Search By Topic: Penal Laws

203. (HP HC) 13-12-2023

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15 -- NDPS Case – Appeal against acquittal -- Recovery of 15 Kg 600 grams of poppy straw – Independent witness -- Material contradictions in the statements of the police officials regarding setting up of ‘naka’, chasing of the vehicle of the respondents and arrest -- These contradictions assume greater importance and significance when no independent witnesses, though available, have been associated at the time of the alleged recovery -- Appeal dismissed.

(Para 26-29, 37)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15 -- NDPS Case – Appeal against acquittal -- Recovery of 15 Kg 600 grams of poppy straw – Accused fled away -- If the respondents had fled away from the spot where ‘naka’ had been laid, then Court see no reason why the police party should not have chased the vehicle of the respondents till the time they were not actually apprehended and why the police party simply stopped, where respondent No.2 is alleged to have thrown jute sack containing poppy straw -- Every reasonable police personnel would have continued chasing the respondents until apprehended – It makes the entire prosecution case unreliable and highly doubtful -- Appeal dismissed.

(Para 29, 37)

C. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15 -- NDPS Case – Appeal against acquittal -- Recovery of 15 Kg 600 grams of poppy straw – Facsimile of seal -- Exhibit PX is the report of the Laboratory wherein it is mentioned that the seals on the gunny bag parcel were tallied with the seal impression sent by the SHO on form NCB-1 i.e. Ext. PW16/A -- However, a perusal of Ext. PW16/A shows that facsimile of seal ‘A’ affixed on this form is not at all clear or legible -- This assumes importance because it has not at all been mentioned in the report that the seals on the gunny bag were compared with the sample seals or the sample seals were deposited in the laboratory along with the case property – Ld. Special Judge rightly observed, it cannot be said with certainty that the case property which was examined in the laboratory was the same which was allegedly recovered from the respondents -- Appeal dismissed.

(Para 32-34, 37)

D. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15 -- NDPS Case – Appeal against acquittal -- Recovery of 15 Kg 600 grams of poppy straw – Non-examination of car -- Specific case of the prosecution that some dust of ‘Chura Post’ was lying on the rear seat of the car which car was then taken possession of by the police -- If that be so, then why photographs of the ‘Chura Post’ that was stated to be lying on the rear seat of the car were not taken and, above all, why the so-called dust of ‘Chura Post’ was not sent for chemical analysis, is not at all forthcoming – Held, there is no material on record which may remotely suggest that the respondents had kept the jute bag containing ‘Chura Post’ on the backseat of the car and thereafter had thrown the same, as alleged by the prosecution – Appeal dismissed.

(Para 35-37)

210. (P&H HC) 06-12-2023

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 144 – Indian Penal Code, 1860 (45 of 1860), Section 188 – Constitution of India, Article 21 -- Prohibition order u/s 144 Cr.P.C. – Violation of – FIR u/s 188 IPC  -- Peaceful protest -- More than 100 persons had died in the State of Punjab due to illicit and spurious liquor -- Being public representatives, the petitioners were peacefully going to meet the Chief Minister of Punjab to bring his attention to their grievances -- Petitioners had every right to protest democratically, and they did so in peace -- Merely bringing the Chief Minister of Punjab's attention to an important issue through a peaceful protest does not amount to an offence under section 188 IPC.

(Para 11-13)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 144 – Indian Penal Code, 1860 (45 of 1860), Section 188 – Constitution of India, Article 21 – Mens rea – Peaceful protest -- It is sufficient that the offender knows of the order they disobey and that such disobedience produced or is likely to produce harm -- State has not gathered any evidence to primafacie establish the essential ingredients and what disobedience the petitioner caused in this regard -- An offence u/s 188 of the IPC is not made out.

