not to be counted as remission of sentence. Since the furlough is granted for no particular reason, it can be denied in the interest of society; whereas parole is to be granted only on sufficient cause being shown.
“… when a prisoner is on parole his period of release does not count towards the total period of sentence while when he is on furlough he is eligible to have the period of release counted towards the total period of his sentence undergone by him.”
A parole can be defined as conditional release of prisoners i.e. an early release of a prisoner, conditional on good behaviour and regular reporting to the authorities for a set period of time. It can also be defined as a form of conditional pardon by which the convict is released before the expiration of his term. Thus, the parole is granted for good behaviour on the condition that parolee regularly reports to a supervising officer for a specified period. Such a release of the prisoner on parole can also be temporarily on some basic grounds. In that eventuality, it is to be treated as mere suspension of the sentence for time being, keeping the quantum of sentence intact. Release on parole is designed to afford some relief to the prisoners in certain specified exigencies.
Furlough, on the other hand, is a brief release from the prison. It is conditional and is given in case of long-term imprisonment. The period of sentence spent on furlough by the prisoners need not be undergone by him as is done in the case of parole. Furlough is granted as a good conduct remission.
Key differences highlighted in the judgment are:
Both parole and furlough are conditional release.
Parole can be granted in case of short-term imprisonment whereas in furlough it is granted in case of long-term imprisonment. Duration of parole extends to one month whereas in the case of furlough it extends to fourteen days maximum.
Parole is granted by Divisional Commissioner and furlough is granted by the Deputy Inspector General of Prisons.
For parole, specific reason is required, whereas furlough is meant for breaking the monotony of imprisonment.
The term of imprisonment is not included in the computation of the term of parole, whereas it is vice versa in furlough.
Parole can be granted number of times whereas there is limitation in the case of furlough.
Since furlough is not granted for any particular reason, it can be denied in the interest of the society.
In Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, the bench of S. Murtaza Fazal Ali, A. Varadarajan and Sabyasachi Mukherjee, JJ laid down the following five golden principles i.e. the panchsheel of the proof of a case based on circumstantial evidence:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. There is not only a grammatical but a legal distinction between ‘may be proved’ and “must be or should be proved”. It is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Supreme Court: The 3-judge bench of Dr. DY Chandrachud*, Vikram Nath and BV Nagarathna, JJ has lucidly laid down the principles governing the power of the Courts to direct re-trial, Joint Trial and Separate trial and has held retrial and joint trial can be ordered only in exceptional circumstances.
Principles governing Retrial
The Appellate Court may direct a retrial only in ‘exceptional’ circumstances to avert a miscarriage of justice;
Mere lapses in the investigation are not sufficient to warrant a direction for retrial. Only if the lapses are so grave so as to prejudice the rights of the parties, can a retrial be directed;
A determination of whether a ‘shoddy’ investigation/trial has prejudiced the party, must be based on the facts of each case pursuant to a thorough reading of the evidence;
It is not sufficient if the accused/ prosecution makes a facial argument that there has been a miscarriage of justice warranting a retrial. It is incumbent on the Appellant Court directing a retrial to provide a reasoned order on the nature of the miscarriage of justice caused with reference to the evidence and investigatory process;
If a matter is directed for re-trial, the evidence and record of the previous trial is completely wiped out; and
The following are some instances, not intended to be exhaustive, of when the Court could order a retrial on the ground of miscarriage of justice :
a) The trial court has proceeded with the trial in the absence of jurisdiction;
b) The trial has been vitiated by an illegality or irregularity based on a misconception of the nature of the proceedings; and
c) The prosecutor has been disabled or prevented from adducing evidence as regards the nature of the charge, resulting in the trial being rendered a farce, sham or charade.
Ukha Kolhe v. State of Maharashtra, (1964) 1 SCR 926 [Constitution Bench]
“An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of re-trial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons. [..]”
