Supreme Court Judgments on Criminal Matters

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  1. Accd. when released on bail he is not ordinarily required to appear before the court until C.S is filed
  2. Police is duty bound to register a case on the basis of an information disclosing cognizable offence. Genuineness or credibility of the information is not a condition precedent for registration of a case.
  3. The defence of drunkness can be availed of only when intoxication produces such a condition as the accused loses the requisite intention for the offence.
  4. The expression in furtherance of their common intention  as appearing in S.376(2)relates to intention to commit rape and therefore a woman cannot be prosecuted  under S. 376(2)(g)
  5. When an unlawful assembly or a large number of persons take part in arson or in a clash between two groups, in order to convict a person, at least two prosecution witnesses have to support and identify the role .
  6. In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial
  7. Simply because an offence is not compoundable under sec. 320 IPC is by itself no reason for the H.C to refuse exercise of it's power under sec. 482 Cr.P.C
  8. Whether delay in lodging the FIR of the accident could prove fatal so as to result into dismissal of the claim petition filed by the claimant.
  9. A finding of guilt in a case of rape can be based on the uncorroborated evidence of prosecutrix.Courts should at the same time bear in mind that false charges of rape are not uncommon
  10. Demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a  demand for dowry as the said word is normally understood
  11. The consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise , that he would marry her on a later date, cannot be said to be given under a misconception of fact
  12. Once the anticipatory bail is granted then the protection should ordinarily be available till the end of the trial unless interim protection is curtailed.
  13. Principles laid down by S.C regarding right of private defence
  14. Section 357 of Cr.P.C confers a power coupled with a duty on the courts to apply its mind to the question of awarding compensation  in every criminal case
  15. The crucial words are IN CONNECTION WITH THE MARRIAGE OF THE SAID PARTIES  referring to the word DOWRY as defined in sec. 2 of the Dowry Prohibition Act,1961
  16. Though offence under sec. 498-A is not compoundable, in appropriate cases if the parties are willing , court should direct parties to explore the possibility of settlement through mediation
  17. Where lodgement of two FIRs is permissible
  18. Whether a police officer is bound to register a FIR upon receiving any information relating to commission of a cognizable offence or the police officer has the power to conduct a  preliminary inquiry
  19. Whether in a complaint case an appeal filed against an order od acquittal shall lie to the sessions court under sec.378(1) or under sec. 378(4) Cr.P.C to the High Court
  20. Rarest of rare case test for death sentence
  21. Whether or not the social consequences of a culpable act and its impact on other people can be a relevant consideration for giving heavier punishment.
  22. Case of consensual sexual relationship when prosecutrix was aware that accused is a married person
  23. There is implied power in the Magistrate   for taking all necessary steps for ensuring proper investigation including monitoring the same
  24. It is not the amount of money misappropriated that becomes a primary factor for awarding punishment but it is the loss of confidence which is the primary factor to be taken into consideration
  25. Unless an accused is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided
  26. While computing period of ninety days under section 167 Cr.P.C, the day on which the accused was remanded to the judicial custody should be excluded, and the day on which challan is filed in the court, should be included
  27. Whether the word evidence used in section 319(1) Cr.P.C has been used in a comprehensive sense and includes the evidence collected during investigation or the word evidence is limited to the evidence recorded during trial
  28. General principles laid down by Hon'ble S.C regarding powers of appellate court while dealing  with an appeal against an order  of acquittal emerge
  29. The accused had obtained the consent of the prosecutrix for sexual intercourse under a misconception of fact i.e. that he would marry her and thus made her pregnant. He is thus guilty of rape.
  30. Whether discretion of the Magistrate to call for a report under sec. 202 instead of directing investigation 156(3) is controlled by any defined parameters
  31. Whether prosecution could have examined somebody as a witness against whom there is some material indicating his participation in a crime
  32. If a number of persons are accused of offences under a special enactment such as The Companies Act and also the IPC in respect of same transaction or facts then  which court would have jurisdiction to try all the offences
  33. In case of appeal against conviction in the H.C, then who can appear before the H.C on behalf of State - Whether P.P appointed to the H.C under sec. 24(1) or Special P.P already appointed under sec. 24(8) Cr.P.C
  34. Criminal trials should not be made casualties for any lapses committed by the investigating officer
  35. For the purpose of computing the period of limitation under section 468 Cr.P.C, the relevant date is the date of filing of the com-laint and not the date on which the magistrate takes cognizance
  36. Scope and extent of the powers of the court  during the course of inquiry or trial as contemplated under sec.319 of Cr.P.C.
