criminal law

Case BriefsSupreme Court

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

For the Respondents: Saurabh Trivedi, counsel

*Judgment by: Justice B.V. Nagarathna

Case BriefsSupreme Court

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]

Counsels

For appellant: Advocate Amith Kumar

For respondent: Advocate H.V. Nagaraja Rao

*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsSupreme Court

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.”

[Surinder Singh v. State, 2021 SCC OnLine SC 1135, decided on 26.11.2021]

*Judgment by: Justice Surya Kant

Know Thy Judge | Justice Surya Kant

Also read:

Explained| Is ‘motive’ an indispensable ingredient for proving the charge of attempt to murder?

Case BriefsSupreme Court

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.

State of Haryana v. Mohinder Singh, (2000) 3 SCC 394

“… 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.”

Asfaq v. State of Rajasthan, (2017) 15 SCC 55

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.

[State of Gujarat v. Narayana, 2021 SCC OnLine SC 949, decided on 20.10.2021]

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Counsels:

For State of Gujarat: Tushar Mehta, Solicitor General

For Respondent: Advocate Sanjiv Punalekar

*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Cases ReportedSupreme Court Cases

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.

Read more…

Case BriefsSupreme Court

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

  1. The Appellate Court may direct a retrial only in ‘exceptional’ circumstances to avert a miscarriage of justice;
  2. 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;
  3. 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;
  4. 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;
  5. 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”

  1. 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;
  2. 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.
  3. 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;
  4. 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
  5. 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.

[Nasib Singh v. State of Punjab,  2021 SCC OnLine SC 924, decided on 08.10.2021]

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Counsels:

Amicus curiae: Senior Advocate D Bharat Kumar

For appellant: Advocate Vipin Gogia

For State of Punjab: Advocate Uttara Babbar

For other accused: Advocates Nishesh Sharma, Narender Kumar Verma

*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

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.

[Gimpex Private Limited v. Manoj Goel, 2021 SCC OnLine SC 925, decided on 08.10.2021]

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Counsels:
For appellant: Senior Advocate V Giri and Advocate Liz Mathew

For respondent: Senior Advocate Jayant Bhushan

*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

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.

Union of India v. State of Maharashtra, (2020) 4 SCC 761

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.”

Read more…

Charansingh v. State of Maharashtra,  (2021) 5 SCC 469

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.

Read more…

[CBI v. Thommandru Hannah Vijayalakshmi, 2021 SCC OnLine SC 923, 08.10.2021]

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Counsels:

For CBI: Aishwarya Bhati, Additional Solicitor General

For respondents: Senior Advocates Siddharth Luthra and Siddharth Dave

*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

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.”

[Geo Varghese v. State of Rajasthan,  2021 SCC OnLine SC 873, decided on 05.10.2021]

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Counsels:

For appellant: Advocate Abhishek Gupta

For respondents: Advocates Dr. Manish Singhvi and Aditya Kumar Chaudhary

*Judgment by: Justice Krishna Murari

Know Thy Judge| Justice Krishna Murari

Case BriefsSupreme Court

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.”

Read more: Order issuing summons to Sunil Mittal and others in 2G Scam case by Special Judge, CBI, set aside

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.

Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668

“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]

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Counsels:

For original complainant: Advocate Shailesh Madiyal

For accused persons: Advocates Nishanth Patil and P.P. Hegde

*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsSupreme Court

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

Ram Govind Upadhyay v. Sudharshan Singh, (2002) 3 SCC 598

“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.”

Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496

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:

  1. whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
  2. nature and gravity of the accusation;
  3. severity of the punishment in the event of conviction;
  4. danger of the accused absconding or fleeing, if released on bail;
  5. character, behaviour, means, position and standing of the accused;
  6. likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and
  7. 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.

Read more: “Consent of parties cannot obviate the duty of the High Court to indicate its reasons”; Supreme Court explains the law on Bail

[Mahadev Meena v. Raveen Rathod, 2021 SCC OnLine SC 804, decided on 27.09.2021]

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Counsels:

For appellant: Advocate Chitrangda Rastravara

For first respondent: Senior Advocate Siddhartha Dave

*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

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]

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Counsels:

For appellant: Senior Advocate Mahesh Jethmalani

For State: Advocate Sachin Patil

*Judgment by: Justice Ajay Rastogi

Know Thy Judge | Justice Ajay Rastogi

Case BriefsSupreme Court

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:

State of Haryana v. Rattan Singh, (1977) 2 SCC 491

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.”

