Supreme Court Quarterly Complete Criminal Digest [July - September 2022]

Bail - Post-conviction bail – All persons who have completed 10 years of sentence and appeal is not in proximity of hearing with no extenuating circumstances should be enlarged on bail. Sonadhar v. State of Chhattisgarh, 2022 LiveLaw (SC) 788

Bail - The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails. (Para 72-73(a)) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Benami Transactions (Prohibition) Amendment Act, 2016 - The 2016 Amendment Act was not merely procedural, rather, prescribed substantive provisions. (Para 18.1) Union of India v. Ganpati Dealcom Pvt. Ltd., 2022 LiveLaw (SC) 700

Bonded Labour System (Abolition) Act, 1976; Sections 16-17- For attracting the provision of Section 16 of the Act, the prosecution must establish that an accused has forced and compelled the victim to render bonded labour. This force and compulsion must be at the instance of the accused and the prosecution must establish the same beyond reasonable doubt. Similarly, under Section 17 of the Act, there is an obligation on the prosecution to establish that the accused has advanced a bonded debt to the victim. (Para 11) Selvakumar v. Manjula, 2022 LiveLaw (SC) 786

Code of Criminal Procedure 1973 -Section 374 - Appeals from convictions - High Court cannot enhance the sentence of the accused without putting the accused to prior notice. Radheyshyam v. State of Rajasthan, 2022 LiveLaw (SC) 687

Code of Criminal Procedure, 1973; Section 125 - The husband is required to earn money even by physical labour, if he is an able-bodied, and could not avoid his obligation, except on the legally permissible grounds mentioned in the statute - Section 125 of Cr.P.C. was conceived to ameliorate the agony, anguish and financial suffering of a woman who is required to leave the matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children - The object of maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy and destitution of a deserted wife, by providing her food, clothing, and shelter by a speedy remedy. (Para 9-13) Anju Garg v. Deepak Kumar Garg, 2022 LiveLaw (SC) 805

Code of Criminal Procedure, 1973; Section 138 - Anticipatory Bail - Adverse order against third party by High Court in an anticipatory bail proceedings - It is a peremptory direction affecting a third party. The adverse impact of the direction goes to the very livelihood of the appellant. It has also civil consequences for the appellant. Such a peremptory direction and that too, without even issuing any notice to the appellant was clearly unjustified. Kanchan Kumari v. State of Bihar, 2022 LiveLaw (SC) 640

Code of Criminal Procedure, 1973; Section 145 - While dropping the proceedings under Section 145 CrPC because of the pendency of civil litigations, the learned Magistrate could not be considered justified in making any observations or returning any findings as regards rights of the parties qua the property in question. Mohd Shakir v. State of Uttar Pradesh, 2022 LiveLaw (SC) 727

Code of Criminal Procedure, 1973; Section 154 - FIR -Police officers cannot exercise any discretion when they receive a complaint which discloses the commission of a cognizable offence - Whether or not the offence complained of is made out is to be determined at the stage of investigation and / or trial. If, after conducting the investigation, the police find that no offence is made out, they may file a B Report under Section 173 CrPC. However, it is not open to them to decline to register an FIR. (Para 18) XYZ v. State of Maharashtra, 2022 LiveLaw (SC) 676

Code of Criminal Procedure, 1973; Section 154 - If multiple First Information Reports by the same person against the same accused are permitted to be registered in respect of the same set of facts and allegations, it will result in the accused getting entangled in multiple criminal proceedings for the same alleged offence - The registration of such multiple FIRs is nothing but abuse of the process of law - The act of the registration of such successive FIRs on the same set of facts and allegations at the instance of the same informant will not stand the scrutiny of Articles 21 and 22 of the Constitution of India. (Para 12) Tarak Dash Mukharjee v. State of Uttar Pradesh, 2022 LiveLaw (SC) 731

Code of Criminal Procedure, 1973; Section 156(3) - In cases alleging sexual harassment, sexual assault or any similar criminal allegation wherein the victim has possibly already been traumatized, the Courts should not further burden the complainant and should press upon the police to investigate. Due regard must be had to the fact that it is not possible for the complainant to retrieve important evidence regarding her complaint. (Para 25) XYZ v. State of Maharashtra, 2022 LiveLaw (SC) 676

Code of Criminal Procedure, 1973; Section 156(3) - Magistrate has discretion in directing the police to investigate or proceeding with the case as a complaint case. But this discretion cannot be exercised arbitrarily and must be guided by judicial reasoning - Where not only does the Magistrate find the commission of a cognizable offence alleged on a prima facie reading of the complaint but also such facts are brought to the Magistrate's notice which clearly indicate the need for police investigation, the discretion granted in Section 156(3) can only be read as it being the Magistrate's duty to order the police to investigate. In cases wherein, there is alleged to be documentary or other evidence in the physical possession of the accused or other individuals which the police would be best placed to investigate and retrieve using its powers under the CrPC, the matter ought to be sent to the police for investigation. (Para 24) XYZ v. State of Maharashtra, 2022 LiveLaw (SC) 676

Code of Criminal Procedure, 1973; Section 157 (1) - The word "forthwith' in Section 157(1) of the Code is to be understood in the context of the given facts and circumstances of each case and a straight­jacket formula cannot be applied in all cases. But where ocular evidence is found to be unreliable and thus unacceptable, a long delay has to be taken note of by the Court. The mandate of Section 157(1) of the Code being clear, the prosecution is expected to place on record the basic foundational facts, such as, the Officer who took the first information report to the jurisdictional court, the authority which directed such a course of action and the mode by which it was complied. Explaining the delay is a different aspect than placing the material in compliance of the Code - The delay in forwarding the FIR may certainly indicate the failure of one of the external checks to determine whether the FIR was manipulated later or whether it was registered either to fix someone other than the real culprit or to allow the real culprit to escape. While every delay in forwarding the FIR may not necessarily be fatal to the case of the prosecution, Courts may be duty bound to see the effect of such delay on the investigation and even the creditworthiness of the investigation. (Para 61- 66) Chotkau v. State of Uttar Pradesh, 2022 LiveLaw (SC) 804

Code of Criminal Procedure, 1973; Section 167(2) - Limb of Article 21 - A duty is enjoined upon the agency to complete the investigation within the time prescribed and a failure would enable the release of the accused. The right enshrined is an absolute and indefeasible one, inuring to the benefit of suspect. Such a right cannot be taken away even during any unforeseen circumstances. (Para 34) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Section 167(2) - The failure to procure the presence of the accused either physically or virtually before the Court and the failure to inform him that the application made by the Public Prosecutor for the extension of time is being considered, is not a mere procedural irregularity. It is gross illegality that violates the rights of the accused under Article 21 - Prejudice is inherent and need not be established by the accused. (Para 30-31) Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat, 2022 LiveLaw (SC) 794

Code of Criminal Procedure, 1973; Section 170 - Scope and ambit. (Para 36) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Section 195, 340 - Whether Section 340 CrPC mandates a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 CrPC by a Court - There is no question of opportunity of hearing in a scenario of this nature - Scope and ambit of such a preliminary inquiry. State of Punjab v. Jasbir Singh, 2022 LiveLaw (SC) 776

Code of Criminal Procedure, 1973; Section 196 - Appeal against denial of sanction to prosecute Uttar Pradesh Chief Minister Yogi Adityanath in a case alleging making of hate speech in 2007 - Subsequent events have rendered the appeal into a purely academic exercise - Legal questions on the issue of sanction be left open to be considered in an appropriate case. Parvez Parwaz v. State of Uttar Pradesh, 2022 LiveLaw (SC) 716

Code of Criminal Procedure, 1973; Section 196 - The words "No Court shall take cognizance" employed in Section 196 CrPC and the consequential bar created under the said provision would undoubtedly show that the bar is against 'taking of cognizance by the Court' - It creates no bar against registration of a crime or investigation by the police agency or submission of a report by the police on completion of investigation as contemplated under Section 173, CrPC. (Para 10) Parvez Parwaz v. State of Uttar Pradesh, 2022 LiveLaw (SC) 716

Code of Criminal Procedure, 1973; Section 2(wa), 372 - Right of appeal to the victims - Public, who are recipients of these services, also become victims, though indirectly, because the consequences of such appointments get reflected sooner or later in the work performed by the appointees - The appellant in one of these appeals, is a victim, as he could not get selected on account of the alleged corrupt practices. Therefore, the contention regarding the locus standi of the appellants is to be rejected. (Para 18- 24) P. Dharamaraj v. Shanmugam, 2022 LiveLaw (SC) 749

Code of Criminal Procedure, 1973; Section 202 - Summoning an accused person cannot be resorted to as a matter of course and the order must show application of mind. (Para 47) Sunita Palita v. Panchami Stone Quarry, 2022 LiveLaw (SC) 647

Code of Criminal Procedure, 1973; Section 204 - Issuing a warrant may be an exception in which case the Magistrate will have to give reasons. (Para 37) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Section 205 - There could be no justification for not dispensing with the personal appearance of the accused- directors, when the Company had entered appearance through an authorized officer. (Para 47) Sunita Palita v. Panchami Stone Quarry, 2022 LiveLaw (SC) 647

Code of Criminal Procedure, 1973; Section 207 - Sec 207 of CrPC cannot be read as a provision etched in stone to cause serious violation of the rights of the accused as well as to the principles of natural justice - Can't always insist that documents can be shared only after court takes cognizance of the complaint. (Para 56) Reliance Industries Ltd. v. Securities and Exchange Board of India, 2022 LiveLaw (SC) 659

Code of Criminal Procedure, 1973; Section 209 - Power of the Magistrate to remand a person into custody during or until the conclusion of the trial - Since the power is to be exercised by the Magistrate on a case-to-case basis, it is his wisdom in either remanding an accused or granting bail. (Para 38) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Section 226 - Before the Court proceeds to frame the charge against the accused, the Public Prosecutor owes a duty to give a fair idea to the Court as regards the case of the prosecution - Over a period of time, this provision has gone, in oblivion - It permits the prosecution to make the first impression regards a case, one which might be difficult to dispel. In not insisting upon its right under Section 226 of the CrPC, the prosecution would be doing itself a disfavour. (Para 20, 15) Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 LiveLaw (SC) 631

Code of Criminal Procedure, 1973; Section 227 - Simple and necessary inquiry to be conducted for a proper adjudication of an application for discharge for coming to a conclusion that a prima facie case is made out for the accused to stand trial - The threshold of scrutiny required to adjudicate an application under Section 227 Cr.P.C. is to consider the broad probabilities of the case and the total effect of the material on record, including examination of any infirmities appearing in the case. (Para 12-18) Kanchan Kumar v. State of Bihar, 2022 LiveLaw (SC) 763

Code of Criminal Procedure, 1973; Section 227-228 - Cause of death of the deceased as assigned in the post mortem report being the "cardio respiratory failure" - Whether Trial Court could have discharged the accused from offence of murder - At the stage of framing of the charge, the trial court could not have reached to such a conclusion merely relying upon the port mortem report on record - Whether the case falls under Section 302 or 304 Part II, IPC could have been decided by the trial court only after the evaluation of the entire oral evidence that may be led by the prosecution as well as by the defence, if any, comes on record. (Para 31) Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 LiveLaw (SC) 631

Code of Criminal Procedure, 1973; Section 228 - The prosecution case is necessarily limited by the charge. It forms the foundation of the trial which starts with it and the accused can justifiably concentrate on meeting the subject­ matter of the charge against him. He need not cross ­examine witnesses with regard to offences he is not charged with nor need he give any evidence in defence in respect of such charges - Where a higher charge is not framed for which there is evidence, the accused is entitled to assume that he is called upon to defend himself only with regard to the lesser offence for which he has been charged. It is not necessary then for him to meet evidence relating to the offences with which he has not been charged. He is merely to answer the charge as framed. The Code does not require him to meet all evidence led by prosecution. He has only to rebut evidence bearing on the charge. (Para 32) Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 LiveLaw (SC) 631