  37. Merely because there is any omission, error or irregularity in the matter of according sanction that does not affect the validity of the proceeding unless such error,omission or irregularity has resulted in failure of justice
  38. Direction given by SC so that burden of the Courts can be reduced and that there may not be any scope for misappropriation or of replacement of valuable articles by spurious articles after seizure
  39. Reiteration of certain cardinal rules to be kept in mind in appeals against acquittal
  40. To succeed in the plea of private defence, the appellant has to prove that he exercised right of private defence in his favour and this right extended to the extent of causing death
  41. When  protection under section 197 of Cr.P.C is available to a public servant
  42. Public servants , in fact been treated as special category under section 197 Cr.P.C, to protect them from malicious or vexatious prosecution, the same cannot be treated as shield to protect corrupt officials
  43. SOON BEFORE HER DEATH in sec. 304B I.P.C is not synonymous with immediately before her death
  44. Though there is no specific  provision to amend either a complaint or a petition filed under Cr. P.C but  the petitions seeking such amendments to correct curable infirmities cam be allowed
  45. Heat of passion requires that there must be no time for the passions to cool down
  46. Mere delay in completion of proceedings may not be by itself a ground to quash proceedings where offences are serious
  47. The use of word SHOWN instead of PROVED in Section 304B IPC indicates that the onus cast on the prosecution would stand satisfied on the anvil of a mere preponderance of probability
  48. Interpretation of the expression  MAY, IF IT THINKS FIT occurring in section 438(1) Cr.P.C by the Apex court
  49. Where time gap is long it would be unsafe to base the conviction  on the LAST SEEN THEORY. it is safer to look for corroboration from other circumstances and evidence adduced by prosecution
  50. There is no universal rule that whenever there is some delay in sending the FIR to the Magistrate, the prosecution  version becomes unreliable
  51. Common intention is an intention to commit the crime actually committed and each accused person can be convicted of that crime, only if he has participated in that common intention
  52. The investigating agency, thus in the case of a probe into any offence has to maintain a delicate balance of the competing rights of the offenders and the victim as constitutionally ordained
  53. It is settled law that the defence needs to only establish it's case based on probability, whereas the prosecution has to prove the guilt of the accused beyond reasonable doubt
  54. On being satisfied on an application or on its own motion, the Court ought to direct grant of interim compensation, subject to final compensation  being determined later
  55. Intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder
  56. This practice of giving different amount ranging from Rs. 20,000 to Rs 10,00,000 as compensation for the offence of rape under sec. 357A needs to be introspected by all the States and the Union Territories.
  57. If the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge
  58. Whether the State Police Chief/Director General of Police is empowered to appoint a superior police officer investigate a crime case registered outside the territorial jurisdiction of such officer
  59. The fact that Police chose not to send up a suspect to face trial does not affect power of the trial court under Section 319 of the Cr.P.C. to summon such a person on account of evidence recorded during trial
  60. Principles laid down by Apex Court regarding requirement of taking sanction  under section 197 Cr.P.C
  61. Sub-section(3)of section 216 of Cr.P.C, in no uncertain term,stipulates that with the alteration or addition to a charge if any prejudice is going to be caused to the accused in his defence or the prosecutor in the conduct of the case, the Court has to proceed with the trial as if it altered or added the original charge by terming the additional or alternative charge as original charge.The clear message is that it is to be treated as charge made for the first time and trial has to proceed from that stage. This position becomes further clear from the bare reading of sub-section(4) of Section 216 of the Code which empowers the Court,in such a situation, to either direct a new trial or adjourn the trial for such period as may be necessary. A new trial is insisted if the charge is altogether different and distinct.
  62. Since the Court of Session is acting as the Court of original jurisdiction under Section 193 of the Code, after the committal of proceedings to it by the Magistrate, it is empowered to take cognizance and issue summons and it cannot be treated as taking second cognizance of the same offence
  63. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused
  64. If motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case
  65. The protection by way of sanction under Section 197 CrPC is not applicable to the officers of Government Companies or the public undertakings even when such public undertakings are ‘State’ within the meaning of Article 12 of the Constitution on account of deep and pervasive control of the government
  66. Thus viewed, we find no merit in the second contention advanced at the hands of learned counsel for the respondents, that where cognizance is taken under Section 319 of the ‘Code’, sanction either under Section 197 of the ‘Code’ (or under the concerned special enactment) is not a mandatory pre-requisite
  67. If the law requires that the orders of attachment should be withdrawn upon acquittal it stands to reason that such orders must be withdrawn when the prosecution abates or cannot result in a conviction due to the death of the accused, whose property is attached. Concept of abatement of a trial could be subsumed in the clause where the final judgment and order of the Criminal Court is one of acquittal. In this context, the presumption of innocence of an accused till he is convicted must be borne in mind and there is no reason to consider this presumption to have vaporized upon the death of an accused. It may be noted that this Court has time and again reiterated the presumption of innocence of an accused till he is convicted
  68. The law is therefore very clear that if an offence is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under  the Cr.P.C. To contend that this would have a deleterious and demoralizing impact on the security forces is certainly one way of looking at it, but from the point of view of a citizen, living under the shadow of a gun that can be wielded with impunity, outright acceptance of the proposition advanced is equally unsettling and demoralizing, particularly in a constitutional democracy like ours
  69. Whether consecutive life sentences can be awarded to a convict on being found guilty of a series of murders for which he has been tried in a single trial?
