Search By Topic: Criminal Procedural Law

1051. (P&H HC) 12-05-2020

A. Insecticides Act, 1968 (46 of 1968), Section 24(2) -- Chemical Examiner’s report – Manufacturer right -- Copy of – Although Section 24(2) of the Insecticides Act, 1968 does not itself lay down that Chemical Examiner’s report is to be conveyed to the manufacturing firm or to other accused but it is expected in the interest of natural justice and fair trial that a copy of the Chemical Examiner's report be conveyed to the manufacturing firm also especially if the manufacturing firm is also to be prosecuted.

(Para 12)

B. Insecticides Act, 1968 (46 of 1968), Section 24(2) -- Chemical Examiner’s report – Re-examination of – Right of -- Provisions of section 24(2) of the Act do not mandate that each and every of the accused is to be afforded an individual opportunity of re-analysis -- If in a given case, re-analysis has been got done at the instance of any one of the accused, then certainly there is no need for any further re-analysis.

(Para 13-15)

C. Insecticides Act, 1968 (46 of 1968), Sections 3(k)(i), 17, 18, 29, 33 -- Managing Director – Role of -- Managing director need not be assigned a specific work as he, in such capacity is overall in-charge of conduct of business of the firm -- Thus, cannot escape from his liability on account of the insecticide having been found misbranded which was manufactured by the company of which he is the Managing Director.

(Para 23-25)

D. Insecticides Act, 1968 (46 of 1968), Sections 3(k)(i), 17, 18, 29, 33 -- Quality Incharge – Role of -- A person who is monitoring the quality of the product being manufactured by the firm is the key person who would be responsible for ensuring quality of the product -- He is also liable to be prosecuted on account of misbranding of the insecticide in question.

(Para 27)

E. Code of Criminal Procedure, 1973 (2 of 1974), Section 190 – Complaint – Contents of -- Complaint is not expected to be encyclopedic and it is only during the course of trial that the complainant can fully substantiate the averments and allegations made in the complaint as regards the role and responsibility of the accused.

(Para 28)

F. Insecticides Act, 1968 (46 of 1968), Sections 3(k)(i), 17, 18, 29, 33 – Godown Incharge – Role of -- Since the insecticide in question, in any case is in sealed condition, therefore the Godown Incharge whose primary job is to keep the articles intact and to further pass on the same to the Distributors and Dealers and is himself not supposed to sell the same cannot be said to have committed any offence under Insecticides Act 1968 so as to have rendered himself liable for prosecution -- As such, the complaint qua him deserves to be quashed.

(Para 29)

1053. (SC) 27-04-2020

A. Prevention of Corruption Act, 1988 (49 of 1988), Section 2(c), 2(c)(xi) – Deemed University -- Trustee of the Trust running Deemed University – Whether Public Servant :

--       “Deemed University” is not excluded from the ambit of the term “University” under Section 2(c)(xi) of the PC Act.

Object of the PC Act was not only to prevent the social evil of bribery and corruption, but also to make the same applicable to individuals who might conventionally not be considered public servants.

--       It cannot be stated that a “Deemed University” and the officials therein, perform any less or any different a public duty, than those performed by a University simpliciter, and the officials therein.

Discharge order against respondent-accused-trustee set aside – Trial Court directed to proceed with the case.

(Para 3, 17, 34-44, 53-57)

B. Prevention of Corruption Act, 1988 (49 of 1988), Section 7, 8, 10 and 13 (1)(b) and 13(2) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 227 -- Framing of charge – Discharge of accused – Power u/s 227 of Cr.P.C. – Scope of -- Respondent allegedly was collecting certain extra amount over the prescribed fees on the pretext of allowing the students to fill up their examination forms – Alleged amount was a condition precedent before filling up the forms, to appear for the examinations -- Large number of cheques which were found during the raid is more than sufficient to establish a grave suspicion as to the commission of the alleged offence -- Prima facie, a grave suspicion is made out that the respondent was rendering his service by dealing with the students and the examination aspect of the University – Held, jurisdiction of this Court, with regards to Section 227 of CrPC, is limited and should not be exercised by conducting roving enquiries on the aspect of factual inferences -- Case is not an appropriate one to have exercised the power u/s 227 to discharge the accused-respondent.

