Showing posts with label criminal. Show all posts
Showing posts with label criminal. Show all posts

11 April 2021

Death caused; without any premeditation, in a sudden fight, in the heat of passion, without taking any undue advantage or acted in a cruel or unusual manner, is not a murder

Admittedly, both the parties belonged to the same family and reside in the same campus and their relation was also not cordial due to property dispute. What is evident from the testimony of the PW-2 and PW-12 is that when the appellant was washing his face in the morning, the PW-2 (son of the deceased) initiated the quarrel by challenging the appellant to lodge complaint before the villagers for cutting their paddy, whereupon the appellant came out with the pistol and challenged the deceased to come out and also hurled abuses at him (deceased) and the deceased also came out and challenged him by saying as to why was he shouting and creating noise. From the testimony of the PW-12, it is also discernible that at the beginning when the PW-2 challenged the appellant for the previous incidence of cutting paddy, the appellant did not have the armed with him and in course of the exchange of words he came out with the pistol. From the above evidence, it has been established that the accused, who was a retired Air Force personnel having a licensed pistol shot the deceased in the heat of passion in course of sudden quarrel and as such it is difficult to say that the act of the appellant causing death of the deceased was pre-meditated. When evidently the appellant inflicted the injury causing death of the deceased without any pre-meditation and in the heat of passion during sudden quarrel, the appellant could not have been held liable for offence of murder. However, the facts and circumstances under which the appellant inflicted the injury causing death of the deceased, he shall be liable for committing an offence of culpable homicide not amounting to murder under Section 304 IPC.[Para No.28]

    In Rajender Singh v. State of Haryana (supra) in a similar facts situation the Apex Court converted a conviction under Section 302 IPC to 304 IPC, held as under:
"19. Consequently, we are convinced that since the death of Suraj Mal and Shri Ram had occurred due to the firing resorted to as part of his self-defence, the same would amount to culpable homicide not amounting to murder, which was committed without any premeditation in a sudden fight in the heat of passion
Death caused; without any premeditation in a sudden fight in the heat of passion without taking any undue advantage or acted in a cruel or unusual manner, is not a murder
upon a sudden quarrel and that the offender did not take undue advantage or acted in a cruel or unusual manner, which would normally fall under Exception 4 of Section 300 IPC.
Consequently, at best, conviction of the appellant can only be under Part II of Section 304 IPC for which he could have been inflicted with a punishment of ten years. For the very same reason, the conviction imposed under Section 27 of the Arms Act cannot also be sustained. It is stated that the appellant is suffering the sentence in jail and has so far suffered eleven years. The conviction is modified into one under Section 304 Part II and the sentence already suffered by the appellant is held to be more than sufficient."[Para No.29]

06 April 2021

It is appropriate case for grant of anticipatory bail when F.I.R. is lodged by way of counterblast to an earlier F.I.R lodged/complaint filed by the accused against the informant in near proximity of time

The following can be considered as "appropriate cases" for grant of anticipatory bail to an accused apprehending arrest, even after submission of charge-sheet against the accused by the Investigating Officer of the police/after taking cognizance of offence against accused under Section 204 Cr.P.C. by the Court :-
1) Where the charge-sheet has been submitted by the Investigating Officer/cognizance has been taken by the Court, but the merits of the F.I.R/complaint that has been lodged by the informant/complainant are such that it cannot be proved against the accused in the Court;
2) Where there exists a civil remedy and resort has been made to criminal remedy. This has been done because either the civil remedy has become barred by law of limitation or involves time-consuming procedural formalities or involves payment of heavy court fee, like in recovery suits.
    The distinction between civil wrong and criminal wrong is quite distinct and the courts should not permit a person to be harassed by surrendering and obtaining bail when no case for taking cognizance of the alleged offences has been made out against him since wrong alleged is a civil wrong only.
    When the allegations make out a civil and criminal wrong both against an accused, the remedy of anticipatory bail should be considered favourably, in case the implication in civil wrong provides for opportunity of hearing before being implicated and punished/penalized. The criminal remedy, in most of the cases, entails curtailment of right to liberty without any opportunity of hearing after lodging of complaint and F.I.R under the provisions of Cr.P.C. which is pre-independence law and disregards Article 14 and 21 of the Constitution of India. Therefore, in such cases where civil and criminal remedy both were available to the informant/complainant, and he has chosen criminal remedy only, anticipatory bail should be favourably considered in such cases.
3) When the F.I.R/complaint has clearly been lodged by way of counterblast to an earlier F.I.R lodged/complaint filed by the accused against the informant/complainant in mear
It is appropriate case for grant of anticipatory bail when F.I.R. is lodged by way of counterblast to an earlier F.I.R lodged/complaint filed by the accused against the informant in near proximity of time
proximity of time. The motive of lodging the false F.I.R/complaint is apparent and from the material collected by the Investigating Officer or from the statements of witnesses in complaint case, there is no consideration of the earlier F.I.R lodged/complaint filed by the accused against the informant/complainant;
4) Where the allegations made in the F.I.R/complaint or in the statement of the witnesses recorded in support of the same, taken at their face value, do not make out any case against the accused or the F.I.R/complaint does not discloses the essential ingredients of the offences alleged;
5) Where the allegations made in the F.I.R/complaint are patently absurd and inherently improbable so that no prudent person can ever reach such conclusion that there is sufficient ground for proceeding against the accused;
6) Where charge-sheet has been submitted on the basis of evidence or materials which are wholly irrelevant or inadmissible;

12 March 2021

Trial Judge has to seek explanation from the advocate orally while deciding the relevancy of question asked in cross examination rather than entirely putting the shutter down while disallowing of the questions

