Case BriefsHigh Courts

Jharkhand High Court: Shree Chandrashekhar J., upheld the impugned judgment and dismissed the appeal being devoid of merits.

The case at hand involves murder of a woman Bhondi Khariain by her husband who was found dead at her own residence and her husband found to be absconding. An informant who is a co villager John Kullu informed the police about the same pursuant to which an FIR was registered under Section 300 of Penal Code, 1860 i.e. IPC. An investigation followed by trial was conducted before Additional District and Session, Judge, Fast Track Court who convicted and sentenced him to rigorous imprisonment for life and fine of Rs 5000 under Section 302 IPC for committing murder of his wife.

The present case solely is based on circumstantial evidence due to lack of any eye witness available. The Court relied on a judgment titled Sharad Birdhichand Sarda v.  State of Maharashtra, (1984) 4 SCC 116 and observed that in a case based on the circumstantial evidence, the prosecution must establish the incriminating circumstances by leading cogent and consistent evidence and the circumstances so proved against an accused must lead to irresistible conclusion that it was the accused and the accused alone who has committed the crime and no other hypothesis consistent with the innocence can be inferred.

Circumstantial Evidence 1: Dead body of Bhondi Khariain was found in the house of the appellant

Due to few witnesses turning hostile later during cross-examination and denied making any statement before police regarding accepting that they saw the husband murdering his wife by strangulation through a rope or even seeing the dead body etc, the court relied on a judgment titled Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417 and observed that the evidence of a hostile witness is not liable to be rejected altogether rather it can be used by the prosecution to corroborate its case against the accused. The Court thus believed through this that the deceased died in her matrimonial home.

Circumstantial Evidence 2:  The Medical Evidence

The post mortem report clearly states that the eyes of the deceased were partially open; mouth open and tongue protruded outside the mouth, fracture of thyroid cartilage and subcutaneous tissues under the ligature mark were ecchymosed with bruising of neck muscles, colour bluish. The doctor based on above finding stated that this is a case of accidental death or suicide. The court relied on judgment Vadugu Chanti Babu v. State of A.P. (2002) 6 SCC 547 and observed that a stray statement of the doctor in his cross-examination is not a conclusive opinion but it is only a possibility.

 Circumstantial Evidence 3: The appellant was found absconding

During examination of the accused under Section 313 of the Code of Criminal Procedure, the appellant was put this circumstance that he has killed his wife by throttling through a rope in the night of 12.03.2006, however, except stating that it is false and he has not committed the crime, he has not offered any explanation how his wife has died. The Court relied on a judgment titled State of Maharashtra v. Suresh  (2000) 1 SCC 471 and observed that offering no explanation or evasive reply to an incriminating circumstance cannot form the basis for conviction of an accused, but a husband must say something how his wife has died in his house. In a situation like this, the appellant’s offering no explanation on death of his wife would by itself become an incriminating circumstance which would provide a link in the chain of the circumstances.

On Law of Circumstantial Evidence

The Court relied on judgment titled Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 and observed:

12. ….…..The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established: that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused: that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.”

 The Court after hearing facts and perusing the circumstantial evidences in detail held the accused guilty on grounds that the prosecution has led cogent and consistent evidence on the homicidal death of Bhondi Khariain even though the motive for the crime has not been established.

In view of the above, the impugned judgment upheld and the appeal dismissed.[Kandra Kharia v. State of Jharkhand, 2019 SCC OnLine Jhar 2730, decided on 26-11-2019]


Arunima Bose, Editorial Assistant has put this story together

Op EdsOP. ED.

Introduction

Extracting a contradiction or an omission which amounts to a contradiction is an art of the cross-examiner and the method to prove it is a science. Any contradiction if proved in accordance with the provisions of the Evidence Act, 1872 can impeach the credibility of the witness and can help in rejecting the evidence of the prosecution in criminal trials and of the other side in civil trials. Contradictions have to be proved in accordance with the procedure prescribed under the Evidence Act, 1872 otherwise it would have no evidentiary value and would not be admissible. A witness can be contradicted with its previous statements either made by him in writing or reduced into writing by someone.

In criminal trials, statements recorded by the Police during the course of any investigation cannot be used for any purpose during the trial except to contradict the witness as provided under Section 145[1] of the Evidence Act, 1872. The police officer has the power to examine the witnesses who are acquainted with the facts and circumstances of the case as provided under Section 161[2] of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”). The investigating officer will invariably reduce into writing any statement made by the witness before him in accordance with Section 161(3) of the Code of Criminal Procedure, 1973 and the said statements will be a part of the final report (charge-sheet) to be submitted under Section 173 of the Code to the Magistrate concerned. Section 162[3] of the Code provides that such statements made to the police officer by any person is not required to be signed and it further imposes a bar for use of such statements for any other purpose except as provided under the proviso to the said section.

The statements recorded under Section 161(3) of the Code are not substantive piece of evidence and the Court cannot suo motu make use of such statements in case if the testimony of the witness made during the trial is not consistent with the statement made before the police during the course of investigation. The object of Section 162 of the Code is to protect the accused against overzealous police officers and untruthful witness.  In almost every other trial the witnesses are either turning hostile or are giving exaggerated testimonies. Sometimes clever witness in their examination-in-chief conforms to what they have stated earlier to the police, but in the cross-examination introduces statements in a subtle way contradicting in effect what they stated in the examination-in-chief. In either case, for the defence as well as for the prosecution it becomes important to bring the earlier part of the statement which is inconsistent with the deposition, on the record of the case as otherwise it cannot be used for any purpose and the court will not be in a position to refer to it.

If the witness turns hostile and resiles from his earlier statement made before the police, then it becomes important for the Public Prosecutor to bring that part of the earlier statement on record of the trial and the manner is provided under Section 145 of the Evidence Act, 1872 read with the proviso to Section 162 of the Code. If the earlier part of the statement where the witness has supported the case of the prosecution is not brought on record and if the contradiction between the testimony in court and the earlier statement is not proved then the said statement though supporting the case of the prosecution would not be used for any purpose by the court. How much evidentiary value to attach to the earlier statement is for the court to decide on the sound principles of appreciation of evidence however it is foremost important to bring it on record. Similarly, if there are material improvements or contradictions or omissions which amount to contradictions found in the deposition then it would be necessary for the defence to bring the earlier statement made before the police on record and to further prove it in accordance with the manner prescribed under Section 145 of the Evidence Act, 1872. It is only after such contradictions are brought on record and thereafter proved the question would come of evaluating the testimony. Therefore, it becomes very important for both the prosecution as well as the defence to first bring the contradiction on the record and thereafter to prove it in accordance with the manner prescribed.

The Supreme Court while hearing a criminal appeal noticed certain inadequacies and deficiencies in recording of evidence during the criminal trial across the country. To deal with such deficiencies the Supreme Court issued suo motu[4] notice to Registrar General of all the High Courts, Chief Secretaries, Advocate General, etc. of all State/Union Territories to arrive at uniform best practices across the country. One of such inadequacy and deficiency which the Supreme Court noticed was regarding ‘Marking of Contradictions’. The Supreme Court in its order observed that “A healthy practice of marking the contradictions/omissions properly does not appear to exist in several States”.

