Case BriefsSupreme Court

Supreme Court: The bench of MR Shah and bela M. Trivedi, JJ assembled on Saturday to hear the appeal against the Bombay High Court’s verdict discharging former Delhi University Professor GN Saibaba, along with 5 others, who was convicted by Trial Court under Sections 13, 18, 20, 38 and 39 of Unlawful Activities (Prevention) Act, 1967 read with Section 120-B of the IPC. The Court has suspended the Bombay High Court judgment till further order.

Bombay High Court’s order

The accused was discharged by the High Court on the ground that, at the time of taking cognizance and/or framing the charge, there was no sanction to prosecute him at all.

State’s Submissions

Looking into the seriousness and gravity of the offences, a detailed scrutiny is required as the High Court has not at all dealt with and/or considered anything on merits.

Further, the application filed by the accused in question to suspend the sentence under Section 389 Cr.P.C. was specifically rejected by the High Court in the year 2020 including on the medical ground.

Accused’s submissions

The accused is 55 years old; he was a professor in the University; he has a family staying in Delhi; his medical condition is such that he is required to be released on bail; that he is on wheel-chair.

On 04.04.2016, the Supreme Court had specifically observed that a case is made out for bail considering his medical condition. Hence, he may be released on bail on any condition that may be imposed by the Court looking to his medical condition.

Supreme Court’s order

The Court thought that this was a fit case to exercise powers under Section 390 Cr.P.C. and to suspend the impugned judgment and order passed by the High Court for the following reasons:

  1. The accused are convicted for the offences punishable under Sections 13, 18, 20, 38 and 39 of Unlawful Activities (Prevention) Act, 1967 read with Section 120-B of the IPC by the trial Court, after detailed analysis of the evidences on record and on re-appreciation of the entire evidences on record;
  2. The offences for which the accused were convicted by the trial Court are very serious and if ultimately they are tested by the High Court on merits and on merits the State succeeds and the judgment and order passed by the learned trial Court is upheld, the offences are very serious against the sovereignty and integrity of the country;
  3. The High Court has not at all dealt with and considered anything on the merits of the judgment and order passed by the trial Court;
  4. The High Court has discharged the accused Nos. 1-5 only on the ground that the sanction was invalid, mainly on the ground that some material which was placed before the appropriate authority at the time of sanction/review were placed were available on the very day and that no reasons are given while granting sanction. The same is required to be considered in detail considering provision of Section 465 Cr.P.C. So far as GN Saibaba is concerned, he has been discharged on the ground that there was no sanction the day on which the learned trial Court took cognizance and even famed the charge. However, the same question is required to be considered in detail.

On the question of releasing the accused on bail on medical ground, the Supreme Court took note of Bombay High Court’s order dated 28.07.2020 wherein the bail plea was dismissed/rejected by a detailed order as except for narrating the ailments said to be suffered by him, no further details were given. It was also noted that appropriate medical aid was being provided to him.

Hence, the Supreme Court was of the firm opinion that the impugned judgment and order passed by the High Court was required to be suspended.

[State of Maharashtra v. Mahesh Kariman Tirki, 2022 SCC OnLine SC 1430, order dated 15.10.2022]

For State: SG Tushar Mehta,

For GN Saibaba: Senior Advocate R. Basant

Case BriefsSupreme Court

Supreme Court: Explaining the importance of the role of Trails Courts, especially, with respect to framing of charges, the bench of AM Khanwilkar, Abhay S. Oka and JB Pardiwala*, JJ has held that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law.

Factual Background

Allegedly, the accused persons formed an unlawful assembly and laid an assault on the appellant and his family members after trespassing into his residential property and started damaging the tin fence. When the appellant tried to restrain the accused persons from causing any further damage, they all started assaulting the appellant by giving fisticuffs. One even hit the appellant with a wooden log. When the wife and the daughter-in-law of the appellant came to rescue him, the accused persons caught hold of them and beat them up. Both the women were then dragged as a result the clothes of the the wife of the appellant got torn thereby outraging her modesty. The wife, due to the injuries suffered by her, had to be shifted to a hospital where she was soon declared dead. The cause of death of the deceased as assigned in the post mortem was “cardio respiratory failure”.

Trial Court and High Court orders

The trial court thought fit to discharge the accused persons of the offence of murder punishable under Section 302 of the IPC and proceeded to frame charge against the accused persons for the offence of culpable homicide punishable under Section 304 of the IPC. The High Court of Jammu and Kashmir also thought fit to affirm the order passed by the trial court discharging the accused persons of the offence of murder.

