Case BriefsHigh Courts

Delhi High Court: While deciding the instant matter which revolved around the interplay and interpretation of Sections 306 and 308 of the CrPC, C. Hari Shankar, J., observed that pardoning an accomplice under Section 306 (1) CrPC, and his conversion into an approver, must mandatorily be followed by his examination as a witness under Section 306 (4) of CrPC. However, during the course of such statement, if the Public Prosecutor is able to discern that the approver is not abiding by the conditions, subject to which pardon was tendered to him, i.e. making a full and true disclosure of all facts within his knowledge; or the approver is concealing something essential; or is tendering false evidence, then the Public Prosecutor would so certify under Section 308 (1) of CrPC.

As per the facts, a case was registered against the respondent under various provisions of IPC and Prevention of Money Laundering Act, 2002. The respondent filed application under Section 306 of CrPC, for grant of pardon, which was allowed by the Special Judge, CBI. Later on the petitioner (Directorate of Enforcement) moved an application for revocation of the pardon. However, the Special Judge, in his Order dated 05-03-2020, disposed off the application moved by the petitioner on the ground that the application is premature and there is no merit in the interpretation of Sections 306 and 308 implying that pardon granted to any person can be revoked at any stage, even before the approver is examined before Session Court/Trial Court. The ED therefore challenged the impugned Order in the instant case. Appearing on behalf of the petitioners, Aman Lekhi, ASG, contended that the Special Judge has misconstrued the scheme of Sections 306 and 308 of CrPC and has erred fundamentally in holding that the statement of the approver is required to be recorded, before deciding on the issue of revocation of the pardon extended to him. R.K. Handoo on behalf of the respondent submitted that at the first instance, the application of the petitioner, before the learned Special Judge, was itself not maintainable, as the CrPC does not contemplate revocation of pardon tendered to an accused; pardon, once granted cannot be revoked, cancelled or withdrawn.

Perusing the rival contentions and referring to various Supreme Court decisions, especially State v. Jagjit Singh, 1989 Supp (2) SCC 770 and Bipin Behari Sarkar v. State of West Bengal, AIR 1959 SC 13, the Court observed that examination of the approver, as a witness under Section 306 (4) is intended, inter alia to ascertain whether the approver is abiding by the conditions of his pardon, or is an untrustworthy witness. It was further observed that a holistic and conjoint reading of Sections 306 and 308 reveals an “inexorable sequence”, in which the most mandatory step is the examination, of the approver, as a witness, under Section 306 (4).

The Court therefore observed that ex facie, the view adopted by the Special Judge in the impugned order is in sync with the law laid down in multiple Supreme Court decisions and as well as the statutory scheme of Sections 306 and 308 of the CrPC, and does not merit any interference. Thus endorsing the view expressed by the Special Judge, the Bench therefore decided to dismiss the instant petition. [Directorate of Enforcement v. Rajiv Saxena, 2020 SCC OnLine Del 719 , decided on 08-06-2020]

Case BriefsCOVID 19High Courts

Karnataka High Court: While deciding the issue of conducting remand proceedings under Section 167 of Criminal Procedure Code, 1973 by use of Video Conferencing, the Division Bench of Abhay Sreenivas Oka, C.J., and S. Vishwajith Shetty, J., held that in light of the exceptional circumstances created by the spread of Covid-19, and notwithstanding the clear provision of law under Section 167 (2) Proviso (b) of CrPC, first remand proceedings can be permitted through video conferencing and the same shall be in accordance with the directions issued by the Supreme Court in In re, Guidelines for court functioning through video conferencing during Covid-19 pandemic, 2020 SCC OnLine SC 355.

