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CRIMINAL DIGEST – JANUARY 2020

High Court Registry cannot refuse to number the anticipatory bail application on the ground of maintainability: SC

The petitioners had filed an anticipatory bail application before the Hon’ble High Court of Madras in the matter of Crime No. 937 of 2017 involving offences under the SC/ST Act. The Registry had denied numbering of the application on the grounds that a bail application cannot be filed in an SC/ST Act offence. The petitioners filed the present SLP regarding the issue of a judicial function being performed by the registry which is an administrative body.

The Court held that the registry had performed a judicial function that was ultra vires its administrative powers and ordered for a requisite bench to be constituted to adjudicate upon the merits of the bail application.

The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status: SC

The appellant was arrested by the police for the possession of cannabis in the presence of ASP Abohar under Sec. 18 of the NDPS Act. The police seized the cannabis that was found with him and the samples were collected for examination. After due investigation the appellant was arrested.  The trial was intiated and the trial court sentenced the appellant to rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/-. Aggrieved by the order of the trial court the appellant appealed to the High Court which was dismissed.

The bench evaluated the question of law regarding whether the non-examination of independent witnesses and link evidences would vitiate the trial proceedings and the subsequent findings?

The Hon’ble Supreme Court held that the non-examination of independent witnesses cannot vitiate the trial and that the link evidences had been properly examined by the trial court. The Court dismissed the appeal based on a lack of merits and cancelled the bail bonds of the appellant.

Grievous injury causing death of a person caused due to grave and sudden provocation falls within the ambit of Exception 4 to Sec. 300 of IPC: SC

From the perusal of the record and even the findings recorded by the learned Trial Court and the High Court, it appears that the incident has taken place on the spur of the moment. It has also come on record that when the accused came to the place of the incident, he did not carry any lathi and/or any other weapon. It was only after some altercation and on the spur of the moment, the accused gave a lathi blow on the head of the deceased and the deceased sustained the injury and there was a fracture on his head. Despite fracture injury on his head, the deceased was conscious. The deceased was first taken to the police station. Thereafter, he was taken to Patashpur Public Health Center; thereafter he was taken to another hospital – Egra Hospital for better treatment; thereafter he was transferred to Midnapur (Paschim) Hospital; thereafter he was shifted to P.G. Hospital, Kolkata. After a few days, he was removed to Ramchandra Bhanja Medical College, Cuttack, Orissa and thereafter he died. The aforesaid shows the gravity of injury. It is true that the deceased died because of the injuries caused by the accused.

However, there does not appear any intention on the part of the accused to cause the very injury which ultimately led to the death of the deceased. Therefore, the case would fall under Exception 4 to Section 300 IPC.

It was held that:

“Grievous injury causing the death of a person caused in the spur of a moment in an altercation falls within the ambit of Exception 4 of Sec. 300 of Indian Penal Code.”

Therefore the Court partly allowed the appeal.

There is no power conferred on the Tribunal to direct the matter to be remanded to a stage prior to the Court Martial proceedings: SC

The Respondent was enrolled as a Soldier in 20 Jat Firing Team which was attached to the Jat Regimental Centre, Bareilly on 25.02.1999. A firing incident took place at around 8.45 a.m. on 02.10.2004 when the team was practicing firing at the Jat Regimental Centre Havildar Harpal and the Respondent sustained gunshot injuries. Havildar Harpal succumbed to the bullet injuries and the Respondent was admitted at the hospital due to injuries. A First Information Report was lodged.

The General Court Martial convicted the Respondent under Section 302 IPC for the murder of Havildar Harpal and for attempting to commit suicide. The appeal was raised in the Armed Forces Tribunal, Regional Bench, Lucknow, set aside the order of the Court Martial.

The question of law is whether Rule 180 of the Army Rule was violated?

The Tribunal can direct for re-trail by the Court Martial only on the grounds of Section16(2) they don’t have jurisdiction to do re-trail on the basis of the provision in Rule 180 and further, the Tribunal has power only to order for re-trail. They can’t direct the matter to remand before the prior stage of proceedings.

the court said that the order passed by the tribunal is to be set aside and the application is remanded back to the Tribunal itself to consider the case on the merits without being influenced by the judgment passed in the Supreme Court. The appeal made was allowed.

