Case BriefsSupreme Court

Supreme Court: In an important ruling, the 3-judge bench of Dr. DY Chandrachud, Vikram Nath and BV Nagarathna, JJ has held that though the Special Court does not have, in the absence of a specific provision to that effect, the power to take cognizance of an offence under the Mines and Mineral (Development and Regulation) Act 1957 (MMDR Act) without the case being committed to it by the Magistrate under Section 209 CrPC; even if the order taking cognizance is irregular, it would not vitiate the proceedings in view of Section 465 CrPC. This was held keeping in mind the objective of Section 465 CrPC, which is to prevent the delay in the commencement and completion of trial.

FACTUAL BACKGROUND

Persistent complaints were made against the appellants for being involved in large-scale illegal mining and transportation of iron ore, and illegal encroachment in forest areas for the purpose of illegal mining. The iron ore is alleged to have been stocked in an unauthorized stockyard without bulk permits from the department of Mines and Geology and to have been transported without an authorized forest way pass. Acting in conspiracy, the accused are alleged to have caused a loss of Rs.3,27,83,379/- to the state exchequer.

They were, hence, charged with offences punishable under the provisions of Sections 409 and 420 read with Section 120B IPC, Sections 21 and 23 read with Sections 4(1) and 4(1)(A) of the Mines and Mineral (Development and Regulation) Act 19571 and Rule 165 read with Rule 144 of the Karnataka Forest Rules 1969.

After the Additional City Civil Sessions Judge and Special Judge for Prevention of Corruption Act at Bengaluru City took cognizance after perusing the final report, it was contended that:

  • the Special Judge did not the power to take cognizance of offences under the MMDR Act without a complaint by the authorized officer in view of Section 22 of the MMDR Act.
  • the order did not mention the offences for which cognizance was taken, thereby, reflecting non-application of mind.

ANALYSIS

Special Court’s power to take cognizance

The general principle which is embodied in Section 465 CrPC is that a finding or order is not reversible due to irregularities unless a ‗failure of justice‘ is proved. Subsection (2) of Section 465 provides that while determining whether there has been a failure of justice, the appellate Court shall have regard to whether the objection regarding the irregularity could and should have been raised at an earlier stage in the proceeding.

“The cardinal principle that guides Section 465(2) CrPC is that the challenge to an irregular order must be urged at the earliest.”

Further, the test established for determining if there has been a failure of justice for the purpose of Section 465 is whether the irregularity has caused prejudice to the accused. No straitjacket formula can be applied. However, while determining if there was a failure of justice, the Courts could decide with reference to inter alia the stage of challenge, the seriousness of the offence charged, and apparent intention to prolong proceedings. It must be determined if the failure of justice would override the concern of delay in the conclusion of the proceedings and the objective of the provision to curb the menace of frivolous litigation.

In the instant case, the cognizance order was challenged by the appellant two years after cognizance was taken. No reason was given to explain the inordinate delay. Hence, it was held that no failure of justice has been demonstrated in the case at hand.

Authorised person‟ and Section 22 of MMDR Act

Section 22 of the MMDR Act stipulates that no Court shall take cognizance of any offence punishable under this Act or Rules, except upon a complaint made in writing by a person authorised on that behalf by the Central or the State Government. It has been contended by the appellant that before the Special Court (Sessions Court) took cognizance of the offence, no complaint was filed by the authorised person.

A combined reading of the notifications dated 29 May 2014 and 21 January 2014 indicate that the Sub-Inspector of Lokayukta is an authorized person for the purpose of Section 22 of the MMDR Act. The FIR that was filed to overcome the bar under Section 22 has been signed by the Sub-Inspector of Lokayukta Police and the information was given by the SIT. Therefore, the respondent hads complied with Section 22 CrPC.

Application of mind by the Special Judge

The Special Judge, it must be noted, took cognizance on the basis of a report submitted under Section 173 CrPC and not on the basis of a private complaint. The Special Judge took note of the FIR, the witness statements, and connected documents before taking cognizance of the offence. In this backdrop, it would be far-fetched to fault the order of the Special Judge on the ground that it does not adduce detailed reasons for taking cognizance or that it does not indicate that an application of mind. In the facts of this case, therefore, the order taking cognizance is not erroneous.

Cognizance against the offence and not the offender

The Special Judge by an order dated 30 December 2015 referred to all the relevant material before him, including the FIR and witness statements, before taking cognizance. However, the cognizance order mentioned that cognizance was taken against the “accused” instead of the offence.

The Court, however, held that this would not vitiate the entire proceedings, particularly where material information on the commission of the offence had been brought to the notice of and had been perused by the Special Judge.

“Moreover, bearing in mind the objective behind prescribing that cognizance has to be taken of the offence and not the offender, a mere change in the form of the cognizance order would not alter the effect of the order for any injustice to be meted out.”

[Pradeep S. Wodeyar v. State of Karnataka, Criminal Appeal No. 1288 of 2021, decided on 29.11.2021]


Counsels

For appellants: Senior Advocates Siddharth Dave and Pravin H Parekh

For State: Advocate Nikhil Goel


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: In a case where two accused absconded and hence, the trial was split and three accused came to be tried for dacoity under Section 391 IPC, the bench of Dr. DY Chandrachud and MR Shah*, JJ has held that merely because some of the accused absconded and less than five persons came to be tried in the trial, it cannot be said that the offence under Section 391 IPC punishable under Section 395 IPC is not made out.

In the case at hand in the FIR there was a reference to five persons involved in committing the crime. Even the charge-sheet was filed against five persons. However, as two accused absconded, the trial was split and three accused came to be tried. One accused Benny came to be tried subsequently and one person is still absconding. Even there are concurrent findings recorded by all the courts below that five persons were involved in committing the offence of robbery

It was, however, argued that since only three accused were tried and subsequently one another accused Benny came to be tried, the condition precedent for bringing the case under Section 391 IPC (Dacoity) has not been satisfied as the involvement of five or more persons in commission of the offence has not been established and proved and only four accused were tried.

Rejecting the aforementioned submission, the Court noted that as such all the accused were charged by the trial Court for the offences under Section 395 IPC as well as 397 IPC. With the aforesaid offences parties went for trial.

“Therefore, once a case under Section 391 IPC punishable under Section 395 IPC is made out, they can be convicted for the offence under Section 391 IPC punishable under Section 395 IPC as no prejudice shall be caused to the accused.”

The Court, further, stated that what is required to be considered is the involvement and commission of the offence of robbery by five persons or more and not whether five or more persons were tried.

“Once it is found on evidence that five or more persons conjointly committed the offence of robbery or attempted to commit the robbery a case would fall under Section 391 IPC and would fall within the definition of ‘dacoity’.”