Supreme Court’s analysis and decision

The Court observed that the trial court discharged the accused persons from the offence of murder and proceeded to frame charge for the offence of culpable homicide under Section 304 of the IPC by only taking into consideration the medical evidence on record. The trial court as well as the High Court got persuaded by the fact that the cause of death of the deceased as assigned in the postmortem report being the “cardio respiratory failure”, the same cannot be said to be having any nexus with the alleged assault that was laid on the deceased.

Holding that such approach of the trial court is not correct and cannot be countenanced in law, the Court explained that the post mortem report, by itself, does not constitute substantive evidence.

“Whether the “cardio respiratory failure” had any nexus with the incident in question would have to be determined on the basis of the oral evidence of the eye witnesses as well as the medical officer concerned i.e. the expert witness who may be examined by the Prosecution as one of its witnesses.”

Explaining why the postmortem report of the doctor is not substantive evidence, the Court observed that it is the previous statement based on doctor’s examination of the dead body and the doctor’s statement in court is alone the substantive evidence.

“The postmortem report can be used only to corroborate his statement under Section 157, or to refresh   his memory under Section 159, or to contradict his statement in the witness-box under Section 145 of the Evidence Act, 1872.”

Observing that the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination, the Court said that once the expert’s opinion is accepted by the Court, it is not the opinion of the medical officer but of the Court.

Keeping this position of law in mind, the Court held that in the case at hand, the prosecution should have been given opportunity to prove all the relevant facts including the post mortem report through the medical officer concerned by leading oral evidence and thereby seek the opinion of the expert. It was too early on the part of the trial court as well as the High Court to arrive at the conclusion that since no serious injuries were noted in the postmortem report, the death of the deceased on account of “cardio respiratory failure” cannot be said to be having any nexus with the incident in question.

Further, whether the case falls under Section 302 or 304 Part II, IPC could have been decided by the trial court only after the evaluation of the entire oral evidence that may be led by the prosecution as well as by the defence, if any, comes on record.

“Ultimately, upon appreciation of the entire evidence on record at the end of the trial, the trial court may take one view or the other i.e. whether it is a case of murder or case of culpable homicide. But at the stage of framing of the charge, the trial court could not have reached to such a conclusion merely relying upon the port mortem report on record. The High Court also overlooked such fundamental infirmity in the order passed by the trial court and proceeded to affirm the same.”

Explaining the settled position of law that in a criminal trial, the prosecution can lead evidence only in accordance with the charge framed by the trial court, the Court said that once the trial court decides to discharge an accused person from the offence punishable under Section 302 of the IPC and proceeds to frame the lesser charge for the offence punishable under Section 304 Part II of the IPC, the prosecution will be thereafter compelled to proceed as if it has now to establish only the case of culpable homicide and not murder. On the other hand, even if the trial court proceeds to frame charge under Section 302 IPC in accordance with the case put up by the prosecution still it would be open for the accused to persuade the Court at the end of the trial that the case falls only within the ambit of culpable homicide punishable under Section 304 of IPC.

The Court was, hence, of the opinion that in the case at hand it would be more prudent to permit the prosecution to lead appropriate evidence whatever it is worth in accordance with its original case as put up in the chargesheet.

[Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 SCC OnLine SC 913, decided on 26.07.2022]

*Judgment by: Justice JB Pardiwala

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J., upheld the order of the trial court discharging the respondent who was accused of committing offences punishable under Sections 304 and 323 IPC.

An FIR was lodged alleging that there was a dispute between families of the complainant and the accused. Consequent to an altercation, his father was assaulted by the accused persons. It was alleged that accused persons knew that his father was suffering from a heart ailment and had undergone angioplasty. Knowing the same, the accused persons assaulted the complainant’s father which resulted in his death. Immediately after the incident, the complainant along with his family members gave a vivid description and named all persons alleged to have been involved and their names were mentioned in the FIR. It is pertinent to note that the name of the present respondent was not mentioned in the FIR. It was mentioned in a supplementary statement given by the complainant under Section 161 CrPC after a gap of 5 months. Noticing that there was a substantial improvement in complainant’s case, the trial court discharged the respondent as stated above. Aggrieved thereby, the State filed the present revision petition.

Hirein Sharma, Additional Public Prosecutor appeared for the petitioner State. While the respondent accused was represented by Neeraj Anand, Advocate.

The High Court found no merit in the petition. It observed, “A statement which is recorded immediately after the incident has to be given greater credence as compared to a statement which is recorded after five months. The trial court has rightly observed in the impugned order that the addition of the name of the respondent appears to be an afterthought.” It was also noted as undisputed that during the interregnum of 5 months between the date of the incident and the supplementary statement, no incriminating material was found against the respondent. In the totality of the facts, the Court found no infirmity in trial court’s order discharging the respondent. The petition was thus dismissed. [State (NCT of Delhi) v. Nitin, 2019 SCC OnLine Del 7239, decided on 21-02-2019]