Code of Criminal Procedure, 1973; Section 228 - The purpose of framing a charge is to intimate to the accused the clear, unambiguous and precise nature of accusation that the accused is called upon to meet in the course of a trial - Scope of Court's powers in respect of the framing of charges - Referred to Dipakbhai Jagdishchndra Patel v. State of Gujarat (2019) 16 SCC 547 et al - The trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice. Undoubtedly, apart from the material that is placed before the Court by the prosecution in the shape of final report in terms of Section 173 of CrPC, the Court may also rely upon any other evidence or material which is of sterling quality and has direct bearing on the charge laid before it by the prosecution. (Para 21-27) Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 LiveLaw (SC) 631

Code of Criminal Procedure, 1973; Section 228 - There is an inbuilt element of presumption - Meaning of 'presumption'. (Para 28) Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 LiveLaw (SC) 631

Code of Criminal Procedure, 1973; Section 239 - Scope and ambit - No detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken at this stage - the only consideration at the stage of Section 239/240 is as to whether the allegation/charge is groundless- The word "groundless" would connote no basis or foundation in evidence. The test which may, therefore, be applied for determining whether the charge should be considered groundless is that where the materials are such that even if unrebutted, would make out no case whatsoever. (Para 60 - 74) State v. R. Soundirarasu, 2022 LiveLaw (SC) 741

Code of Criminal Procedure, 1973; Section 300 (1) - Indian Penal Code, 1860; Section 420 - Negotiable Instruments Act, 1881; Section 138 - Whether on similar set of allegations of fact the accused can be tried for an offence under NI Act which is special enactment and also for offences under IPC unaffected by the prior conviction or acquittal and, the bar of Section 300(1) Cr.P.C. would attract for such trial? - Referred to larger bench. J. Vedhasingh v. R.M. Govindan, 2022 LiveLaw (SC) 669

Code of Criminal Procedure, 1973; Section 309 - Bail - While it is expected of the court to comply with Section 309 of the Code to the extent possible, an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would certainly be a factor for the consideration of bail. (Para 41) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Section 31 - Trial Court as well as Appellate Court has full discretion to order the sentences to run concurrently in case of conviction for two or more offences. (Para 10-11) Malkeet Singh Gill v. State of Chhattisgarh, 2022 LiveLaw (SC) 563

Code of Criminal Procedure, 1973; Section 311 - Application cannot be dismissed merely on the ground that it will lead to filling in the lacunae of the prosecution's case - Even the said reason cannot be an absolute bar to allowing an application under Section 311 - The resultant filling of loopholes on account of allowing the application is merely a subsidiary factor and the Court's determination of the application should only be based on the test of the essentiality of the evidence - It is the duty of the criminal court to allow the prosecution to correct an error in interest of justice. (Para 38 - 40) Varsha Garg v. State of Madhya Pradesh, 2022 LiveLaw (SC) 662

Code of Criminal Procedure, 1973; Section 311 - Scope - Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court - The broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest. (Para 28 - 32) Varsha Garg v. State of Madhya Pradesh, 2022 LiveLaw (SC) 662

Code of Criminal Procedure, 1973; Section 311 - The Court is vested with a broad and wholesome power to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. (Para 42) Varsha Garg v. State of Madhya Pradesh, 2022 LiveLaw (SC) 662

Code of Criminal Procedure, 1973; Section 313 - The purpose of Section 313 CrPC is to provide the accused a reasonable opportunity to explain the adverse circumstances which have emerged against him during the course of trial. A reasonable opportunity entails putting all the adverse evidences in the form of questions so as to give an opportunity to the accused to articulate his defence and give his explanation- If all the circumstances are bundled together and a single opportunity is provided to the accused to explain himself, he may not able to put forth a rational and intelligible explanation. Such, exercises which defeats fair opportunity are nothing but empty formality. Non­ fulfilment of the true spirit of Section 313 may ultimately cause grave prejudice to the accused and the Court may not have the benefit of all the necessary facts and circumstances to arrive at a fair conclusion. Such an omission does not ipso facto vitiate the trial, unless the accused fails to prove that grave prejudice has been caused to him -The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused. (Para 25-28) Jai Prakash Tiwari v. State of Madhya Pradesh, 2022 LiveLaw (SC) 658

Code of Criminal Procedure, 1973; Section 374 (2) - Already admitted appeal against conviction cannot be dismissed on the ground that the accused is absconding. (Para 8) Dhananjay Rai @ Guddu Rai v. State of Bihar, 2022 LiveLaw (SC) 597

Code of Criminal Procedure, 1973; Section 374 (2) - Patna HC dismissed an appeal filed against conviction on the ground that appellant accused was absconding - Allowing appeal, Supreme Court observed: The anguish expressed by the Division Bench about the brazen action of the appellant of absconding and defeating the administration of justice can be well understood. However, that is no ground to dismiss an appeal against conviction, which was already admitted for final hearing, for non-prosecution without adverting to merits -The impugned judgment set aside and the appeal remanded to the High Court for consideration on merits. Dhananjay Rai @ Guddu Rai v. State of Bihar, 2022 LiveLaw (SC) 597

Code of Criminal Procedure, 1973; Section 378 - Appeal against acquittal - While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters. (Para 8) Ravi Sharma v Govt. of NCT of Delhi, 2022 LiveLaw (SC) 615

Code of Criminal Procedure, 1973; Section 386 (e) - Power to make any amendment or any consequential or incidental order that may be just or proper would be available, of course in appropriate cases falling under any of the four categories of appeals mentioned under clauses (a) to (d) - The twin provisos under clause (d) carry restrictions in the matter of exercise of power under clause (e), with respect to enhancement of sentence and infliction of punishment - The power thereunder can be exercised only in rare cases. (Para 18) Bhola Kumhar v. State of Chhattisgarh, 2022 LiveLaw (SC) 589

Code of Criminal Procedure, 1973; Section 386 (e) - Rape convict kept in prison beyond the period of sentence - When a competent court, upon conviction, sentenced an accused and in appeal, the sentence was modified upon confirmation of the conviction and then the appellate judgment had become final, the convict can be detained only up to the period to which he can be legally detained on the basis of the said appellate judgment - Compensation to the tune of Rs.7.5 Lakhs to be paid by the State holding that it is vicariously liable for the act/omission committed by its officers in the course of employment. Bhola Kumhar v. State of Chhattisgarh, 2022 LiveLaw (SC) 589

Code of Criminal Procedure, 1973; Section 389 - "Presumption of innocence" and "bail is the rule and jail is the exception" may not be available to the appellant who has suffered a conviction - The power exercisable under Section 389 is different from that of the one either under Section 437 or under Section 439 of the Code, pending trial- Delay in taking up the main appeal or revision coupled with the benefit conferred under Section 436A of the Code among other factors ought to be considered for a favourable release on bail. (Para 42-44) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Section 397 - 401 - The revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected. The revisional power cannot be equated with appellate power. A revisional court cannot undertake meticulous examination of the material on record as it is undertaken by the trial court or the appellate court. This power can only be exercised if there is any legal bar to the continuance of the proceedings or if the facts as stated in the charge-sheet are taken to be true on their face value and accepted in their entirety do not constitute the offence for which the accused has been charged. It is conferred to check grave error of law or procedure. (Para 76) State v. R. Soundirarasu, 2022 LiveLaw (SC) 741

Code of Criminal Procedure, 1973; Section 397 - The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction alike to the appellate Court and the scope of interference in revision is extremely narrow. Section 397 CrPC vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be well­ founded error which is to be determined on the merits of individual case - While considering the same, the revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings. (Para 8-9) Malkeet Singh Gill v. State of Chhattisgarh, 2022 LiveLaw (SC) 563

Code of Criminal Procedure, 1973; Section 397, 401 - Any order which substantially affects the right of the parties cannot be said to be an "interlocutory order - The expression "interlocutory order" denotes orders of a purely interim or temporary nature which do not decide or touch upon the important rights or liabilities of parties. (Para 12) Honnaiah T.H. v. State of Karnataka, 2022 LiveLaw (SC) 672

Code of Criminal Procedure, 1973; Section 397, 401 - Maintainability of revision petition at the instance of de facto complainant - As the power of revision can be exercised by the High Court even suo moto, there can be no bar on a third party invoking the revisional jurisdiction and inviting the attention of the High Court that an occasion to exercise the power has arisen - The view of the High Court that a victim/ complainant needs to restrict his revision petition to challenging final orders either acquitting the accused or convicting the accused of a lesser offence or imposing inadequate compensation (three requirements mentioned under Section 372 CrPC) is unsustainable, so long as the revision petition is not directed against an interlocutory order. (Para 14 - 15) Honnaiah T.H. v. State of Karnataka, 2022 LiveLaw (SC) 672

Code of Criminal Procedure, 1973; Section 397, 401 - The order of the trial court declining to mark the statement of the informant as an exhibit is an intermediate order affecting important rights of the parties and cannot be said to be purely of an interlocutory nature - if the statement of the informant is not permitted to be marked as an exhibit, it would amount to a gross miscarriage of justice. (Para 13) Honnaiah T.H. v. State of Karnataka, 2022 LiveLaw (SC) 672

Code of Criminal Procedure, 1973; Section 41 - Power of Arrest - Police officers have a duty to apply their mind to the case before them and ensure that the condition(s) in Section 41 are met before they conduct an arrest - Supreme Court reiterates the guidelines for arrest laid down in the 2014 Arnesh Kumar vs State of Bihar (2014) 8 SCC 273. [Para 27, 28] Mohammed Zubair v. State of NCT of Delhi, 2022 LiveLaw (SC) 629

Code of Criminal Procedure, 1973; Section 41 - Scope - Even for a cognizable offense, an arrest is not mandatory as can be seen from the mandate of this provision. (Para 21 -23) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Section 41(1)(b)(i) and (ii) - Notwithstanding the existence of a reason to believe qua a police officer, the satisfaction for the need to arrest shall also be present - Both the elements of 'reason to believe' and 'satisfaction qua an arrest' are mandated and accordingly are to be recorded by the police officer. (Para 27) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Section 428 - Period of detention undergone by the accused to be set off against the sentence or imprisonment - it cannot be lost sight that when reference is made in a set off for adjustment of periods, the reference is to proceedings within the country - the criminal law of the land does not have any extra-territorial application - thus, what happens in another country for some other trial, some other detention, in our view, would not be relevant for the purposes of the proceedings in the country - accused cannot claim a double benefit under Section 428 of the Cr.P.C - i.e., the same period being counted as part of the period of imprisonment imposed for committing the former offence and also being set off against the period of imprisonment imposed for committing the latter offence as well. [Para 50, 52] Abu Salem v. State of Maharashtra, 2022 LiveLaw (SC) 578

Code of Criminal Procedure, 1973; Section 436A - Section 436A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigor as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. (Para 64) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Section 436A - The word 'shall' clearly denotes the mandatory compliance of this provision - There is not even a need for a bail application in a case of this nature particularly when the reasons for delay are not attributable against the accused - While taking a decision the public prosecutor is to be heard, and the court, if it is of the view that there is a need for continued detention longer than one-half of the said period, has to do so. However, such an exercise of power is expected to be undertaken sparingly being an exception to the general rule. (Para 47) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Section 436A - The word 'trial' will have to be given an expanded meaning particularly when an appeal or admission is pending - In a case where an appeal is pending for a longer time, to bring it under Section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision. (Para 46) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Section 437 - Scope - The jurisdictional Magistrate who otherwise has the jurisdiction to try a criminal case which provides for a maximum punishment of either life or death sentence, has got ample jurisdiction to consider the release on bail. (Para 53-55, 58) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Section 437, 439 - The first proviso to Section 437 facilitates a court to conditionally release on bail an accused if he is under the age of 16 years or is a woman or is sick or infirm - This has to be applied while considering release on bail either by the Court of Sessions or the High Court, as the case may be. (Para 58) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Section 438 - Anticipatory Bail Jurisdiction - cannot implead third party to proceedings - especially those parties who are neither necessary nor proper parties to the application under consideration - application under Section 438 of the Code of Criminal Procedure is limited to the cause of the concerned applicant, applying for grant of anticipatory bail in connection with offence already registered against him and apprehending his arrest in connection with such a case for extraneous reasons or otherwise - in such proceedings, the inquiry must be limited to the facts relevant and applicable to the concerned applicant who has come before the Court - no attempt should be made to inquire into matters pertaining to some third party much less beyond the scope of the complaint/FIR in question - even if the application is entertained by the High Court, the High Court should exercise circumspection in dealing with the application only in respect of matters which are relevant to decide the application and not to over-state facts or other matters unrelated to the applicant before the Court. Subrata Roy Sahara v. Pramod Kumar Saini, 2022 LiveLaw (SC) 601

