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Monthly Digest – September 2019

SEPTEMBER UPDATE 2019 Though http://www.thelaws.in has been started only this month, we are providing the Judgments collected by the team members for your perusal in this post .

SECTION 67 NDPS – CONFESSION STATEMENT – ADMISSIBLE:

Admittedly, this confession was recorded after the appellant was arrested. It is true that the issue, whether a statement recorded under Section 67 of the NDPS Act can be construed as a confessional statement even if the officer who has recorded such statement was not to be treated as a police officer, has been referred to a larger Bench in the case of Tofan Singh v. State of Tamil Nadu [(2013) 16 SCC 31]. We, for the decision of this case, therefore, proceed on the premise that the confession is admissible. Even if it is admissible, the Court has to be satisfied that it is a voluntary statement, free from any pressure and also that the accused was apprised of his rights before recording the confession. No such material has been brought on the record of this case. It is also well settled that a confession, especially a confession recorded when the accused is in custody, is a weak piece of evidence and there must be some corroborative evidence[1].

CONTRABAND – GIVEN BY SOME PERSONS – NOT EXAMINED AS WITNESS OR ARRAYED AS ACCUSED:

As far as statement of co-accused (Ext.P41) is concerned, in that the co-accused states in great detail as to how he came into contact with one other person also called Mohammed in Bombay who had instructed him to go to Manglapuram from Bombay. There he was again asked to come to Hotel Airline at Manglapuram where he met the said Mohammed of Bombay. It was that Mohammed of Bombay, who handed over the vehicle to him and told him that 7.4 kgs of heroin is kept hidden in 7 packets in a false compartment beneath the front seat of the car. The only allegation with regard to appellant is that after taking delivery of the contraband from Mohammed of Bombay, the co-accused was to take the heroin and hand it over to one Nalliappan. The said Nalliappan was to further hand over the heroin to the appellant. Neither the said Mohammed from Bombay nor Nalliappan have been examined in the case nor they have been arrayed as accused. Therefore, the link evidence is totally missing. Furthermore, the allegation is only in the nature of hearsay that Mohammed had told the co-accused that he had to deliver the contraband to the present appellant[2].

COGNIZANCE – TYPES – PROTEST PETITION – A DETAILED STUDY:

In the facts of this case, having regard to the nature of the allegations contained in the protest petition and the annexures which essentially consisted of affidavits, if the Magistrate was convinced on the basis of the consideration of the final report, the statements under Section 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint. The fact that he may have jurisdiction in a case to treat the protest petition as a complaint, is a different matter. Undoubtedly, if he treats the protest petition as a complaint, he would have to follow the procedure prescribed under Section 200 and 202 of the Code if the latter Section also commends itself to the Magistrate. In other words, necessarily, the complainant and his witnesses would have to be examined. No doubt, depending upon the material which is made available to a Magistrate by the complainant in the protest petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the Investigating Officer, cognizance could be taken under Section 190(1)(b) of the Code for which there is no necessity to examine the witnesses under Section 200 of the Code[3].

PROTEST PETITION – MAGISTRATE CANNOT BE COMPELLED:

But as the Magistrate could not be compelled to treat the protest petition as a complaint, the remedy of the complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure under Section 200 of the Code or Section 200 read with Section 202 of the Code. Therefore, we are of the view that in the facts of this case, we cannot support the decision of the High Court[4].

PROTEST PETITION – WHAT IS?

If a protest petition fulfils the requirements of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required under Section 200 read with Section 202 of the Code. In this case, in fact, there is no list of witnesses as such in the protest petition. The prayer in the protest petition is to set aside the final report and to allow the application against the final report. While we are not suggesting that the form must entirely be decisive of the question whether it amounts to a complaint or liable to be treated as a complaint, we would think that essentially, the protest petition in this case, is summing up of the objections the second respondent against the final report[5].

OMISSION TO FRAME AN ALTERNATE CHARGE:

The question as to whether omission to frame an alternative charge under Section 302 IPC is an illegality that cuts at the root of the conviction and makes not invalid or whether it is a curable irregularity, has been examined by this Court from time to time. One of the first judgments is Willie (William) Slaney vs. The State of Madhya Pradesh, AIR 1956 SC 116 where the Constitution Bench explained the concept of prejudice caused to the accused and failure of justice to vitiate trial in terms of present Section 464 of the Code[6].

SECTION 313 CR.P.C – NON-EXPLANATION OR FALSE EXPLANATION:

No doubt, that non-explanation or false explanation by appellant cannot be taken as a circumstance to complete the chain of circumstances to establish the guilt of the appellant. However, the false explanation can always be taken into consideration to fortify the finding of guilt already recorded on the basis of other circumstances[7].

