Supreme Court Criminal Digest February 2024

Acquittal

Appeal from acquittal – Principles of deciding – Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive i.e. inclusive of all evidence, oral or documentary. Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge. If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed. If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal. If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts. In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court. (Para 36) Mallappa v. State of Karnataka, 2024 LiveLaw (SC) 115

Reversing the order of acquittal into conviction – The High Court had erred in reversing the decision of acquittal, without arriving at any finding of illegality or perversity or error in the reasoning of the Trial Court. Setting aside an order of acquittal, which signifies a stronger presumption of innocence, on a mere change of opinion is not permissible. A low standard for turning an acquittal into conviction would be fraught with the danger of failure of justice. In reversing the order of acquittal, what is required is an illegality or perversity in order of trial court. (Para 34 & 39) Mallappa v. State of Karnataka, 2024 LiveLaw (SC) 115

Bail

Bail / Anticipatory Bail - Expeditious adjudication of bail matters - High Court's duty to ensure timely justice - Supreme Court's directive to High Court of Bombay - Constitutionality of Article 21 - Liberty of citizen paramount - Urgency in deciding bail applications emphasized. (Para 3 - 6) Amol Vitthal Vahile v. State of Maharashtra, 2024 LiveLaw (SC) 159

Bail / Anticipatory Bail - Application for anticipatory bail was not decided for a period of more than four years. The Judges are not deciding the matter on merits but find an excuse to shunt the case on different grounds. Held, decide the matter pertaining to bail / anticipatory bail as expeditiously as possible. (Para 4 - 6) Amol Vitthal Vahile v. State of Maharashtra, 2024 LiveLaw (SC) 159

Code of Criminal Procedure, 1973

A case diary is maintained by an Investigating Officer during his investigation for the purpose of entering the day-to-day proceedings of the investigation. While doing so, the Investigating Officer should mandatorily record the necessary particulars gathered in the course of investigation with the relevant date, time and place. Under sub-section (1-A) and (1-B) of Section 172 of CrPC, the Investigating Officer has to mention, in his case diary, the statement of witnesses recorded during investigation with due pagination. Sub-section (1-A) and (1-B) were inserted by Act 5 of 2009 with effect from 31/12/2009. The object of these sub-sections is to facilitate a fair investigation since a statement made under Section 161 of CrPC is not expected to be signed as mandated by Section 162 of CrPC. (Para 20) Shailesh Kumar v. State of U.P., 2024 LiveLaw (SC) 162

Code of Criminal Procedure, 1973; Section 125 - The approach of the State of taking the side of the husband in a maintenance case, to say the least, is very strange. In fact, the counsel, who appeared for the State, was under a duty and obligation to act as an officer of the Court and to assist the Court in arriving at a correct conclusion. (Para 7 & 8) Asiya Khan v. State of Uttar Pradesh, 2024 LiveLaw (SC) 140

Code of Criminal Procedure, 1973; Section 172 (3) - Evidence Act, 1872; Section 145 and 161 - Whenever a case is made out either under Section 145 or under Section 161 of the Evidence Act, the benefit conferred thereunder along with the benefit of Section 172(3) of CrPC has to be extended to an accused. Thus, the accused has a right to cross-examine a police officer as to the recording made in the case diary whenever the police officer uses it to refresh his memory. Though Section 161 of the Evidence Act does not restrict itself to a case of refreshing memory by perusing a case diary alone, there is no exclusion for doing so. Similarly, in a case where the court uses a case diary for the purpose of contradicting a police officer, then an accused is entitled to peruse the said statement so recorded which is relevant, and cross-examine the police officer on that count. What is relevant in such a case is the process of using it for the purpose of contradiction and not the conclusion. To make the position clear, though Section 145 read with Section 161 of the Evidence Act deals with the right of a party including an accused, such a right is limited and restrictive when it is applied to Section 172 of CrPC. Suffice it is to state that the said right cannot be declined when the author of a case diary uses it to refresh his memory or the court uses it for the purpose of contradiction. Therefore, held that Section 145 and Section 161 of the Evidence Act on the one hand and Section 172(3) of CrPC on the other are to be read in consonance with each other, subject to the limited right conferred under sub-section (3) of Section 172 of CrPC. (Para 27) Shailesh Kumar v. State of U.P., 2024 LiveLaw (SC) 162

Code of Criminal Procedure, 1973; Section 173(8) - Protest Petition - An application seeking further investigation can be treated as a protest petition if the application prima facie establishes the commission of the offences, and such an application can't be technically rejected because procedural recourse of filing a protest petition is not followed. Although the proper course for the complainant would have been to file a protest petition instead of filing it under Section 173(8) for further investigation, a petition should not be rejected merely because it is filed under the wrong caption. XXX v. State, 2024 LiveLaw (SC) 110

Code of Criminal Procedure, 1973; Section 202 – Issue of summon – The Magistrate cannot issue the summons until there is satisfaction that the material was sufficient to pass the summoning order. The learned Magistrate being not satisfied that the material on the record of the complaint, was sufficient to pass the summoning order, had called for the police report under Section 202 of the Cr.PC. Once the Magistrate has called for the police report under Section 202 of the Cr.PC, then the magistrate couldn't issue summon unless the report is submitted by the police. The order issuing process has drastic consequences and requires application of mind. The learned Magistrate was not justified in passing the order to issue a summons. Shiv Jatia v. Gian Chand Malick, 2024 LiveLaw (SC) 169