Code of Criminal Procedure, 1973; Section 438 - Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 - Appeal against High Court order that granted anticipatory bail on the ground that no recovery was effected from the accused and that they had been implicated only on the basis of the disclosure statement of the main accused - Allowed -The respondents may be able to take advantage of the decision in Tofan Singh vs. State of Tamil Nadu (2021) 4 SCC 1 , perhaps at the time of arguing the regular bail application or at the time of final hearing after conclusion of the trial. To grant anticipatory bail in a case of this nature is not really warranted. State of Haryana v. Samarth Kumar, 2022 LiveLaw (SC) 622

Code of Criminal Procedure, 1973; Section 439 - Bail - Cancellation of Bail - Cancellation of bail cannot be limited to the occurrence of supervening circumstances - Illustrative circumstances where the bail can be cancelled :- a) Where the court granting bail takes into account irrelevant material of substantial nature and not trivial nature while ignoring relevant material on record. b) Where the court granting bail overlooks the influential position of the accused in comparison to the victim of abuse or the witnesses especially when there is prima facie misuse of position and power over the victim. c) Where the past criminal record and conduct of the accused is completely ignored while granting bail. d) Where bail has been granted on untenable grounds. e) Where serious discrepancies are found in the order granting bail thereby causing prejudice to justice. f) Where the grant of bail was not appropriate in the first place given the very serious nature of the charges against the accused which disentitles him for bail and thus cannot be justified. g) When the order granting bail is apparently whimsical, capricious and perverse in the facts of the given case. (Para 30-34) Deepak Yadav v. State of U.P., 2022 LiveLaw (SC) 562

Code of Criminal Procedure, 1973; Section 439 - Bail - Principles governing grant of bail - There is prima facie need to indicate reasons particularly in cases of grant or denial of bail where the accused is charged with a serious offence. The sound reasoning in a particular case is a reassurance that discretion has been exercised by the decision maker after considering all the relevant grounds and by disregarding extraneous considerations. (Para 19-29) Deepak Yadav v. State of U.P., 2022 LiveLaw (SC) 562

Code of Criminal Procedure, 1973; Section 439 - Bail - The offer of payment of ad interim compensation to the victim cannot be a ground to release the accused on bail. (Para 7) State of Jharkhand v. Salauddin Khan, 2022 LiveLaw (SC) 755

Code of Criminal Procedure, 1973; Section 439(2) - Bail conditions -The bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed. [Para 29] Mohammed Zubair v. State of NCT of Delhi, 2022 LiveLaw (SC) 629

Code of Criminal Procedure, 1973; Section 440 - It is a mandatory duty of the court to take into consideration the circumstances of the case and satisfy itself that it is not excessive. Imposing a condition which is impossible of compliance would be defeating the very object of the release. In this connection, we would only say that Section 436, 437, 438 and 439 of the Code are to be read in consonance. Reasonableness of the bond and surety is something which the court has to keep in mind whenever the same is insisted upon, and therefore while exercising the power under Section 88 of the Code also the said factum has to be kept in mind. Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Section 45 - Expert Witness - A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court. (Para 29) Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 LiveLaw (SC) 631

Code of Criminal Procedure, 1973; Section 482 - Court has to go slow even while exercising jurisdiction under Section 482 Cr.PC or Article 226 of the Constitution in the matter of quashing of criminal proceedings on the basis of a settlement reached between the parties, when the offences are capable of having an impact not merely on the complainant and the accused but also on others. (Para 42) P. Dharamaraj v. Shanmugam, 2022 LiveLaw (SC) 749

Code of Criminal Procedure, 1973; Section 482 - Crimes like murder, rape, burglary, dacoity and even abetment to commit suicide are neither private nor civil in nature - In no circumstances can prosecution be quashed on compromise, when the offence is serious and grave and falls within the ambit of crime against society. (Para 38) Daxaben v. State of Gujarat, 2022 LiveLaw (SC) 642

Code of Criminal Procedure, 1973; Section 482 - Grant of any stay of investigation and/or any interim relief while exercising powers under Section 482 Cr.P.C. would be only in the rarest of rare cases. (Para 6) Siddharth Mukesh Bhandari v. State of Gujarat, 2022 LiveLaw (SC) 653

Code of Criminal Procedure, 1973; Section 482 - If no offence is made out by a careful reading of the complaint, the complaint deserves to be quashed - When the complaint itself disclosed nothing more than a commercial relationship which broke, it is not possible to enlarge the scope of his complaint by merely adding the language used in the text of the Indian Penal Code. (Para 15-18) Wyeth Limited v. State of Bihar, 2022 LiveLaw (SC) 721

Code of Criminal Procedure, 1973; Section 482 - Indian Penal Code, 1860; Section 306 - An FIR under Section 306 IPC cannot even be quashed on the basis of any financial settlement with the informant, surviving spouse, parents, children, guardians, care-givers or anyone else - Section 306 IPC falls in the category of heinous and serious offences and are to be treated as crime against society and not against the individual alone. (Para 50) Daxaben v. State of Gujarat, 2022 LiveLaw (SC) 642

Code of Criminal Procedure, 1973; Section 482 - Inherent jurisdiction under Section 482 should be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specially laid down in the Section, the Court is duty bound to exercise its jurisdiction under Section 482 of the Cr.P.C. when the exercise of such power is justified by the tests laid down in the said Section. Jurisdiction under Section 482 of the Cr.P.C. must be exercised if the interest of justice so requires. (Para 35) Sunita Palita v. Panchami Stone Quarry, 2022 LiveLaw (SC) 647

Code of Criminal Procedure, 1973; Section 482 - Negotiable Instruments Act, 1881; Section 138, 141 - The laudable object of preventing bouncing of cheques and sustaining the credibility of commercial transactions, resulting in enactment of Sections 138 and 141 of the NI Act has to be borne in mind - A complaint should also not be read with a pedantically hyper technical approach to deny relief under Section 482 of the Cr.P.C. to those impleaded as accused, who do not have any criminal liability in respect of the offence alleged in the complaint. (Para 39) Sunita Palita v. Panchami Stone Quarry, 2022 LiveLaw (SC) 647

Code of Criminal Procedure, 1973; Section 482 - Negotiable Instruments Act, 1881; Section 138,141 - High Court should not interfere under Section 482 of the Code at the instance of an accused unless it comes across some unimpeachable and incontrovertible evidence to indicate that the Director/partner of a firm could not have been concerned with the issuance of cheques - If any Director wants the process to be quashed by filing a petition under Section 482 of the Code on the ground that only a bald averment is made in the complaint and that he/she is really not concerned with the issuance of the cheque, he/she must in order to persuade the High Court to quash the process either furnish some sterling incontrovertible material or acceptable circumstances to substantiate his/her contention. He/she must make out a case that making him/her stand the trial would be an abuse of process of Court. (Para 47) S.P. Mani and Mohan Dairy v. Dr. Snehalatha Elangovan, 2022 LiveLaw (SC) 772

Code of Criminal Procedure, 1973; Section 482 - Prevention of Corruption Act, 1988 - Corruption by a public servant is an offence against the State and the society at large. The Court cannot deal with cases involving abuse of official position and adoption of corrupt practices, like suits for specific performance, where the refund of the money paid may also satisfy the agreement holder. (Para 44) P. Dharamaraj v. Shanmugam, 2022 LiveLaw (SC) 749

Code of Criminal Procedure, 1973; Section 482 - Quashing of FIR - No mini trial can be conducted by the High Court in exercise of powers under Section 482 Cr.P.C. jurisdiction and at the stage of deciding the application under Section 482 Cr.P.C., the High Court cannot get into appreciation of evidence of the particular case being considered. (Para 7) State of U.P. v. Akhil Sharda, 2022 LiveLaw (SC) 594

Code of Criminal Procedure, 1973; Section 482 - Scope and powers of High Court discussed - The inherent power of the High Court under Section 482 of the Cr.P.C. is wide and can even be exercised to quash criminal proceedings relating to non-compoundable offences, to secure the ends of justice or to prevent abuse of the process of Court. Where the victim and offender have compromised disputes essentially civil and personal in nature, the High Court can exercise its power under Section 482 of the CrPC to quash the criminal proceedings. In what cases power to quash an FIR or a criminal complaint or criminal proceedings upon compromise can be exercised, would depend on the facts and circumstances of the case. (Para 26-37) Daxaben v. State of Gujarat, 2022 LiveLaw (SC) 642

Code of Criminal Procedure, 1973; Section 482 - The Criminal Proceeding cannot be quashed only because there is a settlement (including monetary settlement) between the accused and the complainant and other relatives of the deceased to the exclusion of the hapless widow of the deceased. (Para 50) Daxaben v. State of Gujarat, 2022 LiveLaw (SC) 642

Code of Criminal Procedure, 1973; Section 482 - The High Court has the inherent power to recall a judgment and/or order which was without jurisdiction or a judgment and/or order passed without hearing a person prejudicially affected by the judgment and/or order. (Para 22) Daxaben v. State of Gujarat, 2022 LiveLaw (SC) 642

Code of Criminal Procedure, 1973; Section 53A - In cases where the victim of rape is alive and is in a position to testify in court, it may be possible for the prosecution to take a chance by not medically examining the accused. But in cases where the victim is dead and the offence is sought to be established only by circumstantial evidence, medical evidence assumes great importance. The failure of the prosecution to produce such evidence, despite there being no obstacle from the accused or anyone, will certainly create a gaping hole in the case of the prosecution and give rise to a serious doubt on the case of the prosecution. (Para 80) Chotkau v. State of Uttar Pradesh, 2022 LiveLaw (SC) 804

Code of Criminal Procedure, 1973; Section 53A, 164A - While Section 53A enables the medical examination of the person accused of rape, Section 164A enables medical examination of the victim of rape. Both these provisions are somewhat similar and can be said approximately to be a mirror image of each other. But there are three distinguishing features - discussed. (Para 79) Chotkau v. State of Uttar Pradesh, 2022 LiveLaw (SC) 804

Code of Criminal Procedure, 1973; Section 87-88 - Courts will have to adopt the procedure in issuing summons first, thereafter a bailable warrant, and then a non-bailable warrant may be issued- Issuing non-bailable warrants as a matter of course without due application of mind against the tenor of the provision. (Para 31-32) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Sections 11, 12, 15, 16, 17, 19 and 35 - The Additional Chief Metropolitan Magistrate can be said to be at par with the Chief Metropolitan Magistrate in so far as the powers to be exercised under the Cr.PC are concerned - The Chief Metropolitan Magistrate in addition, may have administrative powers. (Para 10-10.1) R.D. Jain and Co. v. Capital First Ltd., 2022 LiveLaw (SC) 634

Code of Criminal Procedure, 1973; Sections 227-228, 239-240, 245 - The case may be a sessions case, a warrant case, or a summons case, the point is that a prima facie case must be made out before a charge can be framed. (Para 19) Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 LiveLaw (SC) 631

Code of Criminal Procedure, 1973; Sections 397 - Scope of interference and exercise of jurisdiction - At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage the final test of guilt is to be applied - The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in the proceeding. (Para 22-23) X v. Amit Kumar Tiwari, 2022 LiveLaw (SC) 681

Code of Criminal Procedure, 1973; Sections 397 and 482 - Although it is open to a High Court entertaining a petition under Section 482/ Section 397 CrPC to quash the charges framed by the trial court, yet the same cannot be done by weighing the correctness or sufficiency of the evidence - At the stage of charge the Court is to examine the materials only with a view to be satisfied that prima facie case of commission of offence alleged has been made out against the accused person - Once the trial court has framed a charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused for quashing of a charge before the entire prosecution evidence has 19 come on record should not be entertained sans exceptional cases. (Para 21) X v. Amit Kumar Tiwari, 2022 LiveLaw (SC) 681