 Divan, J. in his judgment in the matter of State of Gujarat v. Hiralal Devji[5] emphasised on the duty of the Presiding Judge to draw the attention of the advocate to the provisions of the Evidence Act so that the contradiction is proved in accordance with the provisions of law.  Divan, J. observed:

We also wish to emphasise that in many Sessions cases when an advocate appointed by the court appears and particularly when a junior advocate, who has not much experience of the procedure of the court, has been appointed to conduct the defence of an ‘accused person, it is the duty of the Presiding Judge to draw his attention to the statutory provisions of Section 145 of the Evidence Act…”

Let us examine what is contradiction and when can an omission amount to a contradiction and how it can be proved during the trial.

Contradiction: Meaning and Purpose

The word ‘contradict’ according to the Oxford Dictionary means “to affirm to the contrary; to be directly opposed to; to go counter to; to deny categorically”. The word contradiction is not defined under the Evidence Act or under the Code. Contradiction means “A state or condition of opposition in things compared; variance, inconsistency, contrariety”. The Cambridge Dictionary defines the word contradiction as “the act of saying something that is opposite or very different in meaning to something else what is said earlier”. To illustrate:

‘X’ states in the witness box that ‘Y’ stabbed ‘Z’;

But before the Police ‘X’ stated that ‘A’ stabbed ‘Z’.

This is a pure and simple case of contradictory statements. Contradictions have to be brought on record during cross-examination of the witness.

The purpose of cross-examination is three-fold, one is to test the veracity of the statement made by a witness in his examination-in-chief, second is to shake/impeach his credit[6] and third is to elicit from that witness any relevant facts which may be favorable to the case for the cross-examiner. Right to cross- examine the witness by the accused is the cardinal rule of a fair trial which is a fundamental right of every accused, similarly it is the duty of the court trying the accused to satisfy itself regarding the reliability/credibility of the witness. In order to impeach the credibility of the witness one of the methods provided under Section 155 of the Evidence Act is to bring out the proof of former statement inconsistent with any part of his evidence in court, which is liable to be contradicted. So, in order to impeach the credibility of the witness, if there is any inconsistency in the deposition with the earlier statement then the proof of the former statement has to be brought on record and thereafter it has to be proved.

In some cases, an omission to state a fact or circumstance in the statement under Section 161(3) of the Code, may amount to contradiction during the deposition in court, if the omission appears to be significant and otherwise relevant. The condition for the omission to amount to contradiction is that what is stated in deposition becomes irreconcilable with what is omitted and impliedly negatives its existence.

Let us understand when omission would amount to contradiction by an example: ‘X’ made a statement before the police under Section 161(3) of the Code, that he saw ‘A’ stabbing ‘C’ to death;

In the witness box, he states that he saw ‘A’ and ‘B’ stabbing ‘C’ to death.

‘X’ omitted to mention that he saw ‘A’ and ‘B’ both stab ‘C’ to death.

Not mentioning the name of ‘B’ in the statement before the Police amount to significant and relevant omission as it is not comprehensible that a witness who saw two persons stab ‘C’ would mention in the statement before the Police that he saw only one person stab ‘C’ to death and therefore in such situations omissions can also amount to contradiction and will have to be proved in the manner prescribed. If the statement before the Police does not come on record of the trial and if the court is not in a position to refer to it then it would lead to a miscarriage of justice. If the statement before the Police is brought on record and thereafter proved in accordance with the procedure then the court will be in a position to imply that B was not present. Therefore, whenever there is an inherent repugnancy between the testimony and the statement before the Police, then even an omission can become a contradiction.

Let us take an example of inherent repugnancy to understand the concept. If a witness makes a statement before the Police and the officer records the statement under Section 161(3) of the Code wherein:

The witness mentions that he saw ‘X’ shooting ‘Y’ dead with a gun,

During the trial, he deposes that he saw ‘Z’ stabbing ‘Y’ dead;

Both statements cannot stand together and are inherently repugnant. Third category of omissions resulting into contradiction would be where a negative aspect of a positive recital is found in the statement.

Example of this third category would be when in the recorded statement under Section 161(3);

The witness states that a dark man stabbed ‘X’,

whereas in the witness box the witness deposes that a fair man stabbed ‘X’.

As explained in the judgment of Tahsildar Singh v. State of U.P.[7], sometimes a positive statement may have a negative aspect and a negative one a positive aspect. When the witness says that ‘a man is dark’ which is a positive statement, it also means that ‘the man is not fair’, which is a negative aspect of the statement and which is implied in the positive statement. These are the three categories of omissions which may amount to contradiction and will have to be proved during the trial.

The benefit of proving contradictions correctly can be explained by demonstrating the judgment of State of Madhya Pradesh v. Banshilal Behari[8], it was a case of a double murder with 3 eyewitnesses, where the trial court sentenced the accused to death and the High Court acquitted the accused as the credibility of the witnesses were impeached by proving the contradictions on the record. The eyewitness during his deposition in the witness box stated as under:

“that when he went inside the house along with Mst. Bhanwari Bai, he saw the accused, standing there with his sword embedded in the neck of Banwari.”

The High Court disbelieved this fact because the witness in his statement to the Police made no mention that he saw the accused, standing there with his sword thrust in the neck of Banwari.

The High Court observed reagrding omission and how it was a contradiction in the following words:

“He was confronted with this omission under Section 145 of the Evidence Act, but he could offer no satisfactory explanation. Wigmore in his Treatise of Evidence has observed that failure to assert: a fact when it would have been natural to assert it, amounts in effect to an assertion of the non-existence of the fact. In such cases an omission amounts to contradiction or inconsistency. Now it is most natural that if this witness had seen the accused in a position to which he testified before the Additional Sessions Judge; he would have certainly stated it before the Police. This omission amounts to contradiction.”

The Court further goes on to explain the effect that if the inconsistency is found in the evidence then his entire evidence will have to be scrutinised carefully and if found unsatisfactory then his entire evidence will have to be rejected. The Court observes as under:

“It is true that the Courts in India have been reluctant to act on the maxim “falsus in uno falsus omnibus”, yet the disregard of the maxim cannot be pushed too far. The whole statement should be scrutinised and if found unsatisfactory, it must be rejected. I venture to suggest that where it is proved that a witness has deliberately lied in material particulars, his evidence will have to be looked upon with considerable suspicion.”

Method of marking previous inconsistent statements to prove contradiction 

Under the rule of best evidence in common law, the question of weight comes after the question of admissibility and the question of admissibility comes after the question of relevancy. The first requirement is that the evidence to be introduced during the trial should be relevant to the charge, second the oral, as well as documentary evidence, should be admissible under the best evidence rule and then comes the question of appreciation or giving weight to such evidence.

For bringing the contradiction on record, the cross-examiner can ask a witness about any previous inconsistent statements he may have made, but if the statement was to be brought on record during trial, the witness must be shown the document before he could be asked whether he had said something different on another occasion[9]. This common law principle requiring the cross-examiner to confront a witness with the contents of a prior inconsistent statement before the introduction of extrinsic statement was laid down in the famous case of Queen Carolines in the year 1820. The witness must be confronted with the time, place, persons present and the substance of an impeaching statement before extrinsic evidence could be admitted as proof that the statement had been made. The Rule in Queen Carolines caselaid down the requirement that a cross-examiner, prior to questioning the witness about his own prior statement in writing, must first show it to the witness.”[10] The same rule finds place in Section 145 of the Evidence Act, 1872. The rule is based on the principle of fair-play and is essential for proving the contradiction regarding any inconsistency in the previous statements.