Union of India v. P. Gunasekaran, (2015) 2 SCC 610

“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.

Noida Entrepreneurs Association v. NOIDA, (2007) 10 SCC 385

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.

[Union of India v. Dalbir Singh, 2021 SCC OnLine SC 768, decided on 21.09.2021]

*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Case BriefsSupreme Court

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.”

Read more…

[Ramesh Chandra Srivastava v. State of UP, 2021 SCC OnLine SC 741, decided on 13.09.2021]

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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.

*Judgment by: Justice KM Joseph

Know Thy Judge| Justice K.M. Joseph

Case BriefsSupreme Court

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.”

[Md. Alfaz Ali v. State of Assam, 2021 SCC OnLine SC 719, order dated 14.09.2021]

For Petitioner: Advocate Ajay Marwah

For State: Advocate Debojit Borkakati

Case BriefsSupreme Court

Supreme Court: The bench of KM Joseph and S. Ravindra Bhat*, JJ has reiterated the factors to be considered while deciding the question of whether in a given case, a homicide is murder, punishable under Section 302 IPC, or culpable homicide, of either description, punishable under Section 304 IPC.

The Court explained that the use of the term “likely” in several places in respect of culpable homicide, highlights the element of uncertainty that the act of the accused may or may not have killed the person. Section 300 IPC which defines murder, however refrains from the use of the term likely, which reveals absence of ambiguity left on behalf of the accused. The accused is for sure that his act will definitely cause death.

“It is often difficult to distinguish between culpable homicide and murder as both involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. This difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes.”

The following two cases are noteworthy for understanding the difference between the two terms:

State of Andhra Pradesh v Rayavarapu Punnayya, 1976 (4) SCC 382

In the said case, the Court noticed that the confusion between “murder” and “culpable homicide not amounting to murder” is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. Hence, the safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300.

It explained,

“In the scheme of the Penal Code, “culpable homicide” is genus and “murder” its specie. All “murder” is “culpable homicide” but not vice- versa. Speaking generally, “culpable homicide” sans “special characteristics of murder”, is “culpable homicide not amounting to murder”. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, “culpable homicide of the first degree”. This is the greatest form of culpable homicide, which is defined in Section 300 as “murder”. The second may be termed as “culpable homicide of the second degree”. This is punishable under the first part of Section 304. Then, there is “culpable homicide of the third degree”. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.”

Read more…

Pulicherla Nagaraju v State of Andhra Pradesh, (2006) 11 SCC 444

The Court laid down the considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder and observed that the Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II.

“Many petty or insignificant matters – plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death.”

Hence, it is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder are treated as murder punishable under Section 302.

The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances;

  1. nature of the weapon used;
  2. whether the weapon was carried by the accused or was picked up from the spot;
  3. whether the blow is aimed at a vital part of the body;
  4. the amount of force employed in causing injury;
  5. whether the act was in the course of sudden quarrel or sudden fight or free for all fight;
  6. whether the incident occurs by chance or whether there was any premeditation;
  7. whether there was any prior enmity or whether the deceased was a stranger;
  8. whether there was any grave and sudden provocation, and if so, the cause for such provocation;
  9. whether it was in the heat of passion;
  10. whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;
  11. whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.

Read more…

[Mohd. Rafiq v. State of Madhya Pradesh, 2021 SCC OnLine SC 731, decided on 15.09.2021]

*Judgment by: Justice S. Ravindra Bhat

Know Thy Judge| Justice S. Ravindra Bhat

For Appellant: Advocate Ritu Gangele

For State: Advocate Gopal Jha

Case BriefsSupreme Court

Supreme Court: In a case where the detenu was accused of committing a series of criminal offences from October, 2017 to December, 2019 such as cheating in the guise of providing good profit to people by investing their money in stock market and collecting huge amounts to the tune of more than Rs. 50 lakhs, the bench of RF Nariman and Hrishikesh Roy, JJ quashed the detention and held that in such a case,

“… at the highest, a possible apprehension of breach of law and order can be said to be made out if it is apprehended that the Detenu, if set free, will continue to cheat gullible persons. This may be a good ground to appeal against the bail orders granted and/or to cancel bail but certainly cannot provide the springboard to move under a preventive detention statute.”

