Supreme Court Criminal Law Monthly Digest- January 2022 - Missing Part

Supreme Court Criminal Digest February 2022

Supreme Court Criminal Digest March 2022

Supreme Court Criminal Digest April 2022

Bail - While granting bail, the relevant considerations are, (i) nature of seriousness of the offence; (ii) character of the evidence and circumstances which are peculiar to the accused; and (iii) likelihood of the accused fleeing from justice; (iv) the impact that his release may make on the prosecution witnesses, its impact on the society; and (v) likelihood of his tampering. (Para 9) Sunil Kumar v. State of Bihar, 2022 LiveLaw (SC) 85

Code of Criminal Procedure, 1973- Sections 437 and 439 - Bail Considerations - Gravity of the offences alleged and the evidence collected during the investigation, which are forming part of the charge sheet has to be considered. (Para 9.3) Jayaben v. Tejas Kanubhai Zala, 2022 LiveLaw (SC) 29

Code of Criminal Procedure, 1973- Section 25A - Role of Director of Prosecution in the administration of Justice - The post of Director of Prosecution is a very important post in so far as the administration of justice in criminal matters is concerned. It is the duty of the Director of Prosecution to take prompt decision. Given that crimes are treated as a wrong against the society as a whole, the role of the Director of Prosecution in the administration of justice is crucial. He is appointed by the State Government in exercise of powers under Section 25A of the Code of Criminal Procedure. That his is a crucial role is evident from conditions such as in Section 25A (2) of the Code, which stipulates a minimum legal experience of not less than ten years for a person to be eligible to be Directorate of Prosecution and that such an appointment shall be made with the concurrence of the Chief Justice of the High Court. (Para 11) Jayaben v. Tejas Kanubhai Zala, 2022 LiveLaw (SC) 29

Code of Criminal Procedure, 1973; Section 156(3) - Magistrate is required to be conscious of the consequences while passing an Order under Section 156 (3) of the Cr.PC. It being a judicial order, relevant materials are expected to be taken note of. (Para 11) Suresh Kankra v. State of U.P., 2022 LiveLaw (SC) 35

Code of Criminal Procedure, 1973; Section 235 (2) - Accused must be given an opportunity to make a representation against the sentence to be imposed on him. A bifurcated hearing for convicting and sentencing is necessary to provide an effective opportunity to the accused. Adequate opportunity to produce relevant material on the question of death sentence shall be provided to the accused by the Trial Court. (Para 13) Bhagwani v. State of Madhya Pradesh, 2022 LiveLaw (SC) 60

Code of Criminal Procedure, 1973; Section 235 (2) - Appeal against Madhya Pradesh HC judgment which confirmed death sentence awarded to the appellant accused of rape and murder of 11 year old girl - Partly allowed - Commuted death sentence- Sentenced to life imprisonment for a period of 30 years during which he shall not be granted remission- No evidence has been placed by the prosecution on record to show that there is no probability of rehabilitation and reformation of the Appellant and the question of an alternative option to death sentence is foreclosed. The Appellant had no criminal antecedents before the commission of crime for which he has been convicted. There is nothing adverse that has been reported against his conduct in jail - The Appellant was aged 25 years on the date of commission of the offence and belongs to a Scheduled Tribes community, eking his livelihood by doing manual labour. Bhagwani v. State of Madhya Pradesh, 2022 LiveLaw (SC) 60

Code of Criminal Procedure, 1973; Section 372 and 378 - The right provided to the victim to prefer an appeal against the order of acquittal is an absolute right- The victim has not to pray for grant of special leave to appeal-The victim has a statutory right of appeal under Section 372 proviso and the proviso to Section 372 does not stipulate any condition of obtaining special leave to appeal like subsection (4) of Section 378 Cr.P.C. in the case of a complainant and in a case where an order of acquittal is passed in any case instituted upon complaint. (Para 10.2) Joseph Stephen v. Santhanasamy, 2022 LiveLaw (SC) 83