(Para 52-56)

1069. (SC) 19-02-2020

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 125, 127, 362 – Maintenance u/s 125 Cr.P.C. -- Court not to alter judgment – Applicability of -- Magistrate does not become functus officio after passing an order u/s 125 Cr.P.C., as and when occasion arises the Magistrate exercises the jurisdiction from time to time -- Legislative Scheme as delineated by Sections 125 and 127 Cr.P.C. clearly enumerated the circumstances and incidents where Court passing a judgment or final order disposing the case can alter or review the same -- Embargo as contained in Section 362 is, thus, clearly relaxed in proceeding u/s 125 Cr.P.C.

(Para 25, 26)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 125, 127, 362 -- Settlement between the parties – Non-honouring of – Maintenance u/s 125 Cr.P.C. -- Court not to alter judgment – Applicability of -- Maintenance rights of wife -- When the appellant-husband did not honour its commitment under settlement, can the wife be left in lurch by not able to press for grant of maintenance on non-compliance by the appellant of the terms of settlement -- The answer is obviously ‘No’ -- Section 125 Cr.P.C. has to be interpreted in a manner as to advance justice and to protect a woman for whose benefit the provisions have been engrafted -- Held, order passed by Family Court reviving the maintenance application of the wife u/s 125 Cr.P.C. by setting aside order passed on settlement is not hit by the embargo contained in Section 362 Cr.P.C. -- Family Court has done substantial justice in reviving the maintenance application of the wife.

(Para 29-32)

1074. (P&H HC) 13-02-2020

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 182, 401 -- Acquittal in 182 Cr.P.C. proceedings -- Revisional jurisdiction of High Court is quite limited -- Court is to interfere only if there is an illegality or infirmity apparent on the face of the judgment/order passed by a Court below or the same is perverse -- Merely because another view in the matter is possible, no inference with such judgment is to be done – Revision dismissed.

(Para 13-15)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 173, 190, 482 -- Cancellation report by police – Non-acceptance by Trial Court – Case adjourned for complainant’s evidence – Challenged by accused – Remedy of – Held, after the complainant produces the evidence, Ld. Magistrate may or may not summon the accused -- If the accused are summoned, they have got remedy of challenging that order by way of filing a revision petition before the Court of Sessions or/and filing appropriate application (s) in the trial Court itself – Accused have not been summoned so far – Petition dismissed.

(Para 20-30)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Inherent jurisdiction of High court -- Section 482 Cr.P.C. deals with inherent powers of the High Court providing that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

(Para 29)

1077. (SC) 10-02-2020

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 154, 482 -- Code of Civil Procedure, 1908 (V of 1908), Section 9 – Civil suit – Handwriting expert report – F.I.R. w.r.t. forged receipts – Sustainability of -- Quashing of FIR -- Handwriting expert in civil suit has opined that signatures in all the four receipts did not tally with the sample signatures which were of respondent No.2 -- It was only thereafter, FIR was registered -- In the Summary Suit, issue No.5 has been framed by the Court “whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged receipts” – Held, when the issue as to the genuineness of the receipts is pending consideration in the civil suit, the FIR ought not to have been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit -- Based on the sole opinion of the handwriting expert, the FIR ought not to have been registered -- Continuation of FIR would amount to abuse of the process of Court – Petition u/s 482 Cr.P.C. to quash the FIR allowed.

(Para 18, 19)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 139 – Indian Evidence Act, 1872 (1 of 1872), Sections 45, 72, 118(a) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Cheque bounce case – Quashing of complaint -- Presumption of legal enforceability debt – Rebuttal of -- ‘Y’ admitted the issuance of cheques -- Once the issuance of cheque is admitted/established, the presumption would arise u/s 139 of the N.I. Act in favour of the holder of cheque that is the complainant-appellant No.3 -- Burden lies upon the accused to rebut the presumption by adducing evidence -- High Court did not keep in view that until the accused discharges his burden, the presumption u/s 139 of N.I. Act will continue to remain -- When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint u/s 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C.

(Para 20)

1084. (SC) 11-12-2019

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 155 – F.I.R. – Delay in -- Complaint was written immediately after the occurrence -- FIR is based only on this complaint and it does not contain anything more or less than the complaint -- Contents of the FIR cannot be said to be interpolated.