Code of Criminal Procedure, 1973; Sections 397 and 482 - Appeal against Madhya Pradesh High Court Judgment discharging rape accused on the ground of delay to register FIR - Allowed - Perverse and utterly incomprehensible - Unfortunate father of the deceased had to come before this Court seeking justice - It was expected of the State to challenge the illegal order passed by the High Court. Barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests 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 interests of the community to book. X v. Amit Kumar Tiwari, 2022 LiveLaw (SC) 681

Code of Criminal Procedure, 1973; Sections 41, 41A - The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail - The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 - Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action - State Governments and the Union Territories to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code. (Para 73 (b-d)) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Sections 437, 439 - Bail - Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being an intervening application. Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application. (Para 73 (k)) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Sections 438, 439 - Bail applications must be decided as expeditiously as possible and not to be posted in due course of time. Tulsi Ram Sahu v. State of Chhattisgarh, 2022 LiveLaw (SC) 764

Code of Criminal Procedure, 1973; Sections 439, 161 - Bail - Statements under Section 161 of Cr.P.C. may not be admissible in evidence, but are relevant in considering the prima facie case against an accused in an application for grant of bail in case of grave offence. Indresh Kumar v. State of Uttar Pradesh, 2022 LiveLaw (SC) 610

Code of Criminal Procedure, 1973; Sections 440, 436A - Undertrials - The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release- While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind - An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district judiciary level and the High Court. (Para 73 (h-j)) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Sections 88, 170, 204 and 209 - There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code. (Para 73 (e)) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Constitution of India, 1950; Article 136 - Criminal Appeal - In cases of concurrent findings of fact this Court will not ordinarily interfere with the said findings, in exceptional circumstances, this Court is empowered to do so. If this Court finds that the appreciation of evidence and findings is vitiated by any error of law or procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse, this Court would not be powerless to reappreciate the evidence. (Para 26) Khema @ Khem Chandra v. State of Uttar Pradesh, 2022 LiveLaw (SC) 689

Constitution of India, 1950; Article 136 - Criminal appeal - The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all. (Para 8) State of Rajasthan v. Kistoora Ram, 2022 LiveLaw (SC) 663

Constitution of India, 1950; Article 21 - Code of Criminal Procedure, 1973; Section 313 - Section 313 CrPC confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right, as a constitutional right to a fair trial under Article 21. (Para 19) Jai Prakash Tiwari v. State of Madhya Pradesh, 2022 LiveLaw (SC) 658

Control of Organized Crime Act, 1999 (Maharashtra); Section 18 - Confession recorded by an Additional Superintendent of Police [Addl. SP] is admissible in evidence - The posts of SP, Addl. SP, and DCP all fall within the same rank as they exercise similar functions and powers and operate within similar spheres of authority. (Para 63) Zakir Abdul Mirajkar v. State of Maharashtra, 2022 LiveLaw (SC) 707

Control of Organized Crime Act, 1999 (Maharashtra); Section 2(1)(d) - More than one charge sheet is required to be filed in respect of the organized crime syndicate and not in respect of each person who is alleged to be a member of such a syndicate. (Para 79) Zakir Abdul Mirajkar v. State of Maharashtra, 2022 LiveLaw (SC) 707

Control of Organized Crime Act, 1999 (Maharashtra); Section 23(1)(a) - The order of approval need not name every accused person at the outset- Section 23(1)(a) MCOCA speaks of recording information about the commission of an offence of organized crime, and not of recording information about the offender. The competent authority may record information under Section 23(1)(a) once it is satisfied that an organized crime has been committed by an organized crime syndicate. (Para 72) Zakir Abdul Mirajkar v. State of Maharashtra, 2022 LiveLaw (SC) 707

Control of Organized Crime Act, 1999 (Maharashtra); Section 3(2) - Those accused of abetting the commission of organized crime need not themselves be charged with committing a cognizable offence punishable with imprisonment of at least three years. They need only be abetting those who are guilty of committing a cognizable offence punishable with imprisonment of at least three years, which offence amounts to an organized crime. (Para 76) Zakir Abdul Mirajkar v. State of Maharashtra, 2022 LiveLaw (SC) 707

Control of Terrorism and Organised Crime Act, 2015 (Gujarat); Section 20(2) - Code of Criminal Procedure, 1973; Section 167(2) - Application for extension of time for investigation - Firstly, in the report of the Public Prosecutor, the progress of the investigation should be set out and secondly, the report must disclose specific reasons for continuing the detention of the accused beyond the said period of 90 days. Therefore, the extension of time is not an empty formality - The scope of the objections may be limited - The accused can always point out to the Court that the prayer has to be made by the Public Prosecutor and not by the investigating agency. Secondly, the accused can always point out the twin requirements of the report in terms of proviso added by sub­section (2) of Section 20 of the 2015 Act to sub­section (2) of Section 167 of CrPC. The accused can always point out to the Court that unless it is satisfied that full compliance is made with the twin requirements, the extension cannot be granted. (Para 28-29) Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat, 2022 LiveLaw (SC) 794

Control of Terrorism and Organised Crime Act, 2015 (Gujarat); Section 20(5) - In State of Maharashtra v. Bharat Shanti Lal Shah (2008) 13 SCC 5, it was held that the expression "or under any other Act" appearing in sub­section (5) of Section 21 of the MCOCA was violative of Articles 14 and 21 of the Constitution and, therefore, it must be struck down. Hence, the same expression used in sub­section (5) of Section 20 of the 2015 Act infringes Articles 14 and 21 of the Constitution. (Para 21) Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat, 2022 LiveLaw (SC) 794

Criminal Investigation - There cannot be two investigating agencies with respect to the same FIRs/complaints arising out of the same incident/occurrence with respect to different co-accused - Supreme Court transfers FIRs against Times Now Anchor Navika Kumar over Prophet remarks to Delhi - Transfer applicable to Future FIRs likely to be registered over the same telecast. Navika Kumar v. Union of India, 2022 LiveLaw (SC) 796

Criminal Investigation and Trial - In case of grave and serious non compoundable offences which impact society, the informant and/or complainant only has the right of hearing, to the extent of ensuring that justice is done by conviction and punishment of the offender. An informant has no right in law to withdraw the complaint of a non-compoundable offence of a grave, serious and/or heinous nature, which impacts society. (Para 39) Daxaben v. State of Gujarat, 2022 LiveLaw (SC) 642

Criminal Trial - Circumstantial Evidence - Court has to see whether the chain of circumstances is complete and unbroken and keep in mind five golden principles or the panchsheell. (Para 9) Chotkau v. State of Uttar Pradesh, 2022 LiveLaw (SC) 804

Criminal Trial - Circumstantial Evidence - In a case of circumstantial evidence, the Court has to scrutinize each and every circumstantial possibility, which is placed before it in the form of an evidence and the evidence must point towards only one conclusion, which is the guilt of the accused - A very heavy duty is cast upon the prosecution to prove its case, beyond reasonable doubt - Parameters under which the case of circumstantial evidence is to be evaluated. Referred to Hanumant Govind Nargundkar & Anr. v. State of Madhya Pradesh AIR 1952 SC 343. (Para 12) Munikrishna @ Krishna v. State by UIsoor PS, 2022 LiveLaw (SC) 812

Criminal Trial - Circumstantial Evidence - The chain of evidence has to be so complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused - The circumstances should be of a conclusive nature and tendency and should exclude every possible hypothesis except the one to be proved - The accused 'must be' and not merely 'may be' guilty before a Court can convict - Suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt. (Para 18-20) Ram Niwas v. State of Haryana, 2022 LiveLaw (SC) 670

Criminal Trial - Extra Judicial Confession - When there is a case hanging on an extra­judicial confession, corroborated only by circumstantial evidence, then the courts must treat the same with utmost caution. (Para 15) Ram Niwas v. State of Haryana, 2022 LiveLaw (SC) 670

Criminal Trial - Extra­judicial confession was a weak piece of evidence and unless there was some corroboration, the conviction solely on the basis of extra­judicial confession could not be sustained. (Para 10) State of Rajasthan v. Kistoora Ram, 2022 LiveLaw (SC) 663

Criminal Trial - Oral testimony may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way — it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. (Para 21-22) Khema @ Khem Chandra v. State of Uttar Pradesh, 2022 LiveLaw (SC) 689

Criminal Trial - Post Mortem Report - The post mortem report of the doctor is his previous statement based on his examination of the dead body. It is not substantive evidence. The doctor's statement in court is alone the substantive evidence - It can be used only to corroborate his statement under Section 157, or to refresh his memory under Section 159, or to contradict his statement in the witness box under Section 145 of the Evidence Act, 1872. (Para 29) Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 LiveLaw (SC) 631

Criminal Trial - Presumption of Innocence - Onus on the prosecution to prove the guilt before the Court -The agency to satisfy the Court that the arrest made was warranted and enlargement on bail is to be denied - Presumption of innocence, being a facet of Article 21, shall inure to the benefit of the accused. (Para 13-18) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Criminal Trial - Previous enmity is a double­ edged sword. On one hand, it provides motive to the crime and on the other, there is a possibility of false implication. (Para 20) Khema @ Khem Chandra v. State of Uttar Pradesh, 2022 LiveLaw (SC) 689

Criminal Trial - Related Witness - A close relative cannot automatically be characterized as an "interested" witness. However, even related witness statements need to be scrutinized more carefully. (Para 10) Jai Prakash Tiwari v. State of Madhya Pradesh, 2022 LiveLaw (SC) 658

Criminal Trial - Sentencing - Gravity of crime is the prime consideration for deciding what should be the appropriate punishment - It is always the duty of the Court to balance aggravating circumstances and mitigating circumstances at the time of imposing sentence - If undue sympathy is shown by reducing the sentence to the minimum, it may adversely affect the faith of people in efficacy of law - The judicial discretion is always guided by various considerations such as seriousness of the crime, the circumstances in which crime was committed and the antecedents of the accused. (Para 12-13) Sahebrao Arjun Hon v. Raosaheb Kashinath Hon, 2022 LiveLaw (SC) 745

Criminal Trial - Test Identification Parade - When no TIP was conducted the first version of the complainant reflected in the FIR would play an important role - It is required to be considered whether in the FIR and/or in the first version the eye­ witness either disclosed the identity and/or description of the accused on the basis of which he can recollect at the time of deposition and identify the accused for the first time in the Court Room - It would not be safe and/or prudent to convict the accused solely on the basis of their identification for the first time in the Court. (Para 6.2 - 6.7) Amrik Singh v. State of Punjab, 2022 LiveLaw (SC) 582

Criminal Trial - The testimony of a witness in a criminal trial cannot be discarded merely because of minor contradictions or omission - Only contradictions in material particulars and not minor contradictions can be a ground to discredit the testimony of the witnesses. Mekala Sivaiah v. State of Andhra Pradesh, 2022 LiveLaw (SC) 604

Death Penalty - In all cases where imposition of capital punishment is a choice of sentence, aggravating circumstances would always be on record, and would be part of the prosecution's evidence, leading to conviction, whereas the accused can scarcely be expected to place mitigating circumstances on the record, for the reason that the stage for doing so is after conviction. This places the convict at a hopeless disadvantage, tilting the scales heavily against him. This court is of the opinion that it is necessary to have clarity in the matter to ensure a uniform approach on the question of granting real and meaningful opportunity, as opposed to a formal hearing, to the accused/convict, on the issue of sentence. Consequently, this court is of the view that a reference to a larger bench of five Hon'ble Judges is necessary for this purpose. Let this matter be placed before the Hon'ble Chief Justice of India for appropriate orders in this regard. In Re: Framing Guidelines regarding Potential Mitigating Circumstances to be considered while imposing Death Sentences, 2022 LiveLaw (SC) 777