Dying declaration of a victim satisfying all judicial procedural conditions cannot be rejected on the sole ground that it was not recorded in the presence of a Magistrate: SC

The appellants are accused of causing the death of one Sher Singh by putting him on fire. The Trial Court as also the High Court has accepted these statements as being his dying declarations wherein the appellants were named as the assailants. Therefore, the appellants stand convicted essentially on the basis of the dying declarations of the victim. The reliability of such dying declarations has been assailed in these appeals apart from other contentions concerning the surrounding factors.

The issue considered by the Court is on the reliability of dying declaration recorded not in the presence of a Magistrate.

The Court held that the mere reasons that the dying declaration was not recorded in the presence of a magistrate or was not attested by the independent witnesses present during the taking of the dying declaration does not invalidate the veracity of a dying declaration that satisfies all the other essential procedural conditions of dying declaration. The Court refuted all the other contentions of the appellants as unfounded and baseless.

The Hon’ble Court accordingly found the appellants guilty of offences under Section 302/34 of the Indian Penal Code and thereby dismissed the appeal

Authorities are directed to publish all orders in force and any future orders under Section 144, Cr.P.C and for suspension of telecom services: SC

Non recognition of technology within the sphere of law is only a disservice to the inevitable. In this light, the importance of internet cannot be underestimated, as from morning to night we are encapsulated within the cyberspace and our most basic activities are enabled by the use of internet.”

We need to distinguish between the internet as a tool and the freedom of expression through the internet. There is no dispute that freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible. The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial.

The issues in this matter were: Whether   the   Government can claim exemption from producing all the orders passed under Section 144, Cr.P.C. and other orders under the Suspension Rules?

Whether   the   freedom of speech and   expression and freedom to  practise any   profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Constitution?

Whether the Government’s action of prohibiting internet access is valid?

Whether the imposition of restrictions under Section 144, Cr.P.C. were valid?

Whether the freedom of press was violated due to the restrictions?

The Bench held that An order suspending internet services   indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017.

Juvenile Justice Act – Heinous offence – defined – An offence which does not provide a minimum sentence of 7 years cannot be treated to be an heinous offence under the Juvenile Justice Act, 2015: SC

Juvenile ‘X’ has committed an offence under section 304 of the Indian Penal Code. The offence is punishable with a maximum punishment of imprisonment for life or up to 10 years and fine in the first part and imprisonment upto 10 years or fine, or both in the second part. No sentence is prescribed. The appellant’s brother died in the motor vehicle accident caused by the juvenile. The juvenile at the time of committing the offence is 16 years. The Court has directed the Legislature to bring in changes in the Juvenile Justice Act so that the 4th category of crimes which include counterfeiting of coins, homicide not amounting to murder, abetment to suicide etc., are categorized into either serious crimes or heinous crimes.

Issue: Whether an offence prescribing a maximum sentence of more than 7 years imprisonment but not providing any minimum sentence, or providing a minimum sentence of less than 7 years, can be considered to be a ‘heinous offence’ within the meaning of Section 2(33) of the Juvenile Justice(Care and Protection of Children) Act, 2015?

The Court held that;

” an offence which does not provide a minimum sentence of 7 years cannot be treated to be an heinous offence. The Act does not deal with the 4th category of offences viz., offence where the maximum sentence is more than 7 years imprisonment, but no minimum sentence or minimum sentence of less than 7 years is provided, shall be treated as ‘serious offences’ within the meaning of the Act and dealt with accordingly till the Parliament takes the call on the matter.”

The court finally took in view of Article 142 of the Constitution, and directed the legislation to take a call in this matter and deal all the offences after the commencement of the Act of 2015 in the same manner as dealt with serious offences and also that the offence which does not provide a minimum punishment of 7 years cannot be treated as an heinous offence.