Therefore, in the facts and circumstances, it was held that the accused can be convicted for the offence under Section 391 IPC punishable under Section 395 IPC.

[Ganesan v. State, 2021 SCC OnLine SC 1023, decided on 29.10.2021]


Counsels

For State: Senior Advocate Dr. Joseph Aristotle S


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud*, Vikram Nath and BV Nagarathna, JJ has lucidly laid down the principles governing the power of the Courts to direct re-trial, Joint Trial and Separate trial and has held retrial and joint trial can be ordered only in exceptional circumstances.

Principles governing Retrial

  1. The Appellate Court may direct a retrial only in ‘exceptional’ circumstances to avert a miscarriage of justice;
  2. Mere lapses in the investigation are not sufficient to warrant a direction for retrial. Only if the lapses are so grave so as to prejudice the rights of the parties, can a retrial be directed;
  3. A determination of whether a ‘shoddy’ investigation/trial has prejudiced the party, must be based on the facts of each case pursuant to a thorough reading of the evidence;
  4. It is not sufficient if the accused/ prosecution makes a facial argument that there has been a miscarriage of justice warranting a retrial. It is incumbent on the Appellant Court directing a retrial to provide a reasoned order on the nature of the miscarriage of justice caused with reference to the evidence and investigatory process;
  5. If a matter is directed for re-trial, the evidence and record of the previous trial is completely wiped out; and

The following are some instances, not intended to be exhaustive, of when the Court could order a retrial on the ground of miscarriage of justice :

a) The trial court has proceeded with the trial in the absence of jurisdiction;

b) The trial has been vitiated by an illegality or irregularity based on a misconception of the nature of the proceedings; and

c) The prosecutor has been disabled or prevented from adducing evidence as regards the nature of the charge, resulting in the trial being rendered a farce, sham or charade.

Ukha Kolhe v. State of Maharashtra, (1964) 1 SCR 926 [Constitution Bench]

“An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of re-trial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons. [..]”

Principles governing joint trial and separate trials

State of Andhra Pradesh v. Cheemalapati Ganeswara Rao, AIR 1963 SC 1850

“… a separate trial is the rule and a joint trial is the exception. However, in case the accused persons commit different offences forming a part of the same transaction, a joint trial would be the rule unless it is proved that joint trial would cause difficulty”

  1. Section 218 provides that separate trials shall be conducted for distinct offences alleged to be committed by a person. Sections 219 – 221 CrPC provide exceptions to this general rule. If a person falls under these exceptions, then a joint trial for the offences which a person is charged with may be conducted. Similarly, under Section 223 CrPC, a joint trial may be held for persons charged with different offences if any of the clauses in the provision are separately or on a combination satisfied;
  2. While applying the principles enunciated in Sections 218 – 223 CrPC on conducting joint and separate trials, the trial court should apply a two-pronged test, namely, (i) whether conducting a joint/separate trial will prejudice the defence of the accused; and/or (ii) whether conducting a joint/separate trial would cause judicial delay.
  3. The possibility of conducting a joint trial will have to be determined at the beginning of the trial and not after the trial based on the result of the trial. The Appellate Court may determine the validity of the argument that there ought to have been a separate/joint trial only based on whether the trial had prejudiced the right of accused or the prosecutrix;
  4. Since the provisions which engraft an exception use the phrase ‘may’ with reference to conducting a joint trial, a separate trial is usually not contrary to law even if a joint trial could be conducted, unless proven to cause a miscarriage of justice; and
  5. A conviction or acquittal of the accused cannot be set aside on the mere ground that there was a possibility of a joint or a separate trial. To set aside the order of conviction or acquittal, it must be proved that the rights of the parties were prejudiced because of the joint or separate trial, as the case may be.

[Nasib Singh v. State of Punjab,  2021 SCC OnLine SC 924, decided on 08.10.2021]

_____________________________________________________________________________________________

Counsels:

Amicus curiae: Senior Advocate D Bharat Kumar

For appellant: Advocate Vipin Gogia

For State of Punjab: Advocate Uttara Babbar

For other accused: Advocates Nishesh Sharma, Narender Kumar Verma


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsHigh Courts

Kerala High Court: K.Haripal, J., granted bail to the accused involved in post poll murder case of a Muslim League member. The Bench opined,

“No doubt, the allegations against the accused are very grave. Still, so long as the final report is laid, it is not in the interest of justice, unless overwhelming reasons are made out, to keep the suspects in custody.”

 The instant case dealt with post poll murder that was a culmination of political rivalry between the activists of the Communist Party of India (CPI (M)) and rival political group i.e., Indian Union Muslim League. It had come out that there were some clashes between the two groups, later, while the deceased was moving on his motor cycle on the eve of the last Assembly elections, a gang of persons, including the petitioners intercepted and attacked him with dangerous weapons; and country made bombs were also hurled at him. The petitioners were implicated for causing death of one member of the Muslim League and severely injuring one other member (brother of the deceased).

The Petitioners who were 10 in number were booked under Sections 143, 147, 148, 302, 341, 323, 324, 326, 307 read with 149 of the Penal Code, 1860 and also under Sections 3 and 5 of the Explosive Substances Act and Sections 25(1)(B)(b) and 27(1) of the Arms Act. Noticeably, one of the accused had committed suicide, another absconded and the rest had approached the Court for seeking their release on bail.

Noticing that the total number of sessions cases pending in the Thakassery division was 5498, in which number of murder cases where custodial trial was intended was 8, the Bench opined that the Sessions Courts in that division were very heavy as Thalassery was a hub of political rivalry and clashes. Hence, considering that huge number of sessions cases were pending in the courts, the Bench opined,

“In the circumstances, it is unlikely that the trial of the case will be able to be taken up in the near future. That would result in protraction of trial and indefinite detention of the petitioners in custody. Such a pre-trial detention is not expedient nor in public interest.”

 Moreover, considering the guidelines issued by the Supreme Court for easing the crowd in prisons during to Covid pandemic, the Bench favoured the bail application of the petitioners. Rejecting the apprehensions of the prosecution that if released the accused may influence prosecution witnesses, the Bench stated that since all the material witnesses were members or sympathisers of the Indian Union Muslim League, rival political fraction of the accused, normally, such witnesses were not susceptible to any kind of influence, that might be exerted by the accused in the event of their release on bail.

Accordingly, the Bench held that the accused can be detained in custody indefinitely only if very strong circumstances are made out. The bail application was allowed. [Shinos.K.K v. State of Kerala, 2021 SCC OnLine Ker 3449, decided on 13-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For The Accused: Sr. Advocate P.Vijaya Bhanu, Advocate K.Viswan, Advocate M.Revikrishnan, Advocate D.Arun Bose

For The State Of Kerala: Senior Public Prosecutor Sreeja V. and Senior Public Prosecutor Renjith T.R.

