Cyril Amarchand MangaldasExperts Corner


Introduction


Personal liberty and the rule of law find their rightful place under Articles 21 and 22 of the Constitution of India, which include measures against arbitrary and indefinite detention. Even with the option of an elaborate judicial procedure to deal with matters regarding grant of bail, the system is somehow unable to meet the parameters of an archetypal system, giving rise to the notion that the bail system is unpredictable[1].

 

Recently, the Bombay High Court in Sameer Narayanrao Paltewar v. State of Maharashtra[2] (Paltewar judgment) has reiterated the mandate of the law to protect accused persons against the “incalculable harm to the reputation and self-esteem of a person”[3] caused by an arrest.

 

A peculiar provision of law dealing with the grant of anticipatory bail under Section 438 of the Code of Criminal Procedure Code, 1973 (CrPC) allows the State to make an application requesting the presence of the accused applicant seeking anticipatory bail at the time of final hearing of the Anticipatory Bail Application (‘ABA’) and passing of final order by the relevant court. The same law also authorises the court to compel the presence of such accused if the court considers it “necessary in the interest of justice”. The obvious problem with this provision is that if the ABA is rejected, the police not only can locate, but may also arrest  the accused.

 

While interpreting the powers under Section 438(4) of the CrPC (as exercised by the Sessions Court), the Bombay High Court has now directed that while orders mandating physical presence at final hearing may be passed, the Sessions Court should also ensure that should the ABA be rejected at such final hearing, the applicant shall be protected against arrest for a stipulated period to allow him/her time to approach the High Court and re-agitate a request for anticipatory bail.

 


Backdrop


Prior to 1973, criminal procedure in India[4] did not envisage the concept of ‘anticipatory bail’/’bail apprehending arrest’. The Law Commission of India in its 41st Report on the CrPC first identified the necessity for provisions regarding grant of anticipatory bail as:

 

“[…] sometimes influential persons try to implicate their rivals in false causes for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. […] Apart from false cases, where there are reasonable grounds […], there seems no justification to require [an accused person] first to submit to custody, remain in prison for some days and then apply for bail.”[5]

 

The initial idea of providing for anticipatory bail was to avoid the situation where a person needed to obtain a bail after being arrested, even while reasonable grounds existed for the same prior to arrest. In 1973, Sections 436, 437 and 439 of the CrPC dealing with the grant of bail were streamlined and the new provision of Section 438 of the CrPC for anticipatory bail was introduced.

 

It is only through judicial interpretation that the law in relation to anticipatory bail (and bail in general) was thereafter developed to align itself with the constitutional objectives of protecting personal liberty and to strike a fine equilibrium between the “freedom of person” and “interest of social order”.

 

While Section 438 of the CrPC originally read to allow the High Court or Sessions Court to grant anticipatory bail at their discretion, it intentionally did not prescribe standards or thresholds for the same. The law on anticipatory bail has since been modified to provide for various aspects, with the State of Maharashtra amending the CrPC (as it applies to Maharashtra) in 1993 to include sub-section (4) to Section 438, which states as follows:

(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the court, if on an application made to it by the Public Prosecutor, the court considers such presence necessary in the interest of justice.

 

For the rest of India, Section 438 of the CrPC has since been amended[6] to include sub-section (1-B) which incorporates the identical language as above.

 


Paltewar judgment – Brief overview


The case arises out of a dispute between the applicant and the original complainant, who were directors of a company operating a hospital. The original complainant filed a complaint against the applicant for offences punishable under Sections 406, 409, 420, 465, 467, 468 and 471 of the Penal Code, 1860 (IPC) and Section 66-C of the Information Technology Act, 2000.

 

During the investigation into such complaint, the applicant had filed an ABA before the Sessions Court, Nagpur. In such an ABA, the Public Prosecutor moved an application seeking presence of the applicant in the Sessions Court at the time of final hearing of the anticipatory bail application and the same was allowed.

 

Aggrieved by the order of the Sessions Court in granting the request of the prosecution and compelling his personal presence at the final hearing, the applicant accused filed an application under Section 482 of the CrPC before the Bombay High Court invoking its inherent jurisdiction.