Principles governing joint trial and separate trials
State of Andhra Pradesh v. Cheemalapati Ganeswara Rao, AIR 1963 SC 1850
“… a separate trial is the rule and a joint trial is the exception. However, in case the accused persons commit different offences forming a part of the same transaction, a joint trial would be the rule unless it is proved that joint trial would cause difficulty”
Section 218 provides that separate trials shall be conducted for distinct offences alleged to be committed by a person. Sections 219 – 221 CrPC provide exceptions to this general rule. If a person falls under these exceptions, then a joint trial for the offences which a person is charged with may be conducted. Similarly, under Section 223 CrPC, a joint trial may be held for persons charged with different offences if any of the clauses in the provision are separately or on a combination satisfied;
While applying the principles enunciated in Sections 218 – 223 CrPC on conducting joint and separate trials, the trial court should apply a two-pronged test, namely, (i) whether conducting a joint/separate trial will prejudice the defence of the accused; and/or (ii) whether conducting a joint/separate trial would cause judicial delay.
The possibility of conducting a joint trial will have to be determined at the beginning of the trial and not after the trial based on the result of the trial. The Appellate Court may determine the validity of the argument that there ought to have been a separate/joint trial only based on whether the trial had prejudiced the right of accused or the prosecutrix;
Since the provisions which engraft an exception use the phrase ‘may’ with reference to conducting a joint trial, a separate trial is usually not contrary to law even if a joint trial could be conducted, unless proven to cause a miscarriage of justice; and
A conviction or acquittal of the accused cannot be set aside on the mere ground that there was a possibility of a joint or a separate trial. To set aside the order of conviction or acquittal, it must be proved that the rights of the parties were prejudiced because of the joint or separate trial, as the case may be.
Supreme Court: In a bid to curb the worrying trend of parallel proceedings for complaints under Section 138 of the NI Act, the bench of Dr. DY Chandrachud*, Vikram Natha and BV Nagarathna, JJ has held that a complainant cannot pursue two parallel prosecutions for the same underlying transaction.
“Once a settlement agreement has been entered into by the parties, the proceedings in the original complaint cannot be sustained and a fresh cause of action accrues to the complainant under the terms of the settlement deed.”
What led to the decision?
In the case at hand, a set of cheques were dishonoured, leading to filing of the first complaint under Section 138 of the NI Act. The parties thereafter entered into a deed of compromise to settle the matter. While the first complaint was pending, the cheques issued pursuant to the compromise deed were dishonoured leading to the second complaint under Section 138 of the NI Act. Both proceedings were pending simultaneously and hence, the issue before the Supreme Court was to decide whether the complainant can be allowed to pursue both the cases or whether one of them must be quashed and the consequences resulting from such quashing.
Analysis
Ingredients of the offence under Section 138
(1) drawing of the cheque,
(2) presentation of the cheque to the bank,
(3) returning the cheque unpaid by the drawee bank,
(4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount,
(5) failure of the drawer to make payment within 15 days of the receipt of the notice.
Remedies under Section 138 of the NI Act
The effect of an offence under Section 138 of the NI Act is limited to two private parties involved in a commercial transaction. However, the intent of the legislature in providing a criminal sanction for dishonour of cheques is to ensure the credibility of transactions involving negotiable instruments.
Given that the primary purpose of Section 138 of the NI Act is to ensure compensation to the complainant, the NI Act also allows for parties to enter into a compromise, both during the pendency of the complaint and even after the conviction of the accused.
Worrying trend of parallel proceedings for complaints under Section 138 of the NI Act
“The pendency of court proceedings under Section 138 of the NI Act and the multiplicity of complaints in which a cause of action arising from one transaction is litigated has dampened the ease of doing business in India, impacted business sentiments and hindered investments from investors.”