PROMISSORY NOTE – INCOMPLETE/UNFILLED PRONOTE – SECTION 20 N.I ACT:

In this case, Ex.A1-Promissory Note/Pro-Note is a crucial document. From the reading of the above said Ex.A1-Pro-Note, it appears that the witnesses, namely, S. Dinakaran and K. Setthur signed their signatures in the Pro-Note by using different ink. Furthermore, in the last portion of Pro-Note, it was mentioned as But, the said Gajendiran had not signed in the Pro-Note. Moreover, the Witnesses signed in the Pro-Note are putting their signatures before obtaining the signature from the Defendant in the Suit Pro-Note. This also created a doubt about the genuinity of Pro-Note. In this aspect, the learned Counsel appearing for the Respondent/Plaintiff contended that according to Section 20 of the Negotiable Instruments Act, the Plaintiff is entitled to fill the Pro-Note after receiving the signature in the paper. Now, according to Section 20 of Negotiable Instrument Act, one of the primary conditions of law is that the person signing should deliver the instrument to another. Further, the person so signed is having intention that the Bill should be filled up by anybody. Usually, an incomplete instrument is Page No: 594 delivered for some other purpose, for example, safe custody to utilise the Section to his/her advantage, thereby, delivery by a person to another is a primary condition under Section 20 of the Negotiable Instruments Act[8].

SECTION 139 – COMPLAINANT – NO HEAVY BURDEN:

We do not agree with the submission of the learned counsel. We are of the opinion that the High Court has rightly reversed the order of acquittal passed by the trial court wherein the presumption u/s 138 has not been taken into account. The trial court committed an error in placing heavy burden on the complainant to prove the debt[9].

SECTION 306 CR.P.C – PARDON – APPROVER IMPLICATION HIMSELF NOT NEESSARY:

This Court will first consider the submissions made by the learned Senior Counsel with regard to the scope of the Statements made by the Approvers. Under Section 306 of Cr.P.C. Tender of pardon can be made to any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies. It is now a settled law that the extent of culpability of the accomplice is not material. Useful reference can be made in this regard to the Judgment of the Hon’ble Supreme Court in State of Rajasthan v. Balveer alias Balli and another[10]. It is also not necessary that the Accomplice should implicate himself to the same extent as the other Accused persons. Useful reference can be made in this regard to the Judgment of the Hon’ble Supreme Court in Suresh Chandra Bhari v. State of Bihar[11]. Further Madras High Court has held that from the above Judgments, it is clear that it is not a pre-requisite condition that the Statement of a person on whose behalf pardon is sought, must be in the nature of confession or it must implicate the person concerned in the offences. It is enough if the Statement of the Approver reflects his or her involvement directly or indirectly or are privy to the offence. It does not require a full participation in the offence. This Court is completely in agreement with the Judgments referred supra in this regard[12].

SECTION 302 Cr.P.C – VICTIM – MERE ASKING:

Apex Court after quoting its earlier decision ruling the field such as Babu vs. State of Kerala[13], Shiv Kumar vs. Hukum Chand & anr[14], J.K.International vs. State (Govt. of NCT of Delhi) & ors[15], Dhariwal Industries Limited vs. Kishore Wadhwani & ors[16], Mallikarjun Kodagli (dead) represented through LRs vs. State of Karnataka & ors[17] and held that in view of such principles laid down, we find that though the Magistrate is not bound to grant permission at the mere asking but the victim has a right to assist the court in a trial before the Magistrate. The Magistrate may consider as to whether the victim is in a position to assist the court and as to whether the trial does not involve such complexities which cannot be handled by the victim. On satisfaction of such facts, the Magistrate would be within its jurisdiction to grant of permission to the victim to take over the inquiry of the pendency before the Magistrate[18].

SECTION 138 EVIDENCE ACT – RE-EXAMINATION BY PROSECUTION – NOT A RIGHT:

As rightly submitted by the learned counsel for the petitioner, once a witness has been examined by the prosecution and the said witness is also cross-examined, the prosecution cannot be allowed to recall all the witness re-examination on the ground that certain important questions were not asked to the witness[19].

DIRECTORS – VICARIOUS LIABILITY:

Further in the case of Maksud Saiyed vs. State of Gujarat & Ors[20] this court has examined the vicarious liability of directors for the charges levelled against the company. In the aforesaid judgment this court has held that, the penal code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the company, when the accused is a company. It is held that vicarious liability of the Managing Director and directors would arise provided any provision exists in that behalf in the statute. It is further held that statutes indisputably must provide fixing such vicarious liability. It is also held that, even for the said purpose, it is obligatory on the part of the complainant to make requisite allegation which would attract the provisions constituting vicarious liability[21].

BAIL ALREADY GRANTED – NEW OFFENCE ADDED – NEW BAIL:

This court in Hamida vs. Rashida @ Rasheed and ors[22] held that an accused after addition of serious non-cognizable offence is required to surrender and apply for bail for newly added offences. It is thus, clear that the bail granted to an accused earlier to addition of new non-bailable offence shall not ensure to the benefit of the accused insofar as newly added offences are concerned and he is required to surrender and obtain a bail with regard to newly added offences to save him from arrest[23].