 

The main issue that arose for determination before the Bombay High Court was in relation to the fate of an accused in the State of Maharashtra who is directed to remain present in the Sessions Court pursuant to a direction under Section 438(4) of the CrPC (as it applies to Maharashtra), and the consequences that may arise if such application for anticipatory bail is rejected.

 


Interim protection


While the applicant had been granted interim protection under Section 438(1) of the CrPC by the Sessions Court, the Bombay High Court further granted interim protection stating that if the ABA before the Sessions Court is rejected during the pendency of the High Court proceedings, then the interim protection granted against arrest would extend for a further period of 72 hours to allow the applicant to approach the High Court.

 

However, while such interim order effectively protected the applicant, the Bombay High Court proceeded with the hearing in the matter as a substantial question of law was involved.

 

In its analysis of Section 438(4) of the CrPC (as applicable in Maharashtra), at the outset, the Bombay High Court reiterated that an order directing an accused person to appear at the final hearing can be passed only when interim protection is already operating in favour of an accused[7].

 

The Paltewar[8] judgment recorded that in case the applicant is not granted interim protection in an ABA and the Sessions Court still directs him/her to remain present in the court on the date fixed for final hearing, by virtue of proviso to sub-section (1), it is open for the investigating officer to effect arrest of the applicant. The direction under sub-section (4), if considered as an independent and irrespective of interim protection, will prove to be a mouse trap and not a protection of personal liberty of the citizen. Being under the directions of the court, the applicant would be obliged to proceed towards the court while the investigating officer can wait at the entrance gate of the court premises.[9]

 


Analysis on Section 438(4) of the CrPC


At the outset, the Bombay High Court has clarified that Section 438(4) of the CrPC has already passed constitutional muster inter alia in Vijaya Ramesh Ramdasi v. State of Maharashtra[10] and Goyappa Jalagiri v. State of Maharashtra[11]. While dealing with the same, however, the Bombay High Court clearly observed that applications seeking personal presence of an accused cannot be moved callously by the prosecution neither can it be routinely allowed by the Sessions Court. It was further observed that a direction under Section 438(4) of the CrPC can be issued seeking the presence of the accused before the court at the stage of final hearing of the application but only if the accused’s interim order of protection from arrest was in operation.

 

Understanding the lacunae from the point of view of an accused, the Bombay High Court relied on State of Maharashtra v. Kachrusingh Santaramsingh Rajput[12] and catena of other Supreme Court judgments to state that the very purpose of introducing Section 438 in the CrPC, and the new form in which it was brought into force in the State of Maharashtra, was to strike a balance between the interest of the State to investigate through police into offences according to established procedure of law and the individual liberties of a person accused of serious crimes.[13]

 

In the Paltewar[14] judgment, the Bombay High Court also observed that when the Sessions Court allows an application that seeks the presence of the accused, it should provide sufficient reasons for allowing the same. The Sessions Court’s reasons must elaborate why the presence of the accused was important in the “interest of justice”, for example, specifying if there was possibility of absconding by the accused, etc.

 

The court further threw light on the expression “in the interest of justice” by stating that it has to be construed in the interest of both the prosecution as well as the accused and the court is obliged to strike a balance between the interests of the two. As the same was not done in the Paltewar[15] judgment, the Bombay High Court had quashed and set aside the order allowing the applicant’s presence.

 


Right to approach the High Court


It is well settled now that both the High Court and the Sessions Court have concurrent jurisdiction to deal with ABAs for directions under Section 438 of the CrPC and it is open to a person to move either of these two courts. It is, however, a generally accepted practice, as recorded in the Paltewar[16] judgment, to approach first the Sessions Court and thereafter the High Court for such relief.

 

Where a person chooses to move the Sessions Court in the first instance, a revision will lie in the High Court against the order of the Sessions Court on the application for issue of directions under Section 438 of the CrPC.

 

It is in light of this statutory intention, that the Bombay High Court stated that in the absence of any interim order of protection operating in favour of the accused during pendency of the application for anticipatory bail before the Sessions Court, the right available to the accused to move the High Court will stand frustrated if he/she is arrested and such arrest will obviously be facilitated by the direction of the Sessions Court under Section 438(4) of the CrPC[17]

 

In light of the above, even though the order under Section 438(4) of the CrPC (as applicable in Maharashtra) in the Paltewar[18] judgment was set aside, the Bombay High Court put down the following guidelines for Sessions Courts to follow when passing such orders:

 

(a) While filing the application under Section 438(4) of the CrPC (Maharashtra Amendment), the prosecutor has to state cogent reasons while seeking the obligatory presence of the accused before the Sessions Court at the time of final hearing of the ABA.