The Court noticed that the introduction of a criminal remedy has given rise to a worrying trend where cases under Section 138 of the NI Act are disproportionately burdening the criminal justice system
Hence, under the shadow of Section 138 of the NI Act, parties are encouraged to settle the dispute resulting in ultimate closure of the case rather than continuing with a protracted litigation before the court. This is beneficial for the complainant as it results in early recovery of money; alteration of the terms of the contract for higher compensation and avoidance of litigation. Equally, the accused is benefitted as it leads to avoidance of a conviction and sentence or payment of a fine. It also leads to unburdening of the judicial system, which has a huge pendency of complaints filed under Section 138 of the NI Act.
Whether once the settlement has been entered into, the complainant can be allowed to pursue the original complaint under Section 138 of the NI Act?
Holding that a complainant cannot pursue two parallel prosecutions for the same underlying transaction, the Court said that allowing the complainant to pursue parallel proceedings, one resulting from the original complaint and the second emanating from the terms of the settlement would make the settlement and issuance of fresh cheques or any other partial payment made towards the original liability meaningless.
The Court explained that a contrary interpretation, which allows for the complainant to pursue both the original complaint and the consequences arising out of the settlement agreement, would lead to contradictory results.
First, it would allow for the accused to be prosecuted and undergo trial for two different complaints, which in its essence arise out of one underlying legal liability.
Second, the accused would then face criminal liability for not just the violation of the original agreement of the transaction which had resulted in issuance of the first set of cheques, but also the cheques issued pursuant to the compromise deed.
Third, instead of reducing litigation and ensuring faster recovery of money, it would increase the burden of the criminal justice system where judicial time is being spent on adjudicating an offence which is essentially in the nature of a civil wrong affecting private parties.
A complainant enters into a settlement with open eyes and undertakes the risk of the accused failing to honour the cheques issued pursuant to the settlement, based on certain benefits that the settlement agreement postulates. The benefits may include – higher compensation, faster recovery of money, uncertainty of trial and strength of the complaint, among others.
Hence,
“Once parties have voluntarily entered into such an agreement and agree to abide by the consequences of non-compliance of the settlement agreement, they cannot be allowed to reverse the effects of the agreement by pursuing both the original complaint and the subsequent complaint arising from such non-compliance. The settlement agreement subsumes the original complaint.”
The Court, hence, held that non-compliance of the terms of the settlement agreement or dishonour of cheques issued subsequent to it, would then give rise to a fresh cause of action attracting liability under Section 138 of the NI Act and other remedies under civil law and criminal law.
Supreme Court: The 3-judge bench of Dr. DY Chandrachud*, Vikram Nath and BV Nagarathna, JJ has held that a Preliminary Enquiry is not mandatory in all cases which involve allegations of corruption.
The Court said that in case the information received by the CBI, through a complaint or a “source information”, discloses the commission of a cognizable offence, it can directly register a Regular Case instead of conducting a Preliminary Enquiry, where the officer is satisfied that the information discloses the commission of a cognizable offence.
Holding that the institution of a Preliminary Enquiry in cases of corruption is not made mandatory before the registration of an FIR under the CrPC, Prevention of Corruption Act or even the CBI Manual, the Court said that issuing a direction to that affect will be “tantamount to stepping into the legislative domain.”
However, it was made clear that holding the aforesaid will not take away from the value of conducting a Preliminary Enquiry in an appropriate case.
“The registration of a Regular Case can have disastrous consequences for the career of an officer, if the allegations ultimately turn out to be false. In a Preliminary Enquiry, the CBI is allowed access to documentary records and speak to persons just as they would in an investigation, which entails that information gathered can be used at the investigation stage as well. Hence, conducting a Preliminary Enquiry would not take away from the ultimate goal of prosecuting accused persons in a timely manner. However, we once again clarify that if the CBI chooses not to hold a Preliminary Enquiry, the accused cannot demand it as a matter of right.”
Important rulings
Lalita Kumari v. Government of Uttar Pradesh,(2014) 2 SCC 1
If the information received discloses the commission of a cognizable offence at the outset, no Preliminary Enquiry would be required. Further, the scope of a Preliminary Enquiry is not to check the veracity of the information received, but only to scrutinize whether it discloses the commission of a cognizable offence.