The case that revolved around Section 3(2) of the Telangana Prevention of Dangerous Activities Act, 1986[1], led to a wider discussion on the true import of “public order” and the Court held that a possible apprehension of breach of law and order cannot be a ground to move under a preventive detention statute.

The Court explained,

“When a person is preventively detained, it is Article 21 and 22 that are attracted and not Article 19. Further, preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question. To therefore argue that a liberal meaning must be given to the expression ‘public order’ in the context of a preventive detention statute is wholly inapposite and incorrect. On the contrary, considering that preventive detention is a necessary evil only to prevent public disorder, the Court must ensure that the facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large.”

Public order is defined in the Explanation to Section 2(a) of the Telangana Prevention of Dangerous Activities Act to be a harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave widespread danger to life or public health.

Explaining that the expressions ‘law and order’, ‘public order’, and ‘security of state’ are different from one another, the Court said that,

“Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects ‘law and order’ but before it can be said to affect ‘public order’, it must affect the community or the public at large.”

Further, while it cannot seriously be disputed that the Detenu may be a “white collar offender” as defined under Section 2(x) of the Telangana Prevention of Dangerous Activities Act, yet a Preventive Detention Order can only be passed if his activities adversely affect or are likely to adversely affect the maintenance of public order.

In the case at hand, what was alleged in the five FIRs pertained to the realm of ‘law and order’ in that various acts of cheating are ascribed to the Detenu which are punishable under the three sections of the Penal Code set out in the five FIRs. A close reading of the Detention Order showed that the reason for the said Order is not any apprehension of widespread public harm, danger or alarm but is only because the Detenu was successful in obtaining anticipatory bail/bail from the Courts in each of the five FIRs. In such circumstances, the Court held that,

“If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail. The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the Detenu, there can be no doubt that the harm, danger or alarm or feeling of security among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make believe and totally absent in the facts of the present case.”

[Banka Sneha Sheela v. State of Telangana, 2021 SCC OnLine SC 530, decided on 02.08.2021]

*Judgment by: Justice RF Nariman

Know Thy Judge| Justice Rohinton F. Nariman

For petitioner: Advocate Gaurav Agarwal

For State: Senior Advocate Ranjit Kumar

[1] Telangana Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual 1 Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986

Case BriefsSupreme Court

Supreme Court: A Division Bench of Dr D.Y. Chandrachud and M.R. Shah, JJ. upheld the order of the Chief Judicial Magistrate, Thiruvananthapuram, who refused to consent to the application filed by the Public Prosecutor under Section 321 CrPC for withdrawal of a criminal case filed against six MLAs in relation to the ruckus and damage of public property caused by them in an unfortunate incident that occurred in the Kerala Legislative Assembly in March 2015. Earlier, the Kerala High Court too had affirmed the order of the Chief Judicial Magistrate.

All attempts of the accused MLAs seeking  to claim immunity under Article 194 of the Constitution of India were rejected by the Supreme Court while observing:

“Privileges and immunities are not gateways to claim exemptions from the general law of the land, particularly as in this case, the criminal law which governs the action of every citizen.”

Backdrop

On 13-3-2015, the then Finance Minister of Kerala was presenting budget for financial year 2015-16 in the Kerala Legislative Assembly. The accused─Members of Legislative Assembly (leaders of the Left Democratic Front, which was in opposition at that time) disrupted presentation of the budget, climbed over to Speaker’s dais and damaged furniture and articles including the Speaker’s chair, computer, mike, emergency lamp and electronic panel, causing a loss of Rs 2,20,093. The Legislative Secretary reported the incident and a criminal case under Sections 447 and 427 read with Section 34 IPC and Section 3(1) of the Prevention of Damage to Public Property Act, 1984 was registered against the six accused MLAs. Investigation was completed, final report was submitted, and cognizance was taken by the Additional Chief Judicial Magistrate, Ernakulam.