In the judgment of Bal Gangadhar Tilak v.  Sriniwas Pandit[11], the Bombay High Court provides the purpose of bringing the attention of the witness before using the documents or earlier statements to impeach his credit. The High Court observes that On general principles it would appear to be sound that if a witness is under cross-examination on oath he should be given the opportunity, if documents are to be used against him, to tender his explanation and to clear up the particular point of ambiguity or dispute. This is a general, salutary, and intelligible rule, and where a witness’s reputation and character are at stake the duty of enforcing this rule would appear to be singularly clear.”

Let us understand the true meaning and purport of Section 162 of the Code for making use of the statements recorded by the Police as evidence during trial. It is in essence allowing the use of statements recorded by the Police during the course of investigation to be used in evidence for a limited purpose. The first proviso to Section 162(1) makes an exception to the use of the statements recorded under Section 161(3), but it is an exception most jealously circumscribed under the proviso itself. “Any part of his statement” which has been reduced to writing may in certain limited circumstances be used to contradict the witness who made it. The High Court of Patna in the judgment of Badri Chaudhary v. Emperor [12], while interpreting the amendment to Section 162 of the Code of 1898 (which is almost identical to Section 162 CrPC, 1973) stated the limitation regarding the exception to the use of the statements in evidence. It held as under:

“The limitations are strict: (1) only the statement of a prosecution witness can be used; and (2) only if it has been reduced to writing; (3) only a part of the statement recorded can be used; (4) such part must be duly proved; (5) it must be a contradiction of the evidence of the witness in Court; (6) it must be used as provided in Section 145, Evidence Act, that is, it can only he used after the attention of the witness has been drawn to it or to those parts of it which it is intended to use for the purpose of contradiction,…”

Statements before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act that is by drawing attention to the parts intended for contradiction.  Under Section 145 of the Evidence Act, the attention of the witness has to be called to those parts of it which are to be used to contradict him. The Supreme Court in the judgment of V. R. Mishra  v. State of Uttarakhand [13] at para 19 has reiterated the procedure for bringing the contradiction on record of the trial. The procedure prescribed is as under:

Let us first understand the procedure for proving a pure and simple contradiction and then we will examine how to prove an omission which amounts to contradiction.

Once the examination-in-chief is completed by the Public Prosecutor and the witness deposes something contradictory to the previous statement then during cross-examination by the defence:

  • His attention has to be drawn to that part of the statement made before the Police which contradicts his statement in the witness box.
  • The attention of the witness drawn to that part must reflect in the cross-examination.
  • While recording the deposition of the witness, it becomes the duty of the trial court to ensure that the part of the police statement/case diary with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination.
  • Ideally the relevant portions of case diary/statement used for contradicting a witness must be extracted fully in the deposition. If the same is cumbersome at least the opening and closing words of the contradiction in the case diary statement must be referred to in the deposition and marked separately as a prosecution/defence exhibit.
  • If he admits to have made the previous statement then no further proof is necessary to prove the contradiction. The contradiction is brought on record and it is proved. It can be read while appreciating the evidence.
  • But if the witness after going through the earlier statement denies having made that part of the statement then it must be mentioned in the deposition.
  • By this process the contradiction is merely brought on record, but it is yet to be proved.
  • Thereafter when the investigating officer or the officer who recorded the said statement is examined in the court, his attention should be drawn to the passage marked for contradiction.
  • After going through the police statement if he says that the witness had made that statement then the contradiction can be said to have been proved.
  • If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the Court cannot suo motu make use of statements to police not proved in accordance with Section 145 of the Evidence Act.

During the examination-in-chief, if the witness does not support the case of the prosecution and ultimately, he is declared hostile by the court then with the permission of the court the Public Prosecutor will have to cross-examine the witness. The method of proving the contradiction and bringing the earlier statement on the record would be the same as mentioned above. If the Public Prosecutor does not confront the witness with earlier statements the contradiction would not be on record and he will not be in a position to prove it through the investigating officer. This has been held by 4-Judge Bench judgment of the Supreme Court in Tara Singh v. State[14] wherein it is held as under:

“….if the prosecution wishes to go further and use the previous testimony to the contrary as substantive evidence, then it must in my opinion, confront the witness with those parts of it which are to be used for the purpose of contradicting him. Then only can the matter be brought in as substantive evidence under Section 288. As two of the eyewitnesses were not confronted in the manner required by Section 145, their statements will have to be ruled out, and if that is done, the material on which the conviction is based is considerably weakened.”

Further, the Supreme Court in the judgment of State of Rajasthan v. Kartar Singh[15] has held that if the witness resiles completely from its earlier statement than, if the entire previous statement is read over to the witness and then confronted with the said statement that would be in compliance with Section 145 of the Evidence Act. The Supreme Court observed that it would have been pointless to draw the witness attention to each sentence and ask his explanation because the explanation would have been the same that it was false and given under pressure of police. However, the earlier statement will have to be read over in order to comply with the requirement of Section 145 of the Evidence Act. If a clever witness faithfully conforms to what he stated earlier to the police or in the committing court, but in the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief then such witness can be cross-examined by the prosecution as held by the Supreme Court in the judgment of Dahyabhai Chhaganbhai Thakkar  v. State of Gujarat[16].

Method of marking previous inconsistent statements to prove omission which amounts to contradiction  

Omissions may have vital bearing upon the truth of the story given. But to prove the omission there is a slightly different technique. In the case of omission of the most vital and relevant aspect the contradiction is implied and is not so direct. In order to confront with the earlier statement there is nothing in the earlier statement which is contradictory as the witness might have improved his version during the testimony. So first the contradiction will have to be brought by asking questions in cross-examination which are permitted under Section 162 of the Code. Let us understand this by an illustration which is explained in the landmark judgment of Tahsildar Singh (supra):

  • ‘X’ makes a statement before the Police that “When I arrived at the scene I saw ‘A’ running away, chased by ‘B’ and caught by ‘C’”.
  • In the witness box ‘X’ says that “When I arrived at the scene, I saw A take out a dagger from his pocket, stab ‘D’ in his chest and run away. He was chased by ‘B’ and caught by ‘C’.

Here is an example of omission of two facts in the statement before the Police:

  • ‘A’ takes out a dagger from his pocket;
  • ‘A’ stabbed ‘D’ in his chest;

The said omissions are vital. It is not believable that the witness who says ‘A’ took out a dagger and stabbed D in the chest would not mention such a crucial and important fact. Further, it is also not possible that a police officer investigating the case would miss out on such a crucial piece of information. Therefore, it can be implied that the witness has improved his version and is not giving out the correct facts and therefore the omission becomes a contradiction.

However, in order to bring the contradiction on record first, the omission will have to be converted into a contradiction by asking the question in the cross-examination which will bring out the contradiction. The cross-examination in the case of omission becomes very important and it should be aimed at bringing out the contradiction between the statements. Let us understand what kind of questions would be admissible and what would not be admissible.

In the above case the cross-examiner may ask:

  1. I put it to you that when you arrived at the scene ‘A’ was already running away and you did not actually see him stab ‘D’ as you have deposed?
  2. No, I saw both the events.
  3. If that is so, why is your statement to the police silent as to stabbing?
  4. I stated both the facts to the Police.
  5. I am showing you from the original record your statement before the police where you have mentioned “When I arrived at the scene I saw ‘A’ running away, chased by ‘B’ and caught by ‘C’”
  6. I had stated but the Police did not write accordingly.