Decision of this Court in Yeshpal Jashbhai Parikh v/s. Rasiklal Umedchand Parikh, reported in 1954 SCC OnLine Bom 145 : (1955) 57 Bom LR 282, is also relevant on the point involved in the petition. Note of certain earlier decisions right from Privy Council were taken. In Vassiliades v/s. Vassiliades, reported in [1945] AIR PC 38 it was observed that ;
"No doubt cross-examination is one of the most important processes for the elucidation of the facts of a case and all reasonable latitude should be allowed, but the Judge has always a discretion as to how far it may go or how long it may continue. A fair and reasonable exercise of his discretion by the Judge will not generally be questioned".[Para No.14]

    In Yeshpal's case (Supra) it has been observed that, "While Courts will not ordinarily interfer with the proper exercise of the right of cross-examination the Courts have the power and authority to control the cross-examination of a witness".
    This Court is not agreeing with the submission by learned Advocate for petitioners that, the Court cannot control the cross-examination or he has free hand at the time of cross-examining the witness of the prosecution; but then agree to the submission that the cross- examination need not be restricted to what the witness has stated in his examination-in-chief. A balance has to be struck here while issuing directions to the learned Additional Sessions Judge that he has to decide the relevancy of the question which he may 
Trial Judge has to seek explanation from the advocate orally while deciding the relevancy of question asked in cross examination rather than entirely putting the shutter down while disallowing of the questions
get explained from the learned advocate for the accused orally and then allow him to put the said question to the witness. On any count learned Additional Sessions Judge will not be justified in entirely putting the shutter down while disallowing of the questions and asking the defence advocate to restrict himself while cross- examining
P.W.18 to the post mortem examination report Exhibit 216, sketch Exhibit 217 and certificate Exhibit 218. It is, therefore, again clarified that neither the learned advocate for the accused has unfettered right to put any question to the witness in the cross- examination but at the same time the learned Additional Sessions Judge shall also not restrict him in putting questions in the cross to the above referred documents only. There might be certain questions which would be beyond those documents and as an expert they are required to be elucidated from him. No straight jacket formula can be laid down as to what should be permitted and what should not be permitted as it depend upon the question that would be put and the relevancy and admissibility of the same and / or of the admissibility will have to be decided at that time. Definitely the learned Additional Sessions Judge is guided by the procedure laid down in Bipin Panchal's case (Supra), and it is specifically laid down that, it may be advantages for the Appellate Court in future. He has to bear those advantages which have been laid down in para No.15 of the case, in mind while recording the evidence.[Para No.15]

11 March 2021

Statement of witness recorded u/s.164 of Cr.P.C. is not substantial evidence

Section 164 of the CrPC , 1973 enables the recording of the statement or confession before the Magistrate. Is such statement substantive evidence? What is the purpose of recording the statement or confession under Section 164? What would be the position if the person giving the statement resiles from the same completely when he is examined as a witness? These questions are not res integra. Ordinarily, the prosecution which is conducted through the State and the police machinery would have custody of the person. Though, Section 164 does provide for safeguards to ensure that the statement or a confession is a voluntary affair it may turn out to be otherwise. We may advert to statements of law enunciated by this Court over time.[Para No.68]

    As to the importance of the evidence of the statement recorded under Section 164 and as to whether it constitutes substantial evidence, we may only to advert to the following judgment, i.e., in George and others v. State of Kerala and another, AIR 1998 SC 1376:
"In making the above and similar comments the trial Court again ignored a fundamental rule of criminal
Statement of witness  recorded u/s.164 of Cr.P.C. is not substantial evidence
jurisprudence that a statement of a witness recorded under S. 164, Cr.P.C. , cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him."[Para No.69]

    What is the object of recording the statement, ordinarily of witnesses under Section 164 has been expounded by this Court in R. Shaji v. State of Kerala, AIR 2013 SC 651:
"15. So far as the statement of witnesses recorded under Section 164 is concerned, the object is two fold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in Court should be discarded, is not at all warranted. (Vide: Jogendra Nahak & Ors. v. State of Orissa & Ors., AIR 1999 SC 2565: (1999 AIR SCW 2736); and Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd. & Ors., AIR 2000 SC 2901) : (2000 Air SCW 3150).

08 March 2021

Judgment in cross/counter cases must be pronounced by the same judge one after the other in the same day

In Nathi Lal vs State of UP reported in 1990 Supp SCC 145, the Apex Court has succinctly held that the case and counter case should be tried by the same judge one after the other and both the judgments must be pronounced by the same Judge one after the other. Observation of the Apex Court in this regard is as under:
"2. We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other"[Para No.9]

    The same law was reiterated by the Apex Court in Sudhir and Ors. vs. State of MP reported in (2001) 2 SCC 688 in which the Apex Court held as under:
"8. It is a salutary practice, when two criminal cases relate to the same incident, they are tried and disposed of by the same court by pronouncing judgments on the same day. Such two different versions of the same incident resulting in two criminal cases are compendiously called "case and counter case" by some High Courts and "cross cases" by some other High Courts. Way back in nineteen hundred and twenties a Division Bench of Madras High Court (Waller, and Cornish, JJ) made a suggestion (In Re Goriparthi Krishtamma - 1929 Madras Weekly Notes 881) that "a case and counter case arising out of the same affair should always, if practicable,
Judgment in cross/counter cases must be pronounced by the same judge one after the other in the same day
be tried by the same court, and each party would represent themselves as having been the innocent victims of the aggression of the other."[Para No.10]

    In the said judgment the Apex Court further held as under:
"12. How to implement the said scheme in a situation where one of the two cases (relating to the same incident) is charge-sheeted or complained of, involves offences or offence exclusively triable by a Court of Sessions, but none of the offences involved in the other case is exclusively triable by the Sessions Court. The Magistrate before whom the former case reaches has no escape from committing the case to the Sessions Court as provided in Section 209 of the Code. Once the said case is committed to the Sessions Court, thereafter it is governed by the provisions subsumed in Chapter XVIII of the Code. Though, the next case cannot be committed in accordance with Section 209 of the Code, the Magistrate has, nevertheless, power to commit the case to the Court of Sessions, albeit none of the offences involved therein is exclusively triable by the Sessions Court. Section 323 is incorporated in the Code to meet similar cases also. That section reads thus:
"323.If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of chapter XVIII shall apply to the commitment so made."

