Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Dr Kaushal Jayendra Thaker and Gautam Chowdhary, JJ., has requested the Registrar (Listing) through the Registrar General to place the matter before the Chief Justice that periodical listing of matters be taken up in the High Court so that those who are in jail for more than 10 or 14 years, where the appeals are pending, may at least get their appeal heard which are mainly jail appeals. The Court was deciding an appeal filed by the appellant who was in jail for 20 years. The Court reversed the conviction recorded against the appellant.

“Since 20 years, the accused is in jail.”

It was expressed by the Court that the most unfortunate aspect of the instant litigation was the same being preferred through jail.

The appellant challenged the decision passed by the Court of Sessions Judge, Lalitpur, whereby he was convicted under Section 376 IPC. Further, the appellant was convicted under Section 3(2)(v) read with Section 3(1)(xii) of the Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act, 1989 and Section 506 IPC.

Prosecution case was that the prosecutrix was raped by the accused-appellant. On disclosing the incident to the family, they did not report the same to the police station due to being threatened. Later, however, the victim along with her father-in-law and husband went to the police station to report the same.

Analysis, Law and Decision

The Court noted that the Trial Judge brushed aside the fact that the report was lodged three days later, but did not give any credence to this fact and decided to go through the merits of the case.

Further, the Court noted that although there were concrete positive signs from the oral testimony of the prosecutrix as regards the commission of forcible sexual intercourse; however, the medical officer opined both in ocular as well as her written report that the prosecutrix was having five months pregnant and no definite opinion about rape could be given.

In view of the above, the Court added that there were no injuries on the private part of the lady, who was a fully grown-up person and was pregnant.

Adding, the Court stated that even if it went as per the version of the prosecutrix that the accused had gagged her mouth for ten minutes and had thrashed her on ground, there would have been some injuries to the fully grown lady on the basis of the body. However, according to the doctor’s opinion, there were no signs of forcible sexual intercourse.

In such view of the discussion, the Court was of the opinion that the chain of the incident goes to show that the prosecutrix was not raped as would be clear from the provision of Section 375 read with Section 376 IPC.

The Court held that the Trial Judge did not make any finding as to the fact of how the commission of offence under Section 376 IPC was made out. The Trial Judge had materially erred as he did not discuss what was the evidence that the act was committed because of the caste of the prosecutrix. The reasoning of the lower Court Judge were against the record and perverse as the Judge without any evidence on record on his own has felt that the heinous crime was committed because the appellant had captured the will of the prosecutrix and because the police officer had investigated the matter as an atrocities case which would not be undertaken within the purview of Section 3(2)(v) of Atrocities Act and had recorded conviction under Section 3(2)(v) of Act, which cannot be sustained.

Hence, in view of the above discussion, the Court held that the appellant was wrongly convicted resulting in reversing the impugned decision.

While concluding, the Court noted that the State of U.P. even after 14 years of incarceration does not even send the matter to the Magistrate for re-evaluation of the cases for remission as per mandate of Sections 432 and 433 CrPC.

“Sections 433 and 434 CrPC enjoins a duty upon the State Government as well as Central Government to commute the sentences as mentioned in the said section. We are pained to mention that even after 14 years of incarceration, the State did not think of exercising its power for commutation of sentence of life imprisonment of the present accused and it appears that power of Governor provided under Article 161 of the Constitution of India are also not exercised though there are restriction to such power to commute sentence. The object of Sections 432 read with Section 433 of the CrPC is to remit the sentence awarded to the accused if it appears that the offence committed by him is not so grave.”

In the Court’s opinion, in the instant case, the appellant should have been entitled to remission. The factual scenario in the present case would show that had the Government thought of taking up the case of the appellant as per jail manual, it would have been found that the case of the appellant was not so grave that it could not have been considered for remission/commutation.

Seeing the sorry state of affairs, the Court requested the Registrar (Listing) through the Registrar General to place the matter before the Chief Justice that periodical listing of matters be taken up in the High Court so that those who are in jail for more than 10 or 14 years, where the appeal have been pending, may at least get their appeal heard which are mainly jail appeals.[Vishnu v. State of U.P., 2021 SCC OnLine All 133, decided on 28-01-2021]

Case BriefsHigh Courts

Bombay High Court: A Full Bench of Dipankar Datta, CJ and R.K. Deshpande and Sunil B. Shukre, JJ., answered the question referred by the Division Bench of this Court with regard to, “Whether a convict who has challenged his conviction under Section 374 of the Code of Criminal Procedure, 1973 is entitled to the benefit of Section 436 A of the Code?”

