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]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Madan B. Lokur and Deepak Gupta, JJ. laid down directions and threw light in a very precise and analytical manner on two very important and pertinent issues:

  • Identity of adult victims of rape and children who are victims of sexual abuse should be protected so that they are not subjected to unnecessary ridicule, social ostracisation and harassment;
  • Issues relating to non-disclosure of the name and identity of a victim falling within the purview of the POCSO.

The present judgment has been in a detailed manner written down in two parts dealing with the above-stated issues separately.

“Victim of a sexual offence, especially a victim of rape, is treated worse than the perpetrator of the crime.”

The bench while stating that a victim of rape is treated like a “pariah” and ostracised from society, stated that many times cases of rape do not even get reported because of the false notions of so-called ‘honour’ which the family of the victim wants to uphold.

“Victims’ first brush with justice is an unpleasant one where she is made to feel that she is at fault; she is the cause of the crime.”

Court made it clear that they do not want to in any manner curtail the right of the defence to cross-examine the prosecutrix, but the same should be done with a certain level of decency and respect at large. Efforts have been made to sensitise the courts, but experience has shown that despite the earliest admonitions, the first as far back in 1996, State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, the Courts even today reveal the identity of the victim. Further, the Court referred to Section 228A IPC (Disclosure of identity of the victim of certain offences etc.), Section 327 CrPC, 1973 (Courts should be open and normally public should have access to the Courts) , stated that vide the Amendment Act of 1983, cases of rape, gang rape etc. were excluded from the category of cases to be tried in open Court. Sub-Section (1) of Section 228A states that any person who makes known the name and identity of a person who is an alleged victim of an offence falling under Sections 376, 376A, 376AB, 376B, 376C, 376DA, 376DB or 376E commits a criminal offence. Sub-Section (2) of Section 228A is making known the identity of the victim by printing or publication under certain circumstances described therein.  Bench making it clear that the phrase “matter which may make known the identity of the persondoes not solely mean that only the name of the victim should not be disclosed but it also means that the identity of the victim should not be discernible from any matter published in the media. The clarity also lead to the bench stating that, no person can print or publish the name of the victim or disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.

Next pointer on which the Court threw light was on the investigation taken by police officers, they should also as far as possible either use a pseudonym to describe the victim unless it is absolutely necessary to write down her identity. FIR relating the offence of rape against women or offences against children falling within the purview of POCSO shall not be put in the public domain. Memos or Correspondence exchanged or issued with the name of the victim in it should not be disclosed to media and not be furnished to any person under RTI Act, 2015.

Another vexatious issue is in regard to the “next kin of the victim” giving an authority to the chairman or secretary of recognized welfare institutions to declare the name of the victim—For the stated issue, Court was of the opinion that, it is not necessary to disclose the identity of the victim to arouse public opinion and sentiment, If a campaign has to be started to protect the rights of the victim, it can be done so without disclosing her identity. Therefore, the Court stated that even under the authorization of the next of the kin, without permission of the competent authority, the identity should not be disclosed.

Sub-Section (3) of Section 228A IPC, lays down that nobody can print or publish any matter in relation to any proceedings within the purview of Section 228A IPC and Section 327 (2) CrPC.

If the accused is acquitted and the victim of the offence wants to file an appeal under Section 372 CrPC, the victim can pray to the Court that she may be permitted to file a petition for the same under a pseudonymous name.

Issue 2- Issues which relate to non-disclosure of the name and identity of a victim falling within the purview of the POCSO.

India is a signatory to the United Nations Convention on the Rights of Child, 1989 and Parliament thought it fit to enact POCSO in the year 2012, which specifically deals with sexual offences against all children.”

Section 24(5) and Section 33(7) makes it amply clear that the name and identity of the child is not to be disclosed at any time during the course of investigation or trial and the identity of the child is protected from the public or media.

Section 37 states that trial is to be conducted in camera which would mean that the media cannot be present; the purpose of POCSO is to ensure that the identity of the child is not disclosed unless the Special Court in writing permits such disclosure and disclosure can only be made if it is in the interest of the child, for instance,e the identity of the child cannot be established even by the investigating team, then the permission of photograph to be published can be given by the Special Court of Investigative Team.

Learned amicus curiae placed that the definition of ‘interest of child’ has not been given anywhere to which the Court stated that it is neither feasible nor would it be advisable to clearly lay down what is the meaning of the phrase “interest of the child”, as each case will have to be dealt within its own factual scenario.

