Supreme Court Monthly Criminal Digest August 2022 (Citations 647 - 726)

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 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 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 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 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 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 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 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 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 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 - 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; 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

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

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 - 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

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; 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, 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

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

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 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

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 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 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 - 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 - 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 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 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 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

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

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