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Supreme Court Criminal Digest April...

Supreme Court Criminal Digest April 2024

LIVELAW NEWS NETWORK

3 Jun 2024 10:15 AM IST

Code of Criminal Procedure, 1973

Object and purpose of police investigation – Includes the need to ensure transparent and free investigation to ascertain the facts, examine whether or not an offence is committed, identify the offender if an offence is committed, and to lay before the court the evidence which has been collected, the truth and correctness of which is thereupon decided by the court. (Para 26) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337

Issue of non-bailable warrant – Held, non-bailable warrants cannot be issued in a routine manner and that the liberty of an individual cannot be curtailed unless necessitated by the larger interest of public and the State. Nonbailable warrants should not be issued, unless the accused is charged with a heinous crime, and is likely to evade the process of law or tamper/destroy evidence. (Para 46) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337

Section 173(2) – Contents of chargesheet – The need to provide lead details of the offence in the chargesheet is mandatory as it is in accord with paragraph 122 of the police regulations. The investigating officer must make clear and complete entries of all columns in the chargesheet so that the court can clearly understand which crime has been committed by which accused and what the material evidence available. Statements under Section 161 of the Code and related documents have to be enclosed with the list of witnesses. Substantiated reasons and grounds for an offence being made in the chargesheet are a key resource for a Magistrate to evaluate whether there are sufficient grounds for taking cognisance, initiating proceedings, and then issuing notice, framing charges etc. (Para 20, 31 & 31) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337

Section 173(2), 190 & 204 – There is an inherent connect between the chargesheet submitted under Section 173(2) of the Code, cognisance which is taken under Section 190 of the Code, issue of process and summoning of the accused under Section 204 of the Code, and thereupon issue of notice under Section 251 of the Code, or the charge in terms of Chapter XVII of the Code. The details set out in the chargesheet have a substantial impact on the efficacy of procedure at the subsequent stages. The chargesheet is integral to the process of taking cognisance, the issue of notice and framing of charge, being the only investigative document and evidence available to the court till that stage. (Para 20) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337

Section 173(8) – The requirement of “further evidence” or a “supplementary chargesheet” as referred to under Section 173(8) of the Code, is to make additions to a complete chargesheet, and not to make up or reparate for a chargesheet which does not fulfil requirements of Section 173(2) of the Code. (Para 13) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337

Section 190(1)(a) – To treat Protest Petition as complaint – Once additional evidence was being relied upon which had been filed along with the Protest Petition then the only option open was to treat it as a private complaint proceeded to take cognizance under Section 190(1)(a) CrPC after following the due procedure in Chapter XV of the CrPC. Held, CJM took into consideration not only the Protest Petition but also the affidavit filed in support of the Protest Petition for taking cognizance and summoning the accused. Magistrate ought to have treated the Protest Petition as a complaint and followed the provisions and the procedure prescribed under Chapter XV of the CrPC. (Para 5, 7 & 11) Mukhtar Zaidi v. State of Uttar Pradesh, 2024 LiveLaw (SC) 315

Section 204 – Issue of summons – Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issue of summons and this is not a prerequisite for deciding the validity of the summons. Nevertheless, the summons should be issued when it appears to the Magistrate that there is sufficient ground for proceeding against the accused. The Magistrate in terms of Section 204 of the Code is required to exercise his judicial discretion with a degree of caution, even when he is not required to record reasons, on whether there is sufficient ground for proceeding. (Para 17) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337

Section 205 – Dispense with personal appearance of accused – Section 205 states that the Magistrate, exercising his discretion, may dispense with the personal attendance of the accused while issuing summons, and allow them to appear through their pleader. Held, there is no provision for granting exemption from personal appearance prior to obtaining bail, is not correct, as the power to grant exemption from personal appearance under the Code should not be read in a restrictive manner as applicable only after the accused has been granted bail. (Para 47) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337

