Tag: CrPC

-Report by Sarweshree Bawari

The High Court of Himachal Pradesh in Jagir Singh Vs the State of Punjab, held that the FIR be dismissed even though the offence was heinous. The matter was classified as being private as it involved a husband-wife, and both of them reached an agreement outside the court.

FACTS

In this case, a FIR is sought to be quashed. The FIR came to be lodged at the behest of respondent Sarvjeet Kaur, the wife of plaintiff Jagir Singh. She alleged that her marriage was solemnized with the petitioner on 26 February 2020 and since then she has been residing with him as his wife. Jagir Singh is in the Indian Army, but he does not provide any financial support to his wife to run her household nor does he behave properly. The petitioner insisted on developing physical relations to which the respondent agreed but since he tried to commit unnatural intercourse to which she refused. She has been a victim of harassment by her husband ever since for bringing in less dowry. Therefore, the matter was investigated by the police, and they presented challan in the competent court of law but it could not be taken to its logical end. This was because the husband-wife duo reached for a settlement outside the court. They decided to settle the dispute among themselves amicably.

The court directed the respondent state to verify the facts about the compromise, if any, arrived at by the parties, so that the facts with regard to the compromise can be ascertained.

Although the reply on behalf of the respondent-state is said to have been filed, the same is not recorded, nor are the instructions of the respondent on record, but Sarabjit Kaur is present in the court and represented by Miss Mamta.

RESPONDENT’S CONTENTION

The Learned Counsel contended that the defendant has, of her violation, compromised the matter with the petitioner and now they have amicably resolved to settle the dispute. She states that both of them have filed proceedings in the competent court of law for dissolution of marriage by way of mutual consent and she has also received a sum of Rs.4,00,00 out of the eight lakh promised to her. As such she does not wish to prosecute the case any further and would like to quash all the charges.

The court’s dilemma

The court was in a sudden dilemma as to whether they should allow both parties to quash the charges or carry on with the criminal proceedings. The Hon’ble Apex court in Narendra Singh and others vs the State of Punjab and another had specifically held that the power under section 482 CrPC is not to be exercised in cases that involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity. Such offences are not private and have a serious impact on society. It would be open to the High Court to examine the case. Further, in Gian Singh Vs the State of Punjab, it was mentioned that the court must have due regard to the nature in the gravity of the crime and its social impact and it cautioned the courts not to exercise the power of quashing proceedings in heinous and serious offences of mental depravity, murder, rape, dacoity etc. In this particular case, the kind of harassment, the mental damage and the professional report of Sarvjeet Kaur are said to play a key role.

COURT’S DECISION

It was observed by the court

“In the case at hand, the offences alleged to have been committed by the accused though are heinous offences but since the parties are husband-wife and have decided to part their ways by filing divorce petition with mutual consent and compromise has been arrived at inter se them, as such, no fruitful purpose would be served in continuing with criminal prosecution of the petitioner, more so when complainant has compromised the matter with the accused and complainant is no more interested in pursuing the case further and there are bleak and remote chances of conviction of accused and as such, this court sees no impediment in accepting the prayer made by petitioners for quashing of FIR.”

The court, therefore, quashed all the charges against the petitioner.

-Report by Reyanshi Bansal

It has been held by the Hon’ble High Court of Delhi in the case of Sarvesh Singh v. State NCT of Delhi that the bail application will be rejected given the nature and gravity of the offence as well as the impact of the crime on society.

The bail application was filed by the petitioner under Section 439 (a person is in “custody” as and when he surrenders to the police) and Section 482 (the High court can recall a judgment or an order which was passed without hearing a person prejudicially affected by it) of the Cr.P.C.

An F.I.R. was reported under IPC 364/48 (abduction or kidnapping order to murder) by Ramesh Chand in which he alleged that his son, Prem Kumar, went to the house of his friends, Ajay Singh and Sarvesh Singh. Then, his son’s phone was found switched off and all his efforts to find where his son was were unsuccessful.

Based on this information, a case was registered and an investigation was carried out. Evidence was found against the petitioner and Ajay Singh, because of which they were arrested and after the completion of the investigation, charges under section 302/201/120-B/34 IPC (murder, hiding evidence of a crime, criminal conspiracy, a criminal act carried out by several persons with a common intention) were framed against the accused persons.