Code of Criminal Procedure, 1973; Section 202(1) – Postponement of issue of process – Section 202(1) was amended with effect from 23rd June 2006. The requirement of postponing the issue of the process is applicable only when one of the accused stays outside the jurisdiction of the court. The mandate of postponing the issue of the process introduced with effect from 23rd June 2006 was not applicable on the date of filing of the complaint in 2004. Shiv Jatia v. Gian Chand Malick, 2024 LiveLaw (SC) 169

Code of Criminal Procedure, 1973; Section 378 - Limitation Act, 1963; Section 5 r/w. 2 & 3 - Delay that occurred in preferring an appeal against acquittal can be condoned under limitation act. Mohd Abaad Ali v. Directorate of Revenue Prosecution Intelligence, 2024 LiveLaw (SC) 141

Code of Criminal Procedure, 1973; Section 438 – Anticipatory bail granted on the condition is totally alien to the principles governing bail jurisprudence and is nothing short of perversity. State v. B. Ramu, 2024 LiveLaw (SC) 128

Code of Criminal Procedure, 1973; Section 439 – Grounds for cancellation of bail - Bail granted to an accused can only be cancelled if the Court is satisfied that after being released on bail, (a) the accused has misused the liberty granted to him; (b) flouted the conditions of bail order; (c) that the bail was granted in ignorance of statutory provisions restricting the powers of the Court to grant bail; (d) or that the bail was procured by misrepresentation or fraud. None of these grounds existed while cancellation of bail granted by another bench. (Para 12) Himanshu Sharma v. State of Madhya Pradesh, 2024 LiveLaw (SC) 157

Code of Criminal Procedure, 1973; Section 439 (2) – Cancellation of Bail order - The exercise of jurisdiction by the learned Single Judge in cancelling the bail granted by another Single Judge of the same High Court, by examining the merits of the allegations, tantamounts to judicial impropriety/indiscipline. The application for cancellation of bail filed on merits as opposed to violation of the conditions of the bail order should have been placed before the same learned Single Judge who had granted bail to the accused. The act of reviewing the orders granting bail to the accused by another Single Judge is uncalled for and amounts to gross impropriety. (Para 10) Himanshu Sharma v. State of Madhya Pradesh, 2024 LiveLaw (SC) 157

Code of Criminal Procedure, 1973; Section 482 - High Court could not have stayed the investigations and restrained the investigating agencies from investigating cognizable offences as alleged in the FIRs and the Enforcement Case Information Report (ECIR), particularly when the investigations were at a very nascent stage. The inherent powers under Section 482 of Cr.PC do not confer any arbitrary jurisdiction on the High Court to act according to whims or caprice. The statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases. In a way, by passing such orders of staying the investigations and restraining the investigating agencies from taking any coercive measure against the accused pending the petitions under Section 482 Cr.PC, the High Court has granted blanket orders restraining the arrest without the accused applying for the anticipatory bail under Section 438 of Cr.PC. (Para 20) Directorate of Enforcement v. Niraj Tyagi, 2024 LiveLaw (SC) 114

Code of Criminal Procedure, 1973; Section 482 - If the charge sheet is filed against the accused during the pendency of the petition for quashing of the FIR, the High Court is not restrained from exercising its inherent jurisdiction and could still examine if offences alleged to have been committed were prima facie made out or not on the basis of the F.I.R., charge sheet and other documents. Mamta Shailesh Chandra v. State of Uttarakhand, 2024 LiveLaw (SC) 86

Code of Criminal Procedure, 1973; Section 482 - Iudicial comity and judicial discipline demands that higher courts should follow the law. The extraordinary and inherent powers of the court do not confer any arbitrary jurisdiction on the court to act according to its whims and caprice. (Para 24) Directorate of Enforcement v. Niraj Tyagi, 2024 LiveLaw (SC) 114

Code of Criminal Procedure, 1973; Section 91 - Courts cannot issue processes under Section 91 Cr.P.C. to compel the production of things / documents based on the application made by the accused at the stage of framing of charges. The accused's entitlement to seek an order for the production of things or documents under Section 91 of Cr.P.C. would ordinarily not come till the stage of defence. (Para 6) State of Rajasthan v. Swarn Singh @ Baba, 2024 LiveLaw (SC) 136

Code of Criminal Procedure, 1973; Sections 61, 70, 204, 437 - An accused cannot be taken into custody when he voluntarily surrenders before the Court even though the Court which has taken cognizance of the chargesheet has not issued a summoning order against him. Bail application filed by such an accused, who voluntarily surrendered even in the absence of a summoning order, cannot be entertained. (Para 10) Souvik Bhattacharya v. Enforcement Directorate, Kolkata Zonal Office - II, 2024 LiveLaw (SC) 122