Section 294 – No formal proof of certain documents – The essential ingredient of Section 294(1) of the Cr.PC is that when any document is produced by the prosecution or the accused, the parties shall be called upon to admit or deny the genuineness of each such document. In this case, it is nobody's case that the appellant-accused was called upon to admit or deny the genuineness of the WhatsApp chats. (Para 21) Pankaj Singh v. State of Haryana, 2024 LiveLaw (SC) 274

Section 378 – Appeal against acquittal – Scope of interference by an appellate Court – Grounds for reversing the judgment of acquittal recorded by the trial Court: (i) That judgment of acquittal suffers from patent perversity; (ii) That the same is based on a misreading/omission to consider material evidence on record; (iii) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record. Held, none of these essential mandates governing an appeal against acquittal were adverted to by the High Court. Hence, impugned judgment reversing acquittal into conviction, as recorded by the trial Court is contrary to the principles established by law. (Para 39, 41 & 42) Babu Sahebagouda Rudragoudar v. State of Karnataka, 2024 LiveLaw (SC) 316

Section 389 – Suspension of sentence pending an appeal by convicted person – Section 389 deals with the suspension of execution of sentence pending the appeal against conviction and release of appellant(s) on bail. In the case of short-term imprisonment for conviction of an offence, suspension of sentence is the normal rule and its rejection is the exception. The provision mandates for recording of reasons in writing leading to the conclusion that the convicts are entitled to get suspension of sentence and consequential release on bail. (Para 3 & 4) Shivani Tyagi v. State of U.P., 2024 LiveLaw (SC) 333

Section 389 – Suspension of sentence pending an appeal by convicted person – Grounds of suspension of sentence in heinous crimes – Likelihood of delay and sufferance of incarceration for a particular period, cannot be grounds for invoking power under Section 389 Cr.PC. It is because disposal of appeals against conviction within a short span of time may not be possible in a number of pending cases. However, in cases of inordinate delay in consideration of appeal and long incarceration undergone, the power under Section 389 can be invoked. (Para 9 & 11) Shivani Tyagi v. State of U.P., 2024 LiveLaw (SC) 333

Section 389 – Compensation to victim for grant of suspension of sentence – “Blood Money” – The convicts have offered to pay compensation to the victim for grant of suspension of sentence, which when she refused to accept, was directed to be deposited in the court. Held, the compensation was in a way kind of “Blood Money” offered by the convicts to the victim for which there is no acceptability in our criminal justice system. (Para 13) Shivani Tyagi v. State of U.P., 2024 LiveLaw (SC) 333

Section 389 – Suspension of sentence in heinous crimes – Principle of proportionality – Held, if the appropriate punishment is not awarded or if, after conviction for a heinous crime, the court directs the suspension of the sentence without valid reasons, the purpose of criminal justice system fails. (Para 6) Shivani Tyagi v. State of U.P., 2024 LiveLaw (SC) 333

Section 439 and National Investigation Agency Act, 2008; Section 21(2) – Jurisdiction of High Court to entertain Bail application – The jurisdiction of the High Court to consider the question of bail is coordinate with that of the Sessions Court and it has evolved as a matter of practice that an accused seeking bail ought to approach the Sessions Court before approaching the High Court. Further, the High Court adopted proper course while exercising jurisdiction under Section 439 of the 1973 Code to refer the matter to a Division Bench to decide the bail plea in accordance with Section 21(2) of the 2008 Act. (Para 12) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280

Section 451 – Custody and disposal of the property pending an inquiry or trial – When any property is produced before any criminal court during the course of inquiry or trial, it is the criminal court which would have the jurisdiction and the power to pass appropriate orders for the proper custody of such property or for selling or disposing of such property. The appellant without approaching the concerned court under Section 451 of CrPC, directly approached the High Court under Article 226/227 of the Constitution of India. Held, when there is a specific statutory provision contained in the CrPC. empowering the criminal court to pass appropriate order for the proper custody and disposal of the property pending the inquiry or trial, the appellant could not have invoked the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India seeking release of his vehicle. (Para 5 & 6) Khengarbhai Lakhabhai Dambhala v. State of Gujarat, 2024 LiveLaw (SC) 289