  70. Section 311-A of Cr.P.C. has been introduced by Act No.25 of 2005 with effect from 23.06.2006 with respect to the powers of the Magistrate to order the person to give specimen signatures or handwriting; but no such powers were there prior to the year 2006. Section 311-A Cr.P.C. has been inserted on the suggestions of the Supreme Court in State of Uttar Pradesh  v. Ram Banu Misra, (1980) 2 SCC 343 : AIR 1980 SC 791, that a suitable legislation be brought along the lines of Section 5 of Identification of Prisoners Act, 1980, to provide for the investiture of Magistrates with powers to issue directions to any person including an accused person to give specimen signatures and handwriting but no such powers existed prior to such amendment. The said amendment is prospective in nature and not retrospective
  71. The law is therefore very clear that if an offence is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under  the Cr.P.C. To contend that this would have a deleterious and demoralizing impact on the security forces is certainly one way of looking at it, but from the point of view of a citizen, living under the shadow of a gun that can be wielded with impunity, outright acceptance of the proposition advanced is equally unsettling and demoralizing, particularly in a constitutional democracy like ours
  72. Whether consecutive life sentences can be awarded to a convict on being found guilty of a series of murders for which he has been tried in a single trial?
  73. Section 311-A of Cr.P.C. has been introduced by Act No.25 of 2005 with effect from 23.06.2006 with respect to the powers of the Magistrate to order the person to give specimen signatures or handwriting; but no such powers were there prior to the year 2006. Section 311-A Cr.P.C. has been inserted on the suggestions of the Supreme Court in State of Uttar Pradesh  v. Ram Banu Misra, (1980) 2 SCC 343 : AIR 1980 SC 791, that a suitable legislation be brought along the lines of Section 5 of Identification of Prisoners Act, 1980, to provide for the investiture of Magistrates with powers to issue directions to any person including an accused person to give specimen signatures and handwriting but no such powers existed prior to such amendment. The said amendment is prospective in nature and not retrospective
  74. Though the concept of “cause of action“ identifiable with a civil action is not routinely relevant for the determination of territoriality of criminal courts as had been ruled by this Court in Dashrath Rupsingh Rathod vs. State of Maharashtra and Another , (2014) 9 SCC 129, their Lordships however were cognizant of the word “ordinarily” used in Section 177 of the Code to acknowledge the exceptions contained in Section 178 thereof. Section 179 also did not elude notice
  75. Whether an order directing further investigation under Section 156(3) of the Cr.P.C. can be passed in relation to public servant in the absence of valid sanction and contrary to the judgments of this Court in  Anil Kumar & Ors.  v.  M.K.Aiyappa & Anr. and Manharibhai Muljibhai Kakadia and Anr. v. Shaileshbhai Mohanbhai Patel and Ors
  76. We have already explained the distinction between Sections 301 and 302 CrPC. The role of the informant or the private party is limited during the prosecution of a case in a Court of Session. The counsel engaged by him is required to act under the directions of public prosecutor. As far as Section 302 CrPC is concerned, power is conferred on the Magistrate to grant permission to the complainant to conduct the prosecution independently
  77. In the peculiar facts of the present case, therefore, we accede to the contention of the appellants that the pendency of the criminal case against the respondent cannot be the sole basis to suspend the disciplinary proceedings initiated against the respondent for an indefinite period; and in larger public interest
  78. Hence the law is reiterated that in appropriate cases where this court is hesitant in maintaining death sentence, it may order that the convict shall undergo imprisonment for whole of natural life or to a lesser extent as may be specified
  79. The question is whether post-dated cheque issued by way of advance payment for a purchase order could be considered for discharge of legally enforceable debt
  80. It is undoubtedly correct that if intention or knowledge is one of the ingredients of any offence, it has got to be proved like other ingredients for convicting a person. But, it is also equally true that those ingredients being state of mind may not be proved by direct evidence and may have to be inferred from the attending circumstances of a given case
  81. Further, once it is established that the unlawful assembly had a common object, it is not necessary that all the persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring vicarious liability under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object
  82. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of “may be true” but has to essentially elevate it to the grade of “must be true”. In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted
  83. It is accepted principle of criminal jurisprudence that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proved guilty. The prosecution has to prove its case beyond reasonable doubt and the accused is entitled to the benefit of the reasonable doubt. The reasonable doubt is one which occurs to a prudent and reasonable man. Section 3 of the Evidence Act refers to two conditions – (i) when a person feels absolutely certain of a fact – “believe it to exist” and (ii) when he is not absolutely certain and thinks it so extremely probable that a prudent man would, under the circumstances, act on the assumption of its existence. The doubt which the law contemplates is not of a confused mind but of prudent man who is assumed to possess the capacity to “separate the chaff from the grain”. The degree of proof need not reach certainty but must carry a high degree of probability
  84. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.