24 January 2021

Rejection of application u/s.156(3) of CrPC does not bar the complainant to file second regular complaint case

Rejection of a complaint at the pre-cognizance stage under Section 156(3) Cr.P.C. does not debar institution of second regular complaint. It would be post-cognizance stage, if the
Rejection of application u/s.156(3) of CrPC does not bar the complainant to file second regular complaint case
Magistrate takes cognizance on the original complaint or after rejection at pre-cognizance stage, if second complaint is filed by the complainant. In genuine cases, if averments of the complainant are true and trustworthy or these are found so after preliminary inquiry, then the Magistrate under section 156(3) Cr.P.C. may direct the S.H.O. to register F.I.R. and conduct investigation on the basis of averments of the complaint.[Para. No.7]

    The Magistrate may dismiss the complaint under Section 156(3) Cr.P.C. if by way of instituting complaint, defence version is created to absolve the complainant from the case registered earlier or on the basis of allegations made in the complainant, if dispute is purely of civil nature or the Magistrate considers that the complaint is false and frivolous. The Magistrate has to power to test the truth and veracity of the allegations levelled against the proposed accused persons and if there is no substance in the averments of the complainant then at pre-cognizance stage, the complaint may be dismissed under section 156(3) Cr.P.C.[Para No.8]

...........

     On the basis of facts narrated in the complaint, the complainant is capable to adduce evidence regarding alleged incident of misappropriation of property of government school and trees, etc., by the respondents. The respondents abused the complainant indicating his caste as per the facts narrated in the complaint. These facts may be proved by adducing evidence by the complainant. This fact that respondents are pressurizing the complainant to compromise the matter is within the knowledge of complainant, it may also be proved by the complainant by adducing evidence.[Para No.11]

...........

     On the basis of above discussions, this appeal is liable to be dismissed.[Para No.13]

...........

    Learned Second Additional Sessions Judge / Special Judge, (S.C./S.T. Act), Lakhimpur Kheri has considered the facts on the basis of which complaint under Section 156(3) Cr.P.C. was instituted by the complainant. At post cognizance stage the complainant may institute regular complaint on the basis of which, the learned Second Additional Sessions Judge/ Special Judge, (S.C./S.T. Act), Lakhimpur Kheri may record statement of complainant under Section 200 Cr.P.C. and the evidence under Section 202 Cr.P.C. and proceed according to law on regular complaint if instituted by the complainant. The impugned order dated 15.12.2020 will have no effect on the regular complaint, if instituted by the complainant[Para No.15]

03 January 2021

Court must give reasoning as to why it has accepted the contentions of one party and rejected those of other party

For the foregoing discussion, the finding of learned Commercial Court, Jammu that the said Court does not have territorial jurisdiction to entertain the instant petition under Section 9 of the Act filed by the appellant, does not deserve to be interfered with. However, the manner in which the Court below has passed the impugned judgment invites a comment. A perusal of the said judgment clearly shows that it is cryptic and devoid of any reason. The learned Court has only noted the pleadings and submissions of the parties and then without giving any reasoning as to why it has accepted the contentions of one party and rejected those of other party, it has drawn the conclusion against the petitioner.[Para No.28]

    Reasoning is the soul of a judgment. A judgment which is
Court must give reasoning as to why it has accepted the contentions of one party and rejected those of other party
devoid of reasoning would not be a judgment in accordance with the law.
It is not sufficient for a Court merely to state in its judgment that on a careful consideration of the rival submissions of the parties, it has come to this or that conclusion. The material on record on a particular point for and against the parties to the case must be set out in the judgment and reasons stated for its acceptance or rejection. A Court has not only to state the points for determination and the decisions thereon, but also to give reasons for such decisions. All this is missing in the judgment passed by the learned Commercial Court, Jammu. Such type of judgments are not expected from a senior Judicial Officer of the level of a District Judge.[Para No.29]

31 December 2020

Relatives of the Muslim husband cannot be accused of the offence of pronouncement of triple talaq; the offence can only be committed by a Muslim man

Sec. 7(c) of Muslim Women (Protection of Rights on Marriage) Act 2019 does not impose an absolute bar on granting regular or anticipatory bail



    Under Section 3, a pronouncement of talaq by a Muslim husband upon his wife has been rendered void and illegal. Under Section 4, a Muslim husband who pronounces talaq upon his wife, as referred to in Section 3, is punishable with imprisonment for a term, which may extend to three years. The prohibition in Sections 3 and 4 is evidently one which operates in relation to a Muslim husband alone. This is supported by the Statement of Objects and Reasons accompanying the Muslim Women (Protection of Rights on Marriage) Bill 2019, when it was introduced in the Parliament. The reasons for the introduction of the bill specifically stated that the bill was to give effect to the ruling of this court in Shayara Bano v. Union of India [(2017) 9 SCC 1], and to „liberate‟ Muslim women from the customary practice of talaq-e-biddat (divorce by triple talaq) by Muslim men. It is in this context that the provisions of Section 7 would have to be interpreted. Section 7 provides as follows:
“7. Offences to be cognizable, compoundable, etc: Notwithstanding anything contained in the Code of Criminal Procedure, 1973, -
(a) an offence punishable under this Act shall be cognizable, if information relating to the commission of the offence is given to an officer in charge of a police station by the married Muslim woman upon whom talaq is pronounced or any person related to her by blood or marriage;
(b) an offence punishable under this Act shall be compoundable, at the instance of the married Muslim woman upon whom talaq is pronounced with the permission of the Magistrate, on such terms and conditions as he may determine;
(c) no person accused of an offence punishable under this Act shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such person."