(Para 8)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 157 – Procedure of investigation – Compliance of -- Mere delay in compliance of Section 157 by itself is not fatal to prosecution -- Even if prosecution has failed to prove that Section 157 Cr.PC was complied with then also the effect thereof has to be assessed.

(Para 11)

C. Indian Penal Code, 1860 (45 of 1860), Sections 147, 148, 149, 302 -- Indian Evidence Act, 1872 (1 of 1872), Section 134, 136 -- Interested witness – Evidential value -- Six persons heavily armed, two of them with guns, killed the deceased in broad day light -- While leaving the place of occurrence they threatened all gathered there by saying that anybody who tried to interfere would meet the same fate -- In such a situation no other villager who may have been present would turn up to give evidence – Two of the witnesses have spoken up and their evidence has been corroborated on all counts -- Evidence does not show that the enmity or dispute between these two witnesses and the accused was of such a nature that these two witnesses would make false statements only to settle scores with the appellants thereby leaving the real culprits to go scot-free -- Merely because these witnesses are interested witnesses their testimony cannot be discarded.

(Para 19)

D. Indian Penal Code, 1860 (45 of 1860), Sections 147, 148, 149, 302 -- Indian Evidence Act, 1872 (1 of 1872), Section 134, 136 – Direct ocular evidence – Medical evidence – Non-examination of Ballistic expert -- Report of the ballistic experts have not been proved and all the bullets recovered from the spot have not been sent to the ballistic expert -- Guns seized may or may not be the guns used – Held, when the ocular evidence is direct and clear in this regard, and this ocular evidence is fully supported by the medical evidence, the negligence of the investigation team cannot be used by the defence in support of their case.

(Para 21)

1085. (SC) 29-11-2019

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 173, 207 -- Investigaiton report u/s 173 Cr.P.C. – Magistrate’s power – Nature of Magistrate’s duty u/s 207 at this stage is in the nature of administrative work, whereby he is required to ensure full compliance of the Section.

(Para 16)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 173, 207 – Constitution of India, Article 21 -- Furnishing of documents – Fair trial -- Furnishing of documents to the accused u/s 207 of the 1973 Code is a facet of right of the accused to a fair trial enshrined in Article 21 of the Constitution.

(Para 18)

C. Indian Evidence Act, 1872 (1 of 1872), Section 3, 65-B – Electronic record – Document – Admissibilty of -- Electronic record produced for the inspection of the Court is documentary evidence u/s 3 of the 1872 Act -- Any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a “document” and shall be admissible in evidence subject to satisfying other requirements of the said provision.

(Para 21-25)

D. Indian Evidence Act, 1872 (1 of 1872), Section 3 – Indian Penal Code, 1860 (45 of 1860), Section 29 -- General Clauses Act, 1897 (10 of 1897), Section 3(18) – Memory Card – Document – Held, contents of the memory card would be a “matter” and the memory card itself would be a “substance” and hence, the contents of the memory card would be a “document”.

(Para 26-31)

E. Code of Criminal Procedure, 1973 (2 of 1974), Section 327(2) – Indian Penal Code, 1860 (45 of 1860), Section 228-A -- Disclosure of identity of the victim – Effect of -- Explanation offered by the appellant is plausible inasmuch as the prosecution itself had done so by naming the victim in the First Information Report/Crime Case, the statement of the victim under Section 161, as well as under Section 164 of the 1973 Code, and in the chargesheet/police report filed before the Magistrate.

(Para 34)

F. Code of Criminal Procedure, 1973 (2 of 1974), Section 327(2) – Indian Penal Code, 1860 (45 of 1860), Section 228-A – Constitution of India, Article 21 – Memory Card – Pen Drive – Copy of -- Privacy of victim – Right of Accused:

--       Accused, who are interested in reassuring themselves about the genuineness and credibility of the contents of the memory card in question or that of the pen-drive produced before the trial Court by the prosecution on which the prosecution would rely during the trial, are free to take opinion of an independent expert agency, such as the CFSL on such matters as they may be advised, which information can be used by them to confront the prosecution witnesses including the forensic report of the State FSL relied upon by the prosecution forming part of the police report.