(b) The Sessions Court shall consider the application by the prosecutor and pass a reasoned order as to why the presence of the accused is necessary “in the interest of justice” at the time of final hearing of an ABA.

(c) If the Sessions Court rejects the application, it shall mandatorily extend the interim protection operating in favour of the accused for a minimum period of three (3) working days on the same conditions on which interim protection was granted during pendency of an ABA or on such further conditions as the Sessions Court may deem fit, in the interest of justice.

(d) If the Sessions Court considers it appropriate to grant extension of protection for more than three (3) working days, it shall record the reasons for the same, but in any event, it should not be more than seven (7) days.

(e) The accused should abide by the conditions imposed by the Sessions Court while granting extension of interim protection, failing which such interim protection shall cease to operate instantly.

 


Conclusion


The Paltewar[19] judgment expands on a very important point under the jurisprudence in relation to bails, specifically anticipatory bails. It is seen in a lot of cases that the accused, who is facing a potential arrest, is not provided with a protective order for a reasonable period of time when the presence under Section 438(4) of the CrPC is sought by the Sessions Court. With freedom jeopardised, the accused is pushed closer to a probable arrest.

 

The Paltewar[20] judgment has now made it mandatory to protect the applicant against any untoward impact of such requirement to be personally present, which would give a lot of security to the public at large.

 


† Partner, Cyril Amarchand Mangaldas.

†† Principal Associate, Cyril Amarchand Mangaldas.

††† Associate, Cyril Amarchand Mangaldas.

[1] Government of India, Law Commission of India, Report No. 268 Amendments to Criminal Procedure Code, 1973 Provisions Relating Bail, 23-5-2017.

[2] 2021 SCC OnLine Bom 2192.

[3] Joginder Kumar v. State of U.P., (1994) 4 SCC 260.

[4] Under the Code of Criminal Procedure, 1898.

[5] Government of India, Law Commission of India, 41st Report, The Code of Criminal Procedure, 1898 – Volume I, dated 24-9-1969 at Para 39.9.

[6] Code of Criminal Procedure (Amendment) Act, 2005, S. 38, with effect from 23-6-2006.

[7] Vijaya Ramesh Ramdasi v. State of Maharashtra, Bombay High Court, Criminal Application No. 569 of 2001,

decided on 20-3-2001 .

[8] 2021 SCC OnLine Bom 2192.

[9] 2021 SCC OnLine Bom 2192.

[10] Criminal Application No. 569 of 2001.

[11] Criminal Application No. 4370 of 2004.

[12] 1994 SCC OnLine Bom 73 : (1994) 3 Bom CR 348.

[13] 2021 SCC OnLine Bom 2192, para 17.

[14] 2021 SCC OnLine Bom 2192.

[15] 2021 SCC OnLine Bom 2192.

[16] 2021 SCC OnLine Bom 2192.

[17] 2021 SCC OnLine Bom 2192, para 26.

[18] 2021 SCC OnLine Bom 2192.

[19] 2021 SCC OnLine Bom 2192.

[20] 2021 SCC OnLine Bom 2192.

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: The Division Bench of Sudhanshu Dhulia, CJ., and  Manash Ranjan Pathak, J., addressed a suo motu PIL concerning the plight of a rape victim, where the victim was a child between 12-15 years of age.

The incident alleged to had happened in the State of Arunachal Pradesh where a missing report was filed by one Mr Aka Kalung alleging that his domestic help who was a child brought from Nepal, had been missing. The girl was later recovered the next day but as she was reluctant to go to the house of the informant her custody was given to the Child Care Institute, where the victim made allegations of rape and sexual abuse against the informant, stating that he had been abusing her for the last many years.

Meanwhile, on the plea of the father of the victim the Sessions Judge, Tezu, Lohit District, Arunachal Pradesh directed the CCI to hand over the custody of the child to the “local guardian”. This local guardian was none else but the sister-in-law of the accused. The impugned order was challenged in revision before the High Court and the custody was not handed over to the local guardian. Therefore, another application was moved by the father of the child in which further direction was given to hand over the child to the local guardian.