  85. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission.
  86. Though it is manifest from Section 427(1),that the Court has the power and discretion to issue a direction that a subsequent sentence shall run concurrently with the previous sentences, the very nature of the power so conferred, predicates that the discretion, would have to be exercised along judicial lines or not in a mechanical or pedantic manner. It was underlined that there is no cut and dried formula for the Court to follow, in the exercise of such power and that the justifiability or otherwise of the same, would depend on the nature of the offence or offences committed and the attendant facts and circumstances. It was however postulated, that the legal position favours the exercise of the discretion to the benefit of the prisoners in cases where the prosecution is based on a single transaction, no matter even if different complaints in relation thereto might have been filed. The caveat as well was that such a concession cannot be extended to transactions which are distinctly different, separate and independent of each other and amongst others where the parties are not the same
  87. The classic enunciation of the law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable to the decision of this Court in Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116. The relevant excerpts from paragraph 153 of the decision is assuredly apposite: “153.(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused...they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”
  88. The position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved [See :Abdul Sayeed v . State of M.P.,(2010) 10 SCC 259]
  89. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith
  90. The aforesaid analysis of the provision clearly spells how coercive harassment can have the attributes of cruelty that would meet the criterion as conceived of under Section 498-A of the IPC. Thus, the emphasis is on any wilful conduct which is of such a nature that is likely to drive the woman to commit suicide. The mental cruelty which is engraved in the first limb of Section 498-A of the IPC has nothing to do with the demand of dowry. It is associated with mental cruelty that can drive a woman to commit suicide and dependent upon the conduct of the person concerned.
  91. It is well settled that in case where an order of acquittal has been made on improper and erroneous appreciation of evidence, it is always open to the court of appeal to make proper and reasonable appreciation evidence and differ from the order of acquittal and in such event, it shall never hesitate in reversing the same.
  92. Under Section 343 of the CrPC, the Magistrate has to deal with the complaint referred to in Section 340 of the CrPC as if it was instituted on a police report. Therefore, on the offences referred to under Section 195(1)(b)(i) of the CrPC, all falling within the purview of warrant case, the Magistrate has to follow the procedure for trial of warrant cases under Chapter XIX Part A comprising of Sections 238 to 243 of the CrPC. It is only in view of such seriousness of the matter, Section 340 of the CrPC has provided for a meticulous procedure regarding initiation of the inquiry.
  93. Insofar as entertainment of application for bail is concerned, the Court pointed out that reasons must be recorded while granting the bail, but without discussion of merits and demerits of evidence. It was clarified that discussing evidence is totally different from giving reasons for a decision. This Court also pointed out that where order granting bail was passed by ignoring material evidence on record and without giving reasons, it would be perverse and contrary to the principles of law. Such an order would itself provide a ground for moving an application for cancellation of bail. This ground for cancellation, the Court held, is different from the ground that the accused misconducted himself or some new facts call for cancellation.
  94. We may further elaborate that when the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the Courts. In such cases, imposition of minimum sentence, be it imprisonment or fine, is mandatory and leaves no discretion to the court. However, sometimes the legislation prescribes a minimum sentence but grants discretion and the courts, for reasons to be recorded in writing, may award a lower sentence or not award a sentence of imprisonment. Such discretion includes the discretion not to send the accused to prison. Minimum sentence means a sentence which must be imposed without leaving any discretion to the court. It means a quantum of punishment which cannot be reduced below the period fixed. If the sentence can be reduced to nil, then the statute does not prescribe a minimum sentence. A provision that gives discretion to the court not to award minimum sentence cannot be equated with a provision which prescribes minimum sentence. The two provisions, therefore, are not identical and have different implications, which should be recognized and accepted for the PO Act.
  95. It is well-accepted fact that age determination using ossification test does not yield accurate and precise conclusions after the examinee crosses the age of 30 years, which is true in the present case.
  96. That the intention of the legislature is that in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit an offence and that there ought to be an active or direct act leading the deceased to commit suicide, being left with no option, had been propounded by this Court in S.S. Chheena vs. Vijay Kumar Mahajan (2