Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., expressed:

“It is well settled that while exercising its jurisdiction under Section 397/401 IPC the revisional Court should not act like an appellate court.”

The present revision petition was filed under Section 397/401 of Criminal Procedure Code, 1973, directed against the Order of Additional Sessions Judge, wherein the accused was discharged from the charges under Sections 376, 328, 354A, 323, 506 and 509 of Penal Code, 1860.

In FIR, the prosecutrix stated that she had been working in two companies belonging to accused/respondent 1 since 6 months prior to the lodging of the complaint. Respondent told the prosecutrix that he had divorced his wife and was staying separately and that he needed a capable woman to handle his work.

Accused made the prosecutrix CEO and later partner in one of the said companies. Further, the prosecutrix added that all the work-related meetings and talks used to happen at the home of accused/respondent 1.

It was alleged that one day, the accused called the prosecutrix to his home and mixed some intoxicant in her cold drink because of which she went semi-conscious state and accused raped her four times. Accused/Respondent 1 told her that he liked her and hence wanted to marry her.

Adding to this, it was stated that respondent 1 started harassing the prosecutrix for salary and stopped paying her salary and remove her from her job. He even refused to pay her dues.

Later respondent 1 called the prosecutrix to his office and gave her one month’s salary and that too in two parts – half was paid in cash and the other half was by way of cheque which was issued in the wrong name. Accused asked her to come to Safdarjung Club where he would make another cheque with the correct name, but at the Club, he came with another accused/respondent 2 who used to work with respondent 1.

Accused threatened prosecutrix that he would viral the video of the prosecutrix if she persisted with her demand for money. Respondent 2 abused the prosecutrix in the parking, respondent 1 caught hold of her and tried to touch her inappropriately.

Additional Session Judge found that there is discrepancy even in the narration of facts by the prosecutrix regarding her visit to Safdarjung Club.

Further, it was held that despite this contradiction the factum of quarrel and prosecutrix leaving the parking of Safdarjung Club in haste to dodge off accused persons was disproved by the CCTV footage obtained by IO. Hence, the Judge found no case to be made out and the accused were discharged.

Analysis and Decision

In view of the above facts and circumstances, Bench firstly discussed the scope and ambit of Section 227 CrPC in a number of Judgments, such as:

Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4

State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568

Vijayan v. State of Kerala, (2010) 2 SCC 398

State of M.P. v. S.B. Johari, (2000) 2 SCC 57

Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135

The above-referred Judgments would show that while framing a charge the Court has power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made and after the analysis of material on record, it two view are possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified in discharging the accused in exercising its jurisdiction under Section 227 CrPC.

Court cannot hold a mini trial for discharging the accused.

Allegation was that the incident took place two-three days after the birthday of the accused/respondent 1, but it was noted that on those dates, the locations of the accused and the prosecutrix were always different. The tower locations of the respondent were that of Himachal Pradesh, Haryana and Punjab and after entering Delhi on 28-09-2015, his tower location throughout the night until next morning was in the area of Safdar Jung enclave, Delhi, whereas the locations of the prosecutrix were in the area of Qutab Minar Metro Station. Hence, both the accused and prosecutrix were never together at any time.

Therefore, in the present case, call detail records destroyed the prosecution case.

No material was found except for the prosecutrix statement to sufficiently bring out a case of rape.

High Court while exercising its jurisdiction under Section 397/401 did not find infirmity in the impugned order.

Even if a different conclusion is possible it is well settled that a revisional court does not substitute its conclusion to the one arrived at by the lower court unless it is perverse or contrary to law.

Hence, the petition was dismissed. [State (NCT of Delhi) v. Jiwan Kant Jain, 2021 SCC OnLine Del 1192, decided on 26-02-2021]


Advocates who appeared before the Court:

Petitioner: Avi Singh, Advocate

Respondent: Aditya Jain, Advocate

Case BriefsHigh Courts

Punjab and Haryana High Court: Harnaresh Singh Gill, J., rejected the bail application filed by the applicant-accused in connection with the FIR registered for offence punishable under Sections 22 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS).

The facts, in brevity, are that the intoxicant tablets were recovered from the car in which the applicant was sitting which led to the filing of the above stated FIR.