The issue arose due to some recent instances where immediately after the remand proceedings, either the accused or the police personnel were tested positive for Covid-19. Assisting the Court, counsel C.V. Nagesh, highlighted the concerned provisions which deal with the issue at hand; mainly Article 22(2) of the Constitution and Sections 57 and 167 of the CrPC. It was submitted that both Article 22(2) and Section 167 of CrPC require that every person who is arrested and detained in police custody shall be produced before the Magistrate within 24 hours of such arrest. Additionally Section 167 (2) Proviso (b) of CrPC, enumerates various cases where an accused can be produced before a Magistrate through the medium of electronic video linkage. It was further submitted that the principle behind producing the accused before a Magistrate is to give the accused a chance to complain about the ill-treatment meted out to them by the police; however if an accused is produced via video- conferencing, the presence of the police around the accused at the police station may prevent them from making a grievance regarding any ill-treatment.

Perusing the legal provisions and the submissions made by the amicus curiae, the Bench observed that Section 167 (2) Proviso (b) of CrPC, lays down several instances wherein electronic video linkage can be used; however, if any contingency to use video linkage is not covered under Section 167, then such instance may not be lawful. The Court also perused the Guidelines issued by the Supreme Court in In re, Guidelines for court functioning through video conferencing during Covid-19 pandemic and Rule 11.1 of Karnataka High Court Rules for Video Conferencing Hearing framed recently in the light of Covid-19 pandemic. The former clearly instructs the Courts at all levels to encourage social distancing to prevent the spread of coronavirus; and the latter states that in cases of exceptional circumstances police custody remand or judicial custody remand, at the first instance, can be granted through Video Conferencing Hearing. The Court observed that under normal circumstances, Rule 11.1 runs contrary to the provisions of Section 167 (2) Proviso (b) of CrPC and Section 167 would prevail over the Rules to that extent; however, the present scenario, wherein the entire country is battling a deadly virus, comes within the category of ‘exceptional circumstances’. Therefore in the backdrop of the Supreme Court Guidelines in the aforementioned case, the Court held that, “If a Magistrate is of the considered view that there is a serious apprehension that the accused may be infected with COVID 19, therefore, for the purpose of following the best health practice, physical production of the accused for the first time before the Court should be avoided, he can for the reasons specifically assigned, authorize the production of accused through video conferencing”. [High Court of Karnataka v. State of Karnataka, 2020 SCC OnLine Kar 556 , decided on 15-06-2020]

Case BriefsSupreme Court

Supreme Court: A Division Bench comprising of AM Khanwilkar and Dinesh Maheshwari, JJ. has held that the contents of a memory card or a pen drive in relation to a crime amount to a ‘document’ and not a ‘material object’ and the accused would be entitled to a copy of the same to prepare his defence under Section 207 of the Code of Criminal Procedure, 1973. However, if the electronic evidence pertained to a rape case then the trial court, keeping in mind the sensitivity of the contents, could deny a copy but may allow the inspection to the accused and his/her lawyer or expert for presenting effective defence during the trial.

The Court was deciding upon a case relating to Kerala actor’s plea for handing over a copy of the visuals of the alleged sexual crime committed on an actress in February 2017. The Court observed that if the prosecution was to rely on the fact of recovery of a memory card, then it could be treated as a material object. However, if the contents of the memory card are sought to be relied upon by the prosecution, then the same would be documentary evidence.

The judgment referred to Section 3 of the Indian Evidence Act, 1872 which includes electronic records in the definition of ‘documentary evidence’. The Court observed that tape records of speeches, and compact discs containing visuals, etc have been held to be “documents” by precedents. Also, Section 2(1)(t) of the Information Technology Act, 2000 [IT Act, 2000] defined “electronic record” to mean ‘data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer generated microfiche’. In this backdrop, the Court held that the footage/clipping contained in such a memory card/pen drive, being an electronic record as envisaged by Section 2(1)(t) of the IT Act, 2000, is a “document” and cannot be regarded as a “material object”. [P. Gopalkrishnan v. State of Kerala, 2019 SCC OnLine SC 1532, decided on 29-11-2019]

Case BriefsSupreme Court

Supreme Court: Dealing with the question relating to the extent to which a victim’s counsel can participate in the prosecution of a case, the bench of MM Shantanagoudar and Deepak Gupta, JJ has held that the victim’s counsel is subject to the directions of the Public Prosecutor and that the victim’s counsel should ordinarily not be given the right to make oral arguments or examine and cross­examine witnesses.