(Para 17)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 144, 173, 190, 195 – Indian Penal Code, 1860 (45 of 1860), Section 188 – FIR u/s 188 IPC  -- Bar of Section 195 CrPC – Prosecution launched on police report u/s 173 (2) CrPC for the commission of an offence punishable u/s 188 IPC, whereas section 195(1)(a)(i) bars the Court from taking cognizance of any offence punishable u/s 188 of the IPC unless there is written complaint by the public servant concerned for contempt of their lawful order -- Police report, being not a complaint, could not have been made the basis for taking cognizance of the offence u/s 188 of the IPC, and the concerned Court had no jurisdiction to summon the accused -- Order of dismissal of the application for discharge violates the mandatory provision of section 195(1) of CrPC, 1973 -- Complaint and the police report (Challan) u/s 173 CrPC filed in FIR quashed and set aside.

(Para 18-26)

214. (P&H HC) 05-12-2023

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 173, 193 -- Summoning of additional accused – Evaluation of evidence – Requirement of -- Trial Court summoned the petitioners u/s 193 Cr.P.C. without evaluating the evidence and assessment of the material available against the persons sought to be summoned and then adjudging whether such material, more or less, carry the same weightage and value as has been testified against those who are already facing trial – Impugned order set aside matter remanded back.

(Para 7-9)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 173, 193 -- Summoning of additional accused – Power of -- FIR is not an encyclopaedia and mere statement of the complainant reiterating the contents of FIR/ complaint not substantiated by any credible material, cannot be a ground to invoke the power to summon an additional accused under Section 193 Cr.P.C.

(Para 9)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 173, 193 -- Summoning of additional accused – Evaluation of evidence – Requirement of – Trial Court has not gone into the statements of witnesses attached with the final report before passing the impugned order --- Without any reasoning that there was some “evidence”  on the basis of which it can be gathered that they appear to be guilty of the offence and the said evidence can be utilised for corroboration and to support the allegations levelled in the FIR -- Impugned order set aside matter remanded back.

(Para 9)

215. (P&H HC) 04-12-2023

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 91 – Preserving of call details and tower location – Right of accused -- Preserving and requisitioning of the call details and tower location details would be necessary, otherwise the same would be lost forever -- Right of accused to invoke the provisions of Section 91 Cr.P.C. for obtaining documents in support of his defence has been recognized by the Constitutional Courts -- Legislative intent behind enactment of Section 91 Cr.P.C. is to ensure that no cogent material or evidence involved in the issue remains undiscovered in unearthing the true facts during investigation, enquiry, trial or other proceedings.

(Para 8)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 91 – Constitution of India, Article 21 -- Preserving of call details and tower location – Right of accused -- While passing the appropriate direction for preserving and production of call details/tower location details under Section 91 Cr.P.C. would violate the right to privacy of the police officials but the right of the accused under Article 21 of the Constitution of India in ensuring free and fair investigation/trial would prevail over the right to privacy of the police officials.

(Para 8)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 91 – Indian Evidence Act, 1872 (1 of 1872), Section 65A, 65B -- Preserving of call details and tower location – Right of accused -- Denial of an adequate opportunity to the accused by non-production of the electronic record, which is admissible under Section 65-A and 65-B of the Indian Evidence Act in criminal trial, would amount to miscarriage of justice -- Power under 91 Cr.P.C. must be exercised for production of such evidence, which would assist the Court in discovering the truth in the pursuit of justice.

(Para 9)

D. Code of Criminal Procedure, 1973 (2 of 1974), Section 91 – Constitution of India, Article 21 -- Preserving of call details and tower location – Right of accused -- As principles of natural justice are integral part of fair trial under Article 21 of the Constitution of India, any denial of the best available evidence or effective and substantial hearing to accused in proving defence would amount to denial of free and fair trial.

