Tag: #CodeofCriminalProcedure

CASE NUMBER

Bail Appl. No. 8346 of 2018

CITATION

2019 SCC OnLine Ker 13012

BENCH

THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

DECIDED ON

Decided on January 24, 2019

FACTS OF THE CASE

The applicant is a PMSAMA Higher Secondary School Urdu teacher. He oversaw the NSS’s activities. On November 6, 2018, the victim, a minor child, and a student from a different school went to a camp at PMSAMA Higher Secondary School in Malappuram. The applicant is said to have complimented her on her accomplishments. He invited the victim to the principal’s chamber at 4 p.m. He took two pens from his drawer, one of which he gave to the sufferer. He then kissed her on the forehead after touching her hand. It was offensive to the victim since, according to her, it was done with sexual purpose. A complaint was filed on November 27, 2018, alleging these claims, which resulted in the subject offense being registered under Section 10 read with Section 9 of the Protection of Women from Sexual Offenses Act, 2012.

RELEVANT SECTION

Under Section 438 of the Code of Criminal Procedure, this case was filed under the Hon’ble court. Section 438 of CrPC talks about anticipatory bail regarding the commencement of doing some nonbailable offense. Anticipatory bail means that a person who is apprehending an interest can apply for bail in advance. The addition of this provision was a recommendation made by the 41st Law Commission of India.

ISSUES BEFORE THE COURT

Is the accused liable under Section 10 read with Section 9 of the Protection of Women from Sexual Offences Act, 2012?

Section 9 of the POCSO Act: Talks about Aggravated Sexual Assault
Whoever conducts a sexual assault on a child while serving as a police officer: inside the confines of the police station or premises to which he is assigned; or (ii) within the confines of any station house, whether or not located within the police station to which he is assigned;
or
(iii) while performing his responsibilities or otherwise; or
(iv) where he is identified or known as a police officer; or

(b) whomsoever commits sexual assault on a child while serving in the armed forces or security forces in jail, remand home, protection home, observation home, or other places of custody or care and protection established by or under any government authority; or whoever commits sexual assault on a child in a hospital, whether government or private; or whoever is on the staff of management of a jail, protection home, remand home, observation home or other
place of custody or care and protection established by or under any government authority.

Hence, that a child is sexually assaulted by one or more members of a group in furtherance of their common goal, each of those members is deemed to have committed gang sexual assault within the meaning of this clause, and each of those members is liable for the act in the same way as if he had done it alone;

SECTION 10 of the POCSO Act: It talks about Punishment for aggravated Sexual Assault
Anyone who commits serious sexual assault faces a sentence of imprisonment of either kind for a period of not less than five years but not more than seven years, as well as a monetary fine.

DECISION OF THE COURT

The High Court of Kerala held that the entire dispute between the respondent and the petitioner was settled amicably. The bench of Justice Alexander Thomas in the judgment wrote that the dispute was settled amicably and ordered that petitioner’s mother was required to submit an affidavit stating that she had no problem with the quashing of FIR.

SUPREME COURT ON THE DECISION

Justice M.R. Shah of the Supreme Court held in Laxmi Narayan that the High Court in that the case had not taken into account the relevant facts and circumstances of the case, particularly the seriousness of the offenses and their social impact while quashing the FIR as a result of the parties’ settlement, despite the fact that it was a non-compoundable offense. In that case, Justice Shah found that the High Court failed to assess the distinction between a personal or private wrong and a social wrong, as well as the societal impact.

During the hearing of the Kerala Government’s appeal against the ruling, the bench observed the government’s argument that quashing the FIR is not relevant in light of the Supreme Court’s decision in the case State of Madhya Pradesh vs. Laxmi Narayan & Ors (2019). Justice M.R. Shah of the Supreme Court held in Laxmi Narayan that the High Court in that the case had not taken into account the relevant facts and circumstances of the case, particularly the seriousness of the offenses and their social impact while quashing the FIR as a result of the parties’ settlement, despite the fact that it was a non-compoundable offense. In that case, Justice Shah found that the High Court failed to assess the distinction between a personal or private wrong and a social wrong, as well as the societal impact. In this case, the High Court has taken no pains to examine the complete set of facts in context and has quashed the criminal proceedings on a mechanical basis.