So the first thing to do is to convert the omission by putting a question which will bring out the contradiction. What is required is to take the statement of the police as it is and establish a contradiction between that statement and the evidence in court. If the cross-examination does anything else but to bring out the contradiction then it is barred under Section 162 of the Code and such questions will not be allowed to be put to the witness. Questions which cannot be asked are as follows:

  1. What did you state to the Police?
  2. Did you state to the police that A stabbed D?

Such questions cannot be asked as they attempt to get a fresh version of the witness and not a contradiction. Contradiction under Section 162 of the Code should be between what a witness asserted in the witness box and what he stated before the police officer. After bringing the contradiction on record the next step is to ask the Investigating officer or the officer who recorded the statement of the witness under Section 161(3) the question regarding whether he had given such a statement before the officer. If the officer states that the witness had not mentioned the said facts then the omission is proved during the trial.

Conclusion

The importance of proving contradiction in accordance with the manner prescribed is absolutely important and very crucial for practicing in the trial courts. If contradictions are proved as per the procedure then it can have a considerable impact on the trial. The illustrations given above are to highlight the best practice to prove contradictions. However, cross-examinations may vary from case to case and on the facts and circumstances as well as on counsel to counsel as well as on statements to statements.


*Jeet J Bhatt is a practicing Advocate at Gujarat High Court. He can be reached at jeetbhatt@gmail.com

[1] Section 145. Cross-examination as to previous statements in writing.— A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

[2]Section 161. Examination of witnesses by police.– (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

[3] Section 162. Statements to police not to be signed: Use of statements in evidence.– (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872 ); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act. Explanation.- An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

[4]In Re: To issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials, 2017 SCC OnLine SC 298.

[5] 1963 SCC OnLine Guj 32

[6]Section 146 of the Evidence Act, 1872

[7] 1959 Supp (2) SCR 875

[8]  1957 SCC OnLine MP 83

[9]Queen Carolines Case, (1820) 2 Brod& Bing 287,

[10]United States v. Cottrell, 1986 U.S Dist. LEXIS 19272 (E.D. Pa.Oct, 9, 1986)

[11] 1915 SCC OnLine PC 16

[12] 1925 SCC OnLine Pat 148

[13] (2015) 9 SCC 588

[14] 1951 SCR 729

[15](1970) 2 SCC 61

[16] (1964) 7 SCR 361

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 BriefsSupreme Court

Supreme Court: Answering a reference the 3-judge bench of RF Nariman, Navin Sinha and Indira Banerjee, JJ has held that if a plaint is returned under Order VII Rule 10 and 10A of CPC, for presentation in the court in which it should have been instituted, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo.

The Court was hearing the reference by a two Judge Bench opining a perceived conflict between two Division Bench decisions in Joginder Tuli v. S.L. Bhatia, (1997) 1 SCC 502 and Oil and Natural Gas Corporation Ltd. v. Modern Construction & Co., (2014) 1 SCC 648.

Joginder Tuli verdict

“Normally, when the plaint is directed to be returned for presentation to the proper court perhaps it has to   start   from   the beginning but in this case, since the evidence was already adduced by the parties, the matter was tried accordingly. The High Court had directed to proceed from that stage at which the suit stood transferred. We find no illegality in the order passed by the High Court warranting interference.”

Modern Constructions verdict

“If the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order 7 Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court. However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the same.”

Issue referred

If a plaint is returned under Order VII Rule 10 and 10A of CPC, for presentation in the court in which it should have been instituted, whether the suit shall proceed de novo or will it continue from the stage where it was pending before the court at the time of returning of the plaint?

Larger Bench’s answer to reference

The Court noticed that the observations in Joginder Tuli verdict are very clear that the suit has to proceed afresh before the proper court and that the directions came to be made more in the peculiar facts of the case in exercise of the discretionary jurisdiction under Article 136 of the Constitution. Further, it does not take into consideration any earlier judgments and there is no discussion of the law either. Hence, it has no precedential value as laying down any law.

The Modern Construction verdict, on the hand, was pronounced after consideration of the law and precedents requiring reconsideration in view of any conflict with Joginder Tuli Verdict and hence, lays down the correct law.

The Court also overruled the ruling in Oriental Insurance Company Ltd. v. Tejparas Associates and Exports Pvt. Ltd., (2019) 9 SCC 435, wherein it was held that in pursuance of the amendment dated 01­02­1977 by reason of insertion of Rule 10A to Order VII, it cannot be said that under all circumstances the return of a plaint for presentation before the appropriate court shall be considered as a fresh filing.

Explaining the statutory scheme, the Court noticed that the language of Order VII Rule 10-A is in marked contrast to the language of Section 24(2) and Section 25(3) of CPC. In cases dealing with transfer of proceedings from a Court having jurisdiction to another Court, the discretion vested in the Court by Sections 24(2) and 25(3) either to retry the proceedings or proceed from the point at which such proceeding was transferred or withdrawn, is in marked contrast to the scheme under Order VII Rule 10 read with Rule 10-A where no such discretion is given and the proceeding has to commence de novo.

The Court, hence, held that Oriental Insurance Co. does not lay down the correct law.

[EXL Careers v. Frankfinn Aviation Services Pvt. Ltd.,  2020 SCC OnLine SC 621 , decided on 05.08.2020]

Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J., while addressing a bail application made the following observation:

There cannot be a straight jacket formula as to how a woman will react to an act of outrage by a male, since all women are borne into different circumstances in life, go through different things and faces, experience and react differently and necessarily each woman would turn out to be different from the other.

Applicant sought release on bail for being charged with offences under Sections 376, 354-A and 354-B of Penal Code, 1860.

Advocates who appeared in the present matter:

Dr Abhinav Chandrachud with Ms Khushboo Pathak and Mr Wasi Sayyed i/b Mr Prem Pandey for the Applicant.

Mr Ajay Patil, A.P.P. for the State.

Mr Satyam Nimbalkar for the intervener.

Forceful Sexual Intercourse

Complainant was acquainted with the present applicant aged 24 years since past 8 years. Complainant along with her friends went for an overnight Diwali party and somewhere past midnight she went to a bedroom to take rest and went off to sleep. Around 4,30 she was awakened with a feeling and found that someone was forcing himself upon her.

Complainant found that it Applicant who was forcing himself upon her and trying to have sexual intercourse with her by penetrating his penis into her vagina. At this juncture, the Complainant used all possible force to push him away and she was successful in thwarting the sexual overtures by the applicant.

Later, complainant went to find her friends which she couldn’t hence she returned back to the same room where, on not finding the applicant she went off to sleep, but yet again the applicant tried to repeat the same act to which complainant scolded him and left the room.

Distressed Mental Condition

Due to above stated incident, complainant went through mental trauma and was frightened. She narrated the whole episode to her mother and went to a psychiatrist, further she discussed the whole matter with her family and approached the Kondwa Police Station.

Offences were registered under Sections 376, 354 and 354-A of the Penal code, 1860.

Decision

In complainant’s statement, she stated that on applicant trying to establish physical contact with her she raised an alarm to which none of her friends responded, Court was astonished to the said statement.

Another point which seemed incomprehensible was the fact that she did not report the incident to anyone on the same day though she was amidst of the friends and went for an outing. The photographs placed on record would lead to an impression of her being cheerful in the company of the accused and one other friend.

Considering the material placed on record, Court was of the prima facie view that it does not constitute a reasonable ground for believing that the applicant is guilty of the offence charged.