The bench further detailed out that media has to be not only circumspect but a duty has been cast upon the media to ensure that it does nothing and gives no information which could directly or indirectly lead to the identity of the child being disclosed.

“Media should be cautious not to sensationalise the same.”

Sensationalising such cases may garner Television Rating Points (TRPs) but does no credit to the credibility of the media.

A child belonging to a small village, the disclosure of the name of the village may contravene the provisions of Section 23(2) POCSO because it will just require a person to go to the village and find out who the child is—Media is not only bound to not disclose the identity of the child but by law is mandated not to disclose any material which can lead to the disclosure of the identity of the child and such violation would amount to an offence under Section 23(4). Another point raised by the amicus curiae was that the publication should only mean a living child to which the Supreme Court was in total disagreement, as in the case of dead victims, the factor which was to be kept in mind was the dignity of the dead which they cannot be denied of.

The decision of Calcutta High Court in, Bijoy v. State of W.B.,2017 SCC OnLine Cal 417, detailed out the reasons while dealing with the provisions of POCSO and held that neither during investigation nor during the trial name of the victim should be disclosed. The judgment also laid down directions to ensure that the provisions of the law are followed in letter and spirit, and the fundamental rights of child victims are protected, to which the Supreme Court bench in the present case is in agreement.

The Bench requested the Chairpersons and Members of all the Juvenile Justice Committee of all the High Courts to go through the judgment of the Calcutta High Court stated above and issue directions keeping in view the needs of each High Court/State. The Court also detailed out the establishments of  “One Stop Centres”, by taking inspiration from “BHAROSA” in Hyderabad which can be used as a model for other one-stop centres in the country.

Thus, the Court disposed of the petitions and based on the above-stated discussion laid down 9-directions which can be referred to in the judgment. [Nipun Saxena v. Union of India,2018 SCC OnLine SC 2772, decided on 11-12-2018]

Case BriefsHigh Courts

Chhattisgarh High Court: An appeal against the order of acquittal filed by the State was decided by a Division Bench comprising of Prashant Kumar Mishra and Ram Prasanna Sharma, JJ., wherein acquittal of the respondents as ordered by the Sessions Judge was upheld.

The respondents were accused in a criminal case under Section 302 read with Section 32  IPC for the murder of one Tushkumar and his wife. The prosecution while trying to prove its case submitted that the relation between the respondents and the deceased were strained and they had threatened to kill him; corroborative piece of seizure of deadly weapons from the respondents was an incriminating circumstance against them. However, the trial court acquitted the respondents of the charges above-mentioned. Aggrieved thus, the State filed the instant appeal.

The High Court perused the record and found that there was no eyewitness to the incident; the case of the prosecution was based on circumstantial evidence. And even the chain of circumstances was not unbroken so as to link the respondents with the crime. The statements of prosecution witness at best created suspicion against the respondents. The case of the prosecution was entirely based on suspicion. The Court observed that however strong the suspicion may be, it can not take place of proof. The High Court was of the opinion that the view taken by the trial court was correct and did not warrant interference. The appeal filed by the State was accordingly dismissed. [State of Chhattisgarh v. Nabbu @ Bafataddin, ACQA No. 137 of 2010, order dated 13-02-2018]

Case BriefsSupreme Court

Supreme Court: Deciding an interesting question of law as to whether consecutive life sentences can be awarded to a convict on being found guilty of a series of murders for which he has been tried in a single trial, the 5 judge bench of T.S. Thakur, CJ, Fakkir Mohamed Ibrahim Kalifulla, A.K. Sikri, S.A. Bobde and R. Banumathi, JJ answered the question in negative and held that while multiple sentences for imprisonment for life can be awarded for multiple murders or other offences punishable with imprisonment for life, the life sentences so awarded cannot be directed to run consecutively. Such sentences would, however, be super imposed over each other so that any remission or commutation granted by the competent authority in one does not ipso facto result in remission of the sentence awarded to the prisoner for the other.

The matter in which the aforementioned question arose was that the appellants were tried for several offences including an offence punishable under Section 302 IPC for several murders allegedly committed by them in a single incident. They were found guilty and sentenced to suffer varying sentences, including a sentence of imprisonment for life for each one of the murders committed by them and the sentence of imprisonment for life for each one of the murders was directed to run consecutively.