This is written by Dalima Pushkarna student at Dr. Ram Manohar Lohiya National Law University, Lucknow.

CASE NUMBER

Appeal No. 273 of 1979

CITATIONS

AIR 1980 SC 898, 1980 CriLJ 636, 1982 (1) SCALE 713, (1980) 2 SCC 684, 1983 1 SCR 145

BENCH

Y Chandrachud, A Gupta, N Untwalia, P Bhagwati, R Sarkaria

DECIDED ON

9 MAY, 1980.

This reference to the Constitution Bench raises a question in regard to the constitutional validity of the death penalty for murder provided in Section 302, Penal Code, and the sentencing procedure embodied in Sub-section (3) of Section 354 of the CrPC, 1973.

FACTS OF THE CASE

Bachan Singh had been convicted of his wife’s murder and sentenced to life in jail under Section 302 of the Indian Penal Code in the previous case. After serving his term, he was released and spent about six months with his cousin Hukam Singh and his family. Hukam Singh’s family members, including his wife and kid, questioned the appellant’s presence at his apartment.

The family went to bed after dinner on the night of the crime, July 4, 1977. When Vidya Bai (daughter) was woken by the alarm about midnight, she witnessed the appellant inflicting axe blows on the face of her sister, Veeran Bai. When she tried to stop him, the appellant struck her in the face and ear with the axe, knocking her out. Diwan Singh awoke from his rest after hearing the shriek and witnessed the appellant attack Desa Singh with the axe.

The Sessions Court later found the appellant guilty of murdering three individuals, including Hukam Singh’s son, Desa Singh, Durga Bai, and Veeran Bai (Hukam Singh’s daughters), as well as injuring Vidya Bai (Hukam Singh’s other daughter). On appeal, the High Court upheld the death sentence given by the Trial Court. In addition, both the Trial Court and the High Court ruled that Vidya Bai’s injuries were inhumane.

Bachan Singh then sought a special leave to appeal in the Supreme Court, raising the issue of whether “special reasons” exist in the facts of the case, which are required for the death penalty to be imposed under Section 354(3) of the Code of Criminal Procedure.

ISSUES RAISED

• Whether or not Section 302 of the Indian Penal Code’s provision for the death penalty for murder was unconstitutional?
• Is Article 19 relevant in establishing the validity of Section 302 of the IPC’s challenged provision?
• Is Section 302 of the IPC’s disputed limb in violation of Article 21 of the Constitution?
• Is Section 354(3) of the Criminal Procedure Code, which governs sentencing, unconstitutional on the grounds that it gives the Court unguided and unrestricted discretion and allows the death penalty to be imposed arbitrarily on a person found guilty of murder or any other capital offence punishable under the Indian Penal Code if the answer to the preceding question is no?

DECISION OF THE COURT

The Supreme Court dismissed the constitutional objections to Sections 302 of the Indian Penal Code and 354(3) of the Criminal Procedure Code. The Court went on to say that the six essential rights protected by Article 19(1) aren’t absolute. For starters, they are subject to limitations imposed by an individual’s commitment not to exercise their rights in a way that harms or infringes on the rights of other members of society. This is founded on the maxim sic utere tuo ut alienum non laedas, which states that an individual must use their property in a way that does not infringe on another person’s legal rights.

Another question is whether the courts have unfettered discretion in inflicting the death penalty, as well as the nature and scope of the specific reasons. Section 354(3) of the CrPC defines “special reasons” as “extraordinary causes related to the serious nature of the offence.” In granting the death punishment, the Supreme Court established the theory of the “rarest of the rare circumstances.” For individuals convicted of murder, life imprisonment is the norm, with the death penalty being an exception. It would be unusual to use discretion under Section 354(3) of the CrPC, 1973. Only offences that shook society’s collective conscience would receive the death punishment. Only in the rarest of circumstances should the death penalty be used.

This is written by Dalima Pushkarna student at Dr Ram Manohar Lohiya National Law University, Lucknow.