Invoking the doctrine of Parens Patriae, the High Court held that since the local guardian to whom the custody was being handed over was a close related of none else but the accused, it would not serve the interest of justice and definitely it would not be in the best interest of the victim child.

Hence, the order of the Sessions Judge was stayed with the further directions to the lower Courts not to take up any other application where the subject matter relates to the custody of the child. The custody of the Child was granted to CCI. Further, directions were issued to the Deputy Commissioner to conduct an enquiry by personally visiting the CCI and furnish the details with regard to the facilities available in the CCI, including the fact that such an institute was registered or not.

The Superintendent of Police of the concerned district, where the CCI was located was directed to ensure that the child was given every protection in the institute and she should not be allowed to be visited either by the accused or his relative or even by her father till the next date of listing. However, the Bench made an exception of the mother of the child. Who was allowed to visit the child and stay with her.

Observing the sensitivity of the matter, the Bench issued strict directions to the State to depute a team of medical officers, including a lady doctor to conduct medical examination on the victim, only for the determination of her age. The Bench emphasised strictly that the examination shall be limited to a bone ossification test and no other test be done as the victim had already been medically examined.[State of Arunachal Pradesh, In Re., PIL (Suo Moto) No. 5 of 2021, decided on 30-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by: 

For the Petitioner: U K Nair, Sr. Adv

For the Respondent: A Chandran, Addl. Sr. Ga, Ap

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sadhana S. Jadhav and N.J. Jamadar, JJ., observed a matter wherein an adolescent girl who was employed as a maid to earn a livelihood was sexually harassed by the son of her owner.

Appellant was convicted for the offence punishable under Section 376 of the Penal Code, 1860 by the Lower Court.

Factual Matrix

X, a helpless adolescent girl was working as a maid servant to earn her livelihood. She had approached the police station to lodge an FIR.

She alleged that her father had got her employed as a maid with Jahangir owner of Hotel Sai-Village at Shirdi. Mr Jahangir’s wife and two children i.e. present accused 1 and his sister Farhad were original residents of Geeta Bhavan, Bombay. Jahangir’s wife, i.e. accused 2 had brought X to Bombay to work at their residence. After a few days, the sister of the victim was also employed with the mother of accused 2.

Victim alleged that she was molested and ravished by accused 1. Due to fear and apprehension she couldn’t disclose the whole truth to accused 2 and hence ended up stating that she was being teased by accused 1.

She also had conceived pregnancy from accused 1. All efforts to abort the foetus were taken by accused 2. Later she was admitted to Asha Sadan after which she was admitted to hospital and gave birth to a child. Accused 2 asked the victim to leave the child at Asha Sadan but the victim refused to do so.

Hence she was allowed to take the child along.

Victim’s child was snatched by the sister of accused 2 with the assurance that it would be returned in a few months.

Accused 2 kept harassing the victim and did not allow her to return to her native place. Thereafter, the victim somehow eloped from the place and returned to her native place and lodged the FIR.

Analysis and Decision

Bench while considering the facts and circumstances of the matter, stated that it is a settled law that the evidence of rape victim stands at par with the injured witness.

Court held that evidence of the victim of sexual offence deserves to be considered with great weightage. The facts and circumstances corroborate the evidence of the victim and leave no room for suspicion that the victim was ravished by none other than the accused 1.

A rape victim is left with a feeling of degradation, humiliation and guilt for the whole life.

Offence of rape is a heinous offence which cannot be viewed with any leniency. Once the Court finds the evidence of victim to be trustworthy, conviction would follow and said conviction should be followed by a sentence proportionate to the gravity of the offence. Social position of the accused is totally irrelevant.

Supreme Court has time and again said that the society cannot look upon a woman with derision, depravity, contempt and as an object of desire.

Demise of the Child

Court observed in the instant case that, the injury sustained by a rape victim is not just a physical injury, but an injury to her womanhood. She is forced to live with indignation throughout her life and in the present case, she had given birth to a child who lived with her for hardly 6 days and thereafter, the child was brutally snatched, abandoned and had died.

A scar on the Victim

Victim was not even informed of the demise of her child, but the said injury would definitely leave a scar on her further development as a person.