The Court held

“to ensure that the right of appeal accorded to a victim under the proviso to Section 372 of the Cr.P.C. is not rendered meaningless due to the errors of the Public Prosecutor at the trial stage itself, we find that some significant role should be given to the victim’s counsel while assisting the prosecution.”

The Court, however, was of the opinion that the balance inherent in the scheme of the CrPC should not be tampered with, and the prime role accorded to the Public Prosecutor should not be diluted. A harmonious reading should be given to Section 24(8) and 301(2) to give them full effect. Section 301(2) makes the pleader instructed by a private person subject to the directions of the Public Prosecutor or the Assistant Public Prosecutor.

Noticing that the introduction of the proviso to Section 24(8) CrPC acts as a safety valve, inasmuch as the victim’s counsel can make up for any oversights or deficiencies in the prosecution case, the Court explained that if the victim’s counsel feels that a certain aspect has gone unaddressed in the examination of the witnesses or the arguments advanced by the Public Prosecutor, he may route any questions or points through the Public Prosecutor himself. The Court, however, added,

“even if there is a situation where the Public Prosecutor fails to highlight some issue of importance despite it having been suggested by the victim’s counsel, the victim’s counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first.”

[Rekha Muraka v. State of West Bengal, 2019 SCC OnLine SC 1495, decided on 20.11.2019]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Sanjiv Khanna, JJ, has held,

“until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India.”

The Court was dealing with the question as to whether the Magistrate has power under CrPC to pass an order permitting taking of voice sample in the aid of criminal investigation. Noticing that the CrPC is silent on the said issue, the Court said that the law on the point should emanate from the Legislature and not from the Court for the following reasons,

  • the compulsion to give voice sample does in some way involve an invasion of the rights of the individual and to bring it within the ambit of the existing law would require more than 17 reasonable bending and stretching of the principles of interpretation and
  • if the legislature, even while making amendments in the Criminal Procedure Code (Act No.25 of 2005), is oblivious and despite express reminders chooses not to include voice sample either in the newly introduced explanation to Section 53 or in Sections 53A and 311A of CR.P.C., then it may even be contended that in the larger scheme of things the legislature is able to see something which perhaps the Court is missing.

The Court, however, said,

“what may appear to be legislative inaction to fill in the gaps in the Statute could be on account of justified legislative concern and exercise of care and caution. However, when a yawning gap in the Statute, in the considered view of the Court, calls for temporary patchwork of filling up to make the Statute effective and workable and to sub-serve societal interests a process of judicial interpretation would become inevitable.”

It said that the judicial function is not to legislate but in a situation where the call of justice and that too of a large number who are not parties to the lis before the Court, demands expression of an opinion on a silent aspect of the Statute, such void must be filled up not only on the principle of ejusdem generis but on the principle of imminent necessity with a call to the Legislature to act promptly in the matter. It, hence, conferred the power on the Judicial Magistrate to order a person to give a sample of his voice for the purpose of investigation of a crime.

[Ritesh Sinha v. State of Uttar Pradesh, 2019 SCC OnLine SC 956, decided on 02.08.2019]

Case BriefsHigh Courts

Meghalaya High Court: Mohammad Yaqoob Mir, CJ. sitting in a criminal petition seeking to quash a case against the petitioners (army men), declined to provide the protection under Section 197(2) CrPC.

It was alleged against the petitioners (accused persons) that one of them, Sep Kamal Gurung, took up a fight with traffic police constables while they were doing their duty. The said petitioner was drunk at that time. He was taken to the police station to be sent for medical examination. However, in the meanwhile, the other petitioners (both Major in the army), reached the police station along with a troop of Gorkha Regiment; ordered the troop to load their sophisticated weapons; and took Kamal Gurung with them by causing criminal intimidation of death or grievous hurt. Consequently, a case was filed against them under Sections 353, 186, 323, 506(b), 225, 109  read with Section 34 IPC. Judicial Magistrate of First Class took cognizance of the offences. In the present petition, it was submitted that the trial court was in error as cognizance was taken without previous sanction as required as required in terms of Section 197(2) CrPC.