Discharge – defence materials – It is not open to the accused to rely on material by way of defence and persuade the court to discharge him: SC

The appellant was Director of Mines and Geology in the State of Karnataka. There was a partnership firm by the name M/s Associated Mineral Company, the first and the second accused are the partners of the said firm. An undated letter from one Shri K.M. Vishwanath, the Ex-Partner, which is after his retirement with effect from 01.08.2009 from the firm, which was addressed to the appellant, seeking directions to the Deputy Director of Mines and Geology, Hospet in Karnataka to issue the Mineral Dispatch Permit to the new partners.The appellant knowingly made a false note in the file that he had discussed this matter with the Deputy Director (Legal) and directed Deputy Director, Mines, and Geology, Hospet for the issue of MDPs to the new partners. The appellant has been accused of his acts under the following provisions, Indian Penal Code, 1860 Sections 120B, 420, 379, 409, 447, 468, 471 and 477A – Criminal Procedure Code, Section 227 – Prevention of Corruption Act, 1988 Sections 13(2) and 13(1)(c) and 13(1)(d) Mines and Minerals (Development and Regulation) Act, 1957 – Mineral Concession Rules, 1960.

The court held that, As per Section 227 of the Cr.PC , the materials produced by the prosecution to be taken. Through the evidence and the witness if no offence can be proved against the accused it would benefit the accused.

“No doubt, the accused may appeal to the broad probabilities to the case to persuade the court to discharge him.”

The SC dismissed the appeal by going through Section 227 of the CrPc and the appellant was discharged.

Opinion of the hand writing experts – cannot be relied upon to base the conviction: SC

The appellant-Padum Kumar was then working as Postman in Indira Nagar Post Office, Lucknow.  On 09.04.1992, PW-3-Dr. M.L. Varshney, Professor, Agriculture Institute, Naini, Allahabad had sent a registered envelope No.0095 to the Complainant-Dr. K.B. Varshney (PW-1) from the Sub-Post Office of the said Institute. The said envelope contained four Indira Vikas Patra of value of each Rs.5,000/- totalling Rs.20,000/-.  The envelope did not reach PW-1 Dr. K.B. Varshney;  On 14.05.1992, information was received from Senior Superintendent, Post and Telegraph, Lucknow that a person named “Mohan” has received the aforesaid registry on 13.04.1992.  Then, PW-1 and his son Devesh Mohan-PW-2 went to Indira Nagar Post Office and saw the signature where it has been written as “D. Mohan”.  Complainant’s son is also named Devesh Mohan (PW-2). On being shown the signature, PW-2 denied that the signature in question belongs to him.

The conviction of the appellant-accused under Sections 467 and 468 IPC is confirmed and the sentence of imprisonment imposed on him is reduced to the period already undergone. The impugned judgment dated 19.02.2018 passed by the High Court of Judicature at Allahabad in Criminal Revision No.511 of 2006 is accordingly modified and the appeal is partly allowed. The appellant-accused is ordered to be released forthwith unless his presence is required in any other case.

Section 216 of CrPC can be entertained ‘at any time’ before pronouncing the judgment: SC

The First Information Report was lodged by the father in law who is the fourth respondent of the case against the appellant, alleging that the appellant and the members of his family had harassed his daughter with demands for money and transfer of land in their names.  Once the trial was commenced, the Investigation officer with the permission of the court for further investigation, filed the additional charge sheet under the sections 406 and 420 of IPC against the appellant.

The main issue framed here is, Whether the additional charge sheet can be filed against the appellant under section 216 of CRPC ?

The trial court has the power to alter or add charges at any time even after the completion of evidence, the arguments heard and the judgment reserved, without affecting the interest of justice and not causing any prejudice to the accused.

The bench dismissed the appeal and directed the Additional Junior Civil Judge to continue the trail proceedings pending before the trial court and ordered that the additional charges can be filed against the appellant.

Once the plea of juvenility is rejected by the Trial Court, HC and the SC, it is not open for the accused to reagitate the plea of juvenility by filing a fresh application: SC

The petitioner Pawan Kumar Gupta was a juvenile at the time of commission of the offence. The date of birth of the petitioner in the School Leave Certificate proves the same. The certificate has also been found to be true by the investigating officer and it is prayed for holding the enquiry in terms of section 7A of the Juvenile Justice Act.

