Submission of the charge-sheet is not a lock gate to seek anticipatory bail

F.I.R. alleging non bailable offence registere - During the course of investigation notices under Section 41(A) of Cr.P.C. have been served upon the accused upon which he has given reply through Email - After completion of the investigation, a charge-sheet against the accused filed in the Court - Court took cognizance and issued summons to accused.

Is application seeking anticipatory bail after filling of chargesheet tenable?

   Submission of the charge-sheet is not a lock gate for the applicant to be enlarged on anticipatory bail.

The burden of proof; of non compliance of order of consumer forum, is not on the accused.

Sec.27 of The Consumer Protection Act - Non compliance of judgment of forum - execution petition - only one respondent/accused appeared - No steps taken against other accused - Forum recorded plea without separating trial - Adjournment sought by accused is rejected - No evidence of either applicant or accused is recorded, Still forum ordered the accused to comply with the judgment on the same day till 4 pm only - Accused failed to comply with - Forum cancelled his bail and taken in custody.

Held:

   The burden of proof; of non compliance of order of consumer forum, can not be on the accused. [Para No.9]

Denial of default bail u/s.167(2) of Cr.P.C. amounts to violation of his fundamental right under Article 21 of the Constitution of India

Does denial of default bail available u/s.167(2) of Cr.P.C. amounts violation of fundamental rights if accused?


Article 21 states that no person shall be deprived of his personal liberty except according to procedure established by law. So long as the language of Section 167(2) of Cr.Pc remains as it is, I have to necessarily hold that denial of compulsive bail to the petitioner herein will definitely amount to violation of his fundamental right under Article 21 of the Constitution of India.[Para No.14]

How to prove plea of Private Defence in criminal trial?

Two young men quarrelled suddenly and threw stones at each other. The stone pelted by the deceased missed; while the stone pelted by the appellant accidentally hit the head of the deceased. The deceased being the aggressor, the accused unintentionally assaulted him to defend himself. He threw a single stone. Weight, shape or size of which is not clear from the record. Neither the appellant acted in cruel manner nor had he taken any undue advantage of the situation. He simply ran away from the scene. It does not appear that the appellant had exceeded his Right of private defence. Therefore, he is entitled to acquittal as no action can be considered as offence, if it is done in exercise of right of private defence.[Para.25]

   At the time of the incident, the deceased was 18 year old and the appellant was 22 year old. There is no evidence of any previous enmity between both of them. There is also no evidence of "motive", "preparation", "premeditation" or "intention" of causing death or more harm than necessary for the purpose of defending himself. It was a sudden fight in the heat of passion upon a sudden quarrel and without taking any undue advantage or acting in any cruel or unusual manner, as a natural reflex, the appellant also picked a stone lying there and threw it towards the deceased. His action was a reflex action to save himself from the attack by the deceased. It was not the case of the prosecution itself that the accused targeted any particular body part or more precisely the head of the deceased and evidence also does not show any such intention of the appellant. There is no evidence to show the weight, size or shape of the stone used by the appellant to assess the intention or impact of blow to arrive at a conclusion favourable to the prosecution. There is also no evidence to show that the stone was unusual in size or shape or whether it was sufficient to cause death in the normal course. The injury found on the head of the deceased cannot be said that it was of an unusually severe nature or that it was intended to be so.[Para No.20]

Directions u/s.156 of Cr.P.C. to investigate not to be issued if allegations do not prima facie make out offence

Application filed by the petitioner under Section 156 (3) of the Code has been rejected and the petitioner has been directed to examine his witnesses as per the provision of Section 200 and 202 of the Code.

   It is settled legal position that once the Magistrate has come to the conclusion that allegations made in the complaint do not prima facie make out offence then the Magistrate was right in rejecting the application under Section 156 (3) of the Code and he is also right in fixing the case for recording the statement of the complainant and his witnesses under Sections 200 and 202 of the Code. It is also well established principle of law that order under Section 156 (3) of the Code could not be passed in a mechanical manner. There has to be due application of mind. Once the Magistrate has applied his mind and if he comes to the conclusion that prima facie the applicant has failed to make out a case for cognizable offence warranting issuance of an order under Section 156 (3) of the Code then the Magistrate is right in rejecting the application, if otherwise does not obligatory on the Magistrate to issue an order under Section 156 (3) of the Code only on the basis of averments made in the complaint.