For Respondent: Advocate C.K.Sreedharan and Advocate Sunny Mathew

Case BriefsHigh Courts

Gauhati High Court: Ajit Borthakur, J., granted bail to an IIT student accused of raping his junior. The Bench stated,

“Both the informant/victim girl and the accused were the state’s future assets being talented students pursuing technical courses at the I.I.T., Guwahati, who were young in the age group of 19 to 21 years only, the continuation of detention of the accused was not necessary.”

The instant petition was filed by the accused, namely Utsav Kadam praying for grant of bail in connection with a rape case pending before the Addl. Sessions Judge. The accused was a youngster aged about 21 years and was a student of B. Tech Pre-final year of Indian Institute of Technology (‘I.I.T.’), Guwahati in chemical engineering.

The case against the accused was that on 28-03-2021 at around 9 p.m., the accused lured the informant/victim female student of the same educational institution to Aksara School premises, in the pretext of discussing about her responsibility as the Joint Secretary of the Finance and Economic Club of the students of the I.I.T., Guwahati and after making her unconscious, by forcibly administering alcohol raped her. The victim regained her consciousness at around 5 a.m., the next morning at Guwahati Medical College and Hospital, where she underwent treatment and forensic examination etc.

The petitioner contended that he had been in judicial custody for about 120 days in connection with the case, which was entirely based on assumption of commission of the offence of rape without any credible evidence. Therefore, it was urged by the petitioner that as the investigation had already been completed and as there was no chance of him jumping the course of justice in any manner, being a student of I.I.T., Guwahati, further continuation of his detention for the purpose of trial may not be warranted and that would amount to causing further damage to his brilliant academic pursuit.

While strongly opposing the bail application, Mr D. Das, counsel for the State contended that allegations made in detail by the victim girl, who was a student of 2nd year B. Tech Chemical Engineering of I.I.T., Guwahati, prima facie established a clear case in favour of the victim girl. Therefore, if liberty of bail was granted to the accused, the trial of the case was certain to be hampered, which may occasion gross injustice to the victim.

On hearing both sides and after considering relevant documents, i.e. FIR, medical report,  statements under Sections 161 and 164 Criminal Procedure Code, 1973, the contents of the charge-sheet and the Fact-Finding Committee Report etc., the Bench opined that there was a  prima facie case as alleged against the accused petitioner. However, as the investigation in the case was completed and both the informant/victim girl and the accused were the state’s future assets being talented students pursuing technical courses at the I.I.T., Guwahati, who were young in the age group of 19 to 21 years only the Bench was of the view that continuation of detention of the accused was not necessary.

Also, the Court stated that there was no possibility of the accused tampering with their evidence or influencing them directly or indirectly, if released on bail. Hence, the accused was directed to be released on bail of Rs. 30,000 with two sureties of the like amount.[Utsav Kadam v. State of Assam, Bail Appln. No. 1623 of 2021, decided on 13-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Advocate for the Petitioner: Mr. K N Choudhury

Advocate for the Respondent: PP, Assam

Op EdsOP. ED.

If I were “death” I would be inevitable but I am not death and I fight death every day. How do I do that? Well, I go out on the road and escape moronic drivers running over people, at home I hope to survive falling roofs, accidental fires, etc. Adding to other factors, if I am not a male foetus I hope I am able to beat death even before I am born. I try and survive thoughts of self-harm and suicide. So, I survive death every day in a million ways. Interestingly, the Government wants me to live too even though it may seem like they do not care. The laws and the Constitution very categorically promote living happily, so much so that an attempt to suicide is punishable with imprisonment. One can say they are granting the death wish sending him/her to jail. Peter Cook said “One should realise suicide is a criminal offense, in less enlightened times they would have hung you for it.”  While we are talking about life, we are focused on human life here, though animals have rights too they cannot sue the offending party. So, they do not get to fight death the way humans do.

Life, a precious gift

In Hinduism life and death are the gift of God and no human being has the right to take away the said gift; in Islam, human dignity stems from the belief that man is a creation of God – the creation that God loves more than any other. There is no debate that life is the most precious thing that the human world can possess.

It is ironic that once one enters the world, one loses control over one’s life, the Government takes over in the name of the God of course. No one reserves the right to end any life even one’s own, the right reserves with God and the almighty State. Governments yield powers which even God does not presume, therefore, they have taken up the responsibility of doing God’s work and enabled themselves to end lives under the procedure established by law. Arnaud Almaric said “ask no questions. Just shoot them all, and let God sort them out”. Well, it is a little more complicated than that, at least for now. Our Constitution provides for the “Rule of Law” and protection of life and personal liberty.

Going to primitive times, the trials were bizarre. Guilty or innocent, history is replete with trials that ensured the death of the undertrial. The times have evolved and so did the trials and the sentencing. The death penalties were frequent in the early 18th and 19th centuries. However, over the period death penalties have not been the norm. The courts have relied on the facts that life and death are acts of the divine and the divine’s authority has been delegated to the courts of law to be only exercised in exceptional circumstances with utmost caution. Therefore, the first and foremost effort of the courts should be to continue the life till its natural end. This delegated authority should be exercised cautiously under extreme judicial checks. The Code of Criminal Procedure, 1973 makes it mandatory that “when the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court”1. The High Court is duty-bound to ensure that only after concluding that no other punishment but for death will serve the ends of justice the death penalty shall be confirmed. This shows the seriousness and thoughtfulness that our legal system puts into a decision of death. Status quo ante in terms of life cannot be obtained, therefore, it is only fair that no such decisions are taken in haste.

Reformative, not retributive

It is never the endeavour of the State or the courts to take away life. The endeavour is to achieve an orderly society while protecting the rights and liberties of the citizens. The objective of the State, through laws and penalties, is to achieve deterrence, prevention, reformation and rehabilitation. Our penal system is reformative and not retributive. Wherever there seems a possibility of reformation, the courts may be inclined to not punish with a death sentence. We have witnessed some extremely gruesome crimes. Some were punished with death sentences, while a lot of them were given life sentences while a few may have walked out of jail with some punishment. Regardless of their outcomes the nation unanimously prayed for a death sentence in a number of these cases. But the judicious minds may not have concurred with the minds of ordinary citizens. After all, they deliver justice and not revenge. Francis Bacon2 said “revenge to be a kind of wild justice that offends the law and putteth the law out of office”. Many philosophers and jurists oppose capital punishment as they find death sentences to include an instinct of revenge which is barbarous. Capital punishment in modern jurisprudence will always be a matter of debate. Reformation and rehabilitation of a criminal is the primary object of punishment. The imposition of the death penalty nullifies that purpose. Retribution in the sense of vengeance is no longer an acceptable end of punishment. It is for these reasons noted jurists even opposed the hanging of those convicted in the infamous Nirbhaya case.3  Having said that, a Constitutional Bench of the Supreme Court4 had unanimously upheld the validity of capital punishment by reserving the death penalty. Law helps the element of retribution merge into the element of deterrence based on the philosophy of “gravest crime deserves the gravest punishment”. The Supreme Court held that a real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. Therefore, that ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.5