Court answered in negative and held that the benefit under Section 436-A of the Code of Criminal Procedure is only for the undertrial prisoners.

Bench has been asked to answer a question referred by the Division Bench of this Court in a criminal application wherein applicant sought bail under Section 436-A of Code of Criminal Procedure.

Background of the Case

In 2016, the applicant was convicted for the offences punishable under Sections 506-II, 450, 326, 452, 354-A read with Sections 34, 149, 109 and 114 of the Penal Code, 1860 and also under Section 66E of the Information Technology Act, 2000.

The application was rejected by the Division Bench of this Court by its order passed on 18-11-2016.

On two occasions, the applicant failed to get any reprieve.

Now, the applicant has again renewed his effort to secure his release on bail during the pendency of the appeal, this time on a new ground he sees as available to him in Section 436-A of the Code.

Applicant relies upon Pradip v. State of Maharashtra, 2019 SCC Online Bom 9768 and Mudassir Hussain v. State, 2020 SCC Online J&K 381, and also a few more Judgments.

Question framed by the Division Bench is as under:

“Whether a convict who has challenged his conviction under Section 374 of the Code of Criminal Procedure, 1973 is entitled to the benefit of Section 436 A of the Code?”

Applicant’s Counsel, R.K. Tiwari submitted that the provision of Section 436-A of the Code is beneficial in nature and therefore it deserves liberal interpretation.

If the provision is liberally constructed, it would bring big relief to the convicts whose appeals filed under Section 374 of the Code are pending for final disposal for long years.

Additional Public Prosecutor, T.A. Mirza submitted that language of Section 436-A of the Code is clear and unequivocal admitting of no two interpretations and therefore the rule of liberal construction has no application here.

Decision and Analysis

The situation which went into the birth of Section 436-A was of undertrial prisoners, the primary concern being of their incarceration in jail for a long period of time pending investigation, inquiry or trial, even though the presumption of innocence till found guilty was operating in their favour.

By introducing Section 436-A to the Code, an endeavor was made to remedy the condition of torture and misery of accused persons as undertrial prisoners, relegated to dark corners within jails, away from the hustle and bustle of life activity without jails.

Liberal Construction

The benefit intended to be given by Section 436-A CrPC is for a person who has, during the period of investigation, inquiry or trial under the Code of an offence not being an offence for which capital punishment has been prescribed as one of the punishments, undergone detention for a period extending up to one half of the maximum period of imprisonment specified for that offence under that law.

Benefit under the section has been intended to be given only to the undertrial prisoners.

Sunil B. Shukre, J., answered in negative to the referred question, further stated,

“To be specific, we answer the question in terms that a convict who has challenged his conviction under Section 374 of the Code, is not entitled to the benefit of Section 436-A of the Code.”

R.K. Deshpande, J., while in agreement with the above-stated conclusion opined that there is no absolute right to get released, conferred upon the undertrial prisoner upon fulfillment of the conditions specified under Sectio 436-A CrPC.

An accused completing the period specified under Section 436-A on the date of filing of appeal may not apply under Section 389 of the Code for suspension of sentence and grant of bail, but he can claim the release from detention even without suspension of sentence.

Therefore, to agree with the contention that the accused remain an undertrial prisoner during the pendency of the appeal and the Appellate Court is competent to exercise the power under Section 436-A of the Code.

Dipankar Datta, C.J., while agreeing with the view of learned brothersDeshpande and Shukre, JJ. stated that,

Section 436-A refers to the maximum period of imprisonment specified for the offence in question, and not to the period of imprisonment actually imposed.

Chief Justice opined that Section 436-A CrPC is restricted in its operation to grant bail to an undertrial prisoner ‘during the period of investigation, inquiry or trial’ and does not, ex proprio vigore, apply at the appellate stage.

Thus, CJ concurred with the prima facie view of the Division Bench as well as the opinion of learned brother Deshpande and Shukre, JJ.