    The provisions of Section 7(c) apply to the Muslim husband. The offence which is created by Section 3 is on the pronouncement of a talaq by a Muslim husband upon his wife. Section 3 renders the pronouncement of talaq void and illegal. Section 4 makes the Act of the Muslim husband punishable with imprisonment. Thus, on a preliminary analysis,
Relatives of the Muslim husband cannot be accused of the offence of pronouncement of triple talaq the offence can only be committed by a Muslim man
it is clear that the appellant as the mother-in-law of the second respondent cannot be accused of the offence of pronouncement of triple talaq under the Act as the offence can only be committed by a Muslim man.[Para No.7]

27 December 2020

filing of a first information report is not a condition precedent to the exercise of the power under Section 438 of Cr.P.C.

(i) Grant of an order of unconditional anticipatory bail would be “plainly contrary to the very terms of Section 438.” Even though the terms of Section 438(1) confer discretion, Section 438(2) “confers on the court the power to include such conditions in the direction as it may think fit in the light of the facts of the particular case, including the conditions mentioned in clauses (i) to (iv) of that sub-section.”

(ii) Grant of an order under Section 438(1) does not per se hamper investigation of an offence; Section 438(1)(i) and (ii) enjoin that an accused/applicant should co-operate with investigation. Sibbia (supra) also stated that courts can fashion appropriate conditions governing bail, as well. One condition can be that if the police make out a case of likely recovery of objects or discovery of facts under Section 27 (of the Evidence Act, 1872), the accused may be taken into custody. Given that there is no formal method prescribed by Section 46 of the Code if recovery is made during a statement (to the police) and pursuant to the accused volunteering the fact, it would be a case of recovery during “deemed arrest” (Para 19 of Sibbia).

(iii) The accused is not obliged to make out a special case for grant of anticipatory bail; reading an otherwise wide power would fetter the court’s discretion. Whenever an application (for relief under Section 438) is moved, discretion has to be always exercised judiciously, and with caution, having regard to the facts of every case. (Para 21, Sibbia).

(iv) While the power of granting anticipatory bail is not ordinary, at the same time, its use is not confined to exceptional cases (Para 22, Sibbia).

(v) It is not justified to require courts to only grant anticipatory bail in special cases made out by accused, since the power is extraordinary, or that several considerations – spelt out in Section 437- or other considerations, are to be kept in mind. (Para 24-25, Sibbia).

(vi) Overgenerous introduction (or reading into) of constraints on the power to grant anticipatory bail would render it Constitutionally vulnerable. Since fair procedure is part of Article 21, the court should not throw the provision (i.e. Section 438) open to challenge “by reading words in it which are not to be found therein.” (Para 26).

(vii) There is no “inexorable rule” that anticipatory bail cannot be granted unless the applicant is the target of mala fides. There are several relevant considerations to be factored in, by the court, while considering whether to grant or refuse anticipatory bail. Nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the accused’s presence not being secured during trial; a reasonable apprehension that the witnesses might be tampered with, and “the larger interests of the public or the state” are some of the considerations. A person seeking relief (of anticipatory bail) continues to be a man presumed to be innocent. (Para 31, Sibbia).

(viii) There can be no presumption that any class of accused- i.e. those accused of particular crimes, or those belonging to the poorer sections, are likely to abscond. (Para 32, Sibbia).

(ix) Courts should exercise their discretion while considering applications for anticipatory bail (as they do in the case of bail). It would be unwise to divest or limit their discretion by prescribing “inflexible rules of general application.”. (Para 33, Sibbia).

(x) The apprehension of an applicant, who seeks anticipatory bail (about his imminent or possible arrest) should be based on reasonable grounds, and rooted on objective facts or materials, capable of examination and evaluation, by the court, and not based on vague un-spelt apprehensions. (Para 35, Sibbia).

(xi) The grounds for seeking anticipatory bail should be examined by the High Court or Court of Session, which should not leave the question for decision by the concerned Magistrate. (Para 36, Sibbia).

filing of a first information report is not a condition precedent to the exercise of the power under Section 438

(xii) Filing of FIR is not a condition precedent for exercising power under Section 438; it can be done on a showing of reasonable belief of imminent arrest (of the applicant). (Para 37, Sibbia).

(xiii) Anticipatory bail can be granted even after filing of an FIR- as long as the applicant is not arrested. However, after arrest, an application for anticipatory bail is not maintainable. (Para 38-39, Sibbia).

24 December 2020

Separate F.I.R. can be lodged by every depositor if they are cheated on different dates

Each instance of cheating of every investor/depositor would constitute an independent offence even if it is committed as a part of single conspiracy


    The principal issue herein is with regard to the applicability of Section 220 of the Cr.P.C. as well as the protection provided under Article 20 (3) of the Constitution to a case of inducement, allurement and cheating of a large number of investors/depositors in a criminal conspiracy. The issue posed is whether the offence of cheating - by acceptance of deposits made by individual investors - and there would be multiple such investors, would all constitute the "same transaction" - because the conspiracy or design may be the same or, whether, the act of cheating - by acceptance of deposits made by different investors, would constitute separate transactions - because each act of inducement, allurement and consequential cheating would be unique. The question is whether such transactions could be amalgamated and clubbed together into a single FIR, by showing one investor as the complainant, and the others as the witnesses. Consequently, convicted under one such case would pre-empt prosecution under the other pending cases.[Para No.22]
..........