On 21-7-2018 (when LDF had formed Government in Kerala), the Public Prosecutor filed an application under Section 321 CrPC seeking sanction to withdraw the case against all the accused MLAs. The case was transferred to the court of Chief Judicial Magistrate, Thiruvananthapuram (“CJM”), who declined to give consent to the Public Prosecutor’s application.

Appeal

After CJM’s refusal, the State of Kerala filed a criminal revision petition before the Kerala High Court. The High Court dismissed the revision petition and affirmed the order of CJM. Aggrieved, the State of Kerala and the accused MLAs approached the Supreme Court.

Analysis and Observations

Withdrawal from prosecution

Discussing Section 321 CrPC (Withdrawal from prosecution), the Court relied on a catena of judicial precedents including the decision of Constitution Bench in Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288, which the Court dubbed as locus classicus on interpretation of powers conferred by Section 321. The principles which emerged from judicial precedents on withdrawal of prosecution under Section 321 were formulated by the Court:

(i) Section 321 entrusts the decision to withdraw from a prosecution to the Public Prosecutor but the consent of the court is required for a withdrawal of the prosecution;

(ii) The Public Prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice;

(iii) The Public Prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution;

(iv) While the mere fact that the initiative has come from the Government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the Public Prosecutor was satisfied that withdrawal of prosecution is necessary for good and relevant reasons;

(v) In deciding whether to grant its consent to a withdrawal, the court exercises a judicial function but it has been described to be supervisory in nature. Before deciding whether to grant its consent, the court must be satisfied that:

(a) The function of the Public Prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes;

(b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law;

(c) The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given;

(d) The grant of consent sub-serves the administration of justice; and

(e) The permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the public prosecutor is duty bound to maintain;

(vi) While determining whether the withdrawal of the prosecution sub-serves the administration of justice, the court would be justified in scrutinising the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and discharge of a public trust are implicated; and

(vii) In a situation where both the trial judge and the revisional court have concurred in granting or refusing consent, the Supreme Court while exercising its jurisdiction under Article 136 of the Constitution would exercise caution before disturbing concurrent findings. The Supreme Court may interfere in a case where there has been a failure of the trial judge or of the High Court to apply correct principles in deciding whether to grant or withhold consent.

Immunities and privileges of MLAs

Article 194 of the Constitution of India provides for privileges and immunities of MLAs. Article 194(1) recognises freedom of speech in State legislatures. However, this freedom is subject to provisions of the Constitution and standing orders regulating the procedure of State legislatures. Article 194(2) enunciates a rule of immunity which protects an MLA from a proceeding in any court “in respect of anything said or a vote given” in the legislature or in any committee of the legislature. Moreover, it provides a shield against any liability for a publication of a report, paper, votes or proceedings by or under the authority of the House.

As per Article 194(3), the present position is that: (i) The ultimate source of the powers, privileges and immunities of a House of a State Legislature and of the members and committees would be determined by way of a legislation; (ii) Until such legislation is enacted, the position as it stood immediately before the coming into force of Section 26 of the Constitution (44th Amendment) Act, 1978 would govern. Since the Parliament is yet to enact a law on the subject of parliamentary privileges, according to Article 194(3), the MLAs shall possess privileges that the members of the House of Commons possessed at the time of enactment of the Constitution. In such view of the matter, the Court referred to English judgments on whether criminal offences committed within the precincts of the House of Commons are covered under ‘parliamentary privileges’, receiving immunity from prosecution.

The Court found that even in the United Kingdom, a person committing a criminal offence within the precincts of the House does not hold an absolute privilege. Instead, he would possess a qualified privilege, and would receive the immunity ‘only if the action bears nexus to the effective participation of the member in the House’.

In the Indian context, the Court relied on Raja Ram Pal v. Speaker, Lok Sabha, (2007) 3 SCC 184 and noted that the principle which emphatically emerges is that whenever a claim of privilege or immunity is raised in the context of Article 194(3), the Court is entrusted with authority and jurisdiction to determine whether the claim is sustainable on the anvil of the constitutional provision. State legislatures in India cannot assert the power of “self-composition or in other words the power to regulate their own constitution in the manner claimed by the House of Commons or in the UK”. The decision emphasises the doctrine of constitutional supremacy in India as distinct from parliamentary supremacy in the UK.