Whether prior sanction is mandatory for a Magistrate to forward a complaint against a public servant for investigation as per Section 156(3) CrPC. This issue was referred to a larger bench in 2018 in the case Manju Surana v. Sunil Arora. The issue was of wide relevance and was arising in several matters frequently, an earlier decision on the question referred is solicited. Shamim Khan v. Debashish Chakraborty, 2024 LiveLaw (SC) 305

Constitution of India

Article 21 – Pre-conviction detention – Liberty of a pre-trial detenue – Detention before conclusion of trial at the investigation and post-chargesheet stage has the sanction of law but any form of deprival of liberty results in breach of Article 21 of the Constitution of India and must be justified on the ground of being reasonable, following a just and fair procedure. Pre-conviction detention must be proportionate in the facts of a given case depending on gravity and seriousness of the offence alleged to have been committed. (Para 38) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280

Article 142 – Quashing of criminal proceedings – There is nothing on record to show that the appellant had any ill intention of cheating or defrauding the complainant. The transaction between the parties was purely civil in nature which does not attract criminal law in any way. Held, all pending criminal appeals is liable to be quashed. (Para 13) Raj Reddy Kallem v. State of Haryana, 2024 LiveLaw (SC) 336

Corruption

Public Interest Litigation - Allegations of faulty contracts awarded by the State of Arunachal Pradesh to near relatives of the then Chief Minister. Direction for examination by the Comptroller and Auditor General of India (CAG). Voluntary Arunachal Sena v. State of Arunachal Pradesh, 2024 LiveLaw (SC) 283

Criminal Law

Quashing of FIR – Second FIR on the same set of allegations – Held, respondent had been misusing their official position by lodging complaints one after the other. Further, their conduct of neither appearing before the Trial Court nor withdrawing their first complaint, would show that their only intention was to harass the appellant by first making him face a trial at both the places. Second FIR quashed. (Para 11 & 12) Parteek Bansal v. State of Rajasthan, 2024 LiveLaw (SC) 317

Power of appellate court in reversal of acquittal – Unless the finding of acquittal is found to be perverse or impossible, interference with the same would not be warranted. Held, no perversity or impossibility could be found in the approach adopted by the learned trial Judge. The elaborate exercise of the trial Judge, has been washed away by the High Court in a totally cursory manner. The judgment of High Court is based on conjectures and surmises. Impugned judgment of High Court is quashed and accused persons are acquitted. (Para 9, 14, 19 & 23) Ballu @ Balram @ Balmukund v. State of Madhya Pradesh, 2024 LiveLaw (SC) 271

Setting aside of summoning order by the High Court is challenged – For summoning of an accused, prima facie case made out on the basis of allegations in the complaint and the pre-summoning evidence led by the complainant is sufficient – Held, the Session Court and High Court, have erred in not taking into account certain facts which makes a prima facie case against the accused for the offences for which they were summoned. Hence, prima facie case made out for issuing process against the accused to face trial. (Para 12.1 & 15) Aniruddha Khanwalkar v. Sharmila Das, 2024 LiveLaw (SC) 332

Evidence Law

Standard of proof – Beyond reasonable doubt – The prosecution has failed to prove the appellant's guilt beyond a reasonable doubt. Hence, the impugned orders cannot be sustained, and they are hereby quashed and set aside. (Para 23) Pankaj Singh v. State of Haryana, 2024 LiveLaw (SC) 274

Standard of proof – In civil cases including matrimonial disputes of a civil nature, the standard of proof is not proof beyond reasonable doubt 'but' the preponderance of probabilities tending to draw an inference that the fact must be more probable. Inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. If there are no positive proved facts - oral, documentary, or circumstantial - from which the inferences can be drawn, the method of inference would fail and what would remain is mere speculation or conjecture. Held, weighing the evidence on preponderance of probabilities, it is the appellant who has established a stronger and more acceptable case. (Para 19, 20 & 35) Maya Gopinathan v. Anoop S.B., 2024 LiveLaw (SC) 327