Delay in registration of FIR – The FIR suffers from a serious delay of three years which is totally unexplained. The unexplained inordinate delay in bringing allegations to the police's attention despite knowledge of previous inquiry, adds a layer of scepticism to the authenticity of the claims. Deepak Kumar Shrivas v. State of Chhattisgarh, 2024 LiveLaw (SC) 129

The Police Officer seems to be under an impression that the accused has to appear before him and prove his innocence. Such an approach cannot be countenanced. Md Tauhid v. State of Bihar, 2024 LiveLaw (SC) 106

When there is a fixed term sentence and especially when the appeal is not likely to be heard before completing the entire period of sentence, normally suspension of sentence and bail should be granted. Atul @ Ashutosh v. State of Madhya Pradesh, 2024 LiveLaw (SC) 93

Criminal Justice System

It is the bounden duty of every Court of law that injustice wherever visible must be hammered and the voice of a victim of the crime is dispassionately heard. XXX v. State, 2024 LiveLaw (SC) 110

In recent years the machinery of criminal justice is being misused by certain persons for their vested interests and for achieving their oblique motives and agenda. Courts have therefore to be vigilant against such tendencies and ensure that acts of omission and commission having an adverse impact on the fabric of our society must be nipped in the bud. Vishal Noble Singh v. State of Uttar Pradesh, 2024 LiveLaw (SC) 96

Custodial Violence

The High Court directs the Director General of Police to issue a circular for medical examination of persons brought to police stations for investigation, aiming to curb custodial violence. The State submitted that there cannot be an omnibus direction of this nature and that certain guidelines are required to be framed in that regard. The Supreme Court rejects State's plea to quash direction but permits State to formulate Standard Operating Procedure for guidance. (Para 1 - 7) State U.P v. Ramadhar Kashyap, 2024 LiveLaw (SC) 148

Evidence Law

Appreciation of Evidence – The High Court fails to appreciate evidence in a thorough manner and merely relied on a limited set of facts to arrive at a finding. In an appeal, as much as in a trial, appreciation of evidence essentially requires a holistic view and not a myopic view. Appreciation of evidence requires sifting and weighing of material facts against each other and a conclusion of guilt could be arrived at only when the entire set of facts, lined together, points towards the only conclusion of guilt. Appreciation of partial evidence is no appreciation at all, and is bound to lead to absurd results. (Para 35) Mallappa v. State of Karnataka, 2024 LiveLaw (SC) 115

Ballistic expert - It is not that in each and every case where the death of the victim is due to gunshot injury that the opinion of the ballistic expert should be obtained and the expert be examined. When there is direct eye witness account which is found to be credible, omission to obtain ballistic report and non-examination of ballistic expert may not be fatal to the prosecution case but if the evidence tendered including that of eyewitnesses do not inspire confidence or suffer from glaring inconsistencies coupled with omission to examine material witnesses, the omission to seek ballistic opinion and examination of the ballistic expert may be fatal to the prosecution case. (Para 29) Ram Singh v. State of U.P., 2024 LiveLaw (SC) 144

Circumstantial evidence – Entire case of the prosecution is based on circumstantial evidence. The principles concerning circumstantial evidence are referred to as the “Panchsheel” principles. Essentially, circumstantial evidence comes into picture when there is absence of direct evidence. For proving a case on the basis of circumstantial evidence, it must be established that the chain of circumstances is complete and is consistent with the only conclusion of guilt. The chain of circumstantial evidence is essentially meant to enable the court in drawing an inference and the task of fixing criminal liability on the strength of an inference must be approached with abundant caution. The circumstances sought to be proved by the prosecution are inconsistent and the inconsistencies are unexplained by the prosecution. Drawing an inference of guilt on the basis of inconsistent circumstantial evidence would result into failure of justice. The evidence on record fails the test for the acceptability of circumstantial evidence. (Para 27) Kalinga @ Kushal v. State of Karnataka, 2024 LiveLaw (SC) 142

Circumstantial evidence –In absence of direct evidence, case essentially falls back on circumstantial evidence. The prosecution has failed to complete the chain of circumstances. The circumstances are far from conclusive and a conclusion of guilt could not be drawn from them. To sustain a conviction, the Court must form the view that the accused “must have” committed the offence, and not “may have”. (Para 37 & 38) Mallappa v. State of Karnataka, 2024 LiveLaw (SC) 115

Extra judicial confession – It is considered as a weak type of evidence and is generally used as a corroborative link to lend credibility to the other evidence on record. An extra judicial confession must be accepted with great care and caution. If it is not supported by other evidence on record, it fails to inspire confidence and in such a case, it shall not be treated as a strong piece of evidence for the purpose of arriving at the conclusion of guilt. The prosecution must establish that a confession was indeed made by the accused, that it was voluntary in nature and that the contents of the confession were true. The standard required for proving an extra judicial confession to the satisfaction of the Court is on the higher side and these essential ingredients must be established beyond any reasonable doubt. The standard becomes even higher when the entire case of the prosecution necessarily rests on the extra judicial confession. (Para 14) Kalinga @ Kushal v. State of Karnataka, 2024 LiveLaw (SC) 142