--       Considering that this is a peculiar case of intra-conflict of fundamental rights flowing from Article 21, that is right to a fair trial of the accused and right to privacy of the victim, it is imperative to adopt an approach which would balance both the rights.

–       Court is duty bound to issue suitable directions -- Even the High Court, in exercise of inherent power under Section 482 of the 1973 Code, is competent to issue suitable directions to meet the ends of justice.

--       If the accused or his lawyer himself, additionally, intends to inspect the contents of the memory card/pen-drive in question, he can request the Magistrate to provide him inspection in Court, if necessary, even for more than once alongwith his lawyer and I.T. expert to enable him to effectively defend himself during the trial.

--       If such an application is filed, the Magistrate must consider the same appropriately and exercise judicious discretion with objectivity while ensuring that it is not an attempt by the accused to protract the trial. While allowing the accused and his lawyer or authorized I.T. expert, all care must be taken that they do not carry any devices much less electronic devices, including mobile phone which may have the capability of copying or transferring the electronic record thereof or mutating the contents of the memory card/pen-drive in any manner.

Such multipronged approach may subserve the ends of justice and also effectuate the right of accused to a fair trial guaranteed under Article 21 of the Constitution.

(Para 38-43)

G. Code of Criminal Procedure, 1973 (2 of 1974), Section 173, 207,  327(2) – Indian Penal Code, 1860 (45 of 1860), Section 228-A – Indian Evidence Act, 1872 (1 of 1872), Section 3 -- Constitution of India, Article 21 – Memory Card – Pen Drive – Copy of – Inspection of -- Fair Trial – Right of -- Held, contents of the memory card/pen drive being electronic record must be regarded as a document -- If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial -- However, in cases involving issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/her lawyer or expert for presenting effective defence during the trial -- Court may issue suitable directions to balance the interests of both sides.

(Para 44)

1089. (P&H HC) 08-11-2019

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 73, 87, 89, 390 – Cognizable offence – Non-bailable offence -- Arrest warrant – Power of Magistrate -- Under this Section the Magistrate can issue warrants of arrest against a person:-

(a) Who is an escaped convict

(b) Proclaimed offender

(c) Person accused of ‘non-bailable’ offence and is ‘evading arrest’.

Held that u/s 73 the Magistrate can issue warrants against a person who is evading arrest, only if such a person was required to appear before the court under some other order passed under some other provision; like u/s 87, 89 or 390 of Cr.P.C.; during the trial or at the time of or after taking cognizance -- Neither there is any necessity for a warrant of arrest for arresting an accused during investigation nor has the court been given any specific power in this regard by any specific provision of Cr.P.C.

(Para 11)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 73, 82, 173 – Cognizable offence -- Investigation report -- Arrest warrant – Proclaimed person/ offender -- Before filing report u/s 173 the police cannot get a warrant of arrest against a person, without any specific reason -- A person cannot be declared as a proclaimed person or offender in routine by following procedure u/s 82 of Cr.P.C.; only because despite having power to arrest an accused the police had not succeeded in arresting such a person or might not have chosen to arrest such a person.

(Para 11)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 41 – Cognizable offence -- Power to arrest of police -- Provisions of Section 41 of the Cr.P.C. are quite clear that unless a cognizable offence is committed by a person in the presence of such police officer, police officer cannot arrest an accused only on the basis of his whims that he suspects the said person to have committed some offence -- If such person has committed some cognizable offence, which is punishable for imprisonment, then before arresting the person, the police officer has to satisfy himself that the arrest of such person is necessary; for the purposes delineated in the Section itself.

(Para 12)

D. Code of Criminal Procedure, 1973 (2 of 1974), Section 73, 82 – Proclaimed person/ offender -- Cognizable offence – Non-bailable offence -- Arrest warrant – Power of Magistrate -- Police use the power of the Magistrate to issue warrant of arrest against an accused, only as a tool to avoid its responsibility to carry out the investigation to the logical end; and only for the purpose of getting such an accused declared as proclaimed offender –        This methodology is normally adopted by the police just to get rid of the responsibility of putting a report before the Magistrate qua investigation – As a result, lots of persons are got declared as proclaimed offenders; and forgotten altogether by the police thereafter, Held;

--       Before the Magistrate/court has taken cognizance of any offence, the power of issuance of warrants of arrest under any provision of Cr.P.C., on an application of a police officer, cannot be invoked by the Magistrate as a routine matter.