Rarest of rare doctrine

Sentencing follows conviction, sentence is proportional to the degree of the crime. However, there is no straitjacket formula that can be applied in awarding punishment. Everything boils to the facts and circumstances of the case. Taking an example of Section 3026 of the Penal Code which states that “whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine”, shows that not all murders deserve a death sentence. Ordinarily, courts find life imprisonment to be sufficient, but the discretion lies with the judicial minds. The cases in which a death sentence can be given are a few with a peculiar set of facts being grave and gruesome thereby falling in the category of the rarest of rare crimes. The legislature in Section 354(3)7 mandates that in case of a death sentence the court must record special reasons which show that the sentence of life imprisonment shall not be a sufficient punishment.

Rarest of rare is an expression to convey the horrific and dastardly nature of the act. The actions which shake the conscience of human existence, which affect the very existence of our humanistic values. It is more to do with the perpetrator than the offense itself, when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society. The perpetrators of such acts cannot be considered to be capable of being reformed and pose a threat to society at large. Though debatable and unproven, a death sentence is considered a deterring force in the prevention of crime. The rationale given by the courts is that when a crime shocks the collective conscience of the community, sympathy in any form would be misplaced. It would shake the confidence of the public in the administration of the criminal justice system irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty.8 However, should a court take into account the desires of the community, because the community does not always look for legally valid solution and maybe blinded by hate and emotions.

Determining rarest of rare

The Supreme Court, over some time, has put several cases in the rarest of rare category. But, the power to judge a case to be in that category is discretionary. There are parameters to hold it, but those parameters are subjective. The Supreme Court stated that a court may look into aggravating and mitigating circumstances while imposing the death penalty in its discretionary power. The Supreme Court stated that a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.9 This discretion may be arbitrary, while discretion and equity are the rightful prerogative of courts but in the matter of death, any discretion could lead to arbitrariness. What if something was considered rarest of rare a decade ago but has become not so rare owing to the decadent society. Would it be fair to let a man off a death sentence when someone had been hanged a few years ago with a unanimous verdict?

One of the observations in the infamous Nirbhaya case by the Supreme Court was where the victims are helpless women, children or old persons and the accused displayed depraved mentality, committing a crime in a diabolic manner, the accused should be shown no remorse and the death penalty should be awarded. However, in a recent case, the Supreme Court commuted the death sentence of a convict to life imprisonment whose 2-year-old niece fell prey to his savage lust and thereafter lost her life.10 This shows that how discretionary powers in matters of death sentence could be arbitrary. As the saying goes “Equity is as big as the Chancellor’s foot.” The Supreme Court has attempted to remove arbitrariness, yet the discretionary powers are wide. What constitutes the rarest of rare is not set in strict terms. What moved the society a decade ago may not affect the society to the same level as before. If capital punishment has to prevail, it must be under strict norms and set principles of law. One of the mitigating factors is the probability that the accused can be reformed and rehabilitated. If not, then the death sentence can be confirmed.

Conclusion

Articles 7211 and 16112 show that the framers of our Constitution had always intended it to be a part of our penal system. Therefore, capital punishments are not unconstitutional but they were aware of the seriousness and severity. It is for this reason, a remedy of clemency is provided enabling the executive of the State outside the purview of the judiciary. The judicial process is also carefully crafted in terms of the death penalty. The requirement of confirmation of a death penalty by the High Court is a step to ensure that there are no slips. However, the test of “the rarest of rare” is open to interpretation, which allows room for arbitrariness. The argument favour of capital punishment is that some people are beyond redemption and rehabilitation. But the biggest flaw in this argument is that one undermines the reformative capability of a human being. Buddhists believe anyone can attain enlightenment and the story of Angulimala is the prime example. Somewhere, it is the failure of the society to not tap into one’s highest potential, so we are punishing a soul for our failure? Dr Sarvapalli Radhakrishnan said “even the worst sinner has a future, even the greatest saint has had a past”. In the end, the courts and the Judges are doing God’s work as God created life. Will ending a life before its natural course be God’s work? But why let a life prosper who endangers the lives of several others. It is a simple calculation, more than one life is more important than one life. So, it is done in the name of the greater good. Abraham Lincoln said “my concern is not whether God is on our side; my greatest concern is to be on God’s side, for God is always right”. I guess we will never know if by allowing capital punishment we are being on God’s side or are just doing the easy thing.


Advocate, Delhi High Court.

1 S. 366, Code of Criminal Procedure, 1973

2 Francis Bacon, 1st Viscount St Alban also known as Lord Verulam, was an English philosopher and statesman who served as Attorney General and as Lord Chancellor of England. His works are seen as developing the scientific method and remained influential through the scientific revolution.

3 <https://www.thehindu.com/news/national/indira-jaising-urges-nirbhayas-mother-to-follow-sonia-gandhis-example/article>.

4 Jagmohan Singh v. State of U.P., (1973) 1 SCC 20

5 Bachan Singh v. State of Punjab, (1980) 2 SCC 684

6 <http://www.scconline.com/DocumentLink/36kB36D7>.

7 When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence. <http://www.scconline.com/DocumentLink/7S71Hz0t>.

8 Mukesh Kumar v. State (NCT of Delhi), (2017) 6 SCC 1

9 Mukesh Kumar v. State (NCT of Delhi), (2017) 6 SCC 1

10 Shatrughna Baban Meshram v. State of Maharashtra, (2021) 1 SCC 596

11 < http://www.scconline.com/DocumentLink/nA4c4Sy5>.

12 < http://www.scconline.com/DocumentLink/nA4c4Sy5>.

Op EdsOP. ED.

The substantive legal provision dealing with extraterritorial jurisdiction under the Penal Code, 1860[1] (IPC) are Section 3[2] and Section 4[3] and its procedural counterpart under the Criminal Procedure Code, 1973 (CrPC) is Section 188 CrPC[4].

The proviso to Section 188 casts an obligation to obtain previous sanction of the Central Government for inquiry and trial of offences committed outside India. It is a procedural impediment while conducting criminal trial under Section 188 CrPC. The rationale behind the same lies in the principle of double jeopardy.