Interested witness – Where a testimony is duly explained and inspires confidence, the Court is not expected to reject the testimony of an interested witness. However, when the testimony is full of contradictions and fails to match evenly with the supporting evidence the Court is bound to sift and weigh the evidence to test its true weight and credibility. (Para 33) Mallappa v. State of Karnataka, 2024 LiveLaw (SC) 115

Ocular Evidence - No doubt, they are members of the family and may be interested persons but their testimony cannot be discarded simply for the reason that they are family members in the scenario of the case that the incident took place inside the house of the deceased Shivanna, where there could not have been any other eyewitnesses other than the family members. The evidence of the aforesaid two eyewitnesses could not be shaken in the cross-examination. (Para 16) Haalesh @ Haleshi @ Kurubara Haleshi v. State of Karnataka, 2024 LiveLaw (SC) 88

Ocular evidence is sufficient to prove the guilt of the accused even if it unmatches with the doctor's expert evidence-Undoubtedly, only one kind of weapon i.e. chopper was used in committing the crime and, therefore, the evidence of the doctor may not be matching with that of the prosecution, but again, the ocular evidence of PW-3 and PW-4 is sufficient enough to prove that only chopper was used as a weapon of crime. In the light of the said evidence of the two eyewitnesses, the suggestion or opinion of the doctor cannot prevail as the opinion based upon probability is weak evidence in comparison to the ocular evidence of eyewitnesses. (Para 21) Haalesh @ Haleshi @ Kurubara Haleshi v. State of Karnataka, 2024 LiveLaw (SC) 88

Power of the High Court to re-appreciate the evidence – There is no inhibition on the High Court to re-appreciate or re-visit the evidence on record. However, such power is a qualified power. For re-appreciating evidence, the court must consider, whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence or whether the finding of the Trial Court is illegal or affected by an error of law or fact or whether the view taken by the Trial Court is a fairly possible view. (Para 25) Mallappa v. State of Karnataka, 2024 LiveLaw (SC) 115

Presumption of constitutionality – The presumption of constitutionality is based on two premises. First, it is based on democratic accountability, that is, legislators are elected representatives who are aware of the needs of the citizens and are best placed to frame policies to resolve them. Second, legislators are privy to information necessary for policy making which the Courts as an adjudicating authority are not. The presumption of constitutionality is rebutted when a prima facie case of violation of a fundamental right is established, upon which the onus would shift to the State to justify the infringement. The broad argument of the petitioners that the presumption of constitutionality should not apply to a specific class of statutes, that is, laws which deal with electoral processes cannot be accepted. Courts cannot carve out an exception to the evidentiary principle which is available to the legislature based on the democratic legitimacy which it enjoys. Association for Democratic Reforms v. Union of India, 2024 LiveLaw (SC) 118

Presumption of innocence – The presumption is in favour of accused, unless proven guilty – The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal. (Para 24) Mallappa v. State of Karnataka, 2024 LiveLaw (SC) 115

Principles of circumstantial evidence – The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. They should exclude every possible hypothesis except the one to be proved. There must be a chain of evidence so complete as not to leave any reasonable ground for the 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. (Para 37) Mallappa v. State of Karnataka, 2024 LiveLaw (SC) 115

Re-appreciation of evidence – Reverse an order of acquittal - The Trial Court had appreciated the entire evidence in a comprehensive sense and the High Court reversed the view without arriving at any finding of perversity or illegality in the order of the Trial Court. The High Court, in exercise of appellate powers, may re-appreciate the entire evidence, however reversal of an order of acquittal is not to be based on mere existence of a different view or a mere difference of opinion. To reverse an order of acquittal in appeal, it is essential to arrive at a finding that the order of the Trial Court was perverse or illegal; or that the Trial Court did not fully appreciate the evidence on record; or that the view of the Trial Court was not a possible view. The High Court took a cursory view of the matter and merely arrived at a different conclusion on a re-appreciation of evidence. (Para 25) Kalinga @ Kushal v. State of Karnataka, 2024 LiveLaw (SC) 142

Reasonable doubt – Minor inconsistencies could not be construed as reasonable doubts for ordering acquittal. A reasonable doubt is essentially a serious doubt which renders the possibility of guilt as highly doubtful. The inconsistencies in the case of the prosecution are not minor inconsistencies and the prosecution has miserably failed to establish a coherent chain of circumstances. The present case does not fall in the category of a light-hearted acquittal. (Para 29) Kalinga @ Kushal v. State of Karnataka, 2024 LiveLaw (SC) 142

Two-views theory – When the appreciation of evidence results into two equally plausible views, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution and reinforces the presumption of innocence of accused. When two views are possible, following the one in favour of innocence of the accused is the safest course of action. It is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by re-appreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of law. (Para 26) Mallappa v. State of Karnataka, 2024 LiveLaw (SC) 115

Witness who was shown in the prosecution list but not examined by prosecution can be summoned as a defence witness. (Para 3 & 4) Sunder Lal v. State of Uttar Pradesh, 2024 LiveLaw (SC) 98