INTRODUCTION

Lately, we have seen a remarkable expansion in the occurrence of police barbarities all around the country. Launch by the June 2020 instance of fierce custodial torment and killings of Jayaraj and Bennix in Thoothukudi, Tamil Nadu. While numerous episodes of police ruthlessness occur routinely, and regularly openly in spaces, not many of them get featured in the media or similarly witness public shock. Then, at that point, as well, once the ­initial period of public shock tides over-soothed through inquiries, captures and examination seldom are police authorities arraigned and indicted for these terrible demonstrations of viciousness. While the law is regularly promoted as an answer for social issues, ­including police torment, custodial brutality, and extrajudicial killings, this article contends that the arrangements of law and their execution are a contributor to the issue.

CUSTODIAL VIOLENCE

Custodial brutality principally alludes to savagery in police guardianship and legal care. Except for assault, death, and torment are two different kinds of custodial brutality. Custodial brutality is not a new peculiarity. Sections 330, 331, and 348 of IPC; Sections 25 and 26 of the Indian Evidence Act; Section 76 of CrPC and Section 29 of the Police Act, 1861 were ordered to check the propensity of police officers to turn to torment to separate admissions and so on despite these legitimate arrangements, custodial savagery keeps on happening. Custodial brutality is a term, which is utilized for depicting savagery submitted against an individual by a police authority. In this way, custodial viciousness can be characterized as “a barbaric attribute that springs out of an unreasonable longing to cause enduring when there is no
chance of any reprisal; a silly presentation of prevalence and actual control over the person who is overwhelmed.”

Even though stuffing, ailing health, unhygienic conditions, and absence of clinical consideration are a portion of the elements of death in police and legal guardianship, custodial savagery stays the normal reason for passing’s in penitentiaries and lock-ups. Be that as it may, notwithstanding the Constitutional and Statutory arrangements contained in the Criminal Procedure Code and the Indian Penal Code pointed toward shielding individual freedom and life of a resident, the developing occurrence of torment and passing’s in police guardianship has been upsetting. Experience shows that the most exceedingly terrible infringement of basic freedoms happens throughout examination when the police, with the end the goal of getting proof or admissions, frequently resort to third-degree strategies including torment and procedures of captures by either not recording them or portraying the hardship of freedom simply as “delayed cross-examinations”.

CAUSES OF POLICE ATROCITIES IN INDIA

Despite the way that each section of the general public has a concerned outlook on custodial savagery, throughout the long term it has stayed unabated. It is by all accounts on ascent consistently, disregarding the way that pace of proficiency has expanded and individuals have become mindful with regards to their privileges and obligations. The principal arm of the criminal equity framework that arrangements with individuals in authority are police. It will, accordingly, be important to discover afflictions, which administer this office coming about into maltreatment of the people who are in their care. The fundamental reasons for Custodial viciousness can be gathered in the accompanying classifications: –

CASES AGAINST POLICE ATROCITIES IN INDIA

In D.K Basu v/s State of West Bengal, [(1997) 1 SCC 416; AIR 1997 SC 610] (1)the Court has laid down detailed guidelines to be followed by the police at the time of arrest and detention.

The case of Joginder Kumar v/s State of U.P [1994 AIR 1349, 1994 SCC (4) 260] (2) is an example that highlights the wrongful use of arrest power by the police without a justifiable reason and the arrest was not recorded in the police diary.

Interfering of evidence in matters regarding Habeas Corpus where it was seen on a petition where a father desired to take the custody of his minor girl for the accused whereby the accused brought a wrong person misdirecting the court to believe the person to be the same for whom the petition was filed, the court ordered an inquiry under Section 193,196 and 199 to be filed against the respondent. It emphasizes the offense of tampering with evidence. R. Rathinam v/s Kamla Vaiduriam.1993 CrLJ 2661(Mad) (3)

The case of Nilabati Behra v/s State of Orissa & Ors. [1993(2) SCC 746] (4) is a glaring example of death caused by police brutality. In this specific case, the state was held responsible and was ordered to pay compensation to the appellant. This cruel act of police was seen as a blatant violation of the rights enshrined in Article 21 of the Indian Constitution.