The statements of two witnesses to the effect that the Applicant and the victim were found sleeping in the same room on the same bed will have to be put to test in a trial and this evidence will have to be appreciated cumulatively.

Further the Bench added that,

“…concept of consent of the victim or as to at what stage the consent was revoked and the act of physical indulgence was attempted to be restrained is a matter of trial.”

Court also quoted Warren Buffet,

“If a lady says No, she means may be” or in the expression of Rich Santos for Marie Claire – “Most of us guys have been there; the night ends, we invite the girls come home with us. When a girl says no, we launch into our second and third attempts. Sadly, these attempts are filled with incentives such as promise of guitar playing, of ‘fabulas chicken tenders at the dinner by my place’ or even promises: ‘I will definitely call on the next day’ etc; I have taken girls home after long discussions, changing Nos to Yeses”

above are the old hat tricks and the issue as to whether the girl really consented freely for a physical indulgence with her is to be searched by applying the new standards of modern life and the present social scenario.

On granting bail to the applicant, Court stated that,

Balancing deprivation of his liberty against the possibility of the trial being commencing and concluding in the immediate times is far beyond reality, particularly in the light of the huge galloping pendency which the judicial system would be staring at, at the end of the Covid pandemic. Incarceration of a young boy for an indefinite period would be antithesis to the concept of liberty.

Hence, applicant was granted bail with stringent conditions. [Jitin Mothukiri v. State of Maharashtra, 2020 SCC OnLine Bom 821 , decided on 21-07-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma , J., allowed the bail petition stating that object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial.

The present petition has been filed under Section 439 Criminal Procedure Code, 1973 for grant of regular bail. The facts of the case are that victim prosecutrix, aged 26 years old, were working in a company since 2017, and in 2018 met the bail petitioner and became good friends. In year 2019, she attended bail petitioners marriage where he expressed that he is not happy with the marriage and wants to marry her, attempts of which she rejected. The bail petitioner allegedly sexually assaulted her twice and impregnated after which when she asked him to get married he refused and advised her to terminate the pregnancy. Hence she filed an FIR against him wherein investigation is complete and the trial is pending.

Arvind Sharma, Additional Advocate General with Kunal Thakur, Deputy Advocate General argued that the crime is a grave one  and the bail petitioner does not deserve any leniency. They further argued that the medical report submitted clearly proves that the bail petitioner is the biological father of the foetus in the womb and hence is charged with Section 376 of Penal Code, 1860

Advocate Rakesh Kumar Doga is representing the petitioner side.

The Court relied on the judgment titled Dataram Singh v. State of U.P., (2018) 3 SCC 22 and Prasanta Kumar Sarkar v. Ashis Chaterjee, (2010) 14 SCC 496 and held that, a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty and that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home is an exception.

In view of the above mentioned arguments and observations the bail was granted. [Ritesh v. State of Himachal Pradesh, 2020 SCC OnLine HP 585 , decided on 27-05-2020]

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: In a significant ruling, a 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and Ravindra Bhat, JJ has unanimously ruled that the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time.

While all 5 judges gave a unanimous verdict, MR Shah and Ravindra Bhat, JJ gave elaborate separate opinions.

Justice Shah was of the opinion that the normal rule should be not to limit the operation of the order in relation to a period of time. He, however, added,

“the conditions can be imposed by the concerned court while granting pre­arrest bail order including limiting the operation of the order in relation to a period of time if the circumstances so warrant, more particularly the stage at which the “anticipatory bail” application is moved, namely, whether the same is at the stage before the FIR is filed or at the stage when the FIR is filed and the investigation is in progress or at the stage when the investigation is complete and the charge sheet is filed.”

Justice Bhat in his opinion wrote:

“it would not be in the larger interests of society if the court, by judicial interpretation, limits the exercise of that power: the danger of such an exercise would be that in fractions, little by little, the discretion, advisedly kept wide, would shrink to a very narrow and unrecognizably tiny portion, thus frustrating the objective behind the provision, which has stood the test of time, these 46 years.”

Summary of the verdict

Whether the protection granted to a person under Section 438 Cr. PC should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail?

The protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period. The Normal conditions under Section 437(3) read with Section 438(2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event) etc.

Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court?

The life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.

Points to be kept in mind by courts, dealing with applications under Section 438, Cr. PC:

  • When a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts such as relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story, and not vague or general allegations, relatable to one or other specific offence.
  • Depending on the seriousness of the threat of arrest the Court should issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.
  • Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. The   need   to   impose   other   restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency.
  • Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it.
  • Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.
  • An order of anticipatory bail should not be “blanket” in the sense that it cannot operate in respect of a future incident that involves commission of an offence.
  • An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre­arrest bail.
  • If and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail.
  • It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term.
  • The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. This does not amount to “cancellation” in terms of Section 439 (2) Cr.P.C.

Sushila Aggarwal v. State of NCT of Delhi, 2020 SCC OnLine SC 98, decided on 29.01.2020]

Case BriefsSupreme Court

Supreme Court: Noticing that where death sentence could be one of the alternative punishments, the courts must be completely vigilant and see that full opportunity at every stage is afforded to the accused, the 3-judge bench of UU Lalit, Indu Malhotra and Krishna Murari, JJ has laid down the below mentioned norms to ensure the same.

  • In all cases where there is a possibility of life sentence or death sentence, learned Advocates who have put in minimum of 10 years practice at the Bar alone be considered to be appointed as Amicus Curiae or through legal services to represent an accused.
  • In all matters dealt with by the High Court concerning confirmation of death sentence, Senior Advocates of the Court must first be considered to be appointed as Amicus Curiae.
  • Whenever any counsel is appointed as Amicus Curiae, some reasonable time may be provided to enable the counsel to prepare the matter. There cannot be any hard and fast rule in that behalf. However, a minimum of seven days’ time may normally be considered to be appropriate and adequate.
  • Any learned counsel, who is appointed as Amicus Curiae on behalf of the accused must normally be granted to have meetings and discussion with the concerned accused.

The Court was hearing a case where the Amicus Curiae was called upon to defend the accused at the stage of framing of charges on the very day he was appointed. The Court was, hence, certain of the fact that the Amicus Curiae did not have sufficient time to go through even the basic documents, nor the advantage of any discussion or interaction with the accused, and time to reflect over the matter. Thus, even before the Amicus Curiae could come to grips of the matter, the charges were framed. Not only this, but the trial itself was concluded within a fortnight thereafter and the accused was awarded death sentence in the offence relating to murder of a 9-year-old girl.

The Court, hence, said that though expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of fair trial, however, in the pursuit for expeditious disposal, the cause of justice must never be allowed to suffer or be sacrificed.

“What is paramount is the cause of justice and keeping the basic ingredients which secure that as a core idea and ideal, the process may be expedited, but fast tracking of process must never ever result in burying the cause of justice.”

It was hence, held that the Trial Court on its own, ought to have adjourned the matter for some time so that the Amicus Curiae could have had the advantage of sufficient time to prepare the matter. The approach adopted by the Trial Court may have expedited the conduct of trial, but did not further the cause of justice. In the process, the assistance that the appellant was entitled to in the form of legal aid, could not be real and meaningful.

“the entire trial was completed in less than one month with the assistance of the prosecution as well as the defense, but, such expeditious disposal definitely left glaring gaps.”

The Court, hence, set aside the conviction and directed a de novo consideration of the matter.