Code of Criminal Procedure, 1973; Section 372, 378 & 401 - No revision shall be entertained at the instance of the victim against the order of acquittal in a case where no appeal is preferred and the victim is to be relegated to file an appeal- He/she shall be relegated to prefer the appeal as provided under Section 372 or Section 378(4), as the case may be. (Para 10.1) Joseph Stephen v. Santhanasamy, 2022 LiveLaw (SC) 83

Code of Criminal Procedure, 1973; Section 378 - Approach to be adopted while deciding an appeal against acquittal by the trial court - Principles that would regulate and govern the hearing of an appeal by the High Court against an order of acquittal passed by the Trial Court - Discussed. (Para 20-29) Rajesh Prasad v. State of Bihar, 2022 LiveLaw (SC) 33

Code of Criminal Procedure, 1973; Section 401 - Sub-section (3) of Section 401 Cr.P.C. prohibits/bars the High Court to convert a finding of acquittal into one of conviction- If the order of acquittal has been passed by the trial Court, the High Court may remit the matter to the trial Court and even direct retrial. However, if the order of acquittal is passed by the first appellate court, in that case, the High Court has two options available, (i) to remit the matter to the first appellate Court to rehear the appeal; or (ii) in an appropriate case remit the matter to the trial Court for retrial. (Para 9) Joseph Stephen v. Santhanasamy, 2022 LiveLaw (SC) 83

Code of Criminal Procedure, 1973; Section 401 - Where under the Cr.P.C. an appeal lies, but an application for revision has been made to the High Court by any person, the High Court has jurisdiction to treat the application for revision as a petition of appeal and deal with the same accordingly as per sub-section (5) of Section 401 Cr.P.C., however, subject to the High Court being satisfied that such an application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do and for that purpose the High Court has to pass a judicial order, may be a formal order, to treat the application for revision as a petition of appeal and deal with the same accordingly. (Para 11) Joseph Stephen v. Santhanasamy, 2022 LiveLaw (SC) 83

Code of Criminal Procedure, 1973; Section 401 - While exercising the revisional jurisdiction, the scope would be very limited, however, while exercising the appellate jurisdiction, the appellate Court would have a wider jurisdiction than the revisional jurisdiction. (Para 10.1) Joseph Stephen v. Santhanasamy, 2022 LiveLaw (SC) 83

Code of Criminal Procedure, 1973; Section 437, 439 - Bail - High Court order granting bail to murder accused - Allowed - The High Court has not at all considered the gravity, nature and seriousness of the offences alleged. Manno Lal Jaiswal v. State of Uttar Pradesh, 2022 LiveLaw (SC) 88

Code of Criminal Procedure, 1973; Section 437, 439 - Bail - Relevant considerations are, (i) nature of seriousness of the offence; (ii) character of the evidence and circumstances which are peculiar to the accused; and (iii) likelihood of the accused fleeing from justice; (iv) the impact that his release may make on the prosecution witnesses, its impact on the society; and (v) likelihood of his tampering. (Para 9) Manno Lal Jaiswal v. State of Uttar Pradesh, 2022 LiveLaw (SC) 88

Code of Criminal Procedure, 1973; Section 437, 439 - While elaborate reasons may not be assigned for grant of bail or an extensive discussion of the merits of the case may not be undertaken by the court considering a bail application, an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. In such a case the prosecution or the informant has a right to assail the order before a higher forum - Court deciding a bail application cannot completely divorce its decision from material aspects of the case such as the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused. (Para 17-19) Manoj Kumar Khokhar v. State of Rajasthan, 2022 LiveLaw (SC) 55

Code of Criminal Procedure, 1973; Section 439 - Where a Court while considering an application for bail fails to consider the relevant factors, an Appellate Court may justifiably set aside the order granting bail. Appellate Court is thus required to consider whether the order granting bail suffers from a non­application of mind or a prima facie view from the evidence available on record. Centrum Financial Services v. State of NCT of Delhi, 2022 LiveLaw (SC) 103