    Thus even Section 220 does not help the Petitioner as will apply where any one series of acts are so connected together as to form the same transaction and where more than
Separate F.I.R. can be lodged by every depositor if they are cheated on different dates
one offence is committed, there can be a joint trial. In the present case, as is borne out from the record, different people have been alleged to have been defrauded by the Petitioner and the Company and therefore each offence is a distinct one and cannot be regarded as constituting a single series of facts/ transaction.[Para No.31]

Victims are entitled to claim compensation for incidents that occurred even prior to the coming into force of section 357A(4) of Cr.P.C.

A question of seminal importance has arisen in this case. The query raised relates to the victim compensation scheme under Section 357A(4) of Cr.P.C. and its applicability. Is the provision retrospective or prospective in its application? To paraphrase the query: Would the victim, of a crime that occurred prior to 31.12.2009, be entitled to claim compensation under Section 357A(4) of the Cr. P.C.[Para No.1]

    The facts, though not relevant to be narrated in detail, is in a nutshell as follows:
Respondents 2 to 4 are the legal heirs of one late Sri.Sivadas. In a motor vehicle accident that took place on 26-03-2008, Sri. Sivadas succumbed to his injuries. Though a crime was registered by the Alappuzha Traffic Police, the accused could not be identified or traced and the trial has not taken place. In 2013, the legal heirs of late Sivadas applied to the District Legal Services Authority, Alappuzha, seeking compensation from the State under Section 357A(4) of the Code of Criminal Procedure, 1973 (for brevity 'the Cr.P.C').[Para No.2]

    Pursuant to the application, an enquiry, as contemplated under Section 357A(5) Cr.P.C, was conducted through the Additional District Judge, Alappuzha, who was appointed as the Enquiry Officer. The enquiry report was submitted on 12-09-2013. The report revealed that the applicants are the legal heirs of late Sivadas and that at the time of death he was aged 52 years and a casual labourer. It further stated that considering the circumstances, an amount of Rs.3,03,000/- (Rupees Three lakhs three thousand only) was sufficient compensation that could be awarded to the dependents of late Sri.Sivadas. On the above basis, the 1st respondent by Ext.P1 order, directed the State of Kerala to pay an amount of Rs.3,03,000/- to the dependents of late Sivadas under Section 357A(5) of the Cr.P.C. Ext.P1 is under challenge.[Para No.3]

..............

    As a substantive law, the aforesaid statutory provision will have only prospective application. However, in the case of Section 357A(1)(4)&(5) Cr.P.C., there is a difference. Rehabilitation of the victim is the scope, purport and import of Section 357A(4) Cr.P.C., when read along with Section 357A (1) Cr.P.C. This is more explicit when understood in the background of the recommendation of the 154th report of the Law Commission of India. Rehabilitation of the victim was a remedial measure. It remedied the weakness in the then existing provisions for compensating the crime victims, especially to those victims, whose perpetrators had not been traced. The provision is remedial. Remedial statutes or provisions are also known as welfare, beneficent or social justice oriented legislation.[Para No.27]

    While interpreting a provision brought in as a remedial measure, that too, as a means of welfare for the victims of crimes, in which the perpetrators or offenders have not been identified and in which trial has not taken place, the Court must always be wary and vigilant of not defeating the welfare intended by the legislature. In remedial provisions, as well as in welfare legislation, the words of the statute must be construed in such a manner that it provides the most complete remedy which the phraseology permits. The Court must, always, in such circumstances, interpret the words in such a manner, that the relief contemplated by the provision, is secured and not denied to the class intended to be benefited.[Para No.28]

    While interpreting Section 357A(4) Cr.P.C., this Court cannot be oblivious of the agony stricken face of the victim and the trauma and travails such victims have undergone, especially when their offenders have not even been identified or traced out or a trial conducted. The agonizing face of the victims looms large upon this Court while considering the question raised for decision.[Para No.29]

    With the aforesaid principles hovering over Section 357A(4)&(5) Cr.P.C., the provision ought to be interpreted in such a manner that it benefits victims. If the said benefit could be conferred without violating the principles of law, then courts must adopt that approach. A substantive law that is remedial, can reckon a past event for applying the law prospectively. Such an approach does not make the substantive law retrospective in its operation. On the other hand, it only caters to the intention of the legislature.[Para No.30]

     In other words, when an application is made by a victim of a crime that occurred prior to the coming into force of Section 357A(4) Cr.P.C.,
Victims are entitled to claim compensation for incidents that occurred even prior to the coming into force of section 357A(4) of  Cr.P.C.
a prospective benefit is given, taking into reckoning an antecedent fact.
Adopting such an interpretation does not make the statute or the provision retrospective in operation. It only confers prospective benefits, in certain cases, to even antecedent facts. The statute will remain prospective in application but will draw life from a past event also. The rule against retrospectivity of substantive law is not violated or affected, merely because part of the requisites for action under the provision is drawn from a time antecedent to its passing. Merely because a prospective benefit under a remedial statutory provision is measured by or dependent on antecedent facts, it does not necessarily make the provision retrospective in operation.[Para No.31]