Tutored Witness – Benefit of doubt – Held, evidence of the PW2 – PW5 will have to be discarded as there is a distinct possibility that the said witnesses were tutored by the police on a day before it was recorded by trial court. This kind of interference by the Police with the judicial process, amounts to gross misuse of power by the Police machinery. Hence, there is a serious doubt created about the genuineness of the prosecution case and the benefit of this substantial doubt must be given to the appellants. Therefore, both the Sessions Court and the High Court have committed an error in convicting the appellants. (Para 8 & 9) Manikandan v. State by the Inspector of Police, 2024 LiveLaw (SC) 281

Conviction on the basis of circumstantial evidence – Prosecution to prove case beyond reasonable doubt – It is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. It is a primary principle that the accused 'must be' and not merely 'may be' proved guilty before a court can convict the accused. The facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. 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 probabilities the act must have been done by the accused. The suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt and an accused cannot be convicted on the ground of suspicion. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt. Held, the prosecution has failed to prove any of the incriminating circumstances beyond reasonable doubt and in no case, the chain of circumstances, which was so interlinked to each other that leads to no other conclusion, than the guilt of the accused persons. Held, the findings of the learned trial Judge are based on correct appreciation of the material placed on record. (Para 6, 7 & 13) Ballu @ Balram @ Balmukund v. State of Madhya Pradesh, 2024 LiveLaw (SC) 271

Circumstantial evidence – Proof of case based on circumstantial evidence – Circumstances from which the conclusion of the guilt is to be drawn should be fully established. The accused 'must be' and not merely 'may be' proved guilty before a court can convict the accused. It is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved'. The facts so established should be consistent only with the guilt of the accused. 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, and is presumed to be innocent unless proved guilty beyond a reasonable doubt. Held, chain of circumstances as complete as leading to only the guilt of accused, not established. (Para 9) Ravishankar Tandon v. State of Chhattisgarh, 2024 LiveLaw (SC) 296

Documentary evidence – The photocopy of a document is inadmissible in evidence. (Para 36) Manisha Mahendra Gala v. Shalini Bhagwan Avatramani, 2024 LiveLaw (SC) 301

Evidence Act, 1872

Section 6 – Res gestae – Relevancy of facts forming part of same transaction – It is based on spontaneity and immediacy of such statement or fact in relation to the fact in issue. Provided that if there was an interval which ought to have been sufficient for purpose of fabrication then the statement recorded, even with slight delay may not be part of res gestae. Held, idea of search of the house of Accused No. 4, is an afterthought with an admitted time gap of 4045 minutes. The search conducted at the residence of the Accused No. 04 is not a continuance of action based on the secret information received. (Para 27 & 28) Najmunisha v. State of Gujarat, 2024 LiveLaw (SC) 298

Section 25 – Confession before a police officer – The bar under Section 25 of the IEA 1872 is not applicable against the admissibility of confessional statement made to the officers empowered under Section 41 and 42 of the NDPS Act 1985. (Para 50) Najmunisha v. State of Gujarat, 2024 LiveLaw (SC) 298

Section 27 – Discovery – It is only so much of the information as relates distinctly to the fact thereby discovered would be admissible. It will be necessary for the prosecution to establish that, the information given by the accused while in police custody had led to the discovery of the fact, which was distinctly within the knowledge of the maker of the statement. Held, the prosecution will have to establish that, before the information given by the accused persons on the basis of which the dead body was recovered, nobody had the knowledge about the existence of the dead body at the place from where it was recovered. A perusal of the evidence reveals that the police as well as these witnesses knew about the death and the dead body being found prior to the statements of the accused persons being recorded under Section 27. Hence, the prosecution has failed to prove that the discovery of the dead body was only on the basis of the disclosure statement made by the accused persons under Section 27 and that nobody knew about the same before that. (Para 13, 14, 21 & 22) Ravishankar Tandon v. State of Chhattisgarh, 2024 LiveLaw (SC) 296

Section 27 – Discovery – Rationale behind the provision – If a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and it can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused. (Para 13) Ravishankar Tandon v. State of Chhattisgarh, 2024 LiveLaw (SC) 296