The petitioner claimed that he was falsely implicated, he had no history of committing any criminal offence and that no recovery has been effected from the petitioner. Moreover, the petitioner argued that there was only the presence of circumstantial evidence and not an eyewitness by which the prosecution is trying to trap the petitioner. The petitioner further contends that he is arrested because of a disclosure statement of the co-accused which is not admissible in the court as evidence. No incriminating substance was found against him.

Along with this, the petitioner surrendered himself to the court after the expiry of his interim bail and never misused the liberty granted to him by the court. Furthermore, the seven-year-old son of the petitioner is not keeping well. He requested to be released on regular bail for the above-mentioned reasons.

Contrary to the statements given by the petitioner, the prosecution opposed the bail application for several reasons. The state provided CCTV footage of the petitioner and co-accused in uniform carrying the dead body of the deceased Prem Kumar, a compact disc of a conversation between the petitioner and the daughter of the complainant, Kiran and two witnesses. One of the witnesses was the driver, Narender who deposed against the accused and revealed that the iron box was kept in the car. The other, Islamuddin, identified Sarvesh and Ajay Singh by their name plates who came to purchase the Tin box from his shop. The prosecution also contended that just because the petitioner made an interim bail, it does not entitle him to the grant of regular bail, more so, considering the merits of the case and the
heinous crime. As far as the uneasiness of the petitioner’s son goes, his wife is there to look for the child.

The court quashed the application for regular bail and held that:

“In view of the discussion mentioned hereinabove, looking into the nature and gravity of the offence, its impact on the society and severity of the punishment of the offence, no ground for bail is made out, the bail application is, therefore, dismissed. Petitioner is directed to surrender forthwith. The bail application is disposed of accordingly.”

-Report by Mahak Gulbake

The Supreme Court has held it in the case of Dibaker Nunia & Anr. V. The State of Assam that it is important for the prosecution to prove the case beyond reasonable doubts in serious offences.

FACTS

In this case, an F.I.R. had been filed by a person at the Ghungoor Police Outpost on 01st October 1999 at approximately 10 a.m. He alleged that at 12.30 a.m. the day before, as he was coming home, he discovered a man lying in front of the Congress Party election office. According to the informant and based on an electric lamp, he identified the individual on the ground as his younger brother. He returned home and learned from his parents that the appellants(or accused) had attacked the deceased in the evening. The case was investigated and a charge sheet was filed in relation to the offences under section 302/34 IPC. A trial was conducted before the trial court and the accused were convicted. The High Court dismissed the appeal filed by the present appellants and affirmed the judgment as passed by the Sessions Court, Cachar, Silchar, Assam convicting the appellants of an offence under Sections 302/34 Indian Penal Code, 1860 (‘IPC’) and awarded the rigorous imprisonment for a lifetime.

APPELLANT’S CONTENTION

Learned counsel for the appellants argued vehemently that both the Sessions Court and the High Court, in this case, proceeded based on irrelevant considerations and ignored major weaknesses in the prosecution case. According to the learned counsel, the conviction of the appellants is primarily based on the testimony of the mother and father of the accused, but their statements not only include major contradictions but also contain inbuilt implausibilities. If their statements are considered, it is not a normal activity for any person to return home, eat a meal and sleep after having seen his kid being assaulted by some people. Further, none of the independent witnesses has corroborated the story of the father of the deceased.

RESPONDENT’S CONTENTION

The learned counsel for the State has addressed properly the impugned judgement and order and has argued that, when the totality of the circumstances is considered, it cannot be said that the statements of the witnesses are completely unreliable and that the concurrent findings based on those statements do not merit interference.

COURT’S DECISION

After the cross-examination of the shreds of evidence, it has been held that it is true that the deceased was violently abused and sustained many injuries to essential organs, but based on the information presented by the prosecution, it is difficult to conclude beyond a reasonable doubt that the appellants were solely responsible for these injuries. In light of the above, it was observed:

“It remains trite that in such a criminal case, the prosecution is expected to prove its case and to substantiate the charge beyond reasonable doubt. A reasonable doubt is not a mere possible doubt but a fair doubt based upon reasons and common sense. It must grow out of the evidence in the case1. When a reasonable doubt arises in a matter, benefit of doubt must be given to the accused. In the present case, the doubts reasonably arising in the matter had been brushed aside by the High Court on the logic that itself remains unacceptable.“

The order of the High Court was set aside and the accused were acquitted.