The apex court in Bhim Singh Versus State of J & K. [(1985) 4 SCC 677; AIR 1986 SC 494], ordered the State Government to pay a compensation of Rs 50,000 for detention and illegal arrest of Bhim Singh by the police to avert him from attending the Assembly Session. (3)

References

1. D.K Basu vs. State of West Bengal. lawtimesjournal.in. [Online] https://lawtimesjournal.in/d-k-basu-vs-state-of-west-bengal/.
2. Joginder Kumar vs State Of U.P on 25 April, 1994. indiankanoon.org. [Online] https://indiankanoon.org/doc/768175/.
3. Remedies Against Illegal Action by Police. blog.ipleaders.in. [Online] https://blog.ipleaders.in/remedies-illegal-police-action/.
4. Smt. Nilabati Behera Alias Lalit … vs State Of Orissa And Ors on 24 March, 1993. indiankanoon.org. [Online] https://indiankanoon.org/doc/1628260/.

This article is written by Sara Agrawal student at Sinhgad Law College, Pune.

Case number

Writ Petition (C) No. 1031 of 2019.

Equivalent citation

AIR 2020 SC 1308.

Bench

Hon’ble Chief Justice of India N. V. Ramana, Hon’ble Justice R. Subhash Reddy, Hon’ble Justice B. R. Gavai.

Date of Judgement

January 10, 2020.

Relevant Act(s)

“Constitution of India”, “The Code of Criminal Procedure (Amendment) Act, 2005”, “The Indian Telegraph Act, 1885”

Facts of the case

The issue came in 2019 when the Government of Jammu and Kashmir issued a “Security Advisory” and directed the tourists (including numerous “Amarnath yatris”) to return in order to ensure safety. Adding to this, orders were issued to shut down educational institutions. Finally, on 4th August, internet connection, phone networks, and landline connections were cut off too. On August 5th, the President decided to impose “Constitutional Order 272”. As per this order, the provisions of the Indian Constitution would be applied to Jammu and Kashmir. Simultaneously, Section 144 of the CrPC was imposed in order to maintain peace in the valley. Due to such restrictions that were imposed, movements of various journalists were hampered a lot as well. As an outcome of this, the “Kashmir Times Srinagar Edition” could not get distributed on 5th August. The petitioner is the executive editor of the “Kashmir Times” newspaper. The petitioner has also claimed that she had not been able to publish the newspaper since the next day, i.e., 6th August 2019. Under Article 32 of the Indian Constitution, the petitioner had approached the Hon’ble Supreme Court, for issuance of a writ for setting aside the orders imposed by the respondents. She claimed that the Internet is an important factor in today’s world. She also claimed for lesser restrictions in the movement of journalists.

Issues

• Whether the Government can claim exemption from producing all orders passed under CrPC Sec 144 and others under suspension rules.
• Whether “freedom of speech and expression” and “freedom to practice any profession, or to carry out any trade” over cyberspace can be considered a fragment of the fundamental rights under “Part III of the Constitution”.
• Was it valid on the Government’s part to restrict internet facilities and to impose restrictions under “Section 144 of the CrPC”?
• Was the petitioner’s “freedom of the press” violated due to the restrictions?

Arguments

Arguments made by the petitioner:
The first argument put forward was that the petitioner could not do her job and get the newspaper published due to the imposed restrictions (on press) from 5th August 2019. Since internet facilities were stopped, the print media got hampered badly. Hence, people’s livelihood got affected due to the restrictions (violation of Article 19(1)(g) of the Indian Constitution). The right to speech was violated, due to the cutting down of internet facilities. It was argued that the restrictions made were not at all reasonable or proportional in any sense. The counsel contended that all the restrictions were levied on the premise of the apprehension of some danger to the regulations and law. Also, there is a difference between “public order” and “law and order”. The restrictions imposed and the measures taken were in order to protect “law and order”. Also, these restrictions did not even seem to be temporary, because it had already been a long time since they were functioning. It was argued that the state should have undertaken a less strict alternative in the beginning. Also, the restricting movement was applied over the entire state, and not in specific regions. The petitioners contended that such a restriction all over the state was unnecessary.

Arguments made by the respondent:
The primary argument made by the respondent was that these restrictions were absolutely necessary in order to fight terrorism in the state. They also claimed that general freedom of expression and speech cannot be applied to the Internet, because there are a lot of dangers on this platform. It was argued that it is not possible to shut down specific websites, hence, a total shutdown was the only alternative. They also claimed that the situation was getting exaggerated.