Death Penalty - Is Same day sentencing proper? Supreme Court refers issue to 5-judge bench in view of conflicting judgments. In Re: Framing Guidelines regarding Potential Mitigating Circumstances to be considered while imposing Death Sentences, 2022 LiveLaw (SC) 777

Evidence Act 1872 - Dying Declaration - When can be relied upon - Conditions - It could thus be seen that the Court is required to examine as to whether the dying declaration is true and reliable; as to whether it has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration; as to whether it has been made under any tutoring/duress/prompting. The dying declaration can be the sole basis for recording conviction and if it is found reliable and trustworthy, no corroboration is required. In case there are multiple dying declarations and there are inconsistencies between them, the dying declaration recorded by the higher officer like a Magistrate can be relied upon. However, this is with the condition that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration has not been found to be made voluntarily and is not supported by any other evidence, the Court is required to scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance. (Para 9) Makhan Singh v. State of Haryana, 2022 LiveLaw (SC) 677

Evidence Act 1872; Section 32 - Dying Declaration - Case of two dying declarations, both contradictory, both recorded by judicial magistrates- Court relies on the dying declaration recorded after medical examination. (Para 16,17) Makhan Singh v. State of Haryana, 2022 LiveLaw (SC) 677

Evidence Act, 1872 - Ocular Evidence - Principles for appreciation of ocular evidence in a criminal case - In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. (Para 27-28) Shahaja @ Shahajan Ismail Mohd. Shaikh v. State of Maharashtra, 2022 LiveLaw (SC) 596

Evidence Act, 1872 - When we deal with a case of circumstantial evidence, as aforesaid, motive assumes significance. Though, the motive may pale into insignificance in a case involving eyewitnesses, it may not be so when an accused is implicated based upon the circumstantial evidence. (Para 13) Ravi Sharma v Govt. of NCT of Delhi, 2022 LiveLaw (SC) 615

Evidence Act, 1872 ; Section 27 - Conditions necessary for the applicability of Section 27 of the Act - (1) Discovery of fact in consequence of an information received from accused; (2) Discovery of such fact to be deposed to; (3) The accused must be in police custody when he gave informations and (4) So much of information as relates distinctly to the fact thereby discovered is admissible - Two conditions for application – (1) information must be such as has caused discovery of the fact; and (2) information must relate distinctly to the fact discovered. (Para 42) Shahaja @ Shahajan Ismail Mohd. Shaikh v. State of Maharashtra, 2022 LiveLaw (SC) 596

Evidence Act, 1872; Section 129 - Privilege over legal advise - Legal privilege not applicable to legal opinion used by SEBI to initiate prosecution, as such opinion is part of investigation. (Para 53-55) Reliance Industries Ltd. v. Securities and Exchange Board of India, 2022 LiveLaw (SC) 659

Evidence Act, 1872; Section 25 - Code of Criminal Procedure, 1973; Section 161 - Both the Trial Court and the Appellate Court went completely wrong in placing reliance on the voluntary statements of the accused and their videography statements - A confessional statement given by an accused before a Police officer is inadmissible as evidence - Statement given by an accused to police under Section 161 of CrPC is not admissible as evidence. (Para 13) Munikrishna @ Krishna v. State by UIsoor PS, 2022 LiveLaw (SC) 812

Evidence Act, 1872; Section 25, 27, 8 - No part of a First Information Report lodged by an accused with the police as an implicatory statement can be admitted into evidence - However, the statement can be admitted to identify the accused as the maker of the report - Further, that part of the information in the statement, which is distinctly related to the 'fact' discovered in consequence of such information, can also be admitted into evidence under Section 27 of the Evidence Act, provided that the discovery of the fact must be in relation to a material object - The conduct of the accused is relevant and admissible under Section 8 of the Evidence Act. (Para 5) Dauvaram Nirmalkar v. State of Chhattisgarh, 2022 LiveLaw (SC) 650

Evidence Act, 1872; Section 27 - Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. (Para 45-46) Shahaja @ Shahajan Ismail Mohd. Shaikh v. State of Maharashtra, 2022 LiveLaw (SC) 596

Evidence Act, 1872; Section 8 - The conduct of the accused alone, though may be relevant under Section 8 of the Act, cannot form the basis of conviction. (Para 50) Shahaja @ Shahajan Ismail Mohd. Shaikh v. State of Maharashtra, 2022 LiveLaw (SC) 596

Evidence Act, 1872; Section 8, 27 - Even while discarding the evidence in the form of discovery panchnama the conduct would be relevant under Section 8 of the Act. The evidence of discovery would be admissible as conduct under Section 8 of the Act quite apart from the admissibility of the disclosure statement under Section 27. (Para 48) Shahaja @ Shahajan Ismail Mohd. Shaikh v. State of Maharashtra, 2022 LiveLaw (SC) 596

Forfeiture - Forfeitures can be categorized as civil and criminal. On the civil side, there can be in rem or in personam forfeitures. Punitive forfeitures under the criminal law are in personam. Criminal forfeitures usually take place at the conclusion of a trial, when the guilt of the accused is established. Standards of evidentiary requirement differ greatly between civil and criminal forfeiture - The utility of independent provisions of forfeiture, distinct from criminal prosecution, needs to be utilised in a proportional manner, looking at the gravity of the offence. Few examples which may pass the muster of proportionality for having such stringent civil forfeiture, may relate to crimes involving terrorist activities, drug cartels or organised criminal activities - The application of such a provision to numerous other offences which are not of such grave severity, would be of serious risk of being disproportionate, if procedures independent of criminal prosecution are prescribed. (Para 17.15, 17.28) Union of India v. Ganpati Dealcom Pvt. Ltd., 2022 LiveLaw (SC) 700

Juvenile Justice - Plea of juvenility could be raised in any court, at any stage even after the final disposal of the Special Leave Petition- Where the plea of juvenility is raised at a belated stage, often certain medical tests are resorted to forage determination in absence of the documents - While appreciating the evidence adduced on behalf of the accused in support of the plea that he is a juvenile, if two views are possible on the same evidence, the Court should lean in favour of holding the accused to be juvenile in borderline cases. The inquiry contemplated is not a roving inquiry. The Court can accept as evidence something more than an affidavit i.e. documents, certificates etc. as evidence in proof of age. A mere opinion by a person as to the accused looking one or two years older than the age claimed by him (as the opinion of the head master in the present case) or the fact that the accused told his age to be more than what he alleges in the case while being arrested by the police officer would not hold much water. It is the documentary evidence placed on record that plays a major role in determining the age of a juvenile in conflict of law. And, it is only in the cases where the documents or certificates placed on record by the accused in support of his claim of juvenility are found to be fabricated or manipulated, that the Court, the Juvenile Justice Board or the Committee need to go for medical test for age determination. Vinod Katara v. State of Uttar Pradesh, 2022 LiveLaw (SC) 757

Juvenile Justice (Care and Protection of Children) Act, 2015 - Guidelines with respect to preliminary evaluation - appropriate and specific guidelines in this regard are required to be put in place - it open for the Central Government and the National Commission for Protection of Child Rights and the State Commission for Protection of Child Rights to consider issuing guidelines or directions in this regard which may assist and facilitate the Board in making the preliminary assessment under section 15 of the Act, 2015. [Para 87] Barun Chandra Thakur v. Master Bholu, 2022 LiveLaw (SC) 593

Juvenile Justice (Care and Protection of Children) Act, 2015 - Proviso to Section 15 read as mandatory condition - for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts - where the Board is not comprising of a practicing professional with a degree in child psychology or child psychiatry, the expression "may" in the proviso to section 15(1) would operate in mandatory form and the Board would be obliged to take assistance of experienced psychologists or psychosocial workers or other experts - however, in case the Board comprises of at least one such member, who has been a practicing professional with a degree in child psychology or child psychiatry, the Board may take such assistance as may be considered proper by it; and in case the Board chooses not to take such assistance, it would be required of the Board to state specific reasons therefor. [Para 76] Barun Chandra Thakur v. Master Bholu, 2022 LiveLaw (SC) 593

Juvenile Justice (Care and Protection of Children) Act, 2015; Section 15 - Preliminary assessment on four aspects - mental capacity to commit the offence; physical capacity to commit the offence; ability to understand the consequences of the offence; and circumstances under which allegedly the offence was committed. [Para 62] Barun Chandra Thakur v. Master Bholu, 2022 LiveLaw (SC) 593

Juvenile Justice (Care and Protection of Children) Act, 2015; Section 15 - preliminary assessment requires holistic evaluation. [Para 65, 66] Barun Chandra Thakur v. Master Bholu, 2022 LiveLaw (SC) 593

Juvenile Justice (Care and Protection of Children) Act, 2015; Section 15 - Ability to understand the consequences of the offence - The language used in section 15 is "the ability to understand the consequences of the offence" - the expression used is in plurality i.e., "consequences" of the offence and, therefore, would not just be confined to the immediate consequence of the offence but impact/consequences for other people connected with the victim and the child and other far-reaching consequences in the future - This evaluation of 'mental capacity and ability to understand the consequences' of the child in conflict with law can, in no way, be relegated to the status of a perfunctory and a routine task. [Para 68, 69, 70, 71, 75] Barun Chandra Thakur v. Master Bholu, 2022 LiveLaw (SC) 593

Juvenile Justice(Care and Protection of Children) Act, 2015; Section 15 - Mental Capacity to commit offence and ability to understand the consequences of offence are different -The Board and the Children's Court apparently were of the view that the mental capacity and the ability to understand the consequences of the offence were one and the same, that is to say that if the child had the mental capacity to commit the offence, then he automatically had the capacity to understand the consequences of the offence. This, in our considered opinion, is a grave error committed by them. [Para 67] Barun Chandra Thakur v. Master Bholu, 2022 LiveLaw (SC) 593

Marital Rape - Exception 2 to Section 375 of IPC - Exception 2 states that sexual intercourse by a man with his wife is not rape, unless she is below 15 years of age – Supreme Court leaves the constitutional validity of marital rape to be decided in appropriate proceedings but states that for the purpose of MTP Act, meaning of rape includes marital rape. (Para 74, 75, 115) X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, 2022 LiveLaw (SC) 809

Marital Rape - Rape includes 'marital rape' for the purpose of MTP Rules - Rule 3B(a) -Survivors of sexual assault or rape or incest shall be considered eligible for termination of pregnancy up to twenty-four weeks – Supreme Court holds that meaning of rape must be understood as including marital rape, solely for the purposes of the MTP Act – Woman need not seek recourse to formal legal proceedings to prove sexual assault, rape or incest. (Para 70, 75, 76) X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, 2022 LiveLaw (SC) 809

Medical Negligence - Every death in an institutionalized environment of a hospital does not necessarily amount to medical negligence on a hypothetical assumption of lack of due medical care - It would not be possible for the Court to second-guess the medical judgment of the doctors on the line of medical treatment. Devarakonda Surya Sesha Mani v. Care Hospital, Institute of Medical Sciences, 2022 LiveLaw (SC) 753

Mens Rea - Mens rea is an essential ingredient of a criminal offence - A statute may exclude the element of mens rea, but it is a sound rule of construction adopted in England – and also accepted in India – to construe a statutory provision creating an offence in conformity with common law rather than against it, unless the statute expressly or by necessary implication excluded mens rea. The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil which by itself is not decisive of the question as to whether the element of a guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be excluded from a statute only 33 where it is absolutely clear that implementation of the object of the statute would otherwise be defeated. (Para 14.10) Union of India v. Ganpati Dealcom Pvt. Ltd., 2022 LiveLaw (SC) 700

Narcotic Drugs and Psychotropic Substances Act, 1985 - Independent witness - Independent witnesses turning hostile need not necessarily result in the acquittal of the accused, when the mandatory procedure is followed and the other police witnesses speak in one voice - But if the Court has ­­ (i) to completely disregard the lack of corroboration of the testimony of police witnesses by independent witnesses; and (ii) to turn a Nelson's eye to the independent witnesses turning hostile, then the story of the prosecution should be very convincing and the testimony of the official witnesses notably trustworthy - If independent witnesses come up with a story which creates a gaping hole in the prosecution theory, about the very search and seizure, then the case of the prosecution should collapse like a pack of cards - Corroboration by independent witnesses is not always necessary. But once the prosecution comes up with a story that the search and seizure was conducted in the presence of independent witnesses and they also choose to examine them before Court, then the Court has to see whether the version of the independent witnesses who turned hostile is unbelievable and whether there is a possibility that they have become turncoats. (Para 18) Sanjeet Kumar Singh @ Munna Kumar Singh v. State of Chhattisgarh, 2022 LiveLaw (SC) 724

