Supreme Court Monthly Criminal Digest: September 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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