The High Court noted that the said section requires the previous sanction for taking cognizance of any alleged offence by army personnel for any act done in discharge of official duty. The Court observed that for the said protection, it was of paramount importance that the act was done in discharge of official duty. On the facts of the case, the Court held that act of the petitioners, precisely noted hereinabove, by any stretch of the imagination, could not be said to be an act done in discharge of official duty. Therefore, the protection under Section 197(2) was not available to the petitioners. Accordingly, the petition was dismissed. [Vikrant Sharma v. State of Meghalaya,2018 SCC OnLine Megh 89, decided on 13-07-2018]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Ashwini Kumar Singh, J. dismissed an application filed under Section 482 CrPC against the order of Additional Sessions Judge whereby prosecution’s application under Section 311 CrPC was dismissed.

The applicant was the informant in a case registered under Section 302 IPC. During the trial, the Public Prosecutor filed an application under Section 311 submitting that the Investigating Officer and the doctor concerned were not examined, and their non-examination would cause prejudice to the prosecution’s case. However, such application was dismissed by the trial court. The present petition was filed against the said order.

The High Court perused all the material available on record and found that the trial court kept open the prosecution case for about three years, but the said witnesses did not turn up. The prosecution was not diligent in pursuing the trial. Therefore, the order challenged in the petition did not suffer any fault. Right to speedy trial is enshrined in Article 21 of the Constitution. This apart, the Court categorically observed that the petitioner had no locus in the matter. A private person may instruct the Public Prosecutor and may submit written arguments with the permission of the court after the evidence is closed. However, a private person, even if the informant, had no locus to pursue an application under Section 311 in the court below, or to challenge the order which may have been passed on an application filed by the prosecution under Section 311 CrPC. Accordingly, the petition was dismissed. [Sriram Singh v. State of Bihar, 2018 SCC OnLine Pat 1163, dated 06-07-2018]

Case BriefsHigh Courts

Patna High Court: The Division Bench comprising of Rakesh Kumar & Arvind Srivastava JJ., while setting aside the order of death sentence, held that the appellant was not provided with the appropriate legal aid which he was entitled to.

According to the brief facts of the case, the appellant was convicted under Section 302 of IPC for the offence of murder of two children. For the stated offence he was convicted by relying on the 5 witnesses out of the 16 mentioned witnesses. It has been stated that the cross-examination of all the witnesses could not be held due to appellant’s financial condition being poor and not being able to afford legal assistance in that regard.

The Hon’ble High Court, observes that the trial court should have taken steps for providing legal aid at the expense of the government as the case of appellant went weak due to the failure of cross-examination of all the witnesses and thereby  Section 304 of CrPC has also not been complied in that regard. The court also observed that the primary witnesses were not examined by the prosecution which compels it to set aside the decision of the trial court and requires the High Court to remit back the matter.

The trial court has also been directed to take up the matter twice a week without any unnecessary delay as it holds a grave issue of the murder of two children, only then a logical end to this case would be attained. [State of Bihar v. Ram Prit Mandal,2018 SCC OnLine Pat 1080, order decided on  04-04-2018]

 

Case BriefsHigh Courts

Manipur High Court: A criminal petition seeking to allow the petitioner to recall himself as defence witness for re-examination, was allowed by a Single Judge Bench comprising of Ramalingam Sudhakar, J.

The petitioner, a rifleman in Indian Reserve Battalion, was accused of a murder. During the trial, the petitioner was examined as Defence Witness 1. He was further cross-examined by the Additional Public Prosecutor. Thereafter, the petitioner moved an application for his re-examination stating that though he had given correct facts as to the incident; by oversight, certain relevant factors were not mentioned. He pleaded that the Court may exercise power under Section 311 CrPC to allow the petitioner to be recalled and re-examined as defence witness, otherwise great prejudice would be caused to him due to the improper conduct of examination-in-chief by his counsel. The trial court rejected the application of the accused, thus, the petitioner filed the instant petition.