The issue raised before the Court is whether the plea of juvenility is maintainable or not?

The Court stated that once a convict has chosen to take the plea of juvenility before the learned Magistrate, High Court and also before the Supreme Court and the said plea has been rejected up to the Supreme Court, the petitioner cannot be allowed to reagitate the plea of juvenility by filing fresh application under Section 7A of the JJ Act.

The Special Leave Petition is dismissed.

Section 431 Cr.P.C – Hearing of Proceeding may be continued after the death of an accused: SC

A First Information Report was filed on one Ramesan under section 55 (a) and (g) of the Kerala Abkari Act. The Additional Sessions Court convicted the first accused under section 55(a) for a period of 2 years imprisonment and one lakh rupees fine. The accused was also convicted under section 55(g) for a period of 2 years imprisonment and one lakh fine. In default of payment of the fine, the imprisonment period was reduced to 6 months each under the section 55(a) and (g). An appeal was filed in the High Court. The Appellant died after the filing of appeal on 21.12.2007. The Court upheld the conviction. The sentence of imprisonment is unworkable, the fine imposed by the lower court is also not under mistake should be paid. The court dismissed the appeal. This appeal was filed by Girija, legal heir of Ramesan.

Issue:  whether the High Court has committed any error in abating the appeal in toto?

The High Court had overruled the primary objection made in the appeal. The principle according to section 394 or Cr. P. C. is applied. The Court thus gives an opportunity to the submissions of the legal heirs of the accused which was not given in the lower courts. Therefore, the appeal is partly allowed and the criminal appeal no. 254 of 2007 is revived before the High Court for the submissions of the legal heirs of the accused.

Section 431 Cr.P.C – Hearing of Proceeding may be continued after the death of an accused: SC

A First Information Report was filed on one Ramesan under section 55 (a) and (g) of the Kerala Abkari Act. The Additional Sessions Court convicted the first accused under section 55(a) for a period of 2 years imprisonment and one lakh rupees fine. The accused was also convicted under section 55(g) for a period of 2 years imprisonment and one lakh fine. In default of payment of the fine, the imprisonment period was reduced to 6 months each under the section 55(a) and (g). An appeal was filed in the High Court. The Appellant died after the filing of appeal on 21.12.2007. The Court upheld the conviction. The sentence of imprisonment is unworkable, the fine imposed by the lower court is also not under mistake should be paid. The court dismissed the appeal. This appeal was filed by Girija, legal heir of Ramesan.

Issue:  whether the High Court has committed any error in abating the appeal in toto?

The High Court had overruled the primary objection made in the appeal. The principle according to section 394 or Cr. P. C. is applied. The Court thus gives an opportunity to the submissions of the legal heirs of the accused which was not given in the lower courts. Therefore, the appeal is partly allowed and the criminal appeal no. 254 of 2007 is revived before the High Court for the submissions of the legal heirs of the accused.

Petition under the Domestic Violence Act can be filed in a court where the “person aggrieved” permanently or temporarily resides or carries on business or is employed: SC

The respondent and one of the appellants named Manoj kumar got married as per Hindu rites at Rajasthan and led their matrimonial life in Chennai. The respondent thereafter decided to reside with her parents and refused to join her matrimonial home and claimed protection under the Domestic Violence Act, before the Court of Metropolitan Magistrate, Bangalore against her husband , her in- laws and the other relatives of her husband.

The issues framed here is,

Whether the relatives of the appellant are held liable for monetary relief ?

Whether the Metropolitan Magistrate court has jurisdiction to entertain the complaint filed by the respondent ?

The court held that,

The petition under the Domestic Violence Act can be filed in a court where the “person aggrieved” permanently or temporarily resides or carries on business or is employed. The relatives except in laws and the husband of the respondent cannot be held responsible for the award of monetary relief as there is no specific allegation regarding the violence caused by them against the respondent. So, the criminal case against them is said to be quashed.