Evidence Act, 1872; Section 113A – Presumption as to abetment of suicide by a married women – The words 'may presume' makes the presumption discretionary. Before the presumption under Section 113A is raised, the prosecution must show (1) that her husband or relatives subjected her to cruelty and (2) that the married woman committed suicide within a period of seven years from the date of her marriage. The presumption would not be automatically applied on the mere fact that the deceased committed suicide within a period of seven years of her marriage. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty, the presumption under Section 113A of the Evidence Act may be raised, having regard to all other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Naresh Kumar v. State of Haryana, 2024 LiveLaw (SC) 166

Evidence Act, 1872; Section 145 and 161 - Accused has a right to cross-examine a police officer as to the recording made in the case diary whenever the police officer uses it to refresh his memory. Similarly, in a case where the court uses a case diary for the purpose of contradicting a police officer, then an accused is entitled to peruse the said statement so recorded which is relevant, and cross-examine the police officer on that count. Although the accused or his agents have no right to seek production of the case diaries as per Section 172(3) of the Code of Criminal Procedure, whenever the police officer uses it to refresh his memory, the accused will get a right to access it for the purpose of cross-examination. (Para 22, 26 & 27) Shailesh Kumar v. State of U.P., 2024 LiveLaw (SC) 162

Evidence Act, 1872; Section 145 and 161 - When a police officer uses a case diary for refreshing his memory, an accused automatically gets a right to peruse that part of the prior statement as recorded in the police officer's diary by taking recourse to Section 145 or Section 161, as the case may be, of the Evidence Act. (Para 26) Shailesh Kumar v. State of U.P., 2024 LiveLaw (SC) 162

Evidence Act, 1872; Section 145 and 161 - While it is the responsibility and duty of the Investigating Officer to make a due recording in his case diary, there is no corresponding right under subsection (3) of Section 172 of CrPC for accused to seek production of such diaries, or to peruse them, except in a case where they are used by a police officer maintaining them to refresh his memory, or in a case where the court uses them for the purpose of contradicting the police officer. In such a case, the provision of Section 145 or Section 161, as the case may be, of the Evidence Act, shall apply. (Para 22) Shailesh Kumar v. State of U.P., 2024 LiveLaw (SC) 162

Evidence Act, 1872; Section 65B – Admissibility of electronic record – Certificate to prove electronic evidence – The call records were discarded by the High Court as there was no certification under Section 65B of the Evidence Act. The Investigating Officer, was not aware of the procedure to be followed for obtaining a certificate under Section 65B of the Evidence Act. The State Government must ensure that the Police Officers are imparted proper training on this aspect. William Stephen v. State of Tamil Nadu, 2024 LiveLaw (SC) 168

Evidence Act, 1872; Section 90 – Presumption for 30 years old documents – If the document is more than 30 years old and is being produced from proper custody, a presumption is available to the effect that signatures and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting and in case a document is executed or attested, the same was executed and attested by the persons by whom it purports to be executed and attested. This does not lead to a presumption that recitals therein are correct. (Para 17) Tehsildar, Urban Improvement Trust v. Ganga Bai Menariya, 2024 LiveLaw (SC) 153

Food Safety and Standards Act, 2006

If a case is registered against an accused for food adulteration under the Indian Penal Code, 1860 (“IPC”), then by virtue of the overriding effect of Section 89 of Food Safety and Standards Act, 2006 (“FSSA”), the proceedings under IPC cannot be continued against the accused. There cannot be simultaneous prosecution under the IPC and FSSA because by virtue of Section 89 of FSSA, Section 59 of FSSA would override the provisions of Sections 272 and 273 of the IPC. Ram Nath v. State of Uttar Pradesh, 2024 LiveLaw (SC) 160

Section 3 (zz) and (zx) - “unsafe food” - the concept of unsafe food is more comprehensive than the concept of adulterated food. Unsafe food means an article of food whose nature, substance or quality is so affected as to render it injurious to health. Substandard food cannot be unsafe food. By adding a substance directly or as an ingredient which is not permitted makes an article of food unsafe food. The presence of any harmful substance in the article of food makes it unsafe food. Therefore, if any adulterant is added to an article of food, which renders the article of food injurious to health, the food article becomes unsafe food. (Para 9 - 11) Ram Nath v. State of Uttar Pradesh, 2024 LiveLaw (SC) 160

Section 273 of the IPC applies when a person sells or, offers or exposes for sale any article of food or drink which has been rendered noxious or has become unfit for food or drink. Section 273 incorporates requirements of knowledge or reasonable belief that the food or drink sold or offered for sale is noxious. Section 59 of the FSSA does not require the presence of intention as contemplated by Section 272 of the IPC. Under Section 59 of the FSSA, a person commits an offence who, whether by himself or by any person on his behalf, manufactures for sale or stores or sells or distributes any article of food for human consumption which is unsafe. So, the offence under Section 59 of the FSSA is made out even if there is an absence of intention as provided in Section 272 of the IPC. (Para 18) Ram Nath v. State of Uttar Pradesh, 2024 LiveLaw (SC) 160

The prosecution under IPC can't be continued because Section 89 of FSSA provides an overriding effect to the provisions of the FSSA over any other law in so far as the law applies to the aspects of food in the field covered by the FSSA. Ram Nath v. State of Uttar Pradesh, 2024 LiveLaw (SC) 160