Section 27 – To prove disclosure statement and the discoveries made in furtherance – The statement of an accused recorded by a police officer under Section 27 of the Evidence Act is basically a memorandum of confession of the accused recorded by the Investigating Officer (IO) during interrogation and taken down in writing. The confessional part of such statement is inadmissible and only the part which distinctly leads to discovery of fact is admissible in evidence. Held, mere exhibiting of memorandum prepared by the IO during investigation cannot tantamount to proof of its contents and the IO, while testifying on oath, would be required to narrate the sequence of events which transpired leading to the recording of the disclosure statement. By the interrogation memos, it is clear that the IO gave no description of the disclosure statements. Hence, the disclosure statements cannot be read in evidence and the recoveries made in furtherance thereof are non est in the eyes of law. (Para 59, 65 & 66) Babu Sahebagouda Rudragoudar v. State of Karnataka, 2024 LiveLaw (SC) 316

Section 60 – Oral evidence must be direct – The section mandates that no secondary/hearsay evidence can be given in case of oral evidence, except for the circumstances enumerated in the section. In case of a person who asserts to have heard a fact, only his evidence must be given in respect of the same. (Para 61) Babu Sahebagouda Rudragoudar v. State of Karnataka, 2024 LiveLaw (SC) 316

Section 114A – Applicability of presumption as to absence of consent for offences under Section 376(2) – The condition precedent for applicability of Section 114A is that the prosecution must be for the offence of rape under various clauses set out under Section 376(2) of the IPC. No charge was framed against the appellant accused for the offence punishable under Section 376(2)(f) of the IPC. In the absence of the charge framed under Section 376(2)(f) of the IPC, neither the prosecution nor the victim can contend that Section 376(2)(f) of the IPC was applicable. Therefore, the presumption under Section 114A of the Evidence Act will not apply, and the burden will be on the prosecution to prove that the sexual intercourse was without the consent of the Prosecutrix. (Para 11) Pankaj Singh v. State of Haryana, 2024 LiveLaw (SC) 274

Narcotics Drugs and Psychotropic Substances Act, 1985

Can accused get default bail if FSL report isn't submitted with chargesheet within prescribed time? The Supreme Court refers to the Larger Bench. Hanif Ansari v. State (Govt of NCT of Delhi), 2024 LiveLaw (SC) 302

Sections 41 & 42 – Mandatory compliance of procedure before search – Power of Magistrate and an Officer of Gazetted rank to issue warrant – Empowers a Magistrate to issue search warrant for the arrest of any person or for search, whom he has reason to believe to have committed any offence under the provisions of the NDPS Act 1985. As per Section 41(2), such reason to believe must arise from either personal knowledge or information given by any person to him and is required to be reduced into writing. The search conducted at the house of Accused No. 01 and Accused No. 04 was not based on the personal knowledge, rather it was an action bereft of mandatory statutory compliance of Section 41(2). The raid at the house of the Accused No. 01 and Accused No. 04 is in violation of the statutory mandate of Section 41(2) of the NDPS Act 1985. (Para 32, 42, 46 & 47) Najmunisha v. State of Gujarat, 2024 LiveLaw (SC) 298

Section 42(1) – Power of search and seizure under Section 41(2) of the NDPS Act 1985, is inherently limited by the recognition of fundamental rights by the Constitution as well as statutory limitations. Article 20(3) of the Constitution would not be affected by the provisions of search and seizure. The statutory provisions conferring authorities with the power to search and seize are a mere temporary interference with the right of the accused as they stand well regulated by reasonable restrictions emanating from the statutory provisions itself. (Para 41) Najmunisha v. State of Gujarat, 2024 LiveLaw (SC) 298