22 December 2020

When police refused to register F.I.R. the complainant must approach the Magistrate under Section 156(3) of CrPC and not to the High Court directly

While referring to the judgment of Sudhir Bhaskarrao Tambe (supra), it is observed that if the High Courts entertain such writ petitions seeking registration of FIR, then they will be flooded with such writ petitions and will not be able to do any other work, except dealing with them. It is specifically held that the complainant must avail of his alternate
When police refused to register F.I.R. the complainant must approach the Magistrate under Section 156(3) of CrPC and not to the High Court directly
remedy to approach the Magistrate concerned under section 156(3) of Cr.P.C and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the FIR and also ensure a proper investigation in the matter.
While approving the aforenoted view, the Supreme Court has set aside the direction of the High Court for registration of the FIR and has directed the respondent thereto to approach the court of Magistrate if deem appropriate and necessary. Thus, the law on the registration of FIR is well settled and has been reiterated in the recent judgment of the Supreme Court as noted herein above.[Para No.4]

    In the present case, the petitioner has not approached the concerned Magistrate and has directly approached this Court for the aforesaid prayer.[Para No.5]

    Under the circumstances and in light of the observations made by the Apex Court, the writ petition is rejected since the petitioner has the remedy to approach the approach the concerned Magistrate under section 156(3) of the Cr.PC.[Para No.6]

Subordinate to the appointing authority can not grant sanction to prosecute

Additional Collector holding charge of District Collector can not give sanction to prosecute in corruption case when employee is appointed by District Collector


    The sanction for prosecution can be granted by the authority competent to remove person. The appointment authority was Collector. PW-4 was subordinate to Collector. He was working as Additional Collector. The prosecution is relying upon the order handing over the charge to PW-4. The documents were produced on re-examination of the witness. The question which arises for consideration is that assuming that the charge was handed over to PW-4, on account of leave of District Collector, whether the charge of according sanction to prosecute the accused stands transferred to him. There is no satisfactory evidence on record to substantiate this fact. The approach of PW-4 appears to be casual. Learned counsel for the appellant has drawn my attention to some provisions of Maharashtra Civil Services Rules to bring home and contended that District Collector was appointing and removing authority.[Para No.21]

    It is submitted that, disciplinary authority cannot be inferior to the appointing authority. In the present case the collector being the appointing authority of the applicant, the additional collector did not have the power to remove him from service. Article 311 (1) of the constitution of India creates a safeguard where in no person who is a member of the Civil services of the Union or the state or an All Indian Service or a civil service or who holds a civil post under the union or State shall be removed by an authority sub ordinate to him. In the present case PW-3 at the relevant time was functioning as the Additional collector of Kolhapur. PW-3 in his examination in Chief makes a positive assertion that the Collector of the District is the Appointing and the removing Authority of the Appellant/accused. The Appointment order of the Appellant was produced on record by the said witness and the same is at (Exh.119). The PW 3 admits in his cross examination that the Post of the Additional Collector and Collector are different. The onus of proving a valid sanction is on the prosecution and hence it was incumbent upon the prosecution to bring on record any documents which would demonstrate that the power of Appointment and the removal of the Appellant vested with the Additional Collector. The prosecution has not produced any documents in this regard. The aforesaid witness was re-examined by the prosecution and the documents at Exh.124 is a charge report dated 11th April, 2006. It can be seen that the Collector holding regular charge was proceedings on leave and hence the Additional Charge of the District was being handed over to the PW-3. In the aforesaid charge report it is no where mentioned that the PW-3 had the authority to remove the Appellant or persons of equivalent rank from service and hence (Exh.124) would not come to the aid and assistance of the prosecution.
Subordinate to the appointing authority can not grant sanction to prosecute
In fact Article 311 (1) does not permit such a delegation of powers and hence assuming without admitting that there was such a delegation, then the same would nonest in the eyes of law and the same would be in conflict with the constitutional safeguard created under Article 311 (1) of the Constitution of India.[Para No.22]

17 December 2020

Under the grab of Public Interest Litigation a Third party can not file application u/s. 482 of Cr.P.C.

This Court in the above case laid down that it is for the parties in the criminal case to raise all the questions and challenge the proceedings initiated against them at appropriate time before the proper forum and not for third parties under the garb of Public Interest Litigants.[Para No.14]

    We are fully satisfied that respondent No.2 has no locus in the present case to file application under Section 482 Cr.P.C. asking the Court to expedite the hearing in criminal trial. We have already observed that all criminal trials where offences involved under the Prevention of Corruption Act have to be concluded at an early date and normally no exception can be taken to the order of the High Court directing the trial court to expedite the criminal trial but in the present case the fact is that proceedings have been initiated
Under the grab of Public Interest Litigation a Third party can not file application u/.s 482 of Cr.P.C.
by respondent No.2 who was not concerned with the proceedings in any manner and the respondent No.2 has no locus to file the application which was not clearly maintainable, we are of the view that the impugned judgment of the High Court dated 09.09.2020 cannot be sustained.[Para No.15]

05 December 2020

Accused in cheque bounce case cannot take benefit if complainant has not shown the transaction in Income-Tax returns

Now it has been harped upon by the accused that the said transaction has not been accounted for. In other words, complainant has not shown the said transaction in her Income-Tax returns. Learned Advocate for the respondent as well as learned Trial Court have heavily relied on the decision in Sanjay Mishra (supra). However, it appears that the legal position that had developed thereafter was not pointed out to learned Trial Judge. In Bipin Thakkar (supra) entire legal position on this point has been discussed. In fact, Bipin Thakkar (supra) reiterates the law discussed on the point in Krishna P. Morajkar vs. Joe Ferrao and another [2013 ALL MR (Cri) 4129 : (2013) 5 AIR Bom R 294]. It is necessary to reproduce those observations from Krishna's case, which reads thus :-
"Further, it has been observed that there is no provision in Income-Tax Act, which makes an amount not shown in the income- tax returns unrecoverable. If some amounts are not accounted for, the person would be visited with the penalty or at times even prosecution under Income-Tax Act, but it does not mean that the borrower can refuse to pay the amount which he has borrowed simply, because there is some infraction of the provisions of the Income-Tax Act."[Para No.12]