The title of the section indeed indicates that the intention is to give an overriding effect to the FSSA over all 'food related laws'. However, in the main Section, there is no such restriction confined to 'food related laws', and it is provided that provisions of the FSSA shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. So, the Section indicates that an overriding effect is given to the provisions of the FSSA over any other law. (Para 20) Ram Nath v. State of Uttar Pradesh, 2024 LiveLaw (SC) 160

When the offences under Section 272 and 273 of the IPC are made out, even the offence under Section 59 of the FSSA will be attracted. In fact, the offence under Section 59 of the FSSA is more stringent. (Para 20) Ram Nath v. State of Uttar Pradesh, 2024 LiveLaw (SC) 160

Narcotic Drugs and Psychotropic Substances Act, 1985

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 – Bail to the accused charged in connection with offence involving commercial quantity of a narcotic drug or psychotropic substance – In case of recovery of huge quantities of narcotic substance, the Courts should be slow in granting even regular bail to the accused, more so when the accused is alleged to be having criminal antecedents. The Court would have to mandatorily record the satisfaction in terms of the rider contained in Section 37 of the NDPS Act that there are grounds for believing that the accused is not guilty of the offence alleged and that he is not likely to commit any offence while on bail. The High Court not only omitted to record any such satisfaction, but has rather completely ignored the factum of recovery of narcotic substance, multiple times the commercial quantity. The impugned order is cryptic and perverse on the face of the record and cannot be sustained. Thus, the same is quashed and set aside. State v. B. Ramu, 2024 LiveLaw (SC) 128

Negotiable Instruments Act, 1881

Negotiable Instruments Act, 1881; Section 118 r/w. 139 - Even if a blank cheque leaf is voluntarily signed and handed over by the accused towards some payment would attract the presumption under Section 139 of the Act and in the absence of any cogent evidence to show that the cheque was not issued in discharge of the debt, the presumption would hold good. (Para 5) K. Ramesh v. K. Kothandaraman, 2024 LiveLaw (SC) 145

Negotiable Instruments Act, 1881; Section 118 r/w. 139 - Accused has signed the cheque. The only dispute is with regard to the age of the ink used in making the signature on the cheque and the age of the signature and contents of the cheque. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. (Para 5 & 6) K. Ramesh v. K. Kothandaraman, 2024 LiveLaw (SC) 145

Negotiable Instruments Act, 1881; Sections 138 and 141 - The Director of the company wouldn't be held liable for the dishonor of a cheque issued by the company pursuant to the retirement of the Director unless some credible evidence is brought on record proving the guilt of the director. The director could be held liable for the dishonor of the cheque after his retirement only when it is proved that any act of a company is proved to have been done with the connivance or consent or may be attributable to a director. (Para 10) Rajesh Viren Shah v. Redington (India) Ltd; 2024 LiveLaw (SC) 119

Penal Code, 1860

Commutation of Sentence - The lack of cogent evidence to prove that Accused 3 shared a common intention to commit murder is an important factor to commute a sentence from Section 302 to Section 304 Part II IPC. (Para 29) Velthepu Srinivas v. State of Andhra Pradesh, 2024 LiveLaw (SC) 94

Penal Code, 1860 - Section 304 Part II is in two parts. The section provides for two kinds of punishment to two different situations: Firstly, if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here the important ingredient is the “intention”. Secondly, if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. Here the important ingredient is “knowledge”. (Para 28) Velthepu Srinivas v. State of Andhra Pradesh, 2024 LiveLaw (SC) 94

Penal Code, 1860 – Section 364A – Kidnapping for ransom - Ingredients – There should be a kidnapping or abduction of any person or a person should be kept in detention after such kidnapping or abduction. If the said act is coupled with a threat to cause death or hurt to such person, an offence under Section 364A is attracted. William Stephen v. State of Tamil Nadu, 2024 LiveLaw (SC) 168

Penal Code, 1860 - Section 376 AB - Punishment for rape on woman under twelve years of age - In the instant case, the petitioner-convict was aged 40 years on the date of occurrence and the victim was then only a girl, aged 7 years. Thus, the position is that he used a lass aged 7 years to satisfy his lust. For that the petitioner-convict took the victim to a temple, unmindful of the holiness of the place, disrobed her and himself and then committed the crime. We have no hesitation to hold that the fact he had not done it brutally will not make its commission non-barbaric. (Para 10) Bhaggi @ Bhagirath @ Naran v. State of Madhya Pradesh, 2024 LiveLaw (SC) 87

Penal Code, 1860 – Subjective test of Intention - A person intends a consequence when he (1) foresees that it will happen if the given series of acts or omissions continue, and (2) desires it to happen. The most serious level of culpability, justifying the most serious levels of punishment, is achieved when both these components are actually present in the accused's mind. Naresh Kumar v. State of Haryana, 2024 LiveLaw (SC) 166