The Court reversed the decision of a two Judge Bench in Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 [Read more] which had, inter alia, held that “a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act 1989 and that the allegations are not frivolous or motivated”.
The three Judge Bench held that such a direction was impermissible since neither the CrPC nor the Atrocities Act mandate a preliminary inquiry.
“In case a cognizable offence is made out, the FIR has to be outrightly registered, and no preliminary inquiry has to be made (…). The direction would mean that even if a complaint made out a cognizable offence, an FIR would not be registered until the preliminary inquiry is held. In case a preliminary inquiry concludes that allegations are false or motivated, FIR is not to be registered, in such a case how a final report has to be filed in the Court. Direction 79.4 cannot survive for the other reasons as it puts the members of the Scheduled Castes and Scheduled Tribes in a disadvantageous position in the matter of procedure vis-à-vis to the complaints lodged by members of upper caste, for latter no such preliminary investigation is necessary. In that view of the matter it should not be necessary to hold preliminary inquiry for registering an offence under the Atrocities Act, 1989.”
An enquiry at pre-FIR stage is held to be permissible and not only permissible but desirable, more particularly in cases where the allegations are of misconduct of corrupt practice acquiring the assets/properties disproportionate to his known sources of income. After the enquiry/enquiry at pre-registration of FIR stage/preliminary enquiry, if, on the basis of the material collected during such enquiry, it is found that the complaint is vexatious and/or there is no substance at all in the complaint, the FIR shall not be lodged.
However, if the material discloses prima facie a commission of the offence alleged, the FIR will be lodged and the criminal proceedings will be put in motion and the further investigation will be carried out in terms of the Code of Criminal Procedure. Therefore, such a preliminary enquiry would be permissible only to ascertain whether cognizable offence is disclosed or not and only thereafter FIR would be registered. Therefore, such a preliminary enquiry would be in the interest of the alleged accused also against whom the complaint is made.
Supreme Court: In a case where a 14-year-old had committed suicide after his PTI Teacher had allegedly “harassed and insulted him in the presence of everyone”, the bench of SA Nazeer and Krishna Murari*, JJ has held that the suicide note suggested that it was a rhetoric document, penned down by an immature mind and that it was the hypersensitive temperament of the deceased which led him to take such an extraordinary step. The Court said that the action of the teacher, otherwise would not ordinarily induce a similarly circumstanced student to commit suicide.
The Court explained that,
“A simple act of reprimand of a student for his behaviour or indiscipline by a teacher, who is under moral obligations to inculcate the good qualities of a human being in a student would definitely not amount to instigation or intentionally aid to the commission of a suicide by a student.”
What was the case about?
The FIR Stated that the boy, a class 9 student, was under deep mental pressure because the appellant (the GEO, PTI Sir) had harassed and insulted him in the presence of everyone and he was not willing to go to school on 25.04.2018 but was persuaded to go to school by his parents.
The boy was informed that the parents have been called to school next day and this brought him under further severe pressure and tension.
In the FIR and as also the statement of the complainant recorded by the police, no reasons or cause for the appellant to harass and insult the victim were spelled out nor there are any details with respect to any action on the part of the appellant by which the deceased boy might have felt being harassed and insulted.
The PT Teacher, apart from imparting Physical Training to the students, was also charged with the duty of maintaining discipline in the school which included keeping a watch upon students and oversee that they are attending the classes instead of bunking the same and moving around in the school premises without permission.
It was alleged that the boy generally used to bunk his classes and was warned by the appellant and other school staff a number of times.
On 14 19.04.2018, he was caught by the appellant bunking classes and moving around the school campus without any cause or permission and a warning was given to him.
On 25.04.2018, he was caught bunking classes and again the appellant issued him a warning and on account of persistent act of bunking classes, reported the same to the Principal of the School, who informed the parents of the boy to come to the school.
The boy committed suicide on 26.04.2018.
What did the Supreme Court say?
Abetment of suicide
What is required to constitute an alleged abetment of suicide under Section 306 IPC is there must be an allegation of either direct or indirect act of incitement to the commission of offence of suicide and mere allegations of harassment of the deceased by another person would not be sufficient in itself, unless, there are allegations of such actions on the part of the accused which compelled the commission of suicide.
Further, if the person committing suicide is hypersensitive and the allegations attributed to the accused is otherwise not ordinarily expected to induce a similarly situated person to take the extreme step of committing suicide, it would be unsafe to hold the accused guilty of abetment of suicide. Thus, what is required is an examination of every case on its own facts and circumstances and keeping in consideration the surrounding circumstances as well, which may have bearing on the alleged action of the accused and the psyche of the deceased.
Can reprimand by teacher amount to abetment of suicide?
The disciplinary measures adopted by a teacher or other authorities of a school, reprimanding a student for his indiscipline would not tantamount to provoking a student to commit suicide, unless there are repeated specific allegations of harassment and insult deliberately without any justifiable cause or reason.
“‘Spare the rod and spoil the child’ an old saying may have lost its relevance in present days and Corporal punishment to the child is not recognised by law but that does not mean that a teacher or school authorities have to shut their eyes to any indiscipline act of a student. It is not only a moral duty of a teacher but one of the legally assigned duty under Section 24 (e) of the Right of Children to Free and Compulsory Education Act, 2009 to hold regular meetings with the parents and guardians and apprise them about the regularity in attendance, ability to learn, progress made in learning and any other act or relevant information about the child.”
Hence, if, a student is simply reprimanded by a teacher for an act of indiscipline and bringing the continued act of indiscipline to the notice of Principal of the institution who conveyed to the parents of the student for the purposes of school discipline and correcting a child, any student who is very emotional or sentimental commits suicide, the said teacher cannot be held liable for the same and charged and tried for the offence of abetment of suicide under section 306 IPC.
Absence of any specific allegation or material on record
In the absence of any material on record even, prima-facie, in the FIR or statement of the complainant, pointing out any such circumstances showing any such act or intention that he intended to bring about the suicide of his student, it would be absurd to even think that the appellant had any intention to place the deceased in such circumstances that there was no option available to him except to commit suicide.
In the absence of any specific allegation and material of definite nature, not imaginary or inferential one, it would be travesty of justice, to ask the appellant-accused to face the trial. A criminal trial is not exactly a pleasant experience and the appellant who is a teacher would certainly suffer great prejudice, if he has to face prosecution on absurd allegations of irrelevant nature.
Rhetoric Suicide note
It was a note consisting of three pages with following written on each separate paper :-
01st page – ‘MY ALL THINGS GOES TO MY DEAR BRO KAIRN EVEN MY LOVE BYE BUDDY & SORRY’
02nd page – ‘NEEDED JUSTICE’
03rd page – ‘THANKS GEO (PTI) OF MY SCHOOL’
The Court noticed that the suicide note was rhetoric document, penned down by an immature mind.
“A reading of the same also suggests the hypersensitive temperament of the deceased which led him to take such an extraordinary step, as the alleged reprimand by the accused, who was his teacher, otherwise would not ordinarily induce a similarly circumstanced student to commit suicide.”
Supreme Court: The bench of MR Shah* and AS Bopanna, JJ has held that merely because someone is the Chairman/Managing Director/Executive Director/Deputy General Manager/Planner & Executor, automatically they cannot be held vicariously liable, unless there are specific allegations and averments against them with respect to their individual role in a criminal case.
Factual Background
The Court was dealing with a case wherein it was alleged that all the accused had conspired with common intention to lay the pipeline beneath the schedule properties belonging to the complainant without any lawful authority and right whatsoever.
It is pertinent to note that original accused no.1 was a company incorporated under the Companies Act, original accused nos. 2 & 3 being Chairman and Managing Director of Accused no.1- company and accused no.4 was arrayed as an accused being Deputy General Manager (Civil & Env.) of accused no.1. Accused No.5 was the Planner and Executor of the project work of accused no.1. Likewise, accused no. 6 was also a company incorporated under the Companies Act, accused nos. 7 & 8 were arrayed as an accused being Chairman and Executive Director respectively of accused no.6. Accused no.9 was the Site Supervisor of accused no.6 and accused no.10 was the Sub-Contractor under accused no.6 and accused nos. 11 to 13 were the employees of accused no.10.
Accused No.1 intended to lay water pipeline by the side of Mangalore-Bajpe Old Airport Road abutting the schedule properties. Accused No.2 on behalf of accused No.1 appointed accused No.6 as a contractor for execution of the said project of laying the water pipe line. Accused No.6 in turn authorized accused Nos. 7 and 8 to execute and oversee the said work. They in turn had appointed accused No.9 as site supervisor and the accused No.10 being the sub-contractor engaged accused Nos. 11 to 13 as labourers. Accused Nos. 4 and 5 were entrusted the work of supervision and overseeing the pipeline works carried out by accused Nos. 6, 7 and 8 through accused Nos. 9 and 10 to 13. Accused Nos. 6 to 8 had put into service heavy machineries and excavators and their vehicles for carrying out the work. It was contended that accused Nos. 2 to 5 and 7 to 13 had conspired with common intention to lay the pipeline beneath the schedule properties belonging to the complainant without any lawful authority and right whatsoever. In furtherance thereof, they had trespassed over the schedule properties 3 and demolished the compound wall which was having the height of 7 feet and foundation of 2 feet to a distance of 500 metres. They had cut and destroyed 100 valuable trees and laid pipeline beneath the schedule properties.
It was contended that
“… the accused have committed the act of mischief and waste and caused pecuniary loss of more than Rs.27 lakhs to the complainant. All the accused are jointly and severally liable to make good the loss to the complainant.”
Analysis
The bench noticed that except the bald statement that accused nos. 2 to 5 and 7 & 8 have conspired with common intention to lay the pipeline within the schedule properties belonging to the complainant, without any lawful authority and right whatsoever and in furtherance they have committed to trespass into the schedule properties of the complainant and demolished the compound wall, there were no other allegations that at that time they were present.
There were no further allegations that at the command of A2 to A5 and A7 & A8, the demolition of the compound wall has taken place. All of them are merely arrayed as an accused as Chairman, Managing Director, Deputy General Manager (Civil & Env.), Planner & Executor, Chairman and Executive Director respectively.
“Therefore, as such, in absence of any specific allegations and the specific role attributed to them, the learned Magistrate was not justified in issuing process against accused nos. 1 to 8 for the offences punishable 12 under Sections 427, 447, 506 and 120B read with Section 34 IPC.”
The Court held that issuing summons/process by the Court is a very serious matter and therefore unless there are specific allegations and the role attributed to each accused more than the bald statement, the Magistrate ought not to have issued the process.
Here are some authorities on the power of the magistrate of summoning of an accused in a criminal case:
Sunil Bharti Mittal v. Central Bureau of Investigation, (2015) 4 SCC 609
“No doubt, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.
(…)
When the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect.”
GHCL Employees Stock Option Trust v. India Infoline Limited, (2013) 4 SCC 505
In the order issuing summons, the learned Magistrate has to record his satisfaction about a prima facie case against the accused who are Managing Director, the Company Secretary and the Directors of the Company and the role played by them in their respective capacities which is sine qua non for initiating criminal proceedings against them.
“13. Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.”
Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749
“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the 14 Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”
[Ravindranatha Bajpe v. Mangalore Special Economic Zone Ltd, 2021 SCC OnLine SC 806, decided on 27.09.2021]
Supreme Court: In a case where a man was allegedly murdered by his wife and colleague, the bench of Dr. DY Chandrachud* and BV Nagarathna, JJ has refused to grant bail to the colleague on the ground that he cannot claim parity with the co-accused, i.e. the wife of the deceased, who was granted bail on the ground that she had a child of eleven months with her in jail. The Court noticed that the allegations in the FIR and the material that has emerged from the investigation indicated that a major role has been attributed to him in the murder of the deceased and hence, no bail was warranted.
Three important rulings on principles governing grant of bail
“Grant of bail though being a discretionary order — but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained.”
Some of the considerations for grant of bail are:
(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”
It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:
whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
nature and gravity of the accusation;
severity of the punishment in the event of conviction;
danger of the accused absconding or fleeing, if released on bail;
character, behaviour, means, position and standing of the accused;
likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and
danger, of course, of justice being thwarted by grant of bail.
Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana,2021 (6) SCC 230
Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance.
Supreme Court: In a case where a compromise was reached between parties, 28 years after an incident left the victim crippled for life, the bench of Ajay Rastogi* and Abhay S. Oka, JJ held that compromise cannot be taken to be a solitary basis for mitigating the sentence until the other aggravating and mitigating factors also support and are favourable to the accused for molding the sentence which always has to be examined in the facts and circumstances of the case on hand.
What was the case about?
On 13th December 1993, the injured victim was brutally attacked with stones, sword, Satur, etc., by the appellant, leaving him severely injured so much so that when he was taken to the hospital, his dying declaration was recorded as according to the treating Doctor, in the absence of immediate medical treatment, his death was certain. The incident led to the amputation of the leg and the arm of the victim and left him crippled for life.
The appellant was convicted under Section 326 IPC and was sentenced to rigorous imprisonment for 5 years and to pay under Section 357 CrPC of Rs. 2 lakhs as a monetary compensation to the victim.
A compromise was entered between the appellant and the injured victim on 13th July, 2021 and it was argued that,
“the relations of the families are very cordial and they are now closely related having matrimonial relations with each other’s family and the incident has occurred due to misunderstanding and on the spur of the moment and submitted that the parties have jointly prayed, in the interest of peace and harmony between both the families and as requested by the complainant to compound the offence and in the interest of justice, he may be released on the sentence undergone.”
What did the Supreme Court say?
Explaining the law on compromise, the Court said that the compromise if entered at the later stage of the incident or even after conviction can indeed be one of the factor in interfering the sentence awarded to commensurate with the nature of offence being committed to avoid bitterness in the families of the accused and the victim and it will always be better to restore their relation, if possible, but
“… the compromise cannot be taken to be a solitary basis until the other aggravating and mitigating factors also support and are favourable to the accused for molding the sentence which always has to be examined in the facts and circumstances of the case on hand.”
Further, giving punishment to the wrongdoer is the heart of the criminal delivery system, but there are no legislative or judicially laid down guidelines to assess the trial Court in meeting out the just punishment to the accused facing trial before it after he is held guilty of the charges. However, the Court takes into account a combination of different factors while exercising discretion in sentencing, that is proportionality, deterrence, rehabilitation, etc.
The Court, in the present case, was not able to record its satisfaction in reference to the kind of compromise which was obtained and placed on record after 28 years of the incident. It said that,
“… this Court cannot be oblivious of the sufferings which the victim has suffered for such a long time and being crippled for life and the leg and arm of the victim are amputated in the alleged incident dated 13th December, 1993 and since then he has been fighting for life and is pursuing his daily chores with a prosthetic arm and leg and has lost his vital organs of his body and became permanently disabled and such act of the appellant is unpardonable.”
The Court, hence, refused to give any benefit of the alleged compromise and held,
“… such a brutality cannot be ignored which is not against the individual but the crime is against the society which has to be dealt with sternly.”
[Bhagwan Narayan Gaikwad v. State of Maharashtra, 2021 SCC OnLine SC 748, decided on 20.09.2021]
Supreme Court: Explaining the difference between the degree of proof in a criminal proceedings and departmental proceedings, the bench of Hemant Gupta* and V. Ramasubramanian, JJ has held that the burden of proof in the departmental proceedings is not of beyond reasonable doubt as is the principle in the criminal trial but probabilities of the misconduct.
Here’s the elaborate law laid down by the Supreme Court in this point:
In a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility.
“It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. (…) The simple point is, was there some evidence or was there no evidence — not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny.”
“In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal.”
The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
Under Articles 226/227 of the Constitution of India, the High Court shall not:
reappreciate the evidence;
interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
go into the adequacy of the evidence;
go into the reliability of the evidence;
interfere, if there be some legal evidence on which findings can be based.
correct the error of fact however grave it may appear to be;
go into the proportionality of punishment unless it shocks its conscience.
Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., (2005) 7 SCC 764
In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused “beyond reasonable doubt”, he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of “preponderance of probability”.
Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules.
In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings.
The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public, whereas, the departmental inquiry is to maintain discipline in the service and efficiency of public service.
Supreme Court: The bench of KM Joseph* and PS Narsimha, JJ has reiterated the test laid down for invoking the power under Section 319 CrPC and has held that only when strong and cogent evidence occurs against a person from the evidence the power under Section 319[1] CrPC should be exercised. The power cannot be exercised in a casual and cavalier manner.
The Court took note of the test laid down in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, wherein it was held that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C.
It was further explained that in Section 319 Cr.P.C. the purpose of providing if ‘it appears from the evidence that any person not being the accused has committed any offence’ is clear from the words “for which such person could be tried together with the accused.” The words used are not ‘for which such person could be convicted’. There is, therefore, no scope for the court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.
“105. Power under Section 319 Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.”
[Ramesh Chandra Srivastava v. State of UP, 2021 SCC OnLine SC 741, decided on 13.09.2021]
_________________________________________________
For appellant: Advocate Gaurav Srivastava,
For State: Advocate Adarsh Upadhyay,
For respondent 2: Advocate Sansriti Pathak
[1]319. Power to proceed against other persons appearing to be guilty of offence.—(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub-section (1) then—
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
Supreme Court: In a case where a man was convicted for killing his wife on the suspicion of her infidelity and was sentenced to undergo rigorous imprisonment for life, the bench of L. Nageswara Rao and BR Gavai, JJ has refused to go into the question of propriety of specifying rigorous imprisonment while imposing life sentence and has held that imprisonment for life is equivalent to rigorous imprisonment for life.
While there are several judicial precedents where the Supreme Court has held that imprisonment for life has been regarded as equivalent to rigorous imprisonment for life, the verdict in Naib Singh v. State of Punjab, (1983) 2 SCC 454 makes this position amply clear.
In the aforesaid case, the Petitioner was originally sentenced to death for committing an offence of murder under Section 302 IPC. Later, the death sentence was commuted to imprisonment for life by the Government of Punjab. After having undergone sentence of 22 years, Naib Singh filed a Writ Petition under Article 32 of the Constitution of India challenging his continued detention. One of the points argued by the Petitioner relates to sentence of imprisonment for life not to be equated to rigorous imprisonment for life.
The Court, in the said judgment, held,
“… in view of the authoritative pronouncements made by the Privy Council and this Court in Kishori Lal case [Kishori Lal v. Emperor, AIR 1945 PC 64 : 72 IA 1 : 219 IC 350] and Gopal Godse case [Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC 600 : (1961) 3 SCR 440 : (1962) 1 SCJ 423 : (1961) 1 Cri LJ 736] respectively, it will have to be held that the position in law as regards the nature of punishment involved in a sentence of imprisonment for life is well settled and the sentence of imprisonment for life has to be equated to rigorous imprisonment for life.”