While coming to the second issue, the bench observed that under section 27 of the protection of women from the Domestic Violence, 2005 the respondent is residing with her parents in the territorial limits of the Metropolitan Magistrate Court. Therefore the court has the jurisdiction to entertain the complaint filed by the respondent.

The appeal is partly allowed .

It is the quality of evidence that matters and not the quantity : SC

The appellants are the accused in the offence u/s 147, 148, 302/149 and 325 of the Indian Penal Code. They are seven in number and were tried together with several other co-accused persons in 2 incidents. One leaving PW1 with grievous injuries and another which led to the death of Govind Singh for a civil issue relating to demarcation of ridges in the fields. 18 were accused but then 8 were acquitted by the Trial Court stating that the charges against them are not proved beyond reasonable doubt.

The issue raised  before the Court is whether there is cogent evidence about the accused involvement in the crime?

The Court held that  it is the quality of evidence that matters and not the quantity; and even the testimony of a single witness may be sufficient to establish the identity of an accused as member of an unlawful assembly but, when the size of assembly is quite large and many persons have witnessed the incident; and when a witness deposes in general terms, it would be useful to adopt the test of consistency of more than one witness so as to remove any doubt about identity of an accused as a member of the assembly in question.

In case of “Sexual harassment” not only departmental or regular inquiry as per the service rules shall be initiated, but also other actions as per law: SC

The appellant is a professor in probation in the Central University of Kerala. A formal contract was entered between the university and the appellant restating the terms and conditions referred to in the offer letter. Within a month of appointment, there were various complaints made against the appellant. The respondent No.1 – University had to constitute an internal complaints committee in terms of the statutory regulations of the UGC (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations 2015. The committee wanted to submit an inquiry report. The order itself mentions that on scrutiny of the report of the committee, other documents and academic performance, the Executive Council decided to terminate the services of the appellant. The order also stated that the appellant had to face an inquiry before the committee. If found guilty, then action can be taken following the service rules. In such a situation, the order cannot be construed as an order of terminator simplicitor. The appellant had assailed the order to be exfacie  stigmatic.

Issue: Whether the order issued under the signatures of Vice Chancellor of the Central University of Kerala (respondent No. 1), dated 30.11.2017 is simplicitor termination or exfacie stigmatic?

One of the judicially evolved tests to determine whether   in   substance   an   order   of   termination   is punitive is to see whether prior to the termination there  was (a)  a full scale formal  enquiry  (b)  into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld. In the present case, all the three elements are attracted, as a result of which it must follow that the stated order is ex­facie stigmatic and punitive. Such an order could be issued only after subjecting the incumbent to a regular inquiry as per the service rules.

Upon receipt of complaints from aggrieved women about the sexual harassment at workplace it was obligatory on the Administration to refer   such   complaints   to   the   Internal   Committee   or   the   Local Committee, within the stipulated time period as predicated in Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. An inquiry is required to be undertaken by the Internal Committee or the Local Committee in conformity with the stipulations in Section 11 of the 2013 Act.In such cases, a regular inquiry or departmental action as per service rules is also indispensable so as to enable the employee concerned to vindicate his position and establish his innocence.

The Court held that the impugned termination order is ex facie stigmatic. As the approach of the University was flawed, the entitlement to grant backwages should be made in accordance with law. Therefore, the appeal is partly allowed initiating departmental or regular inquiry as per the service rules.

ANTICIPATORY BAIL CAN BE GIVEN TILL COMPLETION OF TRIAL: SC

The Honourable SC the following issues are referred for consideration to this larger bench:

“(1) whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail.

(2) whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.”

The court made the observations in Sibbia regarding “limited custody” or “deemed custody” to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e. deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia (supra) had observed that “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 by invoking the principle stated by this Court in State of U.P. v Deoman Upadhyaya.

The court after hearing the submissions of the respective parties observed that as in the case of Balchand Jain , “anticipatory bail” means “bail in anticipation of arrest”. “if there are reasons for doing so, limit the operation of the order to a short period only after filing of an FIR in respect of the matter covered by order and the applicant may in such case be directed to obtain an order of bail under Sections 437 or 439 of the Code within a reasonable short period after the filing of the FIR”.

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