Section 42(1) – Power of entry, search, seizure and arrest without warrant or authorisation – The provision obligates an officer empowered by virtue of Section 41(2) to record the information received from any person regarding an alleged offence under Chapter IV of the NDPS Act 1985 or record the grounds of his belief as per the Proviso to Section 42(1), in case an empowered officer proceeds on his personal knowledge. The grounds of belief is to be conveyed to the immediate official superior, prior to the search and in case of any inability to do so, the Section 42(2) provides that a copy of the same shall be sent to the concerned immediate official superior along with grounds of his belief as per the proviso. Absolute noncompliance of the statutory requirements under the Section 42(1) and (2) of the NDPS Act 1985 is verboten. However, any delay in the said compliance may be allowed considering the same is supported by well-reasoned explanations for such delay. (Para 31) Najmunisha v. State of Gujarat, 2024 LiveLaw (SC) 298

Section 67 – Evidentiary value of confessional statements recorded under Section 67 – Information received under section 67 is not in the nature of a confessional statement. Such statements cannot be used against the accused. (Para 51 & 53) Najmunisha v. State of Gujarat, 2024 LiveLaw (SC) 298

National Investigation Agency Act, 2008

National Investigation Agency Act, 2008; Section 22(1) & 22(3) – Power of Chief Judge cum City Sessions Court for trial of offences set out in the Schedule to the NIA Act – The State Government has been given exclusive power under Section 22(1) to constitute one or more Special Courts for trial of offences under any or all the enactments specified in the Schedule to NIA Act. The jurisdiction conferred by this Act on a Special Court shall, until a Special Court is designated by the State Government, be exercised by the Court of Session of the division in which such offence has been committed. Held, the State has not constituted a special court under Section 22, hence, the Chief Judge cum City Sessions Court had the power and jurisdiction to deal with the case by virtue of Section 22 (3). Hence, the order of Chief Judge cum City Sessions Court permitting the addition of the offences under UAPA to the case does not suffer from any illegality or infirmity. (Para 23, 24, 28, 29 & 30) State of West Bengal v. Jayeeta Das, 2024 LiveLaw (SC) 312

Negotiable Instruments Act, 1881

Section 138 – Civil and Criminal course adopted on same issue – Whether, a criminal proceeding can be initiated and the accused therein held guilty, in connection with a transaction, in respect of which a decree by a competent Court of civil jurisdiction, already stands passed? Held, civil court judgments are not binding on criminal courts, but the ratio of the civil proceedings would be binding on criminal proceedings for certain limited purposes such as sentence or damages imposed by the criminal court. The Court in criminal jurisdiction would be bound by the civil Court having declared the cheque to be only for the purposes of security. The civil Court having declared the cheque (subject matter of dispute) to be only for the purposes of security, the criminal proceedings for cheque dishonour under Section 138 of the Negotiable Instruments Act would be unsustainable in law and, therefore liable to be quashed and set aside. The damages as imposed by the Courts must be returned to the appellant. (Para 8, 11 & 12) Prem Raj v. Poonamma Menon, 2024 LiveLaw (SC) 272

Section 138 – Dishonouring of cheque – Held, existence of any “enforceable debt or other liability” not found. Petitioner's case not made out. (Para 11) Rajco Steel Enterprises v. Kavita Saraff, 2024 LiveLaw (SC) 306

Section 138 - Amendment of Complaint - Cheque Date - Typographical Error - The appellant challenged the High Court's decision permitting the respondent to amend the complaint to correct the date on a cheque from 22.07.2010 to 22.07.2012. The application for amendment was filed after evidence had been tendered, and the learned Magistrate rejected the amendment on the grounds that the date had been consistently recorded as 22.07.2010 in both the complaint and the evidence. The legal notice issued before the complaint also mentioned the date 22.07.2010. The High Court allowed the amendment, but the Supreme Court found that the amendment was not justified since the original date was crucial for compliance with the statutory time frame and the financial status of the account. The High Court's order permitting the amendment was set aside, and the appeal was allowed. Munish Kumar Gupta v. Mittal Trading Company, 2024 LiveLaw (SC) 339