It is not just a physical injury, but injury to the soul of a victim. In the present case, Ms X had attained motherhood at a young age of 15 years.

Hence, in view of the above, appeal deserves to be dismissed.

Further, Criminal Appeal No. 919 of 2006 was filed by the State with regard to meager sentence imposed upon accused 1 despite his conviction for an offence punishable under Section 376 IPC.

The Court is duty-bound to assign special and adequate reason for imposing a sentence lesser than the minimum.

Heinous Offence

Bench stated that High Courts cannot be oblivious of the impact of such a heinous offence.

The object of deterrence in the commission of such heinous offence cannot be lost sight of while sentencing. Once the accused is convicted, the victim also deserves justice.

Dishonour of a woman needs to be eliminated and judicial pronouncement, which imposes a disproportionately lenient sentence, needs to be set aside.

Sessions Court had acquitted the accused 1 despite there being material evidence. Therefore, it was incumbent upon the State to file an appeal against acquittal, in view of the fact that the victim was subjected to harassment, she was brutally assaulted, she was forced to abandon her child, which in fact is an offence punishable under Section 317 IPC.

While parting with the decision, Court stated that the quantum of sentence of the accused convicted under Section 376 IPC cannot be viewed with leniency. Hence, the sentence imposed upon the respondent/accused 1 deserves to be enhanced and appeal for enhancement deserves to be allowed. [Faiyaz v. State of Maharashtra, 2020 SCC OnLine Bom 3561, decided on 08-12-2020]

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Prashant Kumar Mishra and Gautam Chourdiya, JJ., observed that,

Application for anticipatory bail under Section 438 Criminal Procedure Code, 1973 should ordinarily be filed before the Sessions Court at the first instance. Such an application can be filed directly before the High Court when there exist exceptional, rare or unusual reasons.

Two bail applications under Section 438 of the Code of Criminal Procedure, 1973 were filed by the applicants before the High Court without availing the remedy before the Sessions Court.

Applicants counsel on 16-09-2020 placed reliance on the decision of this Court in Ratnesh Singh Chouhan v. State of Chhattisgarh, MCRCA No. 918 of 2019, decided 23-07-2019, to argue that the anticipatory bail applications can be filed directly before the High Court.

A plain reading of the provision of Section 438 CrPC necessitates an immediate conclusion that the jurisdiction conferred on the High Court and the Sessions Court for entertaining prayer for anticipatory bail is concurrent in nature.

Controversy as to whether the application would be maintainable before the High Court only after exhaustion of the remedy before the Sessions Court has been posed before the different High Courts on ‘n’ number of occasions.

It was observed that Allahabad High Court in two different cases rendered its opinions as follows:

Harendra Singh v. State of U.P., 2019 SCC OnLine All 4571: It was held that the bail application filed under Section 438 of the CrPC is not maintainable before the High Court without exhausting remedy before the Sessions Court.

Vinod Kumar v. State of U.P., 2019 SCC OnLine All 4821: In this decision, it was held that such application can be filed directly before the High Court with a rider that strong, cogent compelling reasons and special circumstances must necessarily be found to exist in justification of the High Court being approached first and without the avenue as available before the Sessions Court being exhausted.

Bombay High Court in its decision of Mohanlal Nandram Choudhari v. State of Maharahstra,2007 (4) MhLJ 9held that the choice of choosing the Court, whether Sessions Court or High Court for moving an application under Section 438 CrPC cannot be left to be decided by the accused.

Catena of Judgments follow the common thread that albeit Section 438 CrPC confers concurrent jurisdiction on the High Court and the Sessions Court, an application should ordinarily be filed before the Session Court at the first instance and not directly before the High Court.

Adding to the above it was observed that for filing an application directly before the High Court the applicant has to demonstrate and satisfy the High Court that there exists exceptional, rare or unusual reasons for the applicant to approach the High Court directly.

Bench on perusal of the merits of the bail applications found that there were no exceptional circumstances in the cases at hand which would entitle them to move the anticipatory bail applications directly before the High Court.