    Thus, when in a subsequent pronouncements this Court has clarified the legal position that too, after taking note of subsequent pronouncement by Hon'ble Supreme Court,
Accused in cheque bounce case cannot take benefit if complainant has not shown the transaction in Income-Tax returns
then the later decision would prevail. It has been then observed in Bipin Thakkars' case that, "It is true that merely because amount advanced is not shown in Income-Tax return, in every case, one cannot jump to the conclusion that the presumption under Section 139 of said Act stands rebutted". We can consider the decision in the case of Assistant Director of Inspection vs. A. B. Shanthi, (2002) 6 SCC 259, wherein it has been held :-
"The object of introducing S. 269 is to ensure that a tax payer is not allowed to give false explanation for his unaccounted money, or if he has given some false entries in his accounts, he shall not escape by giving false explanation for the same. During search and seizure unaccounted money is unearthed and the tax payer would usually give the explanation that he had borrowed or received deposits from his relatives or friends sand it is easy for the so-called lender also to manipulate his records later to suit the plea of the tax-payer. The main object of S. 269-SS was to curb this menace."[Para No.13]

29 November 2020

Investigation and filling of chargesheet under The Immoral Traffic (Prevention) Act, 1956 should be done only by Special Police Officer empowered under Section 13 of the Act

Learned counsel also took my attention to Joseph v. State of Kerala [2011 (2) KHC 958]. In that decision, while dealing with Sections 3, 4, 5, 14 (ii) of the Act, it has been held that authorisation given by the Special Police Officer to his subordinate officer must mention the name of any of the persons to be arrested. It is also held that Special Police Officer cannot authorise investigation of the case to be conducted by any other officer. In paragraph No.4 of the said judgment, the ambit and scope of Section 13 has been dealt with, which is relevant in this context to be extracted and it reads as follows:
"4. There is also yet another aspect that is required to be looked into. Under S.13 of the Act, a Special Police Officer shall be appointed 'for dealing with the offences under this Act in that area'. 'Dealing with the case' means doing everything connected with the progress of the case. The Supreme Court in the decision referred supra considered that question and held that the expression would include detection, prevention and investigation of offences and other duties which have been specifically imposed on the Special Police Officer under the Act. It is seen from the records that investigation of the case was conducted by the Circle Inspector though, as authorised by the Special Police Officer and the role of the Special Police Officer was only to verify the investigation and submit final report. S.14(ii) of the Act does not empower the Special  
Investigation and filling of chargesheet under The Immoral Traffic (Prevention) Act, 1956 should be done only by Special Police Officer empowered under Section 13 of the Act
Police Officer to authorise investigation of the case to be conducted by any other officer. If that be so the investigation conducted by the officer other than the Special Police Officer is against the provisions of law.
"[Para No.8]

22 November 2020

In an inquiry under Section 202 Cr.P.C., the Magistrate is required to consider whether the civil dispute is tried to be given a colour of criminal dispute or not

Now so far as the reliance placed on the decision of this Court in the case of National Bank of Oman vs. Barakara Abdul Aziz (Supra) relied upon by the Learned Advocate appearing on behalf of the complainant is concerned, we are of the opinion that in the facts and circumstances of the case, the said decision shall not be of any assistance to the complainant.
In an inquiry under Section 202 Cr.P.C., the Magistrate is required to consider whether the civil dispute is tried to be given a colour of criminal dispute or not
It cannot be disputed that while holding the inquiry under Section 202 Cr.P.C. the Magistrate is required to take a broad view and a prima facie case. However, even while conducting/holding an inquiry under Section 202 Cr.P.C., the Magistrate is required to consider whether even a prima facie case is made out or not and whether the criminal proceedings initiated are an abuse of process of law or the Court or not and/or whether the dispute is purely of a civil nature or not and/or whether the civil dispute is tried to be given a colour of criminal dispute or not. As observed hereinabove, the dispute between the parties can be said to be purely of a civil nature. Therefore, this is a fit case to quash and set aside the impugned criminal proceedings. [Para No.6.5]

17 November 2020

Magistrate; after taking cognizance, cannot issue, at the first instance, non bailable arrest warrant against accused who has obtained anticipatory bail

Learned counsel for the petitioners submits that the petitioners were granted anticipatory bail by this Court in the FIR registered against them bearing No.3/2003 at Police Station Khetri, District Jhunjhunu under Section(s) 418, 420, 465, 467, 468, 471, 406 & 120-B IPC. The police submitted a Final Report whereafter protest petition was filed, which was dismissed.
    Against the dismissal order of the protest petition, a revision petition was filed, which was allowed by the learned Additional Sessions Judge, Khetri and the matter was remanded back to the Court to pass a fresh order on 18.7.2018, whereafter the learned Magistrate has taken cognizance on 11.1.2019 and summoned the petitioners through arrest warrants. The said order of remand was challenged by the petitioners before the High Court and the High Court had stayed the said proceedings. Taking into consideration the order of taking cognizance, the petition was declared infructuous.[Para No.1]

    Learned Magistrate thereafter again issued arrest warrants.[Para No.2]
......

