Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: While dealing with an issue on joint proceedings, Vinod S. Bhardwaj, J., held that a proceeding where there is ‘Juvenile in conflict with law’ with an adult the proceedings cannot be done jointly.

The petition was filed under Section 482 Code of Criminal Procedure, 1973 (‘CrPC’) seeking quashing of order, passed by Magistrate, vide which the petitioner was declared as proclaimed offender. The bench observed that in terms of Juvenile Justice (Care and Protection of Children) Act, 2000 (‘JJ Act’) order can only be passed by the Juvenile Justice Board (‘JJ Board’) and not by the Magistrate.

Facts:

The FIR was registered under Sections 323, 325, 506 of Penal Code, 1860 alleging that the petitioner was one of the Polling Agent at the time Panchayat Elections where a fight occurred between him and the complainant which was however settled by the respectable persons of both the sides. But the same day, while the complainant was present in his house, 20-25 people came on various vehicles carrying weapons and caused injuries. The petitioner was allegedly armed with a kirpan and is alleged to have participated in the commission of the offence along with other co- accused.

Arguments:

The counsel for the petitioner pointed out that this incident took place on 19-07-2013 and the date of birth of the petitioner is 19-02-1998 which was confirmed through his passport. Hence, it was contended that as the petitioner was less than 15 years of age on the date of alleged incident, he has been falsely implicated. On investigation, the petitioner was found innocent and was not charged by the Investigating Agency.

Still, the non- bailable warrant was issued against the petitioner on 13-10-2018 and was received back on 25-10-2018 furnishing that he was not found at his address. It was contended that the proclamation of the petitioner was affixed on 15-12-2018 adjourning the case until 18-01-2019. As the mandatory period of 30 days came to an end and then the petitioner was declared as proclaimed offender.

Issue:

Whether any joint proceedings can be carried out where a Juvenile and adult are accused of an offence?

Observation and Analysis:

The Court noted that as far as the order of proclamation is concerned, the mandatory period of 30 days is prescribed under Section 82 CrPC had not lapsed.

The Court observed that the factual aspect is not in dispute that the publication of the proclamation was affected on 15-12-2018 and the mandatory period of 30 days had not elapsed on 21-12-2018 and the case was adjourned solely for the said reason to 18-01-2019 when the order was issued.

It was observed by the Court as the offence in question was committed in 2013, the provisions of the JJ Act, 2000 as amended were applicable and the petitioner, who was less than 15 years of age on the date of the incident, would fall under the definition of ‘Juvenile in conflict with law’.

It was also observed that there can be no joint proceedings of a juvenile and other offenders as per Sections 2(k), 2(l), 2(p), 15 and 18 of the JJ Act, 2000. Therefore, only the JJ Board could pass any orders under Chapter II of the JJ Act, 2000. Accordingly, the Court held that the order passed by the Magistrate declaring the petitioner as the proclaimed offender was without jurisdiction.

Observing the above stated reasons, the Court allowed the petition and set aside the impugned order vide which the petitioner was declared as proclaimed offender.

[Sadhu Singh v. State of Punjab, 2022 SCC OnLine P&H 1784, decided on 06-07-2022]


Advocates who appeared in this case :

Mr. S.S. Rangi, Advocate, Counsel for the Petitioner;

Mr. Amarjit Kaur Khurana, DAG, Punjab, Counsel for the Respondents;

Mr. Ramanpreet Singh, Advocate.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: M Nagaprasanna, J., dismissed the petition and refused to grant prayer as the case is at a pre matured stage and is not the right time to post the matter for examination.

The facts of the case are such that the respondent-wife registered a complaint on 7-12-2020 alleging offences punishable under Sections 498A, 504 read with 34 of IPC and preferred application seeking maintenance from the hands of the husband invoking Section 125 of the CrPC. The petitioner thus challenged the entertaining of the proceedings in the case registered by the respondent-wife.

Counsel for petitioner Mr Shivanna submitted that wife on her own consent or with the consent of the husband moved out of the matrimonial house and therefore, the husband –petitioner is not liable to pay any maintenance.

Counsel for respondent Mr Umesh BN submitted incidents of unbearable harassment and ill-treatment from both by the husband and mother- in- law has resulted in her going away from the matrimonial house. This can by no stretch mean moving away of the wife by mutual consent for the petitioner to contend that proceedings were not maintainable.