Privilege to commit acts of public destruction – an incongruous proposition

Next, the Court discussed the validity of the argument invoking immunities and privileges under Article 194 as a hypothesis for barring legal proceedings for acts of destruction of public property.

Recapitulating the allegations against the accused MLAs, the Court went on to note that there has been a growing recognition and consensus both in the Court and the Parliament that acts of destruction of public and private property in the name of protests should not be tolerated. The Court observed:

“The persons who have been named as the accused in the FIR in the present case held a responsible elected office as MLAs in the Legislative Assembly. In the same manner as any other citizen, they are subject to the boundaries of lawful behaviour set by criminal law. No member of an elected legislature can claim either a privilege or an immunity to stand above the sanctions of the criminal law, which applies equally to all citizens.“

The Court stated that the purpose of bestowing privileges and immunities to elected members of the legislature is to enable them to perform their functions without hindrance, fear or favour. These privileges bear a functional relationship to the discharge of the functions of a legislator. They are not a mark of status which makes legislators stand on an unequal pedestal. It was observed:

“We miss the wood for the trees if we focus on rights without the corresponding duties cast upon elected public representatives.“

In Court’s opinion, to claim an exemption from the application of criminal law would be to betray the trust which is impressed on the character of elected representatives as the makers and enactors of the law. The entire foundation upon which the application for withdrawal under Section 321 was moved by the Public Prosecutor was based on a fundamental misconception of the constitutional provisions contained in Article 194. The Public Prosecutor seemed to have been impressed by the existence of privileges and immunities which would stand in the way of the prosecution. Such an understanding betrays the constitutional provision and proceeds on a misconception that elected members of the legislature stand above the general application of criminal law. The Court observed:

“Privileges and immunities are not gateways to claim exemptions from the general law of the land, particularly as in this case, the criminal law which governs the action of every citizen.“

The Court finally held that an alleged act of destruction of public property within the House by the members to lodge their protest against the presentation of the budget cannot be regarded as essential for exercising their legislative functions. The actions of the members have trodden past the line of constitutional means, and is thus not covered by the privileges guaranteed under the Constitution.

Sanction of Speaker

The Court then dealt with the argument that sanction of the Speaker of the House is required for prosecuting MLAs for occurrences within the precincts of the Assembly. The contention that prosecution against the accused MLAs was vitiated for want of sanction of the Speaker, was rejected by the Court.

Explaining and distinguishing several judgments relied upon by the accused MLAs, the Court noted that none of them lend support to the argument that the sanction of the Speaker ought to have been obtained. The appellants next relied on Section 197 CrPC (Prosecution of Judges and public servants). Section 197(1) states that cognizance cannot be taken for an offence allegedly committed by a public servant, who is removable with the sanction of the Government, unless the sanction of the Government is received.

On this, the Court stated that a plain reading of Section 197 clarifies that it applies only if the public servant can be removed from office by or with the sanction of the Government. However, MLAs cannot be removed by the sanction of the Government, as they are elected representatives of the people of India. Further, sanction under Section 197 is only required before cognizance is taken by a court, and not for the initiation of the prosecution.

Claiming privilege and inadmissibility of video recordings as evidence

A video recording of the incident concerned that occurred on 13-3-2015 in the Kerala Legislative Assembly was procured by investigating authorities from the Electronic Control Room of the House.

Immunity from publication of proceedings of the House 

The appellants submitted that the incident occurred on floor of the House and was a ‘proceeding’ of the House. According to Article 194(2), no legal proceedings can be initiated against any member in respect of the publication, by or under the authority of the House, of any report, paper, votes or proceedings.

The Court recorded that for the second limb of Article 194(2) to be applicable, three elements must be present: first, there must be publication; second, the publication must be by or under the authority of the House; and third, the publication must relate to a report, paper, vote or proceedings.

It was discussed by the Court that although broadcasting of proceedings was not initially visualised within the meaning of the word ‘publication’, the meaning of the term ‘publication’ has evolved in contemporary parlance. Broadcasting of proceedings is also a form of publication which serves the purpose of disseminating information to the public.