Since the Court held that the bail applications are not maintainable directly before the High Court, no interim protection could be continued however the Sessions Court was given a direction to decide the anticipatory bail applications at the earliest as and when the applicants move before the Sessions Court. [Hare Ram Sharma v. State of Chhattisgarh, 2020 SCC OnLine Chh 639, decided on 18-11-2020]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The instant writ petition was entertained by a Division Bench of Ramesh Ranganathan, C.J. and Alok Kumar Verma, J., and the interesting issue discussed was related to  seeking mandamus against the respondent to ‘hold that Schedule-I of the Code of Criminal Procedure, 1973, qua Sections 326, 327, 363A, 377, 382, 386, 389, 392, 394, 409, 455, 458, 467, 493, and 495 of the Penal Code, 1860, were illegal, as they mandated trial by the Magistrate, who otherwise did not have the competence to award the prescribed sentence, and to declare these provisions in the Code of Criminal Procedure, 1973, as ultra-vires.

It was contended by the petitioner to direct the respondents to bring appropriate amendments to the Schedule, hence, to make appropriate trial by the Court of Session instead of Magistrate, Ist Class. Another contention forwarded by the petitioner was related to issue mandamus against the Legislature to amend law.

The Court clearly held that it was a well-settled law that no mandamus could be issued to the Legislature; hence the prayer of the petitioner was disregarded. The Court stated that the petitioner had not explained how the said Schedule violated any provision of the Constitution of India. It was noticed that, “The Constitutional validity of plenary legislation can only be examined in the context of lack of legislative competence, or for violation of any other provision of the Constitution of India. The power to enact the Criminal Procedure Code has been conferred under Entry 2 of List III of the Constitution of India. Since both Parliament and the State Legislatures have the power to make or amend the Criminal Procedure Code under Entry 2 of List III, the Parliament cannot be said to suffer from lack of legislative competence in making the said Law.”

The point of law discussed by the Court was that Section 325 of the CrPC prescribed the procedure when a Magistrate cannot pass a sentence sufficiently severe under his jurisdiction and it required him to forward the record with his opinion, and submit his proceedings, and forward the accused, to the Chief Judicial Magistrate to whom he was subordinate; however, there was no provision conferring power on the Chief Judicial Magistrate to refer the matter to the District & Sessions Judge in cases where he lacked the power to impose the sentence prescribed under the Penal Code. Hence the answer cited was referred to Section 323 CrPC, where if in any inquiry into an offence or a trial before a Magistrate, appeared to him, at any stage of the proceedings before signing judgment, that the case was one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained; and, thereupon, the provisions of Chapter XVIII applied to commitment so made.

Hence, the Court found that the apprehension expressed by the petitioner was wholly misconceived and dismissed the petition as power was conferred under Section 323 CrPC, on the magistrate to refer the matter to Court of Session, if he was satisfied that the offence was only to be tried by Court of Session.[Shilpi Lawrence v. Union of India, 2019 SCC OnLine Utt 634, decided on 04-07-2019]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Ramesh Sinha and Dinesh Kumar Singh-I, JJ. allowed the appeal filed by a couple accused of murder, against the trial court’s order sentencing them to death for the said offence; and set aside the death reference made by the trial court.

In the present case, the appellant along with his wife Shakila was accused of murdering his two brothers-in-law and mother-in-law by hacking their neck, in a factory where he was a watchman. Charges were made out against the appellant and his wife under Sections 302, 34 and 201 of the Penal Code, 1860. The trial court convicted them on the basis that only appellant had access to the building as he lived inside it, and account of a child witness aged 6 years (son of the deceased lady) was taken into consideration.

Learned counsel for the appellant argued that the child witness’ testimony could not be taken into consideration as he had deposed that he was wrapped in a blanket and thrown in another room by his sister Shakila. The child’s presence at the crime scene could not be confirmed as had he been present over there, he too would have been killed by the accused-appellant but that was not the case. Moreover, the panchayatnama of three deceased was conducted as of unknown persons and had the child witness been present at the place of occurrence then definitely he would have disclosed the two male deceased to be his real brothers and female to be his mother. Also, it could not be said that the factory in which the appellant was a guard and where he was living along with his wife, was in his exclusive possession and not accessible to anyone else because one of the keys of the factory was with the owner of the factory. Therefore, the factory was accessible to others as well.