    For the aforesaid backdrop, this Court notices that it is a case where on remand from the District Judge, the Court has taken cognizance of the offences relating to allegations under Sections 418, 420, 465, 467, 468, 471, 406 & 120-B IPC. The High Court vide its order dated 29.4.2003 had granted anticipatory bail to the petitioners with the condition that in the event of arresting the petitioners, they shall be released on bail.
    
    Keeping in view the conditions laid down in Sushila Agarwal & Others (supra), this Court is of the firm view that
Magistrate; after taking cognizance, cannot issue, at the first instance, non bailable arrest warrants against accused who has obtained anticipatory bail
the action of the learned Magistrate from the date, it has taken cognizance and upto passing of the impugned order dated 3.9.2020 has acted in clear violation of the orders passed by the High Court after having granted anticipatory bail. There was no occasion for the learned Magistrate to have issued the arrest warrants and such course or power was not available with it in spite of having been given to it.

15 November 2020

Absence of proof of motive creates a doubt regarding the mens rea entitling the accused for an acquittal

Mens rea of the accused has much relevance in a case when the benefit under Section 84 IPC has been pleaded by an accused. So when the prosecution in this case failed to prove any motive behind the incident it would also raise a reasonable doubt of mens rea in doing the act. So as per the proposition of law laid down above, it would be a fact which creates a reasonable doubt entitling the accused to get the benefit of the exception.
Absence of proof of motive creates a doubt regarding the mens rea entitling the accused for an acquittal
In other words absence of proof of motive from the side of the prosecution creates a doubt in the mind of the court regarding the mens rea entitling the accused for an acquittal.[Para No.44]

    Though the contention of the learned counsel for the accused that medical evidence adduced from the side of the prosecution would not prove the unsoundness of mind at the time of the commission of the offence even if accepted the attending circumstances brought out during the oral evidence of the witnesses coupled with the medical evidence would create a reasonable suspicion about the soundness of the mind of the accused at the time of commission of the act. That also would enable the accused for benefit of doubt entitling for an acquittal on the ground that the general burden of proof resting on the prosecution is not discharged.[Para No.45]
...............

11 November 2020

In investigation police should consider the defence put forth by the accused which if investigated fairly, may exonerate him

In Ankush Maruti Shinde The Supreme Court expressed its displeasure against the police for the manner in which it had investigated an offence in which several people were murdered and a woman raped in which, the accused persons, who were members of a nomadic tribe were falsely implicated while, the actual perpetrators of the crime who were identified by the witness's from the register at the police station, where never proceeded or investigated into. Underscoring the importance of a fair investigation, The Supreme Court held "It has to be uppermost kept in mind that impartial and truthful investigation is imperative. It is judiciously acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India. The role of the police is to be one for protection of life, liberty and property of citizens, that investigation of offences being one of its foremost duties. That the aim of investigation is ultimately to search for truth and to bring the offender to book". In the same judgment, The Supreme Court, relying upon an earlier judgment passed in V.K. Sasikala Vs. State - (2012) 9 SCC 771, Highlighted the importance of the police in examining the documents that maybe in support of the accused and held in the following words "As observed by this Court in V.K. Sasikala v. State [V.K. Sasikala v. State, (2012) 9 SCC 771 : (2013) 1 SCC (Cri) 1010] , though it is only such reports which support the prosecution case that are required to be forwarded to the Court under Section 173(5), in every situation where some of the seized papers and the documents do not support the prosecution case and, on the contrary, support the accused, a duty is cast on the investigating officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself"[Para No.21]

    In Babubhai Vs. State of Gujarat, The Supreme Court examined a case arising from a fight between two groups in which three people died. The police are alleged to have examined the case only from the standpoint of one, completely ignoring the defence of the other. Emphasising on the importance of a fair investigation, the Supreme Court held "The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth". (Vide R.P. Kapur v. State of Punjab [AIR 1960 SC 866 : 1960 Cri LJ 1239] , Jamuna Chaudhary v. State of Bihar [(1974) 3 SCC 774 : 1974 SCC (Cri) 250 : AIR 1974 SC 1822] , SCC at p. 780, para 11 and Mahmood v. State of U.P. [(1976) 1 SCC 542 : 1976 SCC (Cri) 72 : AIR 1976 SC 69] )". Further, in the same judgement Supreme Court held "Not only fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. Where non-interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation"[Para No.22]

In investigation police should consider the defence put forth by the accused which if investigated fairly, may exonerate him
    Thus, fair investigation by the police is an imperative facet inhering in Article 21. It is not an option but a constitutional mandate on the police that when it investigates, it must be done, not from the standpoint of the prosecution alone, but also from the point of view of the accused. It has to consider the defence put forth by the accused which if investigated fairly, may exonerate him. The purpose of investigation is not to secure a conviction of the accused but to unearth the truth relating to the commission of an offence. A partisan investigation is a defective investigation which puts a question mark on the sanctity of the proceedings against the accused. If after taking the defence of the accused into consideration the police is of the view that the accused is not the person who committed the offence, in such a situation he is to be exonerated and the case against him, closed. In the present case, the investigation was initially biased and one-sided. There was even reluctance on the part of the police to accept documents from the accused. Even after the police had received the prurient photographs of the deceased, it never carried out any investigation to examine the motive of the deceased to commit suicide and whether the reason put forth by the Petitioner was plausible. The police have merely taken the material given by the Petitioner and made the same a part of the chargesheet without conducting any investigation into the defence of the Petitioner. The police have merely recorded the statement of the immediate relations of the deceased and filed the chargesheet against the Petitioner. No investigation was conducted to a certain the veracity of the allegations against the Petitioner.[Para No.23]
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