Section 138 – Requirement of 'consent' in compounding of offence under section 138 – Even though compensation is duly paid by the accused, yet if the complainant does not agree for the compounding of the offence, the courts cannot compel the complainant to give 'consent' for compounding of the matter. Held, as the complainant has compensated the complainant and has already been in jail for more than 1 year, even though the complainant is unwilling to compound the case, the proceedings must come to an end. (Para 12 & 14) Raj Reddy Kallem v. State of Haryana, 2024 LiveLaw (SC) 336

Section 147 & 138 – Compoundable offence – All offences punishable under the Negotiable Instruments Act are compoundable – In cases of section 138 the accused must try for compounding at the initial stages instead of the later stage, however, there is no bar to seek the compounding of the offence at later stages of criminal proceedings including after conviction. (Para 12) Raj Reddy Kallem v. State of Haryana, 2024 LiveLaw (SC) 336

Penal Code, 1860

Section 120B and Prevention of Money-Laundering Act, 2002; Section 2(1) (y) – Schedule offence – Offence punishable under Section 120B of the IPC could become a scheduled offence only if the conspiracy alleged is of committing an offence which is included in the Schedule to the PMLA. Held, the offences alleged in the complaint except Section 120-B of IPC are not scheduled offences within the meaning of Section 2(1) (y) of the PMLA. (Para 2, 3) Yash Tuteja v. Union of India, 2024 LiveLaw (SC) 310

Section 376(2) (f) – Fiduciary relationship – Held, appellant was not in a position of trust towards the prosecutrix. Hence, there was no fiduciary relationship between the appellant-accused and the Prosecutrix. (Para 7 & 11) Pankaj Singh v. State of Haryana, 2024 LiveLaw (SC) 274

Section 406 – Criminal breach of trust – Section 406 requires entrustment, which carries the implication that a person handing over any property or on whose behalf the property is handed over, continues to be the owner of the said property. Further, the person handing over the property must have confidence in the person taking the property to create a fiduciary relationship between them. A normal transaction of sale or exchange of money/consideration does not amount to entrustment. (Para 36) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337

Section 406 – Dishonest misappropriation of 'Stridhan' – Entrustment of stridhan property with dominion over such property to the husband or to any member of his family as well as dishonest misappropriation of or conversion to his own use the said property by the husband or such other member of his family is an offence under Section 406 – Held, admittedly there is no criminal offence claimed and, therefore, proof on balance of probabilities would be sufficient. (Para 21) Maya Gopinathan v. Anoop S.B.,, 2024 LiveLaw (SC) 327

Section 415 – Cheating – The offence of cheating requires dishonest inducement, delivering of a property as a result of the inducement, and damage or harm to the person so induced. The offence of cheating is established when the dishonest intention exists at the time when the contract or agreement is entered, for the essential ingredient of the offence of cheating consists of fraudulent or dishonest inducement of a person by deceiving him to deliver any property, to do or omit to do anything which he would not do or omit if he had not been deceived. (Para 37) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337

Section 506 – Criminal intimidation – An offence of criminal intimidation arises when the accused intendeds to cause alarm to the victim, though it does not matter whether the victim is alarmed or not. The word 'intimidate' means to make timid or fearful, especially: to compel or deter by or as if by threats. The threat communicated or uttered by the person named in the chargesheet as an accused, should be uttered and communicated by the said person to threaten the victim for the purpose of influencing her mind. The word 'threat' refers to the intent to inflict punishment, loss or pain on the other. Mere expression of any words without any intent to cause alarm would not be sufficient to bring home an offence under Section 506 of the IPC. (Para 38) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337

Prevention of Money-Laundering Act, 2002

Section 2(1) (y), 2(1) (u) & 3 and Criminal Procedure Code, 1973; Section 203 & 204 – Schedule offence – In absence of scheduled offence, there cannot be any proceeds of crime within the meaning Section 2(1) (u) of the PMLA. Proceeds of crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property. Existence of the proceeds of crime is a condition precedent for the applicability of Section 3 of the PMLA. If there are no proceeds of crime, the offence under Section 3 of the PMLA is not made out. Hence, there is no need of the Special Court to apply its mind in accordance with Section 203 r.w 204 of the Cr.PC to find out whether a prima facie case is made out or not. (Para 4, 6 & 7) Yash Tuteja v. Union of India, 2024 LiveLaw (SC) 310