[Anokhilal v. State of Madhya Pradesh, 2019 SCC OnLine SC 1637, decided 18.12.2019]

Case BriefsHigh Courts

Bombay High Court: K.R. Shriram, J., dismissed a criminal appeal filed against the order of the Metropolitan Magistrate whereby he had acquitted the accused-respondent for the absence of the complainant-appellant and his advocate at the stage when the case was placed for evidence.

It may be noted that the matter was listed before the trial court on 31 occasions, out of which, the complainant (appellant herein) was absent 11 times. On the 31st occasion as well, when the matter was placed for evidence, the complainant and his advocate were absent. Consequently, the trial Magistrate passed the impugned order mentioned above. In the instant appeal, it was submitted by the complainant that it was due to inadvertence of his counsel, who misheard the next date of hearing, that the complainant was not able to present himself before the trial court on the day the impugned order was passed.

On facts, the High Court found that the pleas made by the appellant were unsubstantiated and no relief could be given to him.

Explaining the mandate of Section 256 CrPC, the Court observed:

“Section 256 mandates that if the complainant does not remain present on the appointed day after the summons has been issued on the complaint and unless attendance of complainant has been dispensed with, the Magistrate shall acquit the accused. If the Magistrate feels that the order of acquittal should not be passed on that date, the Magistrate has to give reasons.”

Reiterating that speedy trial is a fundamental right of the accused, the Court noted that the Magistrate cannot allow a case to remain pending for an indefinite period.

The Court observed that “the Magistrate in terms of sub-section (1) of Section 256 exercises wide jurisdiction”. In the present case, it was noted, the Magistrate had acquitted the accused as provided under Section 256 because he did not find any reason to adjourn the hearing of the case to some other day. As noted above, out of the 31 dates, on 11 dates the complainant was absent but still the Magistrate did not dismiss the complaint on those dates.

In such a situation, the High Court was of the opinion that there was no illegality in the impugned order so as to require any interference. The appeal was, therefore, dismissed. [Champalal Kapoorchand Jain v. Navyug Cloth Stores, 2019 SCC OnLine Bom 4805, decided on 26-11-2019]

Case BriefsHigh Courts

Allahabad High Court: Dinesh Kumar Singh, J. while disposing of this petition gave liberty to the petitioner to move an application for altering the charge against the accused.

This instant petition was filed under Section 482 CrPC challenging the order of Additional District and Sessions Judge (Ex-cadre), Pratapgarh. The charges were framed under Sections 147, 323/149, 452, 504, 506 IPC.

Counsel for the petitioner, Amar Nath Dubey submitted that Sessions Judge did not frame charge under Section 436 IPC. This was done on the incorrect ground that there was no allegation either in the FIR or in the statement of the complainant recorded under Section 161 CrPC that the accused used fire or explosive substance to put on fire the residential property of the complainant or another person. The miscreants/accused persons had put on fire the thatch of Ramadhar.

The Court in view of the above observed that at the stage of framing of charge, a Judge is required to evaluate the evidence to find out prima facie case but he is not required to go in detail every statement or every evidence which has been collected by the Investigating Officer. The Sessions Judge after considering the version of the FIR and the statement of the other witnesses including the complainant was prima facie of the opinion that offence under Section 436 IPC is not made out. If the complainant or the prosecution is of the view, during the course of the trial, that some other offences has/have also been committed by the accused, it is always open to him/her to file an application under Section 216 CrPC to alter the charges. [Nepali Devi v. State of U.P., 2019 SCC OnLine All 4366, decided on 30-10-2019]

Case BriefsHigh Courts

Uttaranchal High Court: Manoj K. Tiwari, J. allowed a writ petition to quash criminal proceedings after parties compromise over a non-compoundable offence.

The petitioners were convicted for the charge of robbery under Section 392 of the Penal Code, 1860. The learned counsels for both the parties, Mr Mani Kumar for the petitioners and Mr Kishore Rai for respondent 3, submitted that the dispute was amicably settled and the parties want to bury the hatchet. A writ petition seeking quashing of the FIR lodged against the petitioners and a compounding application was duly filed in the court.

The Court commented extensively on the power conferred by Section 482 of the Code of Criminal Procedure, 1973 stating its primary need to be the prevention of abuse of the process of any court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code.

As to when can a High Court quash criminal proceedings in view of a settlement between the parties, the offences being non-compoundable, the Court took the Supreme Court’s view in Gian Singh v. State of Punjab (2012) 10 SCC 303 which was that it can do so if in its opinion continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor.

In view of the points of law discussed above, the Court acknowledged that the possibility of a conviction from a trial seemed rather bleak and remote considering the parties have entered into a compromise and thus, allowed the writ petition. [Gurmukh v. State of Uttarakhand, 2019 SCC OnLine Utt 1138, decided on 08-11-2019]

Case BriefsHigh Courts

Uttaranchal High Court: Sharad Kumar Sharma, J. contemplated a criminal revision petition where the issue discussed was related to Section 311 CrPC, it was stated that the Section gave an exclusive power to the Court as defined under the CrPC that it may at ‘any stage’ of an inquiry, trial or other proceedings, and the Court may summon any person as a witness or examine any person in evidence though not summoned as a witness in the earlier set of proceedings.

The counsel for the petitioner challenged the order passed by the Special Judge, POCSO in another case State v. Anand Rana, where the court in trial, exercised its power under Section 311 CrPC for purpose of summoning of the witnesses. It was further alleged that, at the stage, when the proceedings were pending consideration before the court, the prosecution had moved an application, by invoking the provisions of Section 311 CrPC for summoning some of the witnesses at the stage when the trial was pending consideration before the Sessions Court, before it came to any logical conclusion with regard to the offences, which were levied against the accused revisionist.

On the contrary the respondent contended that by the application, preferred under Section 311 of CrPC gave an avenue and ample of powers to the Trial Court to exercise its domain at any stage of the proceedings, to call upon the witness, which the Court considers it to be necessary to be considered for the purposes of better elucidation of the controversy and for settling of the offences as against the present accused persons by their examination and considering their statements before drawing any logical conclusion.

The Court observed that the arguments of the petitioner was not sustainable because it ran contrary to the very spirit and purpose for which legislature had drafted Section 311, “it gave ample of power to the Trial Court to summon and examine the witness which were necessary for the purpose of determination of the issue involved before in the trial at any stage of the proceeding, which according to the Court, included the proceedings even after the closure of the prosecution witnesses or the stage of 313 CrPC.

Another argument raised by the petitioner was that to invoke an application under Section 311 there has had to be a reasonable ground which had to be expressed by the prosecution, to this the Court observed that, it was always a subjective matter for consideration, which depended upon the perception of each and every court as per the requirement of the case and, according to its own wisdom and the intellect which the Court possessed. The Court was of the view that irrespective of whatsoever the logical reasoning was assigned by the prosecution for the purposes of invoking Section 311 CrPC, the accused, who was apprehending the examination of additional witnesses for the purposes of establishment of the offence levied against him, it became inevitable for him to take a stand that the reason given in the application did not justify the invocation of the provisions contained under Section 311 CrPC.

The Court, further mentioned that it did not want to interfere in the challenge because the basic purpose and intention as per the language of Section 311 CrPC was to equip the Court with sufficient power to summon witnesses.