Judgement

The Court held that the “freedom of speech and expression” and “freedom to practise any profession or to carry out any trade” on cyberspace are protected under Articles 19(1)(a) and 19(1)(g) respectively. It was held that any restrictions on the abovementioned rights, would have to be reasonable and in compliance with Articles 19(2) and 19(6) of the Constitution. Hence a “proportionality test” was ordered by the Apex Court. If the restriction to internet access is not found to be proportional then it would cease to exist. It was held that: “the government cannot contend any exception for providing any order before the court which is passed under Section 144 of the CrPC.” No order was issued by the court to provide remedies to those who were already affected, but a lot of principles were laid down for future suspensions. Apart from these, the court dismissed the plea where the petitioner claimed that freedom of the press was violated due to the restrictions, due to lack of evidence.

Conclusion

Internet is an important part of our daily life in today’s world. We are very much dependent on the internet for a lot of things including trade and business. It can be concluded that Internet has become so important that it is being included in Part III of the Indian Constitution. This judgement is very significant because the primary aim of the case was to judge the legality of the restriction of internet facilities. The Apex Court had also introduced a number of principles that would prevent undue misuse of the powers provided to the Government, especially in such cases.

This article is written by Aaratrika Bal student at National Law University Odisha.

Case number

Criminal Appeal No. 573 of 2016.

Equivalent citation

(2021) 6 SCC 213.

Bench

CJI N. V. Ramana, Hon’ble Justice Surya Kant and Hon’ble Justice Aniruddha Bose.

Date of Judgement

May 7, 2021.

Relevant Act(s)

The “Evidence Act, 1872”; the “Indian Penal Code, 1860” and the “Code of Criminal Procedure, 1973”.

Facts of the case

Both parties were very much related to each other. There had been clashes going on for a long time between the family of Jayamma (appellant), who is the wife of Reddinaika and the family of Jayamma (respondent), who was the deceased wife of Sanna Ramanaika. An argument took place between the two families in 1998 on September 10. During this argument, Reddinaika was assaulted by Ramanika’s son, i.e., Thippeswamynaika. After this incident happened, the appellants arrived at the respondent’s place on 21 st September to confront them about the actions of Ramanaika’s son. A sum of Rs. 4000 was also demanded by the appellants in order to cover the medical treatment costs. A heated altercation happened, as a result of which the appellant party poured kerosene on Jayamma (who is now deceased) and set her on fire. The appellants were explicitly blamed for the death of Jayamma (respondent). Jayamma’s family members heard her screams and tried to set off the fire. In the meantime, the appellants ran away from the scene. Jayamma was then admitted to a “public health entre”. Jayamma was given pain killers and basic treatment by Dr A. Thippeswamy. A medico-legal case was then sent to the Thalak police station. Jayamma gave her statement and she had implicated the whole appellant party under “sections 307, 504, 114” read along with “section 34” of the IPC. Finally, on September 23, Jayamma passed away. The post-mortem report said that she died due to shock which came as a result of her injuries. The appellants got arrested, but with the help of anticipatory bail, they had to be released. When the matter was presented in the trial court, a number of witnesses turned hostile. The issue then was whether Jayamma’s death was suicidal in nature or if it was homicidal. It was noted by the court that all of this was based on the dying declaration of Jayamma. The accused were not convicted due to a lack of genuineness and evidence (except for the dying declaration). Therefore, the court acquitted the appellants. During the High Court hearing, it was decided that the judgement of the trial court would be reversed. The HC of Karnataka decided that a dying declaration was enough to convict an accused. The Hon’ble court convicted the accused under “section 302” read with “section 34” of IPC.

Issues

1. Was it right on the High Court’s part to reverse the decision taken by the trial court?
2. Was it successfully established that Jayamma’s death was not suicidal, and instead was homicidal in nature?

Arguments

• Argument made by the appellants:
  The appellant’s side claimed that the decision taken by the trial court was well structured, unlike that of the High Court which was vague and confusing. It was also contended that the High Court failed to examine the conclusions of the trial court. Thus under “section 378” of the CrPC “, it failed to discharge its obligation”. They claimed that a decision should not be taken just on the basis of a dying declaration and that the motive of the appellants could not be established. Hence, the acquittal is incorrect.
• Argument made by the respondent:
  The learned counsel contended that in cases of death from 100% burn injuries, the dying declaration can be considered enough for a conviction.