The Court then turned to the question whether the alleged proceedings were published by or ‘under the authority of the House’. The video recording of the incident was seized from the Electronic Control Room. Various local and national news channels carried telecasts of snippets of the incident of 13-3-2015 on the very same day. The Instructions on Broadcasting and Telecasting of Governor’s Address and Assembly Proceedings issued by the Kerala Legislative Assembly in 2002, permit broadcasting of proceedings after obtaining prior permission of the Speaker for recording. Therefore, if permission for recording the proceedings is provided to news channels, then broadcast would usually be a publication ‘under the authority of the House’. However, Clause 7 of the 2002 Instructions denies permission to record any interruption/disorder during the address.

Since the 2002 Instructions grant permission for recording of proceedings subject to conditions such as that mentioned in Clause 7, any recording that contravenes the conditions stipulated is not a recording ‘under the authority of the House’.  The Court observed:

“When the recording of such an incident is itself without authority, the publication/broadcasting of it would also have no authority of the House. Thus, though the video recording of the incident that was broadcast in the local and national news channels would fall within the purview of the word ‘publication’, it did not have the authority of the House to be recorded, and thus the members cannot be granted immunity.“

In addition to this, the video recording that was procured from the Electronic Control Room of the Assembly was not a copy of the broadcast of the incident in the local or national television but was a part of the internal records of the Assembly. Thus, the stored video footage of the incident was not broadcast/published for dissemination to the public. Since it was not a ‘publication’ of the House, it does not enjoy the protection of immunity under Article 194(2) of the Constitution.

The Court then considered whether the incident that transpired on 13-3-2015 was a ‘proceeding’ under Article 194(2) bestowing the accused MLAs with absolute immunity. Referring to various provisions of the Constitution, the Court concluded that the word ‘proceedings’ does not include all the activities inside the House within its meaning.  The word ‘proceedings’ in Article 194(2) follows the words ‘any report, paper, votes’. Reports, papers and votes are actions that are undertaken by the members of the Assembly in their official capacity for participation and deliberation in the House. The Court was of the opinion that:

“On application of the interpretative principle of noscitur a sociis, the phrase ‘proceedings’ takes colour from the words surrounding it. Since the words associated with the phrase ‘proceedings’ refer to actions that are exercised by the members in their official capacity, in furtherance of their official functions, the meaning of the word ‘proceedings’ must also be restricted to only include such actions.“

Accordingly, the Court held that the video recording of the incident was NOT a ‘proceeding’ of the Assembly, which could be protected from legal proceedings under Article 194(2).

Inadmissibility of the video recording as evidence

Appellants argued that the video recording was obtained by investigating authorities without the sanction of the Speaker. It was submitted that the video recording belongs to the Electronic Record Room of the Assembly and as the custodian of the House, permission of the Speaker was necessary to access the video recording. It was also submitted that the video recording lacked certification under Section 65-B of the Evidence Act, 1872 required for admissibility of evidence.

In Court’s opinion, these submissions were irrelevant in an application for withdrawal of prosecution under Section 321 CrPC. Questions of insufficiency of evidence, admissibility of evidence absent certifications, etc. are to be adjudged by the trial court during the stage of trial.

Decision

The Supreme Court found no merit in the appeal and held that the Chief Judicial Magistrate was justified in declining consent for withdrawal of the prosecution under Section 321 CrPC. [State of Kerala v. K. Ajith, 2021 SCC OnLine SC 510, decided on 28-7-2021]

Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Division Bench of Dhiraj Singh Thakur and Puneet Gupta, JJ., dismissed the application seeking suspension of sentence and for grant of bail to the applicant/appellant on the ground of delay.