One of the first judgments which discussed the ambit for the term “inquiry” within the meaning of Section 188 CrPC is Sanoop v. State of Kerala[5]. The Court gave a broad interpretation of the word “inquiry” and included certain stages of investigation also (arrest and detention) within its sweep, to attract the sanction requirement under the proviso to Section 188 CrPC. However, this judgment runs contradictory to the jurisprudence constante of the Supreme Court in Ajay Aggarwal  v. Union of India[6], Thota Venkateswarlu v. State of A.P.[7] and  Hardeep Singh v. State of Punjab[8].

A Single-Judge Bench in Remla v. SP of  Police[9]  by relying upon State of W.B. v. Jugal Kishore More[10] ,  Nikka Singh v. State[11]  and Narumal v. State of Bombay[12] , held that the proviso to Section 188 casts an obligation to obtain previous sanction of the Central Government to inquire into and try such person and that Section 188 has a message that for the pre-inquiry stage, no such sanction is needed and since the pre-inquiry stage substantially relates to investigation of the crime, no sanction is required for investigation.

Interpretation of the word “dealt with” under Section 188 CrPC

In order to understand whether sanction will be required under Section 188 CrPC for investigation, the words “dealt with” under Section 188 CrPC need detailed construction. The most significant Supreme Court judgment on this point is Delhi Admn. v. Ram Singh[13]. The Court broadly constructed the words “dealt with” under Section 188 CrPC to include within its sweep not only “inquiry” and “trial” but other aspects also. The words “dealt with” in Section 188 CrPC, must be held to include “investigation” also, apart from “inquiry” and “trial”. It was also held that the “words ‘dealt with’ in the main part cannot be restricted to ‘inquiry’ and ‘trial’ used in the proviso”. Also, on a conjoint reading of Section 188 CrPC and Section 4 IPC, it must cover the procedure relating to investigation and hence the scope and ambit of the main part of Section188 CrPC cannot be controlled by the proviso. In the backdrop of conflicting High Court judgments on this point, the Full Judge Bench of Samaruddin v. Director of Enforcement[14], following Delhi Admn. case[15] upheld  the views rendered in Remla case[16] and in Mohd. Shameer Ali v. State of Kerala[17]

Ambit of “inquiry” under Section 188 CrPC: At what stage of inquiry will the sanction be needed – Post-cognizance or pre-cognizance

The judiciary was embroiled in a huge controversy over the interpretation of the word “inquiry” for attracting the proviso to Section 188 CrPC. After a perusal of rationale rendered in Rabindra Rai v. State of Bihar[18], State of U.P. v. Lakshmi Brahman[19]  and Dalu Gour v. Moheswar Mahato[20] it can be clearly said that the moment the charge-sheet is filed before the court, the inquiry is said to commence under Section 2(g) CrPC[21]. It is not necessary that such inquiry shall commence only after a formal order is passed by the Magistrate. In order to understand what stage of inquiry will attract the proviso of Section 188 CrPC, it is relevant to note four important judgments.

Firstly, in C.V. Padmarajan v. Govt. of Kerala[22], the Court under para 20 held that application of judicial mind to the police report, deciding to take cognizance of offences will certainly be part of the “inquiry” which is barred unless the prior sanction of the Central Government has been obtained under Section 188 CrPC in respect of the offences committed outside India. In other words, the Court held that taking cognizance of an offence will attract the proviso to Section 188 CrPC.

Secondly, in para 27 of Ajay Aggarwal  v. Union of India[23], the Court held that prior sanction under the proviso to Section 188  CrPC is not a condition precedent for taking cognizance of the offence and that if need be, such sanction could be obtained after the trial begins. However, since the offence in this case was committed at Chandigarh in India and not outside India and therefore, Section 188 CrPC was not attracted and hence, is only an obiter dictum which cannot be treated as law laid down by the Supreme Court within the meaning of Article 141 of the Constitution of India[24].

Thirdly, a 3-Judge Bench of the Supreme Court in Thota Venkateswarlu v. State of A.P.[25] has held that bar in the conduct of “inquiry” by the Magistrate Court in relation to an offence committed outside India without obtaining sanction of the Central Government as per the proviso to Section 188 CrPC would apply only in respect of the “post-cognizance inquiries”. The Court by applying “purposive and contextual interpretation” held that only “inquiries” within the meaning of Section 2(g) which are to be conducted after the taking of cognizance and before the framing of the charges alone would come within the zone of prohibition of the proviso to Section 188 CrPC, thus partially overruling Padmarajan case[26].

Fourthly, the 5-Judge Bench in Hardeep Singh v. State of Punjab[27] held that all “inquiries” held after submission of the final report/charge-sheet, including the “inquiry” by the court in the matter of taking cognizance, will be also barred by the proviso to Section 188 CrPC however, the Court made it clear that so long as the above specific legal position in Thota Venkateswarlu case[28] is not specifically overruled by the Supreme Court, it is only to be held that even taking of cognizance is not barred in such cases.

From the abovementioned analysis, it can be said that the Courts have given a restrictive interpretation of the word “sanction” restricting it to post-cognizance stage and not to the investigation. The rationale for the same is twofold:

  • Firstly, as investigation is the very first stage that will determine the flow of criminal proceedings in later stages, the requirement for sanction at the first stage will derail the criminal process in totality. To ensure that investigation is not in any manner fettered by the restriction as per the proviso to Section 188 CrPC and to ensure full freedom on the police to conduct investigation, it is kept outside the zone of prohibition under the proviso to Section 188 CrPC.
  • Secondly, to prevent enormous and unrealistic burdens[29] on the Central Government to take decisions on the question of sanction in each and every case, which may arise in various parts of the country, the Court logically kept investigation outside the requirement of sanction from the Central Government.

Conclusion

Thus, from the above discussion, it can be succinctly said that the bar as per the proviso to Section 188 (requirement of sanction) can be only in relation to conduct of inquiry and trial and the said proviso cannot impose any restriction on the powers of the police to the conduct of investigation into such offences committed outside India. Investigation is kept outside the requirement of sanction of the Central Government under the proviso to Section 188 CrPC.


*3rd year student, BA LLB (Hons.), Maharashtra National Law University, Nagpur. Author can be reached at shreyatripathi.204@gmail.com.

[1] Penal Code, 1860

[2] Section 3 IPC. 

[3] Section 4 IPC. 

[4] Section 188 CrPC.  

[5] 2018 SCC OnLine Ker 1268. 

[6] (1993) 3 SCC 609. 

[7] (2011)  9 SCC 527. 

[8] (2014) 3 SCC 92.

[9] 1992 SCC OnLine Ker 323. 

[10] (1969) 1 SCC 440. 

[11] 1950 SCC OnLine Punj 126. 

[12] 1960 Cri LJ 1674: AIR 1960 SC 1329.

[13] (1962) 2 SCR 694.   

[14] 1999 SCC OnLine Ker 279. 

[15] Supra Note 13.

[16] Supra Note 9.