In order to settle the issue, the High Court perused Section 311 to hold that power granted under the Section can be exercised by the Courts in a case where the petitioner seeks substantial justice to lay his defence at the time of trial so that he should not be convicted on certain errors committed by learned counsel in not properly examining him. The Court found that the petitioner maintained a particular stand during his examination as well as cross-examination. He sought to clarify the events which happened during the intervening night of the incident. The Court was of the opinion that by filing the application, the petitioner was not trying to fill up any lacuna or loopholes in his case. In such circumstances, the petition was allowed giving the benefit of Section 311 CrPC to the petitioner. [Angom Indrajit Singh v.  State of Manipur,2018 SCC OnLine Mani 58, decided on 05-06-2018]

Case BriefsHigh Courts

Bombay High Court: In a Writ Petition seeking a writ of Mandamus, the Division Bench comprising of S.J. Kathawalla and Bharti H. Dangre, JJ., decided that non-adherence to the provisions of Section 46(4) of the Criminal Procedure Code would absolutely amount to illegal arrest.

The petitioner was one of the accused in the most talked about case “PNB Scam”, it has been contended by the petitioner that she was called for an investigation in the said case by the respondent-CBI for which she duly cooperated with the investigation agency. Petitioner was arrested at about 8 p.m. after which she was produced before of the Special Judge. Petitioner claims that she had invited the attention of the Special Judge towards her case of illegal arrest wherein she pointed out that her arrest violated the ambit of Section 46(4) of the said Act, though the Special Judge ignored the fact of illegal arrest and proceeded by remanding the petitioner to the custody of the respondent-CBI for a period of 14 days.

Learned counsel for the petitioner had drawn the attention of the Court by giving due explanation of the violation of Section 46(4) of the Criminal Procedure Code in Chapter V that the arrest was absolutely illegal in terms that it has been clearly explained in Section 46 for “Arrest how made”. The said provision is salutary one which provides safeguard against the arrest of a woman after sunset and before sunrise and as per the learned counsel, the safeguards have to be strictly adhered to.

Therefore, the Hon’ble High Court on recording the contentions of the petitioner and noting the facts and circumstances of the case, briefed about the point that the precious guarantee of ‘Life and Liberty’ enshrined in Article 21 of the Constitution of India cannot be denied to a convict or accused on a trial and it is an obligation upon State to ensure that there is no infringement of the right of the citizen.

Further, the Court concluded by stating that any deviation from the prescribed procedure in the manner of arrest can therefore, be not countenanced and is liable to be declared as illegal. Allowing the writ petition , it was held that the officials who were responsible for the violation of the Section 46(4) of the Criminal Procedure Code, for arresting the accused after sunset, will be liable for disciplinary proceedings. [Kavita Manikikar v. CBI, 2018 SCC OnLine Bom 1095, dated 10-05-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A petition under Section 482 CrPC was filed by the petitioner  to conduct proper investigation in FIR registered by him in October, 2014 under Section 364/34 IPC registered at Police Station Malout, District Sri Muktsar Sahib. The petitioner also apprehended death threat from four police officials who are also the respondents in the case.

On hearing both the parties, Court examines the allegations by the petitioner on the respondents. The petitioner has alleged that in October, 2014, his son was kidnapped from Malout under the railway over bridge Malout by some police officials of Abohar while one official was in uniform and others were in civil clothes and accordingly, FIR was registered by the petitioner the very next day of kidnapping. However, later on, Abohar Police registered another FIR under Sections 399 and 402 IPC and Sections 25/54/59 of the Arms Act showing the arrest of petitioner’s son on 15.10.2014 at about 9.00 p.m. from a factory area in Abohar recording that they had received a secret information that five persons are making preparation to commit dacoity. Further, the offences under Sections 399 and 402 IPC were deleted and Amrik Singh was challaned only under Section 25 of the Arms Act and challan is since pending before Illaqa Magistrate for trial and the police also moved a cancellation report of FIR filed by the petitioner.