On the other hand, learned Additional Government Advocate submitted that accused-appellant has bad antecedents as he was already convicted and sentenced by the trial court for murdering his earlier wife. He had absconded from Lucknow jail and was living in Kanpur while working in the said factory as Chaukidar. He had enticed the daughter of deceased lady and when Shakila’s brothers along with their mother came to take her away from accused, a quarrel took place between the parties and Shakila’s mother and two brothers were murdered by accused. Shakila’s younger brother was an eye witness of the incident and had deposed that he saw the accused killing the three deceased with knife and his sister Shakila was facilitating in the crime.

The Court noted the aforestated facts and arguments and opined as below:

Section 118 Evidence Act – Reliability on testimony of child witness:

It was observed that the Investigating Officer had failed to show the place of occurrence and the place from where the child witness was witnessing the incident as the incident had taken place in two parts – body of mother of child witness was found on the second floor of the factory whereas the dead body of his two deceased brothers, was found on the first floor of factory. It was observed that it was highly doubtful that the child, who had stated that he was wrapped and thrown in a room by his sister, could not have seen the murder of the two deceased which had taken place on the first floor. Thus, his evidence could not be said to be wholly reliable for the conviction and sentence of two appellants.

The Court relied on Digamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522 where the Supreme Court while discussing Section 118 of the Evidence Act, 1872 held that “evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon.”

Presumption under Section 106 Evidence Act:

It was opined that the prosecution admitted that one key of the factory was with accused and another key was with the owner of the factory. Hence, the presumption under Section 106 of the Evidence Act could not be drawn against the accused as he was not in his exclusive possession of the factory.

Proof beyond a reasonable doubt versus suspicion:

Further, the Court opined that it may not be possible that two deceased men aged about 25 years and 35 years and the deceased lady aged about 55 years could have been overpowered and killed single-handedly in such a gruesome manner by the accused who was just aged about 45 years. The possibility of the incident having occurred in some other manner by more persons could not be completely ruled out. It was noted that suspicion, howsoever strong, could not take the place of proof. Reliance in this regard was placed on Sujit Biswas v. State of Assam, (2013) 12 SCC 406 where the Court examined the distinction between ‘proof beyond reasonable doubt’ and ‘suspicion’.

Establishing guilt on the basis of circumstantial evidence:

Lastly, the Court relied on Digamber Vaishnav case and opined that in criminal cases where guilt of the accused is sought to be established on the basis of circumstantial evidence, “if two views are possible on evidence adduced in the case – one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted.”

In view of the above, the conviction and sentence of both the appellants by the trial court was set aside, and they were directed to be released from jail forthwith unless otherwise wanted in any other case.[Rashid v. State of Uttar Pradesh, 2019 SCC OnLine All 2228, decided on 16-05-2019]

Case BriefsHigh Courts

High Court of Judicature for Rajasthan: The appellate court had allowed the appeal of the respondent-complainant under Sections 372 and 378 CrPC and set aside the acquittal of the appellant recorded by the trial court and convicted the appellant under Section 138 of the Negotiable Instruments Act. This decision of the learned appellate court was challenged by the appellant.

Learned counsel for the appellants contended that the learned Sessions Judge had no jurisdiction to entertain the appeal against acquittal preferred by the respondent complainant. Drawing attention of the Court to the Hon’ble Division Bench Judgment dated 2.12.2014 rendered in the case of Dhanne Singh v. State of Rajasthan, 2014 SCC OnLine Raj 5499, he urged that the only remedy available to the complainant was to file an application for grant of leave to appeal before the High Court under Section 378(iv) CrPC. He further contended that the impugned judgment is per se without jurisdiction and bad in the eye of law and thus deserved to be set aside.

The Court held that in a suit where the jurisdiction to entertain a challenge to an order of acquittal in a complaint case is questioned, the complainant can only avail the remedy of filing an application for grant of leave to appeal against the judgment of acquittal in the High Court under Section 378(iv) CrPC and opined that the Sessions Court had no jurisdiction to entertain the victim’s appeal under Section 372 CrPC when the acquittal was recorded in a complaint case.

The Bench of Sandeep Mehta, J. set aside the impugned judgment dated 30.10.2015 passed by the learned District and Sessions Judge, Dungarpur and upheld the acquittal of the appellant recorded by the trial court vide judgment dated 19.9.2013. [Praveen Kumar v. The State of Rajasthan, 2017 SCC OnLine Raj 2209, decided on 9.8.2017]