[17] 2019 SCC OnLine Ker 2778. 

[18] 1983 SCC OnLine Pat 155. 

[19] (1983) 2 SCC 372. 

[20] 1946 SCC OnLine Pat 175.

[21] Section 2(g) CrPC

[22] (2009) 1 ILR Ker 36 : 2009 (1) KHC 65.

[23] (1993) 3 SCC 609. 

[24] Article 141 of the Constitution of India

[25] Supra Note 7.

[26] Supra Note 22.

[27] (2014) 3 SCC 92 

[28] Supra Note 7.

[29]Mohd. Shameer Ali v. State of Kerala, 2019 SCC OnLine Ker 2778, para 34

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Division Bench of Dhiraj Singh Thakur and Puneet Gupta, JJ., dismissed the application seeking suspension of sentence and for grant of bail to the applicant/appellant on the ground of delay.

The applicant had submitted that he had been put in jail for more than thirteen years. Noticing that the appeal against the order of conviction and sentence dated 23-07-2020 was filed on 06-08-2020. The issue with regard to suspension of sentence and grant of bail on account of delay in disposal of the criminal appeal had been considered by a coordinate bench of this court in Rakesh Kumar v. State of J&K, CRA No. 12 of 2018, wherein the Bench had relied on   Akhtari Bi v. State of M.P., (2001) 4 SCC 355, where the Supreme Court had held that speedy justice was a fundamental right flowing from Article 21 of the Constitution. It was held that a right accrued in favour of the accused to apply for bail in a case where there was delay in the disposal of the trial and appeals in criminal cases. It was further held that if an appeal was not disposed of within a period of 5 years for no fault of the appellant, such convicts may be released on bail on conditions as may be deemed fit and proper by the Court. In computing the period of 5 years the delay for any period, which is requisite in preparation of the record and the delay attributable to the convict or his counsel can be deducted. It was, further clarified that there may be cases where even after the lapse of 5 years the convicts may, under the special circumstances of the case, be held not entitled to bail pending the appeals filed by them.

Noticing that the appeal was preferred in the year 2018 and therefore, 5 years period had not been completed and even otherwise assuming the said period was over, the Bench said that even then it could not have mechanically granted bail without considering whether the delay in the disposal of the appeal was attributable to the appellant. Considerations as mentioned in the case of Akhtari Bi, for refusal of bail beyond 5 years also indicate that grant of bail at the expiry of five years pendency did not follow as a matter of routine. The nature, gravity and seriousness of the offence would also have to be seen. Hence, the Bench held that since five years had not elapsed from the date of the filing of the present appeal and the matter was already listed in the final hearing column, no ground was made out for suspending the sentence and granting bail in the present case.

[Raghubir Singh v. UT of J&K, 2021 SCC OnLine J&K 375, decided on 28-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court:

Counsel for the Applicant: Adv. Anil Gupta

Counsel for UT of J&K: AAG Aseem Sawhney

Case BriefsHigh Courts

Madras High Court: S.M. Subramaniam, J., held that

Protraction and prolongation of litigations affecting women can never be encouraged by the Courts.

Husband and wife used to live in Singapore and when a misunderstanding arose between the two, the husband stated that the respondent/wife deserted him in the year 2018. Hence, the husband sought the relief of Restitution of Conjugal Rights by filing a petition in the Family Court, Chennai.

Wife had filed a Domestic Violence Complaint against the husband and further filed the maintenance seeking maintenance.

Under the above-stated circumstances, an instant transfer petition was filed to transfer the Domestic Violence Act case.

Questions of Legal Importance

Whether the High Court in the exercise of power of superintendence under Article 227 of the Constitution of India transfer the criminal proceedings from the Criminal Court to the Family Court, when the powers of transfers of cases are already conferred on the High Court under the provisions of the Criminal Procedure Code and Civil Procedure Code?

Presuming, the powers under Article 227 of the Constitution of India is exercised, in order to transfer a criminal case to a Civil Court or Family Court, what would be the consequences and the provisions governing such transfers and the Constitution of Special Courts under the Special enactments?

Whether the decision of this Court in Mohana Seshadri v. Anuja, CDJ 2020 MHC 944, can be followed as a precedent in the present matter?

Analysis

The above case cited by the petitioners need not be relied upon for the purpose of entertaining a transfer petition under Article 227 of the Constitution of India. In the present petition, this Court has to consider the provisions of the Special Acts namely the Domestic Violence Act, Family Courts Act and also the Code of Criminal Procedure for the purpose of forming an opinion.

Domestic Violence Act

Provisions of the ‘DV Act’ are unambiguous that an application is entertainable before the Judicial Magistrate Class I or the Metropolitan Magistrate as the case may be for seeking one or more reliefs under the Act.

Proceedings under the ‘DV Act’ are regulated under the Code of Criminal Procedure as contemplated under Section 28 of the ‘DV Act’. Thus, a complaint registered under Section 12 of the DV Act is criminal proceedings on the criminal side of the judiciary and accordingly the said proceedings are to be regulated under the Criminal Procedure Code.

Generalia Specialibus non derogant (when there is a conflict, general and special provision, the later will prevail)

It is to be held that Special Act will prevail over the General Laws.

Therefore, when a Special enactment is in force to deal with certain specific offences, in the present context, Domestic Violence Act, then the other general laws cannot have any application and all such Domestic Violence’s are to be tried by following the procedures as contemplated under the Special Enactment and this being the legal principles, the application under

Section 12 of the Domestic Violence Act cannot be construed as a civil natured proceeding.

Family Courts Act, 1984

Applications which are all filed seeking maintenance for wife, children and parents alone shall be tried by exercising the powers conferred under Section 7(2)(a) of the Family Courts Act, 1984. Hence, with regard to the jurisdiction as contemplated under the DV Act, the Family Courts/Civil Courts are not having jurisdiction to deal with certain offences defined under the provisions of the DV Act.

Criminal Procedure Code

Section 407 of the Criminal Procedure Code provides Power of High Court to transfer cases and appeals.

 Hence, the High Court is empowered to transfer the case from one Court to another Court as the case may be as contemplated under the provisions of Section 407 of the CrPC.

Civil Procedure Code

Under Section 24 of CPC, Civil Proceedings can be transferred from one Civil Court to another Civil Court.

 However, Criminal Proceedings cannot be transferred from one Criminal Court to a Civil Court/Family Court.

Article 227 of the Constitution of India

In the Supreme Court decision of Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329, there was an elaborate consideration of High Court’s Power of Superintendence under Article 227 of the Constitution.

Power of High Court

High Court’s power under Article 227 to be plenary and unfettered but at the same time, the High Court should be cautious in its exercise.

“…in cases, where the High Court exercise its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claiming it as as a matter of right.”

Jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields. Jurisdiction under Article 227 is exercised by the High Court for the vindication of its position as the highest judicial authority in the State

Scope of the power under Article 227 of the Constitution cannot be exercised overriding the provisions of the Special Enactments, wherein the specific reliefs are provided for redressal.

Thus, the proceedings instituted under the Family Courts Act before the Family Courts are to be regulated in accordance with the provisions as contemplated.

Equally, an application filed under Section 12 of the Domestic Violence Act is to be regulated under the provisions of the ‘DV Act’ and the application registered under Section 12 of the Domestic Violence Act is a criminal proceedings and the entire provisions of the ‘DV Act’ unambiguously portrays that the nature of proceedings are under criminal law. The procedures as contemplated under the Criminal Procedure Code is to be followed for trial of the cases under the ‘DV Act’.

Thus, there is no reason to form an opinion that application filed under the ‘DV Act’ is a “Civil natured proceeding”.

Bench added that when the scope of Article 227 does not permit the High Court to entertain a transfer petition to transfer a criminal case to a Civil Court or a Civil case to a Criminal Court, then conversion of such power under Article 227 for transfer of cases is certainly beyond the scope of the principles settled by Supreme Court decisions.

Transfer not Traceable

The power of transfer conferred under the Code of Criminal Procedure and the Code of Civil Procedure are expected to be exercised by the High Courts and such power of transfer is not traceable under Article 227 of the Constitution of India.

Multiple options are provided under the special enactments, facilitating the aggrieved women to redress their grievances which are to be dealt in accordance with the provisions of such enactments and speedy disposal being the paramount importance, Courts are bound to ensure all such cases, affecting women must be disposed of at the earliest possible.

Proceedings under the Domestic Violence Act

Further, the Court added to its elaborative analysis that the initiation of proceedings under the Domestic Violence Act with reference to the bodily injuries contemplated under the provisions of the Act, are Criminal acts and therefore, the Domestic Violence proceedings are criminal in nature and to be tried by the competent Judicial Magistrate.

Offences/Bodily Injuries as contemplated under the DV Act are against the society at large and therefore, the proceedings are criminal and competent criminal Court of Law is empowered to try those cases.

In view of the above discussion, Court concluded that criminal proceedings instituted under the Domestic Violence Act cannot be converted as Civil proceedings nor construed as proceedings of civil nature, so as to transfer such criminal proceedings before the Civil Court or Family Court by exercising the supervisory powers under Article 227 of the Constitution of India.

Therefore, any transfer petition, if at all filed to transfer a case registered under the Domestic Violence Act must be entertained only under the Code of Criminal Procedure and certainly not by invoking power under Article 227.

On transferring the DV Act proceedings to Family Court, the appropriate reliefs are depraved.

Hence, the objections regarding the maintainability of the transfer petition raised by the Registry, High Court of Madras, is perfectly in consonance with provisions of law and said objections stands confirmed. [P. Arun Prakash v. S. Sudhamary, 2021 SCC OnLine Mad 1954, decided on 01-04-2021]

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Dhananjaya Y. Chandrachud and M.R. Shah*, JJ., recently held in an interesting case that evaluation of evidence on merits is not permissible at the stage of considering the application for discharge and the same is beyond the scope of revisional jurisdiction of the High Courts. The Bench explained,

“At the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible.”

The High Court of Rajsthan, in exercise of its revisional jurisdiction had quashed the order passed by the Special Judge, Prevention of Corruption Act. The High Court had set aside the charges framed by the Special Judge against the respondent-accused for the offence under Section 7 of the Prevention of Corruption Act  and consequently had discharged the accused of the alleged offence.

Factual Matrix of the Case

The respondent-accused was serving as a Patwari, when it was alleged by the complainant that  that for the purpose of issuing Domicile Certificate and OBC Certificate of his son, but the Patwari in lieu of endorsing his report demanded a bribe of Rs.2,800. Prsuant to the said complaint an investigation was conducted and the accused was chargesheeted on reaching to the findings that there was a prima facie case made out under Section 7 of the PC Act.

Feeling aggrieved and dissatisfied the accused preferred revision application before the High Court whereby the High Court had discharged the accused.

It was submitted by the state that the High Court had committed a grave error in evaluating the transcript/evidence on merits which at the stage of considering the application for discharge is not permissible and is beyond the scope of the exercise of the revisional jurisdiction. It was further submitted that the accused had been charged for the offence under Section 7 of the PC Act and even an attempt is sufficient to attract the offence under Section 7 of the PC Act.

Stand taken by the Respondent

The defense raised by the respondent-accused was that, he had refused to issue residence certificate for Rajsthan and caste certificate in favor of complainant having come to know about the complaint being the permanent resident of Agra and that the complainant wanted a false residence certificate and caste certificate illegally. It was submitted that in fact the respondent-accused gave a report rejecting the request of the complainant and there was nothing pending before the accused and the decision regarding his application was already taken.

The respondent submitted that at the time of conversation two persons were present, (1) the complainant – Jai Kishore; and (2) Devi Singh. And the so far as the complainant was concerned, the accused categorically refused to accept any bribe. However, it was alleged that  the appellant had tried to confuse and mislead the Court by mixing the conversation of Devi Singh regarding his dues of Rs.4,850-/ to the bank against which he had paid Rs.2,000/- and the remaining amount of Rs.2,850/- was due to the bank. Thus, neither there was any acceptance nor there was any demand of bribe and the High Court has rightly discharged the accused. The reliance was placed on Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, it had been held that, by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him will give rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused.

Findings of the Court

At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The Bench opined that the High Court had exceeded in its jurisdiction and had acted beyond the scope of Section 227/239 Cr.P.C. While discharging the accused, the High Court had gone into the merits of the case and had considered whether on the basis of the material on record, the accused was likely to be convicted or not. For the aforesaid,

“The High Court has considered in detail the transcript of the conversation between the complainant and the accused which exercise at this stage to consider the discharge application and/or framing of the charge is not permissible at all.”

At the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible. At this stage, it is to be noted that even as per Section 7 of the PC Act, even an attempt constitutes an offence. Therefore, the High Court has erred and/or exceeded in virtually holding a mini trial at the stage of discharge application.

Lastly, the Bench stated, defence on merits is not to be considered at the stage of framing of the charge and/or at the stage of discharge application. In view of the above, the impugned judgment and order was held unsustainable in law and the same was quashed and set aside. The order passed by the Special Judge of framing charge against the accused under Section 7 of the PC Act was restored.