(Para 10)

217. (SC) 01-12-2023

A. Indian Penal Code, 1860 (45 of 1860), Section 107, 306 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Abetment to suicide – Quashing of summoning order -- Borrowing of Rs, 60,000/- -- Incident in shop of the first appellant threatening and assaulting complainant and her husband was on 15th June 2017 -- After that, notice u/s 138 of the Negotiable Instruments Act, 1881, was issued by “S” to the deceased on 27th June 2017 -- Suicide note was written three days after that, on 30th June 2017 -- Deceased committed suicide three days thereafter -- No allegation that any act was done by the appellants in the close proximity to the date of suicide -- By no stretch of the imagination, the alleged acts of the appellants can amount to instigation to commit suicide -- Offence punishable u/s 306 of IPC not made out -- Continuation of prosecution will be nothing but an abuse of the process of law -- Summoning order quashed.

(Para 8-13)

B. Indian Penal Code, 1860 (45 of 1860), Section 107 – Abetment to suicide -- Mens-rea – Instigation -- To attract the first clause, there must be instigation in some form on the part of the accused to cause the deceased to commit suicide --  Hence, the accused must have mens rea to instigate the deceased to commit suicide -- The act of instigation must be of such intensity that it is intended to push the deceased to such a position under which he or she has no choice but to commit suicide -- Such instigation must be in close proximity to the act of committing suicide.

(Para 9)

246. (SC) 08-11-2023

A. Indian Penal Code, 1860 (45 of 1860), Section 302 – Indian Evidence Act, 1872 (1 of 1872), Section 24 -- Murder -- Extra-judicial confession -- Extra judicial confession before PW-2 and PW-3/ real brothers of deceased -- It is not brought on record by the prosecution that the appellant/ accused had any relationship with both of them -- Normally, an accused would make a confessional statement before a person in whom he has implicit faith -- In the normal course, an accused would not make a confessional statement before the real brothers of the deceased -- When prosecution relies upon the evidence of extra judicial confession, normally, the Court will expect that the evidence of the persons before whom extra judicial confession is allegedly made, must be of sterling quality – Theory of extra judicial confession discarded – Appellant acquitted.

(Para 7, 8, 11)

B. Indian Penal Code, 1860 (45 of 1860), Section 302 – Indian Evidence Act, 1872 (1 of 1872), Section 27 -- Murder – Acquittal -- Blood stains on clothes of different Blood Group – Recovery of axe – Not believed -- Serology Report on record that the clothes on the person of the deceased were having blood stains of 'O' group -- As regards the trouser of the appellant, the opinion was inconclusive but as regards the other two items of clothes, it was found that the blood was of 'A' group -- This militates against the case of the prosecution that the blood stains on the clothes of the appellant were of the blood of the deceased -- Recovery of the axe at the instance of the appellant is of no relevance, as according to PW-2 and PW-3, the appellant was carrying a stick -- Appellant acquitted.

(Para 9-11)

248. (P&H HC) 03-11-2023

A. Indian Evidence Act, 1872 (1 of 1872), Section 27 – Recovery during police custody – Admission of guilt -- Evidential value -- It is only the factum of recovery of the articles which can be taken into account and the statement made, if any, while getting the articles recovered which is to the effect of admission of guilt is to be discarded.

(Para 21)

B. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Indian Evidence Act, 1872 (1 of 1872), Section 27, 106 -- Murder – Circumstantial evidence – Knowledge of PW/ Lambardar is in the nature of hear-say evidence that he had actually overheard some persons naming appellant as the murderer -- PW-3 with whom extra-judicial confession made stepped into the witness box did not support the case of the prosecution and was declared hostile -- Recovery of the auto-rickshaw on its own cannot be said to be an incriminating piece of evidence – Nothing on record either to show that the blood stain found on the recovered ‘datar’ and on the cardigan were of the same blood group or that the same matched with the blood group of the deceased – Appellant acquitted.

(Para 21-25)

C. Indian Evidence Act, 1872 (1 of 1872), Section 106 -- Circumstantial evidence -- Law postulates two-fold requirements before reliance can be placed upon the same :

(i) Every link in the chain of the circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt.

(ii) All the circumstances must be consistent pointing only towards the guilt of the accused.

(Para 22)