Protection of Children from Sexual Offences Act, 2012

Protection of Children from Sexual Offences Act, 2012 - Failure to mask victim's identity in POCSO case - Sensitization of Judicial and Police Officers ordered - In this order, the court considers an application for anticipatory bail in a case under the POCSO Act. While denying bail, the court notes a violation of Section 33(7) of the POCSO Act and Section 228A of the IPC regarding the disclosure of the victim's identity. Citing the importance of safeguarding the victim's identity, the court directs the need for sensitization of judicial and police officers in West Bengal to ensure compliance with these provisions. The order emphasizes that disclosing the victim's identity is permissible only in specific circumstances for the child's best interest. The court orders a copy of the order to be forwarded to the Registrar General of the High Court of Calcutta for further action. Utpal Mandal @ Utpal Mondal v. State of West Bengal, 2024 LiveLaw (SC) 282

Unlawful Activities (Prevention) Act, 1967

Section 2(1) (d) & 43D (2) and Criminal Procedure Code, 1973; Section 167(2) – Power to extend remand beyond 90 days – Under section 43D power is given to 'the court' to extend and authorise detention of the accused beyond a period of 90 days. As per section 2(1) (d), 'The court' would mean jurisdiction of a normal criminal Court and also includes a Special Court constituted under Section 11 or Section 22 of the NIA Act. Hence, the Chief Judge cum City Sessions Court had the jurisdiction to pass the order of extension of detention beyond 90 days. Held, the jurisdictional Magistrate would be clothed with the jurisdiction to deal with the remand of the accused albeit for a period of 90 days only under Section 167(2) of CrPC, because for authorising remand beyond 90 days, an express order of the Sessions Court or the Special Court, as the case may be, would be required by virtue of Section 43D (2) of UAPA. Hence, order of extension of remand by Chief Metropolitan Magistrate beyond the period of 90 days, was illegal. (Para 33, 35, 36, 37) State of West Bengal v. Jayeeta Das, 2024 LiveLaw (SC) 312

Section 15 & 16 of the 1967 Act –Terrorist act – Section 15(1) refers to certain acts which would constitute a terrorist act. To qualify for being a terrorist act, an act must be done with intent to threaten or likely to threaten the unity, integrity, security, economic security or sovereignty of India or such act must be accompanied with an intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country. In sub-clauses (a), (b), and (c) of section 15(1), the law stipulates the manner of commission of the acts to come within the ambit of the expression “terrorist act” under the 1967 legislation. Held, prima facie commission or attempt to commit any terrorist act by the appellant not found. (Para 30) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280

Section 17 – Funding terrorist act – Held, no corroboration of the allegation that the appellant has funded any terrorist act or has received any money for that purpose. No prima facie case made out. (Para 31) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280

Section 18 – Conspiracy or attempt to commit, advocate, abet, advice, incite or facilitate commission or any terrorist act. Held, mere participation in some meetings and attempt to encourage women to join the struggle for new democratic revolution, prima facie, do not reveal the commission of an offence under Section 18 of the 1967 Act. (Para 32) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280

Section 20 & 38 – Membership of terrorist organisation – Mere meeting of accused individuals or being connected with them through any medium cannot implicate one in Chapter VI offences under of the 1967 Act, in the absence of any further evidence of being associated with a terrorist organisation. The offence under Section 20 not made out. (Para 34 & 35) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280

Section 43D (5) – Bail – Long period of incarceration was held to be a valid ground to enlarge an accused on bail in spite of the bail restricting provision of Section 43D (5) of the 1967 Act. Taking cognizance of the composite effect of delay in framing charge, period of detention undergone by the accused, the nature of allegations against her vis-à-vis the materials available before this Court at this stage in addition to her age and medical condition, she ought not to be denied the privilege of being enlarged on bail pending further process. (Para 36 & 41) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280