Counsel for the applicant, Manpreet Ghuman has contended that the recovery has been effectuated in the present case and the applicant has been languishing in police custody for the past seventeen months. Also, the challan has been presented along with the filing of the charges hence the purpose to keep the applicant behind bars has turned redundant.

Counsel for the respondent, M.S. Nagra vehemently objected to the bail application stating that the intoxicant tablets that were recovered in the present matter were of commercial quantity hence, it is not fit that the applicant be granted bail.

Upon careful perusal of the facts, circumstances and arguments advanced the Court observed that an accused does not get entitled to bail merely because of the fact that a challan has been presented or charges have been framed. It’s an inadequate ground especially in the present case where the amount of intoxicant tablets recovered from the applicant falls under the category of commercial quantity. Section 37 of the NDPS Act has specifically barred the grant of bail to an accused in case of a commercial quantity being involved.

In view of the above, Court rejected and dismissed the application for lack of merit. [Prem Singh v. State of Punjab, 2020 SCC OnLine P&H 1341, decided on 26-08-2020]

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Abhay Shreeniwas Oka, CJ and S. Vishwajith Shetty, J., in view of the present situation of COVID-19 outbreak held that,

“…course adopted by the Courts while recording the plea of the accused and recording the statement of the accused under Section 313 of CrPC through video conferencing hearing will be a step taken to reduce the physical presence of the stakeholders in the Courts precincts to meet the exceptional situation and to secure the functioning of the Courts by following the best possible health practice.”

Issues

First issue is of framing charge by procuring presence of accused through Video Conferencing.

  • 1st Situation: Accused is in judicial custody
  • 2nd Situation: Accused is on bail.

Another Issue — Whether the examination of the accused under clause (b) of sub-section (1) of Section 313 CrPC can be recorded by procuring the presence of the accused by Video Conferencing.

The above stated two issues will be examined in context of COVID-19 pandemic.

—————————————————————————

Issue of framing charge: Section 228 CrPC

In the Sessions triable cases and warrant triable cases, the charge framed by the Judge had to be read over and explained to the accused and then the accused is required to be asked whether he pleads guilty or claims to be tried.

In case of both the categories of trials, the plea of the accused after charge is read over and explained is required to be recorded.

In summons triable cases, there is a specific provision in Section 252 mandating that in the event the accused pleads guilty, the Magistrate shall record the plea as for as practicable in the words used by the accused.

Thus, it follows that in case of all three categories of trials, plea of the accused is required to be recorded.

For recording plea, the presence of the accused before the Court is necessary.

The question is whether such presence can be procured through Video Conferencing?

In accordance to the video Conferencing Rules laid down by this Court,

 “…at the time of framing of charge and at the time of recording of plea, the presence of the accused before the Court can be procured through Video Conferencing.”

There is practice followed by the Courts to take the signature of the accused on the plea. In case the accused is in jail a copy of the plea can be e-mailed to the coordinator. In case accused is on bail, the same procedure can be adopted by the coordinator.

Supreme Court’s decision in Contagion of COVID 19 virus in Prisons, In Re., Suo Motu WP(C) No. 1 of 2020 was referred, wherein the following was decided:

no undertrial prisoner can be produced before the Court for recording his plea and for recording his examination under clause (b) of sub-section (1) of Section 313 of CrPC during the period of pandemic.

 According to the Video Conferencing Rules and particularly Rule 11.2, it is stated that Courts can record the statement of the accused under Section 313 of CrPC through Video Conferencing.

Recording the statement by procuring presence of the accused by Video Conferencing Hearing

Jail superintendent or the officer-in-charge of the prison will be the coordinator at the remote point of the prison. Before recording the statement and in the midst of recording the statement, theJudge can put questions to the accused to ascertain whether he is clearly audible and whether the accused understood the questions posed to him. Judge may record this in the statement to that effect. If the signature of the accused is required, a copy of the written statement recorded can be sent by e-mail to the Jail authorities.

Hence in view of the above, matter is disposed of. [High Court of Karnataka v. State of Karnataka, WP No. 7338 of 2020, decided on 22-06-2020]