Offence of atrocity can not be registered against a member of SC & ST

Can an offence of atrocity under SC ST (Prevention of atrocity) Act be registered against another person belonging to SC ST ? 

  

  The person which is making such allegations or utterances should not be a member of either Scheduled Caste or a Scheduled Tribe, as per T. Toranath & Anr. v. State of A.P. & Ors., reported in 1999 (1) Crimes 188 That means, the offence under these can be lodged against those persons only who are not being a member of a Scheduled Caste or a Scheduled Tribes.[Para No.12]

Proper procedure to exercise revisional powers

What is the proper procedure to exercise Revisional powers u/s. 397 & 399 of Cr.P.C.? 

    Revisional Court even after having knowledge that the scope of the revision is limited to see either the correctness, legality or propriety of any finding, sentence or order exceeded in his jurisdiction in issuing process against the accused, has unnecessarily over-reached itself. The proper course could have been after passing a detailed order, to remit the case back to the Magistrate to pass an appropriate order, in pursuant to the observations in the revision.[Para No.12] 

Instigation to commit suicide must be intended to push the deceased into such a position that he commit suicide

Dispute regarding land - Quarrel took place between accused and deceased - Deceased had been beaten by the accused - Deceased committed suicide - offence u/s. 306 of IPC registered - During investigation, no intention of the accused is found which intended to push the deceased into such a position that he committed suicide specially when the deceased was well aware with the legal remedy and he called the police by dialing 100 prior to the incident.

Held:

   A person can be said to have instigated another person, when he actively suggests or stimulates him by means of language, direct or indirect. Instigation requires an active act or direct act which led the deceased to commit suicide seeing no other option and that act must be done with an intention to push the deceased into such a position that he commit suicide. The offence of abetment by instigation depends upon the intention of the person who abets the deceased. Instigation has to be gathered from the circumstances of a particular case and it is to be determined whether circumstances had been such, which in fact, had created the situation that a person felt totally frustrated and committed suicide.Para No.18]

Accused can challenge the sentence in an appeal filed by State for inadequacy of sentence

Can a convicted person; without filing an appeal, challenge his conviction, in an appeal filed by the State on the ground of inadequacy of sentence?

 Held: Yes

It is open to accused to challenge the finding and order of conviction recorded against him in the appeal filed by the State?

    In an appeal filed by the State; against the sentence, on the ground of its inadequacy, the accused can plead for his acquittal or for reduction of the sentence. [Para No.6]

What has to be considered while deciding an application seeking action for perjury?

All that is required to be assessed is whether a prima facie case is made out that there is a reasonable likelihood that the offence specified in Section 340 read with Section 195(1)(b) of the CrPC has been committed, and it is expedient in the interest of justice to take action. [Para No.5]

Subsequent complaint can be clubbed with existing F.I.R.

F.I.R. made by the father of victim girl that she might have been kidnapped/abducted. After registration of FIR, complaint made by the victim girl about her sexual exploitation with detail incident.

   Can such complaint be clubbed with existing FIR?

   If the FIR lodged by her father is the skeleton, victim's complaint is the flesh and blood to it.

   If the investigating agency had taken a decision to club the subsequent complaint with earlier FIR it cannot be said that the investigating agency violated any provision of law. In fact, such clubbing was legally justified. 

 It is well settled that a first information report need not necessarily be lodged by the victim of a sexual offence. Any person having information of the offence can report. It is equally well settled that an FIR need not be an encyclopedia of all the facts and allegations describing an offence. The object of lodging a first information report is to report an offence, cognizable in nature, so that the matter is investigated and a police report is submitted in court to enable it to take cognizance and proceed against the accused.