--       Only for arresting a person; the police do not require any warrant as such. Hence, it would not lie in the mouth of the police to allege before the Magistrate, without there being any specific reasons or any barrier in their way, that the accused is evading arrest.

--       During investigation; even if there is some specific legal or factual obstacle or barrier, which makes the arrest without warrant impossible, and if the police intend to seek warrant of arrest from the Magistrate for such arrest, under any provision of the Cr.P.C., the police are required to specify the obstacle, which the warrant issued by the court would remove and because of which such obstacle or the barrier in way of the police; the accused was succeeding in evading his arrest.

--       Unless, there is any specific obstacle; because of which the police were not able to arrest; and which could not be removed by the police on their own and without the aid of the warrant of the court, the issuance of warrant of arrest by the Magistrate, only on assertion of the police that the accused was evading arrest, would be only a routine exercise, and would be only for the aid of the investigating officer, which could not be done by the Magistrate.

(Para 14)

E. Code of Criminal Procedure, 1973 (2 of 1974), Section 73 – Proclaimed person/ offender -- Cognizable offence – Non-bailable offence -- Arrest warrant – Power of Magistrate -- Application seeking issuance of warrant against the petitioner, is silent qua any reason -- Not only this, no reason, whatsoever, has been spelt out in the application, even qua the requirements of arrest as mentioned in Section 41 Cr.P.C, to justify arrest of the petitioner, except to say that the petitioner is evading arrest -- Magistrate has issued the warrant only to enlarge the effort of the police qua its investigation and that there is no stay of arrest -- Although the Magistrate may not be required to record any detailed reasons, however none of these reasons given is germane to the provisions under which the Magistrate is required to exercise his powers to issue warrants of arrest -- Impugned warrants of arrest and consequent orders impugned are quashed.

(Para 15-17)

1090. (SC) 07-11-2019

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Review of order in criminal proceedings – Power of High Court -- High Court could not have recalled its earlier order u/s 482 Cr.P.C, inasmuch as there is no provision for recalling or reviewing an order passed by it in criminal matters.

(Para 2)

B. Prohibition of Child Marriage Act, 2006 (6 of 2007), Section 2(a), 2(b), 9 – Child marriage – Adult Wife -- Prosecution of boy aged 17 years – Permissibility of -- Protection order passed in favour of married couple – Later-on boy age found to be 17 years – On application of father of girl, High Court recalled protection order and direction given for registration of FIR against boy for offence u/s 9 of Prohibition of Child Marriage Act, 2006 – Held, High Court could not have recalled its earlier order and there was no exceptional circumstance calling for an exercise of the High Court’s inherent powers – FIR quashed.

(Para 2-6)

C. Prohibition of Child Marriage Act, 2006 (6 of 2007), Section 2(a), 2(b), 9 – Adult Wife -- Boy aged 18 to 21 years – Child marriage -- Prosecution of boy – Permissibility of -- Held, it can be treated as a child marriage but cannot be brought under the ambit of Section 9 -- FIR against boy quashed.

(Para 3-6)

D. Prohibition of Child Marriage Act, 2006 (6 of 2007), Section 2(a), 2(b), 9 – Interpretation of Statute -- Mischief Rule -- Marginal note -- Adult Wife -- Boy aged 18 to 21 years – Child marriage -- Prosecution of boy -- Intention behind punishing only male adults contracting child marriages is to protect minor young girls from the negative consequences thereof by creating a deterrent effect for prospective grooms who, by virtue of being above eighteen years of age are deemed to have the capacity to opt out of such marriages – Hence, cannot be brought under the ambit of Section 9, as this is not the mischief that the provision seeks to remedy -- Marginal note of Section 9, which reads “Punishment for male adult marrying a child” -- Where any ambiguity exists with regard to the interpretation of a legislative provision, the marginal note can be used in aid of construction, having regard to the object of the legislation and the mischief it seeks to remedy – Held, the words “male adult above eighteen years of age, contracts a child marriage” in Section 9 of the 2006 Act should be read as “male adult above eighteen years of age marries a child”.

(Para 3)