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 - The expression "reasonable grounds" used in Section 37(1)(b) under NDPS Act would mean credible, plausible grounds for the Court to believe that the accused person is not guilty of the alleged offence. (Para 14) Narcotics Control Bureau v. Mohit Aggarwal, 2022 LiveLaw (SC) 613

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 - Bail considerations - The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act. (Para 17-18) Narcotics Control Bureau v. Mohit Aggarwal, 2022 LiveLaw (SC) 613

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 - Bail - The admissions made by the accused while in custody to the effect that he had illegally traded in narcotic drugs, will have to be kept aside - Confessional statement recorded under Section 67 of the NDPS Act inadmissible in the trial of an offence under the NDPS Act. (Para 16) Narcotics Control Bureau v. Mohit Aggarwal, 2022 LiveLaw (SC) 613

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 - At the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail. (Para 15) Narcotics Control Bureau v. Mohit Aggarwal, 2022 LiveLaw (SC) 613

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 - NCB's appeal against Delhi HC order granting bail to accused - Allowed - Even dehors the confessional statements, the other circumstantial evidence brought on record by the NCB ought to have dissuaded the High Court from exercising its discretion in favour of the accused - The observation made in the impugned order that since nothing was found from the possession of the respondent, he is not guilty of the offence for which he has been charged. Such an assumption would be premature at this stage - Set aside Bail order. Narcotics Control Bureau v. Mohit Aggarwal, 2022 LiveLaw (SC) 613

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 54 - Section 54 of the Act raises a presumption and the burden shifts on the accused to explain as to how he came into possession of the contraband. But to raise the presumption under Section 54 of the Act, it must first be established that a recovery was made from the accused. (Para 33A) Sanjeet Kumar Singh @ Munna Kumar Singh v. State of Chhattisgarh, 2022 LiveLaw (SC) 724

Narcotic Drugs and Psychotropic Substances Act, 1985; Sections 20(b)(ii)(C), 32B - While imposing higher than the minimum punishment, such of the factors which are to be taken into consideration have been provided under Section 32B of the NDPS Act - The old age of the accused, who is a poor illiterate lady completely unaware of the consequences - Sentence reduced. Budhiyarin Bai v. State of Chhattisgarh, 2022 LiveLaw (SC) 667

Narcotic Drugs and Psychotropic Substances Act, 1985; Sections 27A, 37 - When applicability of Section 27A NDPS Act is seriously questionable in this case and there being otherwise no recovery from the respondent and the quantity in question being also intermediate quantity, the rigours of Section 37 NDPS Act do not apply. (Para 16.4) State of West Bengal v. Rakesh Singh @ Rakesh Kumar Singh, 2022 LiveLaw (SC) 580

Narcotic Drugs and Psychotropic Substances Act, 1985; Sections 27A, 37 - Appeal against Calcutta High Court order granted bail to a person accused under Sections 21(b)/29/27A of NDPS Act - Dismissed - No reason to consider interference in the order passed by the High Court granting bail to the respondent with specific conditions. State of West Bengal v. Rakesh Singh @ Rakesh Kumar Singh, 2022 LiveLaw (SC) 580

Negotiable Instruments Act, 1881; Section 138 - Complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the court of sufficient cause. (Para 5-9) Gajanand Burange v. Laxmi Chand Goyal, 2022 LiveLaw (SC) 682

Negotiable Instruments Act, 1881; Section 138, 141 - The object of notice before the filing of the complaint is not just to give a chance to the drawer of the cheque to rectify his omission to make his stance clear so far as his liability under Section 138 of the NI Act is concerned - It is essential for the person to whom statutory notice is issued under Section 138 of the NI Act to give an appropriate reply. The person concerned is expected to clarify his or her stance. If the person concerned has some unimpeachable and incontrovertible material to establish that he or she has no role to play in the affairs of the company/firm, then such material should be highlighted in the reply to the notice as a foundation. (Para 44) S.P. Mani and Mohan Dairy v. Dr. Snehalatha Elangovan, 2022 LiveLaw (SC) 772

Negotiable Instruments Act, 1881; Section 138, 141 - Vicarious criminal liability can be inferred against the partners of a firm when it is specifically averred in the complaint about the status of the partners 'qua' the firm. This would make them liable to face the prosecution but it does not lead to automatic conviction - On the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the officers in charge of the affairs of the company/partners of a firm to show that they were not liable to be convicted. (Para 47) S.P. Mani and Mohan Dairy v. Dr. Snehalatha Elangovan, 2022 LiveLaw (SC) 772

Negotiable Instruments Act, 1881; Section 141 - Impleadment of all Directors of an Accused Company on the basis of a statement that they are in charge of and responsible for the conduct of the business of the company, without anything more, does not fulfil the requirements of Section 141 of the NI Act - Specific averments have to be made in the pleadings to substantiate the said statement in the complaint, that such Director was in charge of and responsible for conduct of the business of the Company or the Company - It would be a travesty of justice to drag Directors, who may not even be connected with the issuance of a cheque or dishonour thereof, such as Director (Personnel), Director (Human Resources Development) etc. into criminal proceedings under the NI Act, only because of their designation. (Para 42-46) Sunita Palita v. Panchami Stone Quarry, 2022 LiveLaw (SC) 647

Negotiable Instruments Act, 1881; Section 141 - When the accused is the Managing Director or a Joint Managing Director of a company, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company for the conduct of the business of the company - Prefix "Managing" to the word "Director" makes it clear that the Director was in charge of and responsible to the company, for the conduct of the business of the company - A Director or an Officer of the company who signed the cheque renders himself liable in case of dishonour. (Para 30, 37) Sunita Palita v. Panchami Stone Quarry, 2022 LiveLaw (SC) 647

Negotiable Instruments Act, 1881; Section 143A - Failure of accused to pay interim compensation - The amount can be recovered as if it were a fine - The provision nowhere contemplates that an accused who had failed to deposit interim compensation could be fastened with any other disability including denial of right to cross-examine the witnesses examined on behalf of the complainant. (Para 12-14) Noor Mohammed v. Khurram Pasha, 2022 LiveLaw (SC) 652

Negotiable Instruments Act, 1881; Sections 138, 139 - A drawer handing over a cheque signed by him is liable unless it is proved by adducing evidence at the trial that the cheque was not in discharge of a debt or liability. The evidence of a hand-writing expert on whether the accused had filled in the details in the cheque would be immaterial to determining the purpose for which the cheque was handed over. Therefore, no purpose is served by allowing the application for adducing the evidence of the hand-writing expert - The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability. (Para 4, 17) Oriental Bank of Commerce v. Prabodh Kumar Tewar, 2022 LiveLaw (SC) 714

Penal Code 1860; Section 121A - As the explanation to Section 121A of the IPC discloses, for an offence of conspiracy, it would not be necessary that any act or illegal omission must take place in pursuance thereof. Thus, even though no untoward incident had actually of the IPC, the matter would still come within the four corners of Section 121A of the IPC. Mohammad Irfan v. State of Karnataka, 2022 LiveLaw (SC) 590

Penal Code 1860; Section 121A - Conspiracy to wage war against India - The dictionary meaning of the expression "overawe" is to subdue or inhibit with a sense of awe. The expression "overawe" would thus imply creation of apprehension or situation of alarm and as rightly held by the Division Bench (in the case of Mir Hasan Khan v. State (or Ramanand v. State), it would not be necessary that the danger should be one of assassination of or of bodily injury to the members of the machinery or apparatus of the Government but the danger might as well be to public property or to the safety of members of the general public. Mohammad Irfan v. State of Karnataka, 2022 LiveLaw (SC) 590

Penal Code 1860; Section 121A - Supreme Court upheld the conviction and life sentence of four persons for causing the terror attack at the Indian Institute of Science in Bengaluru in December, 2005. Mohammad Irfan v. State of Karnataka, 2022 LiveLaw (SC) 590

Penal Code 1860; Section 221 - "charge" not defined under Cr.P.C. - a false "charge" in this Section must not be understood in any restricted or technical sense, but in its ordinary meaning - would include a false accusation made to any authority bound by law to investigate it or to take any steps in regard to it, such as giving information of it to the superior authorities with a view to investigation or other proceedings, and the institution of criminal proceedings includes the setting of the criminal law in motion - the expression "falsely charges" in this section, cannot mean giving false evidence as a prosecution witness against an accused person during the course of a criminal trial - "to falsely charge" must refer to the original or initial accusation putting or seeking to put in motion - the machinery of criminal investigation and not when seeking to prove the false charge by making deposition in support of the charge framed in that trial - the false charge must, therefore, be made initially to a person in authority or to someone who is in a position to get the offender punished by appropriate proceedings - in other words, it must be embodied either in a complaint or in a report of a cognizable offence to the police officer or to an officer having authority over the person against whom the allegations are made - the statement in order to constitute the "charges" should be made with the intention and object of setting criminal law in motion. [Para 91, 94] Himanshu Kumar v. State of Chhattisgarh, 2022 LiveLaw (SC) 598

Penal Code 1860; Section 221 - Essential ingredients for invoking Section 211, I.P.C. are that the complaint must have falsely charged a person with having committed an offence; the complainant, at the time of giving the complaint must have known that there is no just or lawful ground for making a charge against the person, this complaint must have been given with an intention to cause injury to a person. [Para 90] Himanshu Kumar v. State of Chhattisgarh, 2022 LiveLaw (SC) 598

Penal Code 1860; Section 304B - Offence of dowry death - the legislative intent of incorporating IPC section 304­B was to curb the menace of dowry death with a firm hand-in dealing with cases under section 304­B, such legislative intent has to be kept in mind- a strong message must go in the society that a person who commits such an offence of dowry death and/or the offences under the Dowry Prohibition Act shall be dealt with an iron hand. Ajhola Devi v. State of Jharkhand, 2022 LiveLaw (SC) 695

Penal Code 1860; Section 376(2)(n) - Offence of committing repeated rape on same woman - The complainant has willingly been staying with the appellant and had the relationship - Now if the relationship is not working out, the same cannot be a ground for lodging an FIR for the offence under Section 376(2)(n) IPC - Observations while granting anticipatory bail to accused. Ansaar Mohammad v. State of Rajasthan, 2022 LiveLaw (SC) 599

Penal Code, 1860 - Deceased was addicted to alcohol and used to constantly torment, abuse and threaten the accused (appellant) who was his brother - On the night of the occurrence, the deceased had consumed alcohol and had told the accused to leave the house and if not, he would kill the accused - There was sudden loss of self-control on account of a 'slow burn' reaction followed by the final and immediate provocation - There was temporary loss of self-control as the appellant had tried to kill himself by holding live electrical wires - The acts of provocation on the basis of which the accused caused the death of his brother were both sudden and grave and that there was loss of self-control - Conviction modified from Section 302 IPC to Section 304 Part I IPC. Dauvaram Nirmalkar v. State of Chhattisgarh, 2022 LiveLaw (SC) 650

Penal Code, 1860; Exception 1 to Section 300 - Act of provocation and loss of self-control, must be actual and reasonable. The law attaches great importance to two things when defence of provocation is taken - First, whether there was an intervening period for the passion to cool and for the accused to regain dominance and control over his mind. Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provocation. The first part lays emphasis on whether the accused acting as a reasonable man had time to reflect and cool down. The offender is presumed to possess the general power of self-control of an ordinary or reasonable man, belonging to the same class of society as the accused, placed in the same situation in which the accused is placed, to temporarily lose the power of self-control. The second part emphasises that the offender's reaction to the provocation is to be judged on the basis of whether the provocation was sufficient to bring about a loss of self-control in the fact situation - Here again, the court would have to apply the test of a reasonable person in the circumstances. While examining these questions, we should not be short-sighted, and must take into account the whole of the events, including the events on the day of the fatality, as these are relevant for deciding whether the accused was acting under the cumulative and continuing stress of provocation. (Para 12) Dauvaram Nirmalkar v. State of Chhattisgarh, 2022 LiveLaw (SC) 650