Code of Criminal Procedure, 1973; Section 439 - While granting bail, the relevant considerations are, (i) nature of seriousness of the offence; (ii) character of the evidence and 18 circumstances which are peculiar to the accused; and (iii) likelihood of the accused fleeing from justice; (iv) the impact that his release may make on the prosecution witnesses, its impact on the society; and (v) likelihood of his tampering. Centrum Financial Services v. State of NCT of Delhi, 2022 LiveLaw (SC) 103

Code of Criminal Procedure, 1973; Section 482 - When the dispute in question is purely civil in nature, the adoption of remedy in a criminal court would amount to abuse of the process of Court. Jayahari v. State of Kerala, 2022 LiveLaw (SC) 106

Code of Criminal Procedure; Section 438 - Once the prayer for anticipatory bail is made in connection with offence under the Prevention of Money Laundering Act, the underlying principles and rigors of Section 45 of the Prevention of Money Laundering Act, 2002 must get triggered although the application is under Section 438 of Code of Criminal Procedure. Asst. Director Enforcement Directorate v. Dr. V.C. Mohan, 2022 LiveLaw (SC) 16

Criminal Cases - Role of State - In criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interest of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interest of the community to book. (Para 11) Jayaben v. Tejas Kanubhai Zala, 2022 LiveLaw (SC) 29

Criminal Cases - Where it is found that the accused are released on bail in serious offences, the State Government/legal department of State Government and the Director of Prosecution shall take prompt decision and challenge the order passed by the trial court and/or the High Court as the case may be. (Para 11) Jayaben v. Tejas Kanubhai Zala, 2022 LiveLaw (SC) 29

Criminal Trial - Guidelines for recording evidence of vulnerable witnesses in criminal matters' of the High Court of Delhi - The definition of "vulnerable witness" contained in Clause 3(a) expanded. (Para 5 (i)) Smruti Tukaram Badade v. State of Maharashtra, 2022 LiveLaw (SC) 80

Criminal Trial - Vulnerable Witnesses - The fairness of the process of trial as well as the pursuit of substantive justice are determined in a significant measure by the manner in which statements of vulnerable witnesses are recorded - Creation of a barrier free environment where depositions can be recorded freely without constraining limitations, both physical and emotional - Directions issued. (Para 3-5) Smruti Tukaram Badade v. State of Maharashtra, 2022 LiveLaw (SC) 80

Detention - In the matter of considering representation made against detention order, the Competent Authority is duty bound to do so with utmost despatch - The time period of over two months spent in doing so, cannot countenanced. It does not require such a long time to examine the representation concerning preventive detention of the detenu. S. Amutha v, Government of Tamil Nadu, 2022 LiveLaw (SC) 25

Disciplinary Proceedings - Effect of Acquittal - An acquittal in a criminal trial has no bearing or relevance on the disciplinary proceedings as the standard of proof in both the cases are different and the proceedings operate in different fields and with different objectives. (Para 10.4) Maharashtra State Road Transport Corporation v. Dilip Uttam Jayabhay, 2022 LiveLaw (SC) 3

Excise Act, 1910 (U.P.) - Section 3 - IMFL destroyed in fire answers to the description of "spirit", "liquor" and "excisable article" within the meaning of Clauses (8) (11) and (22-a) of Section 3 of the Act of 1910, for being an intoxicating liquor containing alcohol obtained by distillation. (Para 36) State of U.P. v. Mcdowell and Company Ltd., 2022 LiveLaw (SC) 13

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 67 - Confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. (Para 10) State by (NCB) Bengaluru v. Pallulabid Ahmad, 2022 LiveLaw (SC) 69

Narcotics Drugs and Psychotropic Substances Act, 1985; Section 50 - Whether the personal search is vitiated by violation of Section 50 of the NDPS Act, the recovery made otherwise also would stand vitiated ? Cannot give such an extended view. Dayalu Kashyap v. State of Chhattisgarh, 2022 LiveLaw (SC) 100