Penal Code, 1860; Sections 306 and 417 - Prohibition of Harassment of Woman Act, 2002 (Tamil Nadu); Section 4 - Broken relationships and heartbreaks are part of everyday life. Merely advising a partner to marry as per the advice of parents would not attract the penal provisions of abetment to suicide. There must be direct or indirect acts of incitement to the commission of suicide. The accused must be shown to have played an active role by an act of instigation or by doing certain acts to facilitate the commission of suicide. Where the words uttered are casual in nature and which are often employed in the heat of the moment between quarreling people, and nothing serious is expected to follow from the same, the same would not amount to abetment of suicide. In order to constitute 'instigation', it must be shown that the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide. The words uttered by the accused must be suggestive of the consequence. (Para 10 - 12 & 16) Prabhu v. State, 2024 LiveLaw (SC) 112

Penal Code, 1860; Sections 376, 417 and 420 - Accused is a police officer. The allegation of undue influence and/or unintended favour towards him by the Investigating Officer cannot be brushed aside lightly. The appellant in her application has stated that: (i) respondent no.2 was already married to M and was, thus, disqualified to perform the second marriage; (ii) he being a Government officer, his second marriage during the subsistence of the first marriage would have been a misconduct under the Conduct Rules; and (iii) that the first chargesheet itself suggested that the appellant and respondent no.2 had been living together and were in physical relationship. If that is so, the Investigating Agency ought to have further probed as to whether they have been cohabitating pursuant to the so-called marriage performed on 13.09.2012 and/or it was merely a consensual live-in relationship. Similarly, the Investigating Officer does not appear to have taken any pains to visit the hospital/medical clinics to verify whether the appellant underwent abortion twice. We are not sure whether the statements of the persons living in the neighbourhood were recorded or not to find out whether the appellant and respondent no.2 had been living together as husband and wife. All these facts will have a material bearing on the determination by the Trial Court as to whether a prima facie case under Sections 376, 417 and 420 of IPC is made out or not. XXX v. State, 2024 LiveLaw (SC) 110

Penal Code, 1860; Section 302, 304 (Part II) and 34 - The prosecution has failed to establish common intention of Accused 3 to commit murder of deceased. Held, merely based on the presence of Accused 3 near the scene of offence and his family relations with the other accused, common intention cannot be established. That the trial court and the High Court have mechanically drawn inference against Accused 3 under Section 34. Further, participation of Accused 3 in assault is confirmed. Appeal of Accused 3 is allowed by altering the conviction under Section 302 to Section 304 Part II of IPC due to lack of evidence of common intention to murder. (Para 31) Velthepu Srinivas v. State of Andhra Pradesh, 2024 LiveLaw (SC) 94

Penal Code, 1860; Section 306 – Abetment of Suicide – The basic ingredients to constitute an offence under Section 306 of the IPC are suicidal death and abetment thereof. Oral evidence of witnesses does not disclose any form of incessant cruelty or harassment on the part of the husband which would in ordinary circumstances drag the wife to commit suicide as if she was left with no other alternative. Mere demand of money from the wife or her parents for running a business would not constitute cruelty or harassment. In order to convict an accused under Section 306 IPC, the state of mind to commit a particular crime cannot be assumed to be ostensibly present but has to be visible and conspicuous. It also requires an active act or direct act which led the deceased to commit suicide. Mere harassment is not sufficient to hold an accused guilty of abetting the commission of suicide. The court should look for cogent and convincing proof of the act of incitement to the commission of suicide and such an offending action should be proximate to the time of occurrence. In the absence of any cogent evidence of harassment or cruelty, an accused cannot be held guilty for the offence under Section 306 of IPC by raising presumption under Section 113A. Naresh Kumar v. State of Haryana, 2024 LiveLaw (SC) 166

Penal Code, 1860; Section 361 & 363 – Kidnapping from lawful guardianship – 'Kidnapping' within the meaning of Section 361 of IPC was established by the prosecution. Held, there was no reason for the father of the victim to falsely implicate the appellants and tutor the child to depose against them. Hence, the accused is convicted for the lesser offence of kidnapping defined by Section 361 of IPC, which is punishable under Section 363 of IPC. William Stephen v. State of Tamil Nadu, 2024 LiveLaw (SC) 168

Penal Code, 1860; Section 364A – Kidnapping for ransom not established – Mere Demand For Ransom without a threat to death or hurt would not Amount to offence under Section 364A. The ingredients of Section 364A of IPC were not proved by the prosecution in as much as the prosecution failed to lead cogent evidence to establish the second part of Section 364A about the threats given by the accused to cause death or hurt to such person. Only if the threats given to the parents or the close relatives of the kidnapped person by the accused was established, then a case could be made out that there was a reasonable apprehension that the person kidnapped may be put to death or hurt may be caused to him. Conviction of the appellants for the offence punishable under Section 364A of IPC is set aside. William Stephen v. State of Tamil Nadu, 2024 LiveLaw (SC) 168

Penal Code, 1860; Section 417 - Mere non-performance of marriage by accused at booked marriage hall does not constitute commission of offense of cheating. (Para 8) Raju Krishna Shedbalkar v. State of Karnataka, 2024 LiveLaw (SC) 158