Penal Code, 1860; Exception 1 to Section 300 - Sustained provocation principle - The last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control - The cumulative or sustained provocation test would be satisfied when the accused's retaliation was immediately preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation - This principle does not do away with the requirement of immediate or the final provocative act, words or gesture. Further, this defence would not be available if there is evidence of reflection or planning as they mirror exercise of calculation and premeditation - The provocation may be an act or series of acts done by the deceased to the accused resulting in inflicting of the injury. The idea behind this exception is to exclude the acts of violence which are premeditated, and not to deny consideration of circumstances such as prior animosity between the deceased and the accused, arising as a result of incidents in the past and subsequently resulting in sudden and grave provocation-Thus, the gravity of the provocation can be assessed by taking into account the history of the abuse and need not be confined to the gravity of the final provocative act in the form of acts, words or gestures. (Para 12-14) Dauvaram Nirmalkar v. State of Chhattisgarh, 2022 LiveLaw (SC) 650

Penal Code, 1860; Exceptions to Section 300 - The burden of prosecution to prove the guilt of the accused should not be mixed with the burden on the accused of proving that the case falls within an exception. However, to discharge this burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court. (Para 15) Dauvaram Nirmalkar v. State of Chhattisgarh, 2022 LiveLaw (SC) 650

Penal Code, 1860; Section 120B - The principal ingredient of the offence of criminal conspiracy under Section 120B IPC is an agreement to commit an offence - Such an agreement must be proved through direct or circumstantial evidence- Some kind of physical manifestation of agreement is required to be established- It is not necessary that there must be a clear, categorical and express agreement between the accused. However, an implied agreement must manifest upon relying on principles established in the cases of circumstantial evidence. (Para 22-25) Ram Sharan Chaturvedi v. State of Madhya Pradesh, 2022 LiveLaw (SC) 709

Penal Code, 1860; Section 300 Exception 1 - Whether there was a grave and sudden provocation which would lead an accused to lose his power of self-control would depend upon the facts and circumstances of each case. It cannot be disputed that how a person responds to a particular situation would depend upon the temperament of a particular person. A hot-tempered person may react differently as compared to a cool-headed person. (Para 8) Yatendrasingh Ajabsingh Chauhan v. State of Maharashtra, 2022 LiveLaw (SC) 664

Penal Code, 1860; Section 300, 302 - Conviction of a man accused of killing his own father following a fight under the influence of liquor upheld - Maybe it was under the influence of liquor, but the nature of blows was such that the endeavour was to end the life of the deceased, the father. It was certainly an act in a cruel and brutal manner taking advantage of the situation even if there was no pre-meditation - There is no cause made out for application of Exception 4 of Section 300. Chherturam @ Chainu v. State of Chhattisgarh, 2022 LiveLaw (SC) 761

Penal Code, 1860; Section 300, 302 - Whether the accused had an intention to commit the murder of the deceased or not would depend upon a combination of several factors. There cannot be a straight­jacket formula for deciding whether there was intention to commit the murder or not. (Para 7-8) Yatendrasingh Ajabsingh Chauhan v. State of Maharashtra, 2022 LiveLaw (SC) 664

Penal Code, 1860; Section 300, 304 Part II - Conviction of appellants modified from Section 302 to Section 304 Part II - Considerations relevant for determining a culpable homicide amounting to murder and distinguishing it from the culpable homicide not amounting to murder. (Para 17) Ajmal v. State of Kerala, 2022 LiveLaw (SC) 609

Penal Code, 1860; Section 302 - Brutal Murder - Sentencing - In appropriate cases, imposing a fixed term sentence creates a possibility for the convict to 8 re-integrate into society after serving his/her sentence. It strikes a delicate balance between the victims' plea for justice - This fixed term sentence can only be by the High Court or this Court and not by the trial Court - If there is any circumstance favouring the accused such as lack of intention to commit the crime, possibility of reformation, young age of the accused, accused not being a menance to the society, no previous criminal record etc., the accused may avoid capital punishment - The crime is important but so is the criminal and hence the Supreme Court in recent past has substituted death penalty with fixed term sentences exceeding 14 years - The approach cannot be the vindictive but lack of appropriate sentence leaves the cry of justice of the society un-addressed apart from the fact that other persons who may have the propensity to carry out the crime feel they will get away with the lighter sentence, in case they are caught. State of Haryana v. Anand Kindoo, 2022 LiveLaw (SC) 780

Penal Code, 1860; Section 302 - There cannot be any sentence/punishment less than imprisonment for life, if an accused is convicted for the offence punishable under Section 302 IPC. (Para 5) State of Madhya Pradesh v. Nandu @ Nandua, 2022 LiveLaw (SC) 732

Penal Code, 1860; Section 302 and 376 - Rape and Murder of Six-Year-Old Girl - Appellant was convicted and sentenced to death - Acquitted - There are seriously inherent contradictions in the statements made by prosecution witnesses and both the Trial Court and the High Court have overlooked it completely - Court cannot make someone, a victim of injustice, to compensate for the injustice to the victim of a crime. Chotkau v. State of Uttar Pradesh, 2022 LiveLaw (SC) 804

Penal Code, 1860; Section 306 - Abetment to commit suicide - Even an indirect act of incitement to the commission of suicide would constitute the offence of abetment of suicide. (Para 16) Daxaben v. State of Gujarat, 2022 LiveLaw (SC) 642

Penal Code, 1860; Section 375 and 90 - The parties chose to have physical relationship without marriage for a considerable period of time - For some reason, the parties fell apart. It can happen both before or after marriage - FIR lodged three years thereafter - Permitting further proceedings under the FIR would amount to harassment to the appellant through the criminal process itself Distinction between a false promise to marriage which is given on understanding by the maker that it will be broken and a breach of promise which is made in good faith but subsequently not fulfilled. Mandar Deepak Pawar v. State of Maharashtra, 2022 LiveLaw (SC) 649

Penal Code, 1860; Section 405 - An alleged breach of the contractual terms does not ipso facto constitute the offence of the criminal breach of trust without there being a clear case of entrustment - The offence of criminal breach of trust contains two ingredients: (i) entrusting any person with property, or with any dominion over property; and (ii) the person entrusted dishonestly misappropriates or converts to his own use that property to the detriment of the person who entrusted it. (Para 20-23) M.N.G. Bharateesh Reddy v. Ramesh Ranganathan, 2022 LiveLaw (SC) 701

Penal Code, 1860; Section 411 - In order to bring home the guilt under Section 411 IPC, the prosecution must prove (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property. (Para 21-22) Shiv Kumar v. State of Madhya Pradesh, 2022 LiveLaw (SC) 746

Penal Code, 1860; Section 415, 420 - Firstly, to constitute cheating, a person must deceive another. Secondly, by doing so the former must induce the person so deceived to (i) deliver any property to any person; or (ii) to consent that any person shall retain any property; or (iii) intentionally induce the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and such an act or omission must cause or be likely to cause damage or harm to that person in body, mind, reputation or property. M.N.G. Bharateesh Reddy v. Ramesh Ranganathan, 2022 LiveLaw (SC) 701

Prevention of Corruption Act, 1988; Section 13(1)(e) - it is for the prosecution to establish that the accused was in possession of properties disproportionate to his known sources of income but the term "known sources of income" would mean the sources known to the prosecution and not the sources known to the accused and within the knowledge of the accused. It is for the accused to account satisfactorily for the money/assets in his hands. The onus in this regard is on the accused to give satisfactory explanation. (Para 80) State v. R. Soundirarasu, 2022 LiveLaw (SC) 741

Prevention of Corruption Act, 1988; Section 13(1)(e) - Prosecution not required to conduct an open ended or rowing enquiry or investigation to find out all alleged/claimed known sources of income of an accused who is investigated under the PC Act, 1988. The prosecution can rely upon the information furnished by the accused to the authorities under law, rules and orders for the time being applicable to a public servant. No further investigation is required by the prosecution to find out the known sources of income of the accused public servant. As noticed above, the first part of the explanation refers to income received from legal/lawful sources. (Para 41) State v. R. Soundirarasu, 2022 LiveLaw (SC) 741

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988 - Detention - If there is unreasonable delay between the date of the order of detention & actual arrest of the detenu and in the same manner from the date of the proposal and passing of the order of detention, such delay unless satisfactorily explained throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing the detention order and consequently render the detention order bad and invalid because the "live and proximate link" between the grounds of detention and the purpose of detention is snapped in arresting the detenu. A question whether the delay is unreasonable and stands unexplained depends on the facts and circumstances of each case. (Para 20) Sushanta Kumar Banik v. State of Tripura, 2022 LiveLaw (SC) 813

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - Narcotic Drugs and Psychotropic Substances Act, 1986; Section 37 - If detenue was ordered to be released on bail despite the rigours of Section 37 of the NDPS Act, 1985, then the same is suggestive that the Court concerned might not have found any prima facie case against him. (Para 23) Sushanta Kumar Banik v. State of Tripura, 2022 LiveLaw (SC) 813