QUASH – DIRECTOR OF COMPANY:

In the judgment of this court in the case of Sharad Kumar Sanghi vs. Sangita Rane[24] while examining the allegations made against the Managing Director of a company, in which, company was not made a party, this court has held that when the allegations made against the Managing Director are vague in nature, same can be the ground for quashing the proceedings u/s 482 Cr.P.C[25].

CROSS-CASE – EARLIER FIR NOT INVESTIGATED – INJURY REPORT SUPPRESSED:

The fact that an F.I.R was lodged by the accused with regard to the same occurrence, the failure of the police to explain why it was not investigated, coupled with the admitted fact that the accused were also admitted in the hospital for treatment with regard to injuries sustained in the same occurrence, but the injury report was not brought on record and suppressed by the prosecution, creates sufficient doubts which the prosecution has been unable to answer[26].

SECTION 313 – DEFENCE – NOT TAKEN BY ACCUSED:

The fact that a defence may not have been taken by the accused under section 313, Cr.P.C again cannot absolve the prosecution from proving its case beyond all reasonable doubt. If there are materials which the prosecution is unable to answer, the weakness in the defence taken cannot become the strength of the prosecution to claim that in the circumstances it was not required to prove anything[27].

[1] Mohammed Fasrin vs. State Rep. by The Intelligence Officer – CRL APL NO: 296 OF 2014 –04.09.2019.

[2] Mohammed Fasrin vs. State Rep. by The Intelligence Officer – CRL APL NO: 296 OF 2014 –04.09.2019 – S.C..

[3] Vishnu Kumar Tiwari vs. State of Uttar Pradesh through Secretary Home, Civil Secretariat Lucknow and Another – Crl Apl No. 1015 Of 2019 – 09.07.2019 – S.C.

[4] Vishnu Kumar Tiwari vs. State of Uttar Pradesh through Secretary Home, Civil Secretariat Lucknow and Another – Crl Apl No. 1015 Of 2019 – 09.07.2019 – S.C.

[5] Vishnu Kumar Tiwari vs. State of Uttar Pradesh through Secretary Home, Civil Secretariat Lucknow and Another – Crl Apl No. 1015 Of 2019 – 09.07.2019 – S.C.

[6] SMT. CHINTAMBARAMMA AND ANOTHER vs STATE OF KARNATAKA – Criminal Appeal No. 1258 of 2019 (Arising Out of SLP(Criminal) No. 5597 of 2019) – dt: 22-08-2019.

[7] SUDRU vs THE STATE OF CHATTISGARH – Cri.Apl No: 751 of 2010 – dt: 22-08-2019.

[8] M. PONNUTHAIAMMAL vs. V. ALAGARSAMY NAICKER – 2019 3 CTC 590.

[9] Pavan Diliprao Dike vs. Vishal Narendrabhai Parmar – Crl.Apl No: 1062 of 2019 – dt:12.7.2019.

[10] AIR 2014 SC 1117.

[11] 1995 Supp (1) SCC 80.

[12] DR. S. MURUKESAN vs. DEPUTY SUPERINTENDENT OF POLICE, CBI/ANTI-CORRUPTION BRANCH, NUNGAMBAKKAM, CHENNAI-14; STATE, BY THE DEPUTY SUPERINTENDENT OF POLICE, CBI/ACB, CHENNAI – 2019 1 MWN (Crl) 558.

[13] 1984 Cr.L.J 499 (SC).

[14] (1999) 7 SCC 467.

[15] (2001)3 SCC 462.

[16] (2016)10 SCC 378.

[17] (2019)2 SCC 752.

[18] Amir Hamza Shaikh & ors vs. State of Maharashtra & anr – Crl.Apl No: 1217 of 2019 – dt: 7.8.2019.

[19] Gayes vs. The State – 2018(2) LW (Crl) 721 followed in Karthikeyan vs. State – 17.6.2019 – 2019(3) LW (Crl) 153.

[20] (2008)5 SCC 668.

[21] Shiv Kumar Jatia vs State of NCT of Delhi – Crl.Apl No: 1263 of 2019; dt:23.08.2019 – S.C.

[22] (2008)1 SCC 474.

[23] Pradeep Ram vs. The State of Jharkhand & anr – Crl.Apl No: 816 of 2019 – 1.7.2019 – S.C.

[24] (2015)12 SCC 781.

[25] Shiv Kumar Jatia vs State of NCT of Delhi – Crl.Apl No: 1263 of 2019; dt:23.08.2019 – S.C.

[26] Anand Ramachandra Chougule vs. Sidarai Laxman Chougala & Ors – 2019 AIAR (crl) 799 – Crl.Apl No: 1006 of 2010 – dt: 6.8.2019.

[27] Anand Ramachandra Chougule vs. Sidarai Laxman Chougala & Ors – 2019 AIAR (crl) 799 – Crl.Apl No: 1006 of 2010 – dt: 6.8.2019.

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