Negotiable Instruments Act, 1881; Section 8 and 9 - An obligation has been imposed on the transferee of the promissory notes, to be deemed to be a 'Holder in due course', that the notes should have been acquired in good faith; after exercising reasonable care and caution about the holder's title. (Para 11.2) Small Industries Development Bank of India v. Sibco Investment Pvt. Ltd., 2022 LiveLaw (SC) 7

Penal Code, 1860; Section 149, 141 - It is an essential condition of an unlawful assembly that its membership must be five or more - Less than five persons may be charged under Section 149 if the prosecution case is that the persons before the Court and other numbering in all more than five composed an unlawful assembly, these others being persons not identified and unnamed. Mahendra v. State of M.P., 2022 LiveLaw (SC) 22

Penal Code, 1860; Section 302 - Merely because no fracture was noticed and/or found cannot take the case out of Section 302 IPC when the deceased died due to head injury - Injury on the head can be said to be causing injury on the vital part of the body. (Para 7.2) State of U.P. v. Jai Dutt, 2022 LiveLaw (SC) 72

Penal Code, 1860; Section 304-B - "Soon before" is not synonymous to "immediately before". (Para 15) State of Madhya Pradesh v. Jogendra, 2022 LiveLaw (SC) 37

Penal Code, 1860; Section 304B - Demand for money raised on the deceased for construction of a house as falling within the definition of the word "dowry". (Para 12-14) State of Madhya Pradesh v. Jogendra, 2022 LiveLaw (SC) 37

Penal Code, 1860; Section 34 - A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance - The word "furtherance" indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion - Scope of Section 34 IPC discussed. (Para 26, 28) Jasdeep Singh @ Jassu v. State of Punjab, 2022 LiveLaw (SC) 19

Penal Code, 1860; Section 397 - If the charge of committing the offence is alleged against all the accused and only one among the 'offenders' had used the firearm or deadly weapon, only such of the 'offender' who has used the firearm or deadly weapon alone would be liable to be charged under Section 397 IPC. (Para 17) Ram Ratan v. State of Madhya Pradesh, 2022 LiveLaw (SC) 14

Penal Code, 1860; Section 397 - The use of the weapon to constitute the offence under Section 397 IPC does not require that the 'offender' should actually fire from the firearm or actually stab if it is a knife or a dagger but the mere exhibition of the same, brandishing or holding it openly to threaten and create fear or apprehension in the mind of the victim is sufficient. (Para 17) Ram Ratan v. State of Madhya Pradesh, 2022 LiveLaw (SC) 14

Penal Code, 1860; Section 406, 420 - A man, well versed in commerce, would certainly be expected to check the valuation of the property before entering into any transaction. Jayahari v. State of Kerala, 2022 LiveLaw (SC) 106

Penal Code, 1860; Section 494, 495 – Bigamy - Appeal against Gauhati HC order which dismissed petition seeking to quash criminal proceeding under Sections 494 and 495 of the Indian Penal Code (bigamy) despite the Family Court's finding that the wife did not have a subsisting prior marriage - Allowed - High Court was not justified in coming to the conclusion that the issue as to whether the appellant had a subsisting prior marriage was a 'highly contentious matter' which has to be tried on the basis of the evidence on the record. Musst Rehana Begum v. State of Assam, 2022 LiveLaw (SC) 86

Penal Code, 1860; Section 498A - Appeal against the order of the High Court denying permission to Appellant to leave the country - Allowed - The High Court has also not considered the allegations against the Appellant. There is not even any prima facie finding with regard to liability, if any, of the Appellant to the complainant. Deepak Sharma v. State of Haryana, 2022 LiveLaw (SC) 52

Penal Code, 1860; Section 498A - Expected approach of the High Court in the event of bona fide settlement of disputes - The duty of the Court to encourage the genuine settlement of matrimonial disputes. (Para 8-9) Rajendra Bhagat v. State of Jharkhand, 2022 LiveLaw (SC) 34