Prevention of Money Laundering Act, 2002 - ECIR vis-a-vis FIR - there is no need to formally register ECIR - ECIR is internal document - there is not requirement in law to furnish copy of ECIR to accused - non-recording of ECIR does not prevent the authorities from proceeding with inquiry/investigation for attachment - it is sufficient if at the time of arrest the person is informed the grounds on which the arrest is being made; sufficient compliance of A 22(1) of the Constitution; the Court before whom the accused is produced can call ED officers for relevant records. [Para 176-179] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002 - ED Manual - is internal document and in the nature of administrative orders - common public may not be entitled to access such confidential administrative instructions for internal guidance of ED - there is no investigation but inquiry akin to civil action of attachment - since the inquiry ends in identifying the offender and then they are prosecuted, Authorities can considered outlining some crucial procedures and explore the feasibility of placing document on official website of ED. [Para 180-181] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002 - Schedule of 2002 Act - classification or grouping of offences for treating the same as relevant for constituting offence of money- laundering is a matter of legislative policy. [Para 175-175A] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002 - Supreme Court upholds constitutionality of powers of Enforcement Directorate for arrest, search and seizure, attachment - Court upholds the constitutionality of reverse burden of proof (Section 24) and twin conditions of bail (Section 45). Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 17 - Searches and Seizures - 2002 Act is a self contained code - inbuilt safeguards present - only Director and officers not below the rank of Deputy Director can authorise officers to carry out search and seizure - provision to record reasons shows it requires application of mind - officer conducting search is to forward a copy of the reasons recorded and materials in his possession to the Adjudicating Authority in a sealed envelope - officer seizing property obligated to submit application before the Adjudicating Authority within 30 days for retention of record - officers carrying out search and seizure made accountable; can be punished under Section 62 - process of searches and seizure is not only for inquiry into the process of money-laundering, but also prevention - for strengthening mechanism Parliament has rightfully dropped the condition that no search shall be conducted unless there is a police report or a private complaint in relation to the scheduled offence. [Para 77-86] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 18 - Search of persons - officers to adhere to identical inbuilt safeguards as in exercise of power under Section 17 - search of person is a fair and reasonable procedure (search and seizure) - search to be carried out in presence of two witnesses - officers to prepare a list of record of seized property - search of a female person can be done only by a female - upon seizing property concerned office to submit application before Adjudicating Authority - opportunity to be given to concerned person to defend their property. [Para 87] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 19 - Arrest - inbuilt stringent safeguards - power to arrest on high-ranking officers - provision to record reason regarding involvement in money-laundering - grounds of arrest to be informed to the person at the time of making arrest - copy of order along with material to be sent to Adjudicating Authority - arrested person is required to be procedure in Special Court within 24 hours of arrest. [Para 88-90] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 24 - Burden of Proof - application not limited to proceedings before Special Court - to apply to proceedings before the Adjudicating Authority regarding confirmation of provisional attachment order and order of confiscation vesting the attached property in the Central Government - would also apply to proceedings before Special Court upon presentation of complaint by officer under Section 44(1)(b) - before the Adjudicating Authority it is not necessary to follow proof beyond reasonable doubt, but would apply before the Special Court - on establishing that there exists proceeds of crime and the person in involved/linked in any process or activity connected with such proceeds, a legal presumption would arise that the proceeds of crime are involved in money -laundering - the onus merely shifts on the person facing charges to rebut the legal presumption - the presumption under Section 24(b) is not a mandatory legal presumption; but presumption under Section 24(a) is. [Para 91-103] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 3 - offence of "money laundering" - widely worded; meant not only to investigate offence but also regulate it - involved in any process or activity with the proceeds of crime - including concealment, possession, acquisition, use, projecting/claiming tainted money to be untainted - all these processes or activities independently constitute offence of money laundering - projection/claiming proceeds of crime to be untainted is not the only process or activity which constitutes offence of money laundering - "and" proceeding "projection or claiming" is to be read as "or" - Explanation added by Finance Bill, 2019 - 2019 amendment to Section 3 is only clarificatory in nature - whether brought in by way of a Finance Bill or not would not affect the original main provision - relevant date under the Statute is not linked to the date on which the scheduled offence was committed, but the one on which the person indulged in the "process or activity" connect with proceeds of crime - authorised officers can prosecute for money laundering only when there exists proceeds of crime - authorised officers cannot proceed to attach and confiscate property on the basis of assumption but on the basis of credible evidence indicating involvement in "process or activity" with proceeds of crime. [Para 37-55] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 44(1)(a) - Special Courts -an offence punishable under section 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been committed - Section 44(1)(a) is directory in nature - it is read down to mean that the Special Court may exercise judicial discretion on case-to-case basis. [Para 104-114] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 45 - Bail - Post Nikesh Tarachand Shah v. Union of India (held Section 45 pre- 2018 Amendment as unconstitutional) the provision was not obliterated from the statute book; it merely held that the provision as it stood then was violative of A. 14 and 21 - it was open for the Parliament to cure the defect - once cured, the provision got revived - observations in Nikesh distinguishing the challenge to twin bail condition under PMLA from Kartar Singh v. State of Punjab dealing with TADA Act (calling PMLA less heinous than terrorism) overruled - twin condition though strict does not impose absolute restraint on garnet of bail - similar twin conditions is provided in several other special legislations - the twin bail conditions is also applicable for anticipatory bail - Section 436A CrPC providing maximum period for which under-trial prisoner can be detained, could be invoked by person accused under 2002 Act. [Para 115-149] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 5 - Attachment, adjudication and confiscation - inbuilt safeguards provided - only Director and officers not below rank of Deputy Director can issue provisional attachment order - only upon satisfaction that the person possesses proceeds of crime; is charged with commission of scheduled offence; there is likelihood of concealment, can the officer proceed to issue provisional attachment order - provisional order operates for 180 days - On issuing order of provisional attachment copy of the order to be forward to Adjudicating Authority - officer passing such order to forward copy of order to Adjudicating Authority - officer to file complaint within 30 days of the order - 2015 amendment has rightfully removed the requirement of registering scheduled offence and also show substantial progress in investigation to pass provisional attachment order - if scheduled offence is not registered with local police it is open to ED officers to proceed with provisional attachment while contemporaneously sending information to the police. [Para 56-70] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 50 - Summoning Power - the officers under the act conducts inquiry to ascertain existence of proceeds of crime and involvement of persons in money-laundering - PMLA is not a penal statute - Section 45(1A) clarifies that regular police officer cannot take cognisance of offence of money laundering - provisions of CrPC and Evidence Act does not apply to the inquiry carried out by the ED officers - it is a sui generis legislation, not only dealing with the prevention, detection, attachment, confiscation, vesting and making it obligatory for the banking companies, financial institutions and intermediaries to comply with certain essential formalities and make them accountable for failure thereof, and also permits prosecution of the persons found involved in the money- laundering activity - ED officers are not police officers - statement recorded by them cannot be hit by Articles 20(3) and 21. [Para 150-173] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 63 - Punishment for willfully providing false information causing arrest or search - not an unreasonable provision. [Para 174] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 8 - In the period between the confirmation of provisional attachment under Section 8 of the Prevention of Money Laundering Act, 2002 and the passing of the formal order of confiscation, the person interested in the immovable property can enjoy it - direction under Section 8(4) to take possession of the property before a formal order of confiscation is passed, merely on the basis of confirmation of provisional attachment order, should be an exception and not a rule - FAFT permits non-conviction based confiscation model. [Para 71-76] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 8 - Interim possession by authority before conclusion of final trial to exceptional cases - Ratio in Vijay Madanlal Choudary & Ors v. Union of India 2022 LiveLaw (SC) 633 requires further expounding in an appropriate case, without which, much scope is left for arbitrary application. (Para 17.27) Union of India v. Ganpati Dealcom Pvt. Ltd., 2022 LiveLaw (SC) 700

Prevention of Money-Laundering Act, 2002; Section 3 - Accused no.1 acquitted of scheduled offence - Prosecution of Wife and son of the accused under PMLA Act - The view as taken by the Trial Court in this matter had been a justified view of the matter and the High Court was not right in setting aside the discharge order despite the fact that the accused No. 1 had already been acquitted in relation to the scheduled offence and the present appellants were not accused of any scheduled offence. Parvathi Kollur v. State by Directorate of Enforcement, 2022 LiveLaw (SC) 688

Preventive Detention - It emerges that the requisite subjective satisfaction, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influence his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. (Para 26) Sushanta Kumar Banik v. State of Tripura, 2022 LiveLaw (SC) 813

Preventive Detention - The preventive detention is a serious invasion of personal liberty and the normal methods open to a person charged with commission of any offence to disprove the charge or to prove his innocence at the trial are not available to the person preventively detained and, therefore, in prevention detention jurisprudence whatever little safeguards the Constitution and the enactments authorizing such detention provide assume utmost importance and must be strictly adhered to. (Para 28) Sushanta Kumar Banik v. State of Tripura, 2022 LiveLaw (SC) 813

Prohibition of Benami Property Transactions Act, 1988; Chapter IV - Characterization of the confiscation proceedings under Chapter IV of the 2016 Act as Civil may therefore not be appropriate. There is an implicit recognition of the forfeiture being a punitive sanction, as the Officer is mandated to build a case against the accused for such confiscation, wherein the presumption of innocence is upheld structurally. (Para 17.31) Union of India v. Ganpati Dealcom Pvt. Ltd., 2022 LiveLaw (SC) 700

Prohibition of Benami Property Transactions Act, 1988; Section 3(2) - Benami Transactions (Prohibition) Amendment Act, 2016 - Section 3(2) of the unamended 1988 Act is declared as unconstitutional for being manifestly arbitrary. Accordingly, Section 3(2) of the 2016 Act is also unconstitutional as it is violative of Article 20(1) of the Constitution. (Para 18.1) Union of India v. Ganpati Dealcom Pvt. Ltd., 2022 LiveLaw (SC) 700

Prohibition of Benami Property Transactions Act, 1988; Section 5 - Benami Transactions (Prohibition) Amendment Act, 2016 - In rem forfeiture provision under Section 5 of the unamended Act of 1988, prior to the 2016 Amendment Act, was unconstitutional for being manifestly arbitrary - In rem forfeiture provision under Section 5 of the 2016 Act, being punitive in nature, can only be applied prospectively and not retroactively - Concerned authorities cannot initiate or continue criminal prosecution or confiscation proceedings for transactions entered into prior to the coming into force of the 2016 Act, viz., 25.10.2016. As a consequence of the above declaration, all such prosecutions or confiscation proceedings shall stand quashed. (Para 18.1) Union of India v. Ganpati Dealcom Pvt. Ltd., 2022 LiveLaw (SC) 700

Protection of Children from Sexual Offences Act, 2012 - Appeal against HC order that granted bail to POCSO Accused who allegedly raped and murdered his 11 year old daughter - Allowed - Ex facie, the allegations are grave, the punishment is severe and it cannot be said that there are no materials on record at all - Order set aside. Indresh Kumar v. State of Uttar Pradesh, 2022 LiveLaw (SC) 610

Public Employment - Suppression of criminal proceedings - Principles to be applied - a) Each case should be scrutinised thoroughly by the public employer concerned, through its designated officials–more so, in the case of recruitment for the police force, who are under a duty to maintain order, and tackle lawlessness, since their ability to inspire public confidence is a bulwark to society's security. b) Even in a case where the employee has made declaration truthfully and correctly of a concluded criminal case, the employer still has the right to consider the antecedents, and cannot be compelled to appoint the candidate. The acquittal in a criminal case would not automatically entitle a candidate for appointment to the post. It would be still open to the employer to consider the antecedents and examine whether the candidate concerned is suitable and fit for appointment to the post. c) The suppression of material information and making a false statement in the verification Form relating to arrest, prosecution, conviction etc., has a clear bearing on the character, conduct and antecedents of the employee. If it is found that the employee had suppressed or given false information in regard to the matters having a bearing on his fitness or suitability to the post, he can be terminated from service. d) The generalisations about the youth, career prospects and age of the candidates leading to condonation of the offenders' conduct, should not enter the judicial verdict and should be avoided. e) The Court should inquire whether the Authority concerned whose action is being challenged acted mala fide. f) Is there any element of bias in the decision of the Authority? g) Whether the procedure of inquiry adopted by the Authority concerned was fair and reasonable? (Para 69) Satish Chandra Yadav v. Union of India, 2022 LiveLaw (SC) 798

Remission - Premature Release - Supreme Court says due consideration of remission policy must be given to all eligible prisoners - Issues slew of directions to UP Govt - Holds that application by eligible prisoner must not be insisted- Benefit of policy which is more beneficial to the prisoner must by given. Rashidul Jafar @ Chota v. State of U.P., 2022 LiveLaw (SC) 754

Trial in cases of Sexual Harassment/Violence - The importance of courts dealing with complainants of sexual harassment and sexual assault in a sensitive manner reiterated- Guidelines: a. Allowing proceedings to be conducted in camera, where appropriate, either under Section 327 CrPC or when the case otherwise involves the aggrieved person (or other witness) testifying as to their experience of sexual harassment / violence; b. Allowing the installation of a screen to ensure that the aggrieved woman does not have to see the accused while testifying or in the alternative, directing the accused to leave the room while the aggrieved woman's testimony is being recorded; c. Ensuring that the counsel for the accused conducts the cross-examination of the aggrieved woman in a respectful fashion and without asking inappropriate questions, especially regarding the sexual history of the aggrieved woman. Cross-examination may also be conducted such that the counsel for the accused submits her questions to the court, who then poses them to the aggrieved woman; d. Completing cross-examination in one sitting, as far as possible. (Para 30-35) XYZ v. State of Maharashtra, 2022 LiveLaw (SC) 676

Words and Phrases - Bail - A bail is nothing but a surety inclusive of a personal bond from the accused. It means the release of an accused person either by the orders of the Court or by the police or by the Investigating Agency. It is a set of pre-trial restrictions imposed on a suspect while enabling any interference in the judicial process. Thus, it is a conditional release on the solemn undertaking by the suspect that he would cooperate both with the investigation and the trial - Bail is the rule and jail is the exception. (Para 8-12) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Words and Phrases - Trial - An extended meaning has to be given to this word for the purpose of enlargement on bail to include, the stage of investigation and thereafter - Primary considerations would obviously be different between these two stages. In the former stage, an arrest followed by a police custody may be warranted for a thorough investigation, while in the latter what matters substantially is the proceedings before the Court in the form of a trial. If we keep the above distinction in mind, the consequence to be drawn is for a more favourable consideration towards enlargement when investigation is completed, of course, among other factors - An appeal or revision shall also be construed as a facet of trial when it comes to the consideration of bail on suspension of sentence. (Para 7) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577