Conclusively, the Court observed that the allegations put by the petitioner were quite serious as he had alleged that son of the petitioner was falsely implicated after being kidnapped from Malout and Police Station Sadar Abohar registered the FIR for dacoity only after the registration of FIR by the petitioner under Sections 364/34 IPC registered at Police Station Malout regarding kidnapping of his son.

The Court noted the fact that the matter involved was regarding life and liberty of the petitioner and was thus, very serious. The Court concluded with its findings stating that that police officials have committed the crime, necessary departmental and criminal action shall be taken against them and police may also take further action in the FIR lodged by the petitioner and follow up action for quashing the FIR alleged to be falsely implicating the petitioner’s son. It ordered the authorities concerned  to conduct the inquiry and submit the report within 3 months. Accordingly, it allowed the petitioner’s appeal along with an additional order that the petitioner and his son would not be called to the police station without prior permission of the Court. [Balkar Singh v. State of Punjab, 2017 SCC OnLine P&H 1725, decided on 18th July, 2017]

Case BriefsHigh Courts

Punjab and Haryana High Court: The Court in this case dealt with a revision petition under S. 401 CrPC challenging the judgment of the trial court, Chandigarh convicting and sentencing him rigorous imprisonment for 2 years for substantive offences under Sections 420, 467, 468, 471 IPC.

Learned counsel for the petitioner argued that a few material witnesses were not examined in the case. The Court noted that the counsel for the revisionist-petitioner has raised various other arguments like material discrepancies in the statements of PWs, non-joining of independent witnesses etc. However, H. S. Madaan, J. mentioned clearly in the judgment that such type of contentions do not cut much ice and were not of much concern. The Court observed after hearing the arguments by the petitioner as well as on examining the records of the lower court that the trial court has by giving proper reasoning, has arrived at the conclusion that his non-examination does not make much difference, when the case is otherwise established on the file and it agreed to it.

The Court went on to explain the scope of revision petition before the High Court stating that revisional jurisdiction is somewhat limited in nature and while exercising the same it is to be seen whether the order passed is manifestly illegal or would result in gross miscarriage of justice and therefore, the instant case would not fall within four corners of S. 401 CrPC.

However, the Court considered that the petitioner was 65 years old and had already spent 8 months in jail and in lieu of this, directed that the petitioner be treated leniently. Also keeping in mind that there was no previous conviction against the petitioner, it held that the ends of justice would still be met if the sentence is reduced from two years to one-and-a-half years. [Rajinder Singh v. Union Territory, Chandigarh, 2017 SCC OnLine P&H 1717, decided on 18.07.2017]

Case BriefsSupreme Court

Supreme Court: Explaining the law on probation of offenders, the bench of Dipak Misra and Amitava Roy, JJ said that when the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the Courts. However, sometimes the legislation prescribes a minimum sentence but grants discretion and the courts, for reasons to be recorded in writing, may award a lower sentence or not award a sentence of imprisonment. Such discretion includes the discretion not to send the accused to prison.

The Court further explained that if the sentence can be reduced to nil, then the statute does not prescribe a minimum sentence. A provision that gives discretion to the court not to award minimum sentence cannot be equated with a provision which prescribes minimum sentence. The two provisions, therefore, are not identical and have different implications, which should be recognized and accepted for the Probation of Offender Act, 1958.

The Court said that the parliament has made it clear that only if the Court forms the opinion that it is expedient to release the convict on probation for the good conduct regard being had to the circumstances of the case and one of the circumstances which cannot be sidelined in forming the said opinion is “the nature of the offence”. Though the discretion has been vested in the court to decide when and how the court should form such opinion, yet the provision itself provides sufficient indication that releasing the convicted person on probation of good conduct must appear to the Court to be expedient. [Mohd. Hashim v. State of U.P., 2016 SCC OnLine SC 1440, decided on 28.11.2016]