Lastly the argument raised by the petitioner was that the invocation of Section 311 CrPC by prosecution cannot be utilized to fill in the lacunae of the evidence which had already been adduced before the Trial Court by examination of additional witnesses by summoning them under Section 311 of the CrPC the Court to this particular contention stated that at the stage when the Court was under consideration of the application under Section 311 CrPC and considered the justification of summoning the witnesses at the stage when Court decided to summon a witness under Section 311 CrPC, it cannot be a stage where a petitioner had an argument that the prosecution intended to fill in lacunae of the trial, which was pending consideration before the Court. Hence, the revision was dismissed.[Kaushik Bisht v. State of Uttarakhand, 2019 SCC OnLine Utt 794, decided on 30-07-2019]

Case BriefsHigh Courts

Delhi High Court: Sunil Gaur, J. allowed a batch of petitions filed against the trial court’s order whereby the petitioners including Group President of Reliance Industries Public Ltd. and the Vice-President of Reliance Industries Ltd. were put on trial for the offences punishable under the Official Secrets Act, 1923.

On 28-10-1998, the Delhi Police raided the office of Group President of RIL and recovered copies of 4 ‘secret’ documents of the Government of India. The recovered copies related to policy documents related to economy and disinvestment.

It was submitted by the petitioners that the documents in the question were not prejudicial to the security of the State and by merely marking them to be secret, does not bring the documents in question within the ambit of the Official Secrets Act. They contended that the ‘secret’ information was already in public domain, which had been supplied through Government channels and that it was so apparent from the copies of newspaper reports on record.

Referring to Sama Alana Abdulla v. State of Gujarat, (1996) 1 SCC 427 and State (NCT of Delhi) v. Jaspal Singh, (2003) 10 SCC 586 the High Court noted: “A person cannot be put on trial merely because a document has been marked as secret, as it is necessary to see the nature of information contained in it, to find out if any offence under the Official Secrets Act is made out or not.” The Court was of the view that the trial court erred in ignoring the newspaper reports produced on a technical plea of want of proof. It was reiterated that substantial justice cannot be sacrificed on technicalities.

As per the Court, a bare perusal of the statement of the Secretary, Department of Telecommunication, revealed that he was not categoric about the documents in question being prejudicial to the security of the nation. It was further noted that since the documents in question had been already made public, therefore, they lost their confidentiality. The Court was of the opinion that the impugned order suffered from utter non-application of mind, and therefore, the same was set aside. The proceedings against the petitioners were quashed.[Shankar Adawal v. CBI, 2019 SCC OnLine Del 9434, decided on 01-08-2019]

Case BriefsHigh Courts

Jharkhand High Court: Anil Kumar Choudhary, J. heard an interlocutory application filed under Section 378(4) of the Code of Criminal Procedure, 1973 warranting a grant of special leave to present an acquittal appeal.

Applicants herein were accused of entering into the complainant’s house to threaten her to withdraw the case instituted by her, during which they had abused her in a filthy language, and on her refusal to do so, they assaulted her and broke the lock of her shop taking away all the articles from it. The complainant had examined four witnesses in support of its case, whereby CW 1 and CW 2 were held not to be eye-witnesses to the occurrence and the CW 3 and CW 4 were not named in the column for witnesses, however, were introduced by the complainant at a later stage. The complaint had no mention of the presence of CW 4 at the place of occurrence, nor had the witnesses, at the stage of enquiry, stated her presence at the place of occurrence. CW 3, who was also the daughter of the complainant provided that the accused persons had misbehaved with the complainant and asked her to withdraw her case. She specifically stated that Akhilesh Pandey, who had been convicted, pointed a gun at the complainant, got the lock broken, and Rajesh Pandey, one of the private respondent, had called a truck and took away the articles of CW 3 and her mother, the complainant. The Chief Judicial Magistrate held that CW 3 and CW 4 had not stated anything about the two private respondents of this appeal, as required under Section 323 (punishment for voluntarily causing hurt) and Section 504 (intentional insult with intent to provoke breach of the peace) of the Penal Code, 1860 and as CW 1 and CW 2 were not eyewitnesses, he acquitted the two private respondents of this appeal and convicted Akhilesh Pandey.

The counsel for the appellant, while seeking the grant of special leave under Section 378(4) of CrPC submitted that the learned court had not considered the fact that CW 3 had specifically stated for the misbehavior of all the three persons with the complainant-CW 4, and that the subsequent paragraphs of her statement had specifically stated that Akhilesh Pandey had committed the offences. The trial court should have taken into consideration her earlier submission where she provided for the presence of other accused at the place of occurrence.  It was then submitted that her submission regarding the presence of the two private respondents at the place of occurrence, deemed that she had stated about the two private respondents of this appeal to have committed the offence for which their co-accused had been convicted, thereby they could also have been convicted.

The learned Additional Public Prosecutor submitted that the learned CJM had considered the fact that the witnesses had not specifically stated about the involvement of the private respondents of this appeal, hence, rightly acquitted them. It was further submitted that in a criminal case, unless a witness had specifically stated something against the accused in his deposition, the inference could not be drawn from his statement made in earlier paragraph of the deposition to bring forth the charges against the accused facing the trial, thereby requesting a refusal to the grant of special leave for presenting the acquittal appeal

The High Court opined that as the CW 3 had not specifically stated for the private respondents to cause hurt to the complainant or intentionally insult the complainant thereby giving provocation to her to break the public peace, there was no apparent illegality or gross error in the impugned judgment. Therefore the interlocutory application being without any merit was rejected and the acquittal appeal was accordingly dismissed.[Ila Rani Sahai v. State of Jharkhand, 2019 SCC OnLine Jhar 770, decided on 16-05-2019]

Case BriefsHigh Courts

Bombay High Court: S.S. Shinde, J. denied to quash the charges under Sections 376 and 420 IPC as prayed by the petitioner and further the Court ordered for a trial to take place on the basis of evidence recorded.

The present petition was filed to quash the charges against the petitioner in a case pending before the Sessions Court for Borivali Division at Dindoshi-Goregaon, Mumbai. The charges were framed under Sections 376 and 420 of the Penal Code, 1860.

Contentions by the Counsels:

Counsel for the petitioner, Samarth S. Karmarkar submitted that in the FIR that was lodged by Respondent 1 alleging offence under Section 420 IPC, there was no whisper about an allegation in respect to sexual assault. Further, it was stated that, the supplementary statement of Respondent 1 was the only thing in which allegations against the petitioner are made out that under the pretext and promise, he would marry Respondent 1, extracted huge amount from Respondent 1 and sexually exploited her.

Per contra, N.B. Patil, APP, submitted that overwhelming evidence had been collected by the Investigating Officer during the investigation and evidence of prosecutrix assumes importance which has to be treated on a high pedestal, therefore the petition may be rejected.

The High Court on perusal of grounds and submission of the parties opined that only way to resolve the controversy arising is by way of appreciating the material collected during the course of investigation by way of trial.

Therefore, the Court held that, material collected during the investigation has to be tested during the trial and also the allegations made in the FIR along with the ones in the supplementary statement. Relying on the Supreme Court Judgment in Anurag Soni v. State of Chhattisgarh, 2019 SCC OnLine SC 509, it was observed that no case is made out to invoke extraordinary writ jurisdiction and the prayer of the petitioner has to accede. Trial Court shall not get influenced by observations made during the course of the trial. [Vishal Ramnayan Singh v. XYZ, 2019 SCC OnLine Bom 1141, decided on 26-06-2019]

Case BriefsHigh Courts

Karnataka High Court: Sunil Dutt Yadav, J. granted regular bail on the ground that the case of the commission of offence with pre-meditation was yet to be proved during trial.