The Court, interpreting the provision under Section 31 of CrPC which deals with sentences in cases of conviction of several offences at one trial, held that the power of the Court to direct the order in which sentences will run is unquestionable in view of the language employed in Section 31 of the Cr.P.C. The Court can, therefore, legitimately direct that the prisoner shall first undergo the term sentence before the commencement of his life sentence. Such a direction shall be perfectly legitimate and in tune with Section 31. The converse however may not be true for if the Court directs the life sentence to start first it would necessarily imply that the term sentence would run concurrently. That is because once the prisoner spends his life in jail, there is no question of his undergoing any further sentence. [Muthuramalingam v. State, 2016 SCC OnLine SC 713, decided on 19.07.2016]

Case BriefsHigh Courts

Madras High Court– Expressing concern over the sordid state of affairs in the trial Courts in the State, the division bench of M.Jaichandren and S.Nagamuthu JJ., observed that when an unreasonable request for adjournment or unreasonable request to recall any witness is made and in the event, the trial Court turns down such request, the parties are advised to approach the High Court either under Section 482 CrPC or by way of revision, challenging the said order of the trial Court. The present case illustrates as to how the criminal justice delivery system could be taken for a ride by the unscrupulous men who are parties to the system.

In the instant case, the Court held that the Judge who had conducted the trial had demonstrably exhibited total indifference to his constitutional obligation to do speedy and real justice to the parties. He had allowed the witnesses to be dragged to Court and being harassed for many days. He did not record the reasons as to why the witnesses were again and again put in the witness box. He did not even record as to whether these witnesses were recalled at the instance of the accused or the prosecution. The learned Judge had only exhibited his ignorance in allowing the prosecutor to recall P.W.1 after several months to again examine the witness in chief examination when no new fact was in the hands of the learned public prosecutor to be introduced.

The Court further observed that fair investigation, fair and speedy trial and just verdict are the concomitants of right to life. Such right is not exclusive for the accused. The victim, their family members and the society at large are also entitled to have a fair trial and just verdict. The trial Court should ensure that both the accused and the witnesses, including the victims get a fair deal during trial and ultimately justice triumphs. The Court, after perusal of the facts and relevant case laws held that in order to maintain independence of the judiciary, the Judges should not allow any interference in their independent judicial thinking to do justice which is their Constitutional obligation. [Manikandan v. State, 2016 SCC OnLine Mad 2321, decided on 22.04.2016]

Case BriefsSupreme Court

Supreme Court: Considering the dire need for prison reform, the bench of Madan B. Lokur and R.K. Agrawal, JJ said that prisoners, like all other human beings, deserve to be treated with dignity. Taking note of the fact that the prisons suffer from a wide range of problems like overcrowding, delay in trial, custodial deaths, inadequacy of staff, Insubstantial food and inadequate clothing, etc, the Court said that despite of the various discussions and decisions by this Court regarding this issue over the last 35 years, we are still struggling with resolution of this problem.

Hence, the Court issued the below mentioned directions in order to tackle the situation:

  1. The Under Trial Review Committee, which has been set up in various States, should meet quarterly and the first meeting should be held before 31st March, 2016.
  2. Aspects pertaining to effective implementation of Section 436 of the Cr.P.C. and Section 436A of the Cr.P.C. and those who cannot furnish bail bonds due to their poverty are not subjected to incarceration only for that reason should be considered.
  3. Adequate number of competent lawyers should be empanelled to assist undertrial prisoners and convicts, particularly the poor and indigent.
  4. Issue of the release of undertrial prisoners in compoundable offences, should be looked into, the effort being to effectively explore the possibility of compounding offences rather than requiring a trial to take place.
  5. Proper and effective utilization of available funds so that the living conditions of the prisoners is commensurate with human dignity.
  6. Ministry of Home Affairs will ensure that the Management Information System is in place at the earliest in all the Central and District Jails as well as jails for women so that there is better and effective management of the prison and prisoners.
  7. Annual review of the implementation of the Model Prison Manual 2016 should be conducted by the Ministry of Home Affairs.

The Court also issued a notice to the Secretary, Ministry of Women and Child Development, Government of India in order to ensure that a manual similar to the Model Prison Manual is prepared in respect of juveniles who are in custody either in Observation Homes or Special Homes or Places of Safety in terms of the Juvenile Justice (Care and Protection of Children) Act, 2015. [Re – Inhuman Conditions in 1382 Prisons, 2016 SCC OnLine SC 121 decided on 05.02.2016]