Judgement

After a thorough investigation, the Supreme Court found that some modifications had been done in the dying declaration and that the HC of Karnataka had unnecessarily depended a lot on just the dying declaration. The Court also concluded that since Jayamma was in a lot of pain she might have not been in a state to give a proper statement before dying. Hence, the Apex Court decided to acquit the appellants in the present case. The Court also mentioned that high accuracy had been maintained in the dying declaration which was unlikely for an individual who was in such physical condition and also Jayamma was not that literate to describe the whole situation with such details. Jayamma was alive for almost 30 hours, but the authorities did not contact the Executive Magistrate to record the statement of the patient. Hence, the apex court was not convinced enough to accept the dying declaration as the sole piece of evidence to convict the appellants. The Court also pointed out the fact that it was not a family member who had complained to the police, instead it was the doctor. Thus, this also questions the homicidal nature of death. Apart from these, it was also held that it was unfair on the High Court’s part to exercise “section 378” of the CrPC, that too when the trial court gave a right decision.

Conclusion

This is an important judgement that primarily talks about the usage of dying declaration as the sole piece of evidence in any case. A point that should be noted here is that it took so many years to serve justice to Jayamma and her family. During this course of time, the family had to go through a lot. There are so many cases in India that are pending, and the party that suffers the most in these cases are one of the parties. Also, it is not fair to assume that the investigation done by lower courts is inadequate or incorrect. The Supreme Court had given a very detailed and reasonable judgement in this case. This judgement is one of the most significant judgements of 2021.

This article is written by Aaratrika Bal student at National Law University Odisha.

-Report by GURPREET SINGH

FACTS

On 15.6.16, the prosecutrix, along with her niece around 9 P.M went to Narispur Sabzi Mandi to purchase vegetables. On reaching Buddha Jayanti Park, the accused obstructed her and forcefully took her to a secluded place in the park and raped her around 9.30-10 P.M . The Prosecuterix managed to run away from the clutches of the accused, got reunited with her niece, and narrated the incident to her. After the incident, they went straight to Shani Mandir, Dasratpur where they narrated the incident to the husband of the niece, who called the police, and the accused was apprehended as he was still following them. The Trial Court convicted the accused under section 354 D and 376 of the I.P.C. Aggrieved by the said order the accused approached the High Court in appeal.

CONTENTIONS

The learned counsel of the appellant contended that there was the consent of the prosecutrix in the act and the consent can be adduced by the fact that she did not raise an alarm on noticing the accused following her in the mandi. The counsel further contended that the appellant did not raise an alarm at the point of the time of the alleged rape incident as well. They further contended that the niece of the prosecutrix requested the appellant and prosecutrix to get ice cream for all of them and at that point in the time prosecutrix agreed to have sex with the appellant instead of money. They further contended that no external injuries were found on the prosecutrix and that contradicts their theory of rape.

DECISION OF THE COURT

The Court by pursuing the testimonies and other evidence on record concluded that the explanation of the prosecutrix in concluding that the accused might have been shopping in the mandi as others, on observing that he was following them. Further, on the point of prosecutrix not raising an alarm at the time of incidence, the court reasoned that the place of incidence was scheduled and there even if she had raised an alarm, it would have reached no one and the MSL report indicates injuries on the appellant that depicts resistance by the prosecutrix. The argument of the accused that he befriended the niece of the prosecutrix and when requested by her to get ice cream, he offered money to prosecutrix to have sex and she consented is an afterthought as he in his statement under section 313 C.R.PC stated that he refused to pay money to the prosecutrix after having sex with her on the premise that he did not possess an amount of Rs 300. This contradicts his statement. The Court further placed reliance on the State of Himachal Pradesh v Manga Singh, which held that the conviction can be based solely on the solitary evidence of the prosecutrix and no corroboration be required. The Court confirmed the conviction of the accused and directed the trial court to consider compensation to the victim in light of the Delhi Victim Compensation Scheme.