[State of Rajsthan v. Ashok Kumar Kashyap, 2021 SCC OnLine SC 314, decided on 13-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice M. R. Shah

Appearance before the Court by:

For the State: Adv. Vishal Meghwal

Case BriefsSupreme Court

Supreme Court: The bench of MM Shantanagoudar* and Vineet Saran, JJ has held that Section 195(1)(b)(i) CrPC will not bar prosecution by the investigating agency for offence punishable under Section 193 IPC, which is committed during the stage of investigation. This is provided that the investigating agency has lodged complaint or registered the case under Section 193, IPC prior to commencement of proceedings and production of such evidence before the trial court. In such circumstance, the same would not be considered an offence committed in, or in relation to, any proceeding in any Court for the purpose of Section 195(1)(b)(i) CrPC.

Background and issues raised

A case was registered against the Appellant/Accused No. 1, who was working as Regional Manager (South) at Chennai with the Rashtriya Ispat Nigam Ltd, under Section 120B read with Sections 420, 467, 468 and 471 IPC; and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (PC Act).

In the present case, the Accused Nos. 2 and 3 had colluded with Appellant/Accused No. 1 to create a false sale deed, and gave false explanation of escrow arrangement amongst the three parties, to justify how the seized currency came to be in the Appellant’s possession. This was done to exonerate the Appellant/Accused No. 1 and recover the seized currency at the stage of investigation itself.

This gave rise to the question before the Court as to

  1. Whether Section 195(1)(b)(i), CrPC bars lodging of case by the investigating agency under Section 193, IPC, in respect of offence of giving false evidence which is committed at the stage of investigation, prior to production of such evidence before the Trial Court?
  2. Whether an offence under Section 193, IPC committed at the stage of investigation, prior to production of the false evidence before the Trial Court by a person who is not yet party to proceedings before the Trial Court, is an offence “in relation to” a proceeding in any court under Section 195(1)(b)(i), CrPC?
  3. Whether the words “stage of a judicial proceeding” under Explanation 2 to Section 193, IPC can be equated with “proceeding in any court” under Section 195(1)(b)(i), CrPC?

Analysis by the Court

Import of the Words “in relation to” in Section 195(1)(b) (i) CrPC

The construction of the words “in relation to” must be controlled by the overarching principle   applicable to Section 195(1)(b), CrPC i.e., even if the offence is committed prior to giving of the fabricated evidence in court, it must have a direct or reasonably close nexus with the court proceedings.

Section 195(1)(b)(i), CrPC may be attracted to the offence of fabricating false evidence prior to its production before the Court, provided that such evidence is led by a person who is party to the court proceedings, for the purpose of leading the Court to form a certain opinion based on such evidence. The bar against taking of cognizance under Section 195(1)(b)(i) may also apply where a person who is initially not a party to the court proceedings fabricates certain evidence, and

1) subsequently becomes a party and produces it before the Court; or;

2) falsely deposes as a witness before the Court on the strength of such evidence,

for the purpose of causing the Court to form an erroneous opinion on a point material to the result of the proceedings.

However, where a person fabricates false evidence for the purpose of misleading the investigating officer, this may not have any direct nexus with the subsequent court proceedings.

“There is an indirect nexus inasmuch as if the investigating agency does not suspect any wrongdoing, and the Court commits the case for trial, the evidence will be produced for the Court’s perusal and impact the judicial decision-making process. However, it may be equally possible that even if the fabricated evidence appears sufficiently convincing, the investigating agency may drop proceedings against the accused and divert its time and resources elsewhere. Therefore, the offence may never reach the stage of court proceedings. Further, if it subsequently comes to light that the evidence was falsely adduced, it will be the investigating agency which will suffer loss of face and be forced to conduct a fresh investigation.”

Hence, though the offence is one which affects the administration of justice, it is the investigating agency, and not the Court, which is the aggrieved party in such circumstance.

“Just like a private party who has been a victim of forgery committed outside the precincts of the Court, the investigative agency should not be left remediless against persons producing false evidence for the purpose of interfering with the investigation process. Moreover, the present case concerns offences alleged to have been committed under the PC Act. Public interest and the reputation of the State will suffer significant harm if corrupt public servants are facilitated by third parties in hiding their assets from scrutiny. Hence any interpretation which negates against the speedy and effective trial of such persons must be avoided.”

Whether “stage of a judicial proceeding” under Explanation 2 to Section 193 IPC is synonymous   with “ proceeding in any court” under Section 195(1)(b)(i) CrPC?

Section 195(1)(b) is meant to restrict the right to make complaint in respect of certain offences to public servants, or to the relevant Court, as they are considered to be the only party who is directly aggrieved or impacted by those offences. Furthermore, for the purpose of Section 195(1)(b)(i), CrPC, there must be an intention on part of the alleged offender to directly mislead the Court into forming a certain opinion by commission of offence under Section 193 IPC.

“Though a criminal investigation is certainly a stage of a judicial proceeding insofar as it may culminate in issue of process and trial against the accused, it would not be a proceeding in relation to a certain Court under Section 195(1)(b) (i), CrPC before the Court has even taken judicial notice of such investigation.”

Section 2(i) CrPC defines “judicial proceeding” as including any proceeding in the course of which evidence is or may be legally taken by oath. The investigation under the PC Act was admittedly a stage of a judicial proceeding by virtue of Explanation 2 to Section 193 IPC. However, neither was the fabricated evidence in the present case given on oath before the investigating officer, nor is the investigating authority under the PC Act deemed to be a “court” for the purpose of Section 195(1) (b), CrPC.

In the present case, it is not the Trial Court but the Investigating authority/agency which has been directly impacted due to fabrication of evidence by the Appellants/accused.

“The Appellants’ intention was not to mislead the Trial Court, at least not at the first instance. Rather, their goal was to ensure that the Appellant/Accused No. 1 was cleared of wrongdoing at the stage of investigation itself. It was after being charged under Section 193 IPC, that the Appellants/accused reiterated the fictitious escrow arrangement story before the Trial Court so as to prove their innocence. Hence it cannot be said that the offence under Sections 120B read with 193 IPC was committed by the Appellants “in relation to” a proceeding in a court under Section 195(1)(b)(i), CrPC.”

Thus, the investigation conducted by the agency under the PC Act cannot be equated with a proceeding in a court of law under Section 195(1) (b)(i) CrPC, though it is deemed to be a stage of a judicial proceeding under Section 193, IPC.

“Had this been a case wherein the Investigating agency had not developed any suspicion against Accused Nos. 2 and 3, and the Trial Court had subsequently discovered the subterfuge caused by them, we may have taken a different view.”

[Bhima Razu Prasad v. State, 2021 SCC OnLine SC 210, decided on 12.03.2021]


*Judgment by: Justice MM Shantanagoudar

Appearance before the Court by:

For Appellants: Senior counsel Basava Prabhu Patil, and counsels Amit Anand Tiwari and B. Karunakaran

For State: Additional Solicitor General Aishwarya Bhati

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]