“Spirit of Section 436-A, CrPC could be considered by an appellate court while it is seized of an application under Section 389, CrPC and, drawing inspiration from the principle ingrained in the former, to suspend execution of the sentence bearing in mind all relevant factors including the time likely to be taken for disposal of the appeal.”

Therefore, Bench held that since the Division Bench has rejected the applicant’s prayer for suspension of execution of sentence for the third time, it is highly unlikely that any further prayer in the instant matter shall be considered favourably. [Maksud Sheikh Gaffur Sheikh v. State of Maharashtra, 2020 SCC OnLine Bom 878, decided on 28-08-2020]

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J. disposed of the revision petition saying that the Court did not find any ground to condone such delay of over eleven years as there was absolutely no explanation that came from the petitioners.

The petitioners approached the Court under Sections 397 and 401 of the Code of Criminal Procedure, 1973, challenging the judgment dated 11-09-2006 passed in Criminal Appeal No. 41 of 2004, by the Additional Sessions Judge, FTC-II, Khagaria which upheld the judgment passed by the Additional Chief Judicial Magistrate, Khagaria in GR No. 726 of 1996.

The limitation for filing the present Revision Application had expired on 10-12-2006. The limitation was not condoned though the application was admitted for hearing as the application was filed defect free. The learned counsel for the petitioners submitted that being labourers, they had gone out of the State to earn their livelihood as the case filed was under bailable sections. The Counsel for the petitioners submitted that due to local rivalry, they have been falsely implicated and that the injuries were simple in nature.

After considering the averments made in the Interlocutory Application, the Court found that there was absolutely no explanation for such unexplained and inordinate delay of over 11 years except the fact that the case was filed under bailable sections, and under the garb of such reasoning the petitioners had gone outside the State for earning their livelihood and did not know about the present case and only after warrant was issued on 08.02.2018, they had taken steps for filing the present revision application.

The Court further held that the petitioners after lodging of the case had gone outside the State and had no knowledge about further proceeding is patently false, for the reason, that after the conviction, an appeal was filed on their behalf which has also stood dismissed. Thus, the conduct of the petitioners denotes sheer casualness on their part.

The Court found that the judgment passed by the trial Court as well as the Appellate Court was sound, and based on properly appreciated evidence. Thus, it does not find any ground to exercise its revisional jurisdiction. However, after taking into account the fact that the dispute arose due to grazing of cattle and the injury suffered was simple in nature, the Court held that since the petitioners had already undergone incarceration for over five months, the sentence needed to be modified.

In view of the above-noted facts, the instant petition was disposed of accordingly without interfering with the order of conviction but modifying the sentence of imprisonment to the period already undergone. [Bhagwan Yadav v. State of Bihar, 2019 SCC OnLine Pat 1490, decided on 29-08-2019]

Conference/Seminars/LecturesLaw School News

On May 2014, Professor G. N. Saibaba, an English Lecturer at Ramlal Anand College, Delhi University, was arrested for his alleged association with Maoist groups. His arrest is considered very strange as he was “abducted” by the police on his way home. Dr. Saibaba is 90% disabled, and the forceful nature of his arrest was unwarranted. Last year, G. N. Saibaba was given a life sentence by a court for his links with the Maoists. The court has also found Hem Mishra and four others guilty of waging war against the country and supporting the ideology of the banned organisation, CPI (Maoist).

Dr. Saibaba’s health has deteriorated leaving his life in peril. Given his disability, he is in need of constant care and medical attention. However, he has been denied the much needed support. He is fed food that can barely sustain a patient who requires the medication he needs to survive. The few medicines and supplements that he has been allowed to have was rejected for the third time in March 2015 despite his falling health. Dr. Saibaba went on a six day hunger strike, fell unconscious and was subsequently hospitalized. It is suggested that it was his campaigning against the state sponsored Operation Green Hunt that made him a target.

With this backdrop, the Law and Society Committee organised a panel discussion on July 26, 2018 on the rights of prisoners focusing on the rights of the disabled and the politics of arrest. The discussion was attended by members of the legal defence team which is working to secure his release, including Prof. Haragopal, Hany Babu, Cecelia Davies as well as his spouse, Vasantha Kumari. The event saw participation from many students, faculty members of the college and externals.