WhatsApp Group is a public place

WhatsApp cannot be a public place if messages are exchanged on personal accounts of two persons. If these messages had been posted on WhatsApp Group, in that case the same could have been called as public place because all the members of the group, will have access to those messages. It is not the prosecution case that the alleged obscene messages were posted on WhatsApp Group of which the petitioner and the respondent No. 2 and others are the members. Therefore, sending the personal messages on WhatsApp will not amount to utterance of obscene words in public place. Therefore, Section 294 of the I.P.C. cannot be invoked.[Para no.10]

Recall of witness u/s.311 of CrPC is permissible If evidence which is sought to be brought on record is essential for the just decision of the case

   It is, thus, seen that object of this section is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or by leaving ambiguity in the statement of witnesses examined by the parties. This section is intended to bring finality to the litigation. The learned trial court is required to focus its attention on the aspect as to whether evidence which is sought to be brought on record is essential for the just decision of the case. If this criteria is fulfilled, then application for recall of witness moved by taking resort to the provisions of Section 311 of the Code of Criminal Procedure needs to be allowed by the learned trial court. [Para no.5]

What procedure should be adopted by court when chargesheet is filed against some accused out of several accused persons?

   The catch comes when against one or more accused persons, a Report labelling them responsible for commission of the offence(s) is submitted vide chargesheet and it is also indicated that investigation is pending against the other named/unknown accused or otherwise. In such a situation, the Court has two options:

Distinction between Murder, Culpable Homicide and Culpable Homicide Not Amounting to Murder

In State of AP vs Rayavarapu Punnayya, AIR 1977 SC 45, the Supreme Court made following observation:

   " .... whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of section 300, Penal Code is reached. This is the stage at which the court should determine whether the facts proved by the prosecution brings the case within the ambit of any of the four clauses of the definition of "murder"contained in section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder" punishable under the first or the second part of section 304, depending, respectively,on whether the second or the third clause of section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in section 300, the offence would still be "culpable homicide not amounting to murder," punishable under the first part of section 304, Penal Code."

Gravity of offence alone cannot be decisive ground to deny bail

By now it is well settled that gravity alone cannot be decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon'ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; wherein it has been held as under "The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail.

The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson. [Para No.12]

Importance of cross examination in criminal trial

A witness is required to be cross-examined in a criminal trial to test his veracity; to discover who he is and what his position in life is; or to shake his credit, by injuring his character, although the answer to such questions may directly or indirectly incriminate him or may directly or indirectly expose him to a penalty or forfeiture (Section 146 of the Evidence Act). A witness is required to be cross- examined to bring forth inconsistencies, discrepancies and to prove the untruthfulness of the witness.[Para No.56]

   It is open to an accused to raise such reasonable doubt by cross-examination of the prosecution witnesses to discredit such witness in respect of truthfulness and veracity. However, where the statement of prosecution witnesses cannot be doubted on the basis of the touchstone of truthfulness, contradictions and inconsistencies, and the accused wants to assert any particular fact which cannot be made out from the prosecution evidence, it is incumbent upon the accused to cross- examine the relevant witnesses to that extent. The witness, in order to impeach the truthfulness of his statement, must be cross- examined to seek any explanation in respect of a version, which accused wants to rely upon rather to raise an argument at the trial or appellate stage to infer a fact when the opportunity given was not availed of as part of fair play while appreciating the statement of the witnesses.

When benefit of doubt can be given to accused?

Material contradictions, omissions and improvements in the statement of witness recorded under Section 161 Cr.P.C. as well as deposition before the Court; there was a prior enmity and no other independent witness has supported the case of the prosecution.


Held:
Accused are entitled to be given the benefit of doubt. [Para No.15]

What are the consequences of non compliance of condition of deposit of 25% amount of compensation ordered while suspending sentence in cheque bounce case appeal against conviction?

When suspension of sentence by the trial court is granted on a condition, non- compliance of the condition has adverse effect on the continuance of suspension of sentence.

  The Court which has suspended the sentence on a condition, after noticing non- compliance of the condition can very well hold that the suspension of sentence stands vacated due to non-compliance. [Para No.18]

Can registration of F.I.R. be denied if civil proceeding is pending?

A civil dispute should not be given the colour of a criminal offence, and at the same time, mere pendency of the civil proceeding is not a good ground and justification to not register and investigate an FIR if a criminal offence has been committed.[Para No.9]