The Court reiterates what the Trial Court observed that the proviso to Section 125 CrPC provides discretion to court to order for interim maintenance during the pendency of proceedings and at this pre matured stage court feels it is not just to post the matter for examination. Further granting or non granting of interim maintenance is not punishing any litigant. Prima-facie at this juncture petition shows that petitioner and respondent are not living together since two year and petitioner is living in her maternal house. Hence, the application filed by the respondent under Sections 125 and 126 of CrPC is concerned it will be considered at the time of hearing on main petition.

Hence, the application filed by the respondent under Sections 125 and 126 of CrPC is kept in abeyance as examination of the parties is not at all necessary for deciding interim application is maintenance.

The Court thus held “no grounds to interfere at this juncture, the petition stands dismissed.” [Sathish v. Ambika, Criminal Petition No. 474 of 2022, decided on 12-04-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J., while discussing the scope of Section 311 of the Criminal Procedure Code, 1973 with regard to recalling and cross-examining the witness expressed that,

It is the duty of every Court to ensure that fair and proper opportunities are granted to the accused for just decision of the case.

A petition was filed under Section 482 of the Criminal Procedure Code on behalf of the petitioner seeking setting aside the orders of the lower court whereby the opportunity of the petitioner to cross-examine the witness (PW-1) was closed and an application filed under Section 311 CrPC seeking recall of the said witness was dismissed.

Scope of Section 311 CrPC

 Supreme Court considered the scope of Section 311 CrPC in P. Sanjeeva Rao v. State of Andhra Pradesh, (2012) 7 SCC 56.

Further, in the decision of Natasha Singh v. CBI, (2013) 5 SCC 741, while referring to its earlier decisions in Mir Mohd. Omar v. State of W.B., (1989) 4 SCC 436, Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271, Rajeswar Parasad Misra v. State of W.B., (1966) 1 SCR 178, Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110, P. Sanjeeva Rao v. State of Andhra Pradesh, (2012) 7 SCC 56 and T. Nagappa v. Y.R. Muralidhar, (2008) 5 SCC 633, Supreme Court held as under:

  1. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at “any stage” of “any enquiry”, or “trial”, or “any other proceedings” under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.

xxx xxx xxx

  1. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as “any court”, “at any stage”, or “or any enquiry, trial or other proceedings”, “any person” and “any such person” clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.”

 In the instant case, petitioner had initially sought to cross-examine both the parents of the deceased on one day, however, the prosecution subsequently chose to drop the mother of the deceased from the array of the witnesses.

Petitioner had ample opportunity to cross-examine the witnesses, but he did not utilize the same.

Court cannot lose sight of the fact that a fair trial is the hallmark of criminal procedure. It entails not only the rights of the victims but also the interest of the accused.

High Court while observing the above added that, it is the duty of every Court to ensure that fair and proper opportunities are granted to the accused for just decision of the case.

Elaborating more on its observations, Court stated that, adducing of evidence by the accused in support of his defence is also a valuable right and allowing the same is in the interest of justice.

Considering the fact that the petitioner had been charged for the offence punishable under Section 304B IPC and the witness was the father of the deceased, High Court deemed it apposite to grant one opportunity to the petitioner to cross-examine the witness, subject to a cost of Rs 5,000 to be deposited with Delhi State Legal Services Authority.

The matter was fixed before the trial court for 25-2-2022 and the investigating officer shall take appropriate steps to summon the witness and the matter shall be listed before the Trial Court on 14-2-2022.

Further, the Bench added that in case the petitioner does not cross-examine the witness on the date fixed and seeks an adjournment, his right to cross-examine shall stand closed.

In view of the above petition was disposed of.[Krishan Kumar v. State (GNCT) of Delhi, 2022 SCC OnLine Del 215, decided on 21-1-2022]


Advocates before the Court:

For the petitioner: Inderpal Kokhar, Advocate

For the respondent: Hirein Sharma, APP for State

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Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ, explaining the principles governing the inherent powers of the High Court under Section 482 CrPC, said that while the inherent power of the High Court has a wide ambit and plenitude it has to be exercised to secure the ends of justice or to prevent an abuse of the process of any court.

The Court summarised the elaborate principles laid down by the Supreme Court in various cases. Below is the summary of the principles:

  • The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. Also, the power to quash under Section 482 is attracted even if the offence is non-compoundable.
  • In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.
  • As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned.
  • Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice.
  • Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.

The Court, however, said that the decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated. [Parbatbhai Aahir v. State of Gujarat, 2017 SCC OnLine SC 1189, decided on 04.10.2017]