Penal Code, 1860; Sections 406 and 506 - The ingredients to allege the offence are neither stated nor can be inferred from the averments. A prayer is made to the police for recovery of money from the appellants. The police is to investigate the allegations which discloses a criminal act. Police does not have the power and authority to recover money or act as a civil court for recovery of money. Lalit Chaturvedi v. State of Uttar Pradesh, 2024 LiveLaw (SC) 150

Penal Code, 1860; Sections 406, 419, 420, 467, 468, 471 and 120B - On a reading of the FIR as well as the charge-sheet, we do not find that the offences aforestated is made out at all. We do not find any criminal breach of trust nor any cheating by impersonation. There is also no cheating and dishonestly inducing delivery of property, nor has any documents referred to any forgery or security or any forgery for the purpose of cheating. There is no reference to any document which has been forged so as to be used as a genuine document and much less is as there any criminal conspiracy which can be imputed to the appellants herein in the absence of any offence being made out vis-a-vis the aforesaid Sections. (Para 17) Vishal Noble Singh v. State of Uttar Pradesh, 2024 LiveLaw (SC) 96

Penal Code, 1860; Sections 420, 467, 468, 471, 323, 504 and 506 - Gangsters and Anti-Social Activities (Prevention) Act, 1986 (Uttar Pradesh); Section 2(b)(i) and 3(1) - “Gang” - Meaning of - the person alleged to be the member of the gang should be found indulging in anti-social activities which would be covered under the offences punishable under Chapters XVI, or XVII or XXII IPC. For framing a charge for the offence under the Gangsters Act and for continuing the prosecution of the accused under the above provisions, the prosecution would be required to clearly state that the accused are being prosecuted for any one or more offences covered by anti-social activities as defined under Section 2(b). (Para 12 & 13) Farhana v. State of Uttar Pradesh, 2024 LiveLaw (SC) 131

Penal Code, 1860; Sections 499 and 500 - Petitioner described all Gujarati people as “thugs”. It is true that every prosecution for defamation cannot be quashed on the ground that the offending allegations have been withdrawn. After the petitioner has explained the context in which he made the statements and after withdrawal of those statements, in the facts of the case, it is unjust to continue the prosecution. No purpose will be served by continuing the prosecution. Therefore, in the peculiar facts of the case, this is a fit case to quash the complaint. (Para 8 - 10) Tejashwi Prasad Yadav v. Hareshbhai Pranshankar Mehta, 2024 LiveLaw (SC) 113

Penal Code. 1860; Section 149 - If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence-A plain reading of the provision abundantly makes clear that an overt act of some of the accused persons of an unlawful assembly with the common object to kill the deceased Shivanna and to cause grievous hurt to the other family members is enough to rope in all of them for an offence under Section 302 IPC in aid with Section 149 IPC. (Para 20) Haalesh @ Haleshi @ Kurubara Haleshi v. State of Karnataka, 2024 LiveLaw (SC) 88

Police Act, 1861

The information disclosing the commission of the cognizable offence needs to be recorded as a First Information Report (FIR) in the form of a book and not in the General Diary maintained by the Police. (Para 28) Shailesh Kumar v. State of U.P., 2024 LiveLaw (SC) 162

Prevention of Money Laundering Act, 2002

A very strange and unusual Writ Petitions have been filed by the State against the Directorate of Enforcement under Article 226 of the Constitution of India, before the High Court seeking relief, which would indirectly stall or delay the inquiry/investigation. The Writ Petitions filed, at the instance of the State Government, challenging summons issued to the District Collectors prima facie appears to be thoroughly misconceived, and the impugned order passed by the High Court also being under utter misconception of law. Directorate of Enforcement v. State of Tamil Nadu, 2024 LiveLaw (SC) 172

Prisoner

Guidelines and standard operating procedure for implementation of the scheme for support to poor prisoners. Satender Kumar Antil v. Central Bureau of Investigation, 2024 LiveLaw (SC) 151

Unlawful Activities (Prevention) Act, 1967

Unlawful Activities (Prevention) Act, 1967; Section 43D(5) and Code of Criminal Procedure, 1973; Section 439 – Section 43D(5) of the UAP Act modifies the application of the general bail provisions in respect of offences punishable under Chapter IV and Chapter VI of the UAP Act. Bail must be rejected as a 'rule', if after hearing the public prosecutor and after perusing the 'final report' or 'Case Diary', the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It is only if the test for rejection of bail is not satisfied, that the Courts would proceed to decide the bail application in accordance with the 'tripod test' (flight risk, influencing witnesses, tampering with evidence). The restrictions, on granting of bail in section 43D(5) are in addition to the restrictions under the Code of Criminal Procedure or any other law for the time being in force on grant of bail. The conventional idea in bail jurisprudence 'bail is the rule, jail is the exception' does not find any place while dealing with bail applications under UAP Act. The 'exercise' of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D(5) - 'shall not be released', in contrast with the form of the words as found in Section 437(1) CrPC - 'may be released', suggests the intention of the Legislature to make bail, the exception and jail, the rule. (Para 17, 18 & 20) Gurwinder Singh v. State of Punjab, 2024 LiveLaw (SC) 100