Penal Code, 1860; Section 498A - Taking custody of jewellery for safety cannot constitute cruelty within the meaning of Section 498A. Deepak Sharma v. State of Haryana, 2022 LiveLaw (SC) 52

Penal Code, 1860; Section 498A - When an offence has been committed by a woman by meting out cruelty to another woman, i.e., the daughter-in-law, it becomes a more serious offence. If a lady, i.e., the mother-in-law herein does not protect another lady, the other lady, i.e., daughter-in-law would become vulnerable. (Para 8) Meera v. State, 2022 LiveLaw (SC) 40

Police Act, 1951 (Maharashtra); Section 56 - Externment - Externment is not an ordinary measure and it must be resorted to sparingly and in extraordinary circumstances - As the order takes away fundamental right under Article 19(1)(d) of the Constitution of India, it must stand the test of reasonableness contemplated by clause (5) of Article 19. (Para 7, 12, 14) Deepak Laxman Dongre v. State of Maharashtra, 2022 LiveLaw (SC) 93

Police Act, 1951 (Maharashtra); Section 56 - In a given case, even if multiple offences have been registered which are referred in clause (b) of sub-section (1) of Section 56 against an individual, that by itself is not sufficient to pass an order of externment under clause (b) of sub-section (1) of Section 56. Moreover, when clause (b) is sought to be invoked, on the basis of material on record, the competent authority must be satisfied that witnesses are not willing to come forward to give evidence against the person proposed to be externed by reason of apprehension on their part as regards their safety or their property. The recording of such subjective satisfaction by the competent authority is sine qua non for passing a valid order of externment under clause (b). (Para 7) Deepak Laxman Dongre v. State of Maharashtra, 2022 LiveLaw (SC) 93

Prevention of Money Laundering Act, 2002; Section 45 - Code of Criminal Procedure; Section 438 - Once the prayer for anticipatory bail is made in connection with offence under the Prevention of Money Laundering Act, the underlying principles and rigors of Section 45 of the PMLA Act must get triggered although the application is under Section 438 of Code of Criminal Procedure. Asst. Director Enforcement Directorate v. Dr. V.C. Mohan, 2022 LiveLaw (SC) 16

Repatriation of Prisoners Act, 2003 - The object is to provide an opportunity to the convicts to be repatriated to their country so that they can be closer to their families and have better chances of rehabilitation. (Para 11) Union of India v. Shaikh Istiyaq Ahmed, 2022 LiveLaw (SC) 41

Repatriation of Prisoners Act, 2003; Sections 12, 13 - Agreement between the Government of India and Government of Mauritius on the Transfer of Prisoners - The question of adaptation of the sentence can only be when the Central Government is convinced that the sentence imposed by the Supreme Court of Mauritius is incompatible with Indian law - Incompatibility with Indian law is with reference to the enforcement of the sentence imposed by the Supreme Court of Mauritius being contrary to fundamental laws of India. It is only in case of such an exceptional situation, that it is open the Central Government to adapt the sentence imposed by the Supreme Court of Mauritius to be compatible to a sentence of imprisonment provided for the similar offence. Even in cases where adaptation is being considered by the Central Government, it does not necessarily have to adapt the sentence to be exactly in the nature and duration of imprisonment provided for in the similar offence in India. In this circumstance as well, the Central Government has to make sure that the sentence is made compatible with Indian law corresponding to the nature and duration of the sentence imposed by the Supreme Court of Mauritius, as far as possible. (Para 15, 16) Union of India v. Shaikh Istiyaq Ahmed, 2022 LiveLaw (SC) 41

Repatriation of Prisoners Act, 2003; Sections 12, 13 - Agreement between the Government of India and Government of Mauritius on the Transfer of Prisoners - The sentence imposed by the Supreme Court of Mauritius in this case is binding on India. (Para 15) Union of India v. Shaikh Istiyaq Ahmed, 2022 LiveLaw (SC) 41