A bail application was filed with respect to the offence of murder punishable under Section 302 of the Penal Code, 1860.

The facts of the case were that a complaint was lodged by the complainant against her husband, mother-in-law and sister-in-law for harassing the complainant for about two months. It was further submitted that the complainant had gone back to her parent’s house after the altercation with her husband, but thereafter husband came to the parents’ place and started a quarrel, the mother tried to pacify but the petitioner stabbed the complainant’s mother with a knife, who succumbed to the injuries and died. Thus, the case was registered and the accused was arrested.

Tejas N., counsel for the petitioner stated that the petitioner himself had suffered injuries in altercation according to the statement of the witness. It was further submitted that the context in which altercation took place the reaction of the petitioner was in the nature of reaction to the grave and sudden provocation. Thus, prayed for the grant of bail.

The Court opined that the Sessions Judge had dismissed the application of the petitioner stating that prima facie materials were made out against the petitioner with regard to commission of offence but the court held that petitioner was entitled to bail on the ground that context of the altercation including injuries was, matter to be explained and proved in trial. Hence, application for the bail was allowed.[Syed Raheem v. State of Karnataka, 2019 SCC OnLine Kar 565, decided on 03-06-2019]

Case BriefsHigh Courts

Allahabad High Court: The Bench of Dinesh Kumar Singh, J., released the accused on probation by granting him the benefit of Section 4 of the Probation of Offenders Act, 1958.

The facts of the case were that the accused was booked under Sections 323, 452 and 326 IPC and was convicted by the Trial Court in this regard. Shiv Ganesh Singh, Advocate on behalf of the appellant, submitted that since the appellant was not convicted previously for any offence, the Trial Court ought to have invoked the provisions of the Probation of Offenders Act, 1958. It was further submitted that the Trial Court did neither invoke the provisions of the Act, 1958 nor the provisions of Section 360 CrPC while sentencing the accused-appellant. Neither did it give any special reason in the impugned judgment and order of conviction for not giving the benefit of provisions of Section 360 CrPC or the provisions of Act, 1958. Thus the order suffered from serious illegality being violative of provisions of Section 361 CrPC and, therefore, it cannot be sustained. Section 361 of the Code is required to be applied with or without the beneficial provisions i.e. Section 360 of the Code or provisions of the Act, 1958. It was further stated that if the Court chose not to apply either of these provisions, it was required to give special reasons for not applying the beneficial provision otherwise accused offender would be eligible for provisions of Section 360 of the Code or Section 3 or 4 of the Act, 1958. The accused-appellant had a statutory right for claiming the benefit of beneficial legislation.

The Court, in view of the facts and circumstances, held that the appeal should be dismissed by upholding the conviction of the accused-appellant. However, he was granted the benefit of Section 4 of the Act, 1958. He was released on probation. [Durgesh Chandra v. State of U.P, 2019 SCC OnLine All 2176, decided on 15-05-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. disposed of a petition filed in a matrimonial dispute by allowing the petitioner (wife) to prove additional documents in the matter of an application seeking maintenance from the respondent (husband) under Section 125 CrPC.

Earlier, the trial court had dismissed the wife’s application on the ground that she was not able to establish that she withdrew from the society of her husband for a reasonable cause. The trial court noticed that no evidence was placed on record to substantiate the allegations of cruelty against the husband made by the wife.

R.K. Narang, Advocate for the wife prayed to prove copies of several complaints made to various authorities and also medical records showing injuries caused by the husband. It was submitted that these documents, which were not available with the wife during the trial, had now been obtained from the authorities concerned. Per contra, Akhilesh Kr Singh, Advocate appearing for the husband submitted that the complaints were false and frivolous.

Keeping in view the entirety of the case, the High Court set aside the impugned judgment of the trial court. The wife was granted an opportunity to file and prove the additional documents before the trial court. She was also permitted to summon the record from the authorities where original of such documents may be available. As, consequently, trial court’s order fixing interim maintenance stood received. [Beena Kumari v. Manoj Kumar, 2019 SCC OnLine Del 7237, dated 21-02-2019]

Case BriefsHigh Courts

Delhi High Court: R.K. Gauba, J. allowed a petition filed against the order of Sessions Court whereby proceedings in a case filed under Section 138 of Negotiable Instruments Act, 1881 were stayed.

Petitioner had filed a case against respondents alleging commission of an offence under Section 138. It was alleged that he had advanced a loan to the respondents, for the repayment of which, the respondents had issued a cheque in his favour drawn on Axis Bank Ltd. However, on presenting the cheque, it was returned unpaid with remarks “payment stopped by drawer.” After a preliminary enquiry, Metropolitan Magistrate issued summons to respondents. Thereafter the respondents reached the Sessions Court which granted a stay on summons order till final decision in another case arising out of an FIR filed by respondents against the petitioner. Aggrieved thereby, petitioner filed the present petition under Section 482 CrPC.

The High Court noted that in the FIR filed, respondents alleged that the cheque in question was stolen and misappropriated by the petitioner. It was also noted that revisional court stayed the proceedings under Section 138 on the ground that the same would unnecessarily prejudice the trial in the case arising out of the FIR. The High Court held this to be totally unjust and unfair. It was stated “Though questions would arise in the criminal case under Section 138 NI Act as to whether cheque in question had come in the hands of the petitioner legitimately or not, the contentions of the respondents are a matter of defence which will have to be raised by them, the burden of proof of the requisite facts in such regard being placed on them. There is no reason why the case arising out of above-mentioned FIR should have primacy or priority over the case of the petitioner against the opposite party.” The petition was thus allowed and the impugned stay order was allowed. [Mukesh Aggarwal v. State (NCT of Delhi), 2019 SCC OnLine Del 6843, decided on 28-01-2019]

Case BriefsHigh Courts

Tripura High Court: The Bench of S. Talapatra, J. reversed the order of the trial court convicting the appellant for offence punishable under Section 498-A IPC and sentencing him to suffer 3 years rigorous imprisonment.

Father of the deceased alleged that the appellant (husband of the deceased) tortured her and subjected her to cruelty for not fulfilling the unlawful demand of Rs 20,000 cash and gold ornaments. Finally, on 22-12-2012, the deceased committed suicide by hanging herself. An FIR was lodged and the appellant was put to trial after pleading not guilty. At the conclusion of the trial, the trial court convicted the appellant for offence punishable under Section 498-A IPC (cruelty to woman). Aggrieved thereby, the appellant preferred the present appeal.

The High Court perused the witness evidence and noted that from a conjoint reading of testimonies, it emerged that the witnesses were greatly influenced by the shocking death of a young woman. It was pointed out that in the first instance, the witnesses failed to reveal material facts to the Investigating Officer, but when such facts were revealed in trial, their testimonial value was substantially reduced as they appeared to be improvements and become prone to be doubted. Moreover, it was observed that such improvements were made by related witnesses which made it all the more doubtful because as per the normal rule the court scrutinizes evidence of related witness with greater caution. In such circumstances, it was held that the prosecution failed to establish the charge under Section 498-A beyond a reasonable doubt.  Therefore, the impugned order was set aside and the appellant was acquitted on benefit of doubt. [Sanjit Das v. State of Tripura, 2019 SCC OnLine Tri 27, dated 09-01-2019]