-Report by Shagun Sharma

The Delhi High Court had observed in the case of SULEMAN v. THE STATE (NCT OF DELHI) that the object of default bail is inherently linked to Article 21 of the Constitution of India, laying emphasis on safeguarding the life and personal liberty of the accused against arbitrary detention. A revision Petition had been filed, to set aside the order passed by the Learned Trial Court, Delhi, wherein Default Bail of the Petitioner, under Section 167(2) Cr.P.C. was dismissed. The Coram consisted of the HON’BLE MS. JUSTICE SWARANA KANTA SHARMA.

FACTS

The Petitioner was in custody in the FIR registered under sec. 21 and 29 of the NDPS Act. On completion of the investigation, a charge sheet was filed on March 3, 2021, without the Forensic Science Laboratory (FSL) report. The charge sheet mentioned that the supplementary charge sheet would be filed on the receipt of the report from the forensic laboratory. The Petitioner was then arrested on March 4 last year, wherein he was found in possession of 300 gms of heroin and 06 gms of the heroin were recovered from the co-accused.

The Petitioner filed an application for bail in default under Section 167(2) of the Cr.P.C. before the learned Trial Court,
claiming that the complete charge sheet was not filed within the stipulated time frame under Section 36A (4) of the NDPS Act. The learned Trial Court observed that the accused would not be entitled to Default Bail as the charge sheet has been filed even though the FSL Report is not filed. In furtherance, it was observed by the learned Trial Court that the quantity recovered from the Petition would fall under the bar of commercial quantity. Thus, the onus would be upon the Petitioner to satisfy the learned Trial Court.

It was stated by the learned Counsel for the petitioner that the charge sheet is incomplete without FSL Report since the IO does not know whether the substance recovered is actually a banned substance under Sections 21 and 29 of the NDPS Act.

Ld. Counsel for the APP stated that the question of whether the charge sheet is incomplete without an FSL Report or
not, is yet to be decided by the Hon’ble Supreme Court and therefore the reliance should be placed on the law presently laid down by the Division Bench of this Court in Kishan Lal vs State 1989.

COURT’S DECISION

The High Court was of the view that the default bail under sec. 167 of CrPC can only be availed before the filing of the charge sheet and the period for the calculation of the number of days of detention would commence from the date of remand of the accused and not from the date of arrest.

The Court also said that at present, the settled law persists in the view that non-filing of the FSL Report with the charge sheet does not fall within the realms of Section 173(2) of the Cr. P.C so as to consider it as an “incomplete report”. In the present case although FSL Report has not been filed, however, the charge sheet was already filed on 3rd March 2021. Further, the quantity recovered from the accused is of commercial nature barring the accused from bail under Section 37 of the NDPS Act. Therefore, finding no infirmity in the impugned order, the court dismissed the plea.

-Report by Zainab Khan

A single bench of Justice Kauser Edappagath hearing the matter of criminal appeal in the case of CHANDRAKUMAR vs State of Kerala reduced the sentence of the appellant from 7 years of imprisonment to 5 years and also reduced the fine from Rs.50,000 to 5000.

FACTS

The appellant was charged u/s -304 of IPC for killing his mother-in-law named Santhamma. On 4th March 2012, the appellant beat Santhamma by grabbing her hair and beating her head with a torch, and on the next morning, she died because of the injuries. On 22nd September 2017, an additional district and session Judge found the appellant guilty u/s 304 of IPC on the basis of facts, evidence, and witnesses. He sentenced him to 7 years of imprisonment and
imposed a fine of Rs.50,000. The appellant thus filed an appeal against his conviction in the Kerala High court.

Petitioner contentions

The learned counsel Adv. Reji R appeared for the appellant. He contended that the appellant has undergone a Substantive period of his imprisonment and the remaining period should be reduced to the sentence already undergone. He also argues that the appellant is the only earning member in his family and his family depends upon him and he also can’t afford to pay the whole amount of the fine. He can only afford up to Rs 5000.

COURT’S DECISION

Justice Kauser Edappagath while disposing of this criminal appeal upheld the decision of the district and session Judge-IV with a modification that imprisonment reduces to the period already undergone ( i.e 5 years 6 months and 1 day as on 16th July 2022) by the appellant. The amount of the fine was reduced to Rs.5000. The appellant shall be released as and when he pays the fine.