The applicant had submitted that he had been put in jail for more than thirteen years. Noticing that the appeal against the order of conviction and sentence dated 23-07-2020 was filed on 06-08-2020. The issue with regard to suspension of sentence and grant of bail on account of delay in disposal of the criminal appeal had been considered by a coordinate bench of this court in Rakesh Kumar v. State of J&K, CRA No. 12 of 2018, wherein the Bench had relied on   Akhtari Bi v. State of M.P., (2001) 4 SCC 355, where the Supreme Court had held that speedy justice was a fundamental right flowing from Article 21 of the Constitution. It was held that a right accrued in favour of the accused to apply for bail in a case where there was delay in the disposal of the trial and appeals in criminal cases. It was further held that if an appeal was not disposed of within a period of 5 years for no fault of the appellant, such convicts may be released on bail on conditions as may be deemed fit and proper by the Court. In computing the period of 5 years the delay for any period, which is requisite in preparation of the record and the delay attributable to the convict or his counsel can be deducted. It was, further clarified that there may be cases where even after the lapse of 5 years the convicts may, under the special circumstances of the case, be held not entitled to bail pending the appeals filed by them.

Noticing that the appeal was preferred in the year 2018 and therefore, 5 years period had not been completed and even otherwise assuming the said period was over, the Bench said that even then it could not have mechanically granted bail without considering whether the delay in the disposal of the appeal was attributable to the appellant. Considerations as mentioned in the case of Akhtari Bi, for refusal of bail beyond 5 years also indicate that grant of bail at the expiry of five years pendency did not follow as a matter of routine. The nature, gravity and seriousness of the offence would also have to be seen. Hence, the Bench held that since five years had not elapsed from the date of the filing of the present appeal and the matter was already listed in the final hearing column, no ground was made out for suspending the sentence and granting bail in the present case.

[Raghubir Singh v. UT of J&K, 2021 SCC OnLine J&K 375, decided on 28-04-2021]

Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court:

Counsel for the Applicant: Adv. Anil Gupta

Counsel for UT of J&K: AAG Aseem Sawhney

Case BriefsHigh Courts

Madhya Pradesh High Court: Atul Sreedharan, J., allowed a bail application of the applicant who was charged for offences under sections 420,467,468,471,472,474 read with section 120B of Penal Code, 1860. Investigating agency in the case was the Economic Offences Wing, Bhopal (EOW).

The complainant along with others had registered the FIR against the applicant and other co-accused persons. The property in question was a piece of land admeasuring 93.37 acres, the owner died leaving behind seven legal heirs. In the FIR it was alleged that t Mohammad Sharif had executed the power of attorney dated 17-01-1989 without the knowledge of the 6 legal heirs and altered the remaining paragraphs of the power of attorney and thereby committed forgery. It was also alleged that Mohammad Sharif, in connivance with other accused persons, executed various sale deeds in favour of his family members and friends one of them being the applicant and she was sought to be arrested that day for this alleged offence that was committed thirty-one years ago.

Observation and Analysis:

Case after case this court has observed that the District Judiciary is extremely tight-fisted when it comes to granting bail. Applications are routinely dismissed on cyclostyled grounds that the offence alleged is serious or that the investigation is still in progress or that the accused may influence the witnesses.

The Court shared figures with regard to pendency of bail applications before the three benches of the High Court and the number of Criminal Appeals that have been withdrawn by the appellants (still undergoing their sentence and who have not got the benefit of suspension of sentence), number of criminal appeals withdrawn from the High Court in the year 2020. The Court pointed out that huge burden of bail matters that has been shifted to the High Court, but the District Judiciary can hardly be held responsible because of professional hardships they may have to face, if they indeed start deciding bail applications applying the principle of “Bail and not Jail”.

The Court drew the attention of District Judiciary to the overcrowding of jails in the State. The Court discussed the case of Joginder Kumar v. State of U.P., (1994) 4 SCC 260 where the Supreme Court had extensively discussed the power of the police to affect an arrest. The Court further in full detail discussed the recent judgment of the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 where the Court had scathingly indicted the police for still bearing a colonial mindset and disdain for the liberty of the citizen.

The Court passed certain directions in order to ensure that the directions passed by the Supreme Court in Arnesh Kumar’s case were scrupulously implemented and followed by the police and the Judicial Magistrates in Madhya Pradesh:

 Directions to the Police

  1. where for an offence, the maximum imprisonment provided is up to 7 years, the accused shall not be arrested by the police as an ordinary course of action. Unless it is a special statute mandating such an arrest.
  2. Before effecting an arrest in such a case, the police would have to record its reasons that the arrest was essential to prevent such person from committing any further offence, or for a proper investigation of the case, or to prevent the accused from causing the disappearance of evidence or on the basis of credible apprehension that the accused would tamper with evidence or prevent a witness from disclosing such facts to the court or to the police which thereby necessitates the arrest of the accused.
  3. The State Police is directed to format and prepare a check list of pre-conditions fulfilled by the police under section 41(1)(b)(ii) of the Cr.P.C, while arresting an accused for offences bearing a maximum punishment up to 7 years. It is mandatory to supply a copy of the check list along with the remand application, to the Magistrate authorised to further remand the accused to police or judicial custody.
  4. Where decision is taken not to arrest the accused, the police shall forward an intimation to the Magistrate within two weeks of the registration of the FIR. This period may be extended by the Superintendent of Police of the district concerned with reasons to be recorded in writing.
  5. Where interrogation of the accused is required, notice in terms of section 41A Cr.P.C or s. 160 Cr.P.C be served on the accused within two weeks from the date of registration of the FIR which may be extended by the Superintendent of Police of the district concerned for reasons to be recorded in writing.
  6. Where the police does not arrest the accused and upon notice u/s. 41A or 160 Cr.P.C, the accused appears before the police and assists the police in the course of investigation, in such a situation, the police are not to arrest the accused unless, there exists compelling reasons which must be recorded, as given in paragraph 31.2.
  7. If the police does not perform as required of them as hereinabove, it would constitute contempt of the order passed by this court in addition to such other action, which may be taken against the erring officer on the administrative side.

Directions to the Judicial Magistrates:

  1. The Magistrate, while exercising powers of remand, shall ascertain if the arrest effected by the police satisfies the requirements of section 41 of the CRPC as provided in paragraph 11.2 of Arnesh Kumar’s case (see paragraph 17 supra).
  2. The Magistrate shall ascertain the availability of the check list as ordered by the Supreme Court in paragraph 11.3 of Arnesh Kumar’s case.
  3. If there is non-compliance of paragraph 11.2 and/or 11.3 of Arnesh Kumar’s case, the Magistrate shall not authorise the further detention of the accused and shall release forthwith as the arrest itself is unlawful and therefore, his detention would also be rendered unlawful on account of the police not having fulfilled the requirements of section 41 of CRPC.
  4. It is mandatory for the Magistrate authorising detention to record his independent satisfaction and also ensure in his order of remand that his satisfaction for further remand of the accused stands satisfied in compliance of paragraph 11.4 of Arnesh Kumar’s judgement.
  5. The Magistrate shall also satisfy himself whether specific reasons have been recorded for the arrest of the accused and whether those reasons are relevant, raising a reasonable conclusion that one of the conditions for further detention of the accused as an under trial is satisfied.
  6. Failure on the part of the Magistrate to perform as directed hereinabove, my see the initiation of proceedings against such Magistrate on the administrative side.

While considering an application for bail, the following may be kept in mind;

  1. Whether, granting bail to the under-trial would result in him attempting to overawe and influence the witness or influence the course of investigation, either by threat of dire consequences or by monetary inducement?
  2. Whether, the probability of the under-trial, upon his release, committing another crime while on bail, would be germane while considering grant of bail to recidivists or repeat offenders?
  3. Whether, there is a probability upon the release of the accused on bail that he would fall victim of any vengeful action by the Complainant?
  4. Whether, the release of the accused on bail would raise a reasonable apprehension of breach of peace, and social or civil unrest, on account of the nature of the offence alleged against him?
  5. Whether, the accused would destroy the evidence yet to be collected during investigation, upon his release on bail?
  6. Whether, the overwhelming nature of prima facie evidence against the accused is such that he may be tempted to abscond and evade the process of justice all together if he is enlarged on bail?

The Court allowed the bail application and requested the office to circulate the directions to all the districts and disseminate to the lowest functionary, the directions given by this Court.

[Zarina Begum v. State of M.P., 2021 SCC OnLine MP 961, decided on 13-05-2021]

Suchita Shukla, Editorial Assistant has put this report together 

For the applicant: Mr Sankalp Kochar and Mr Aman Dawra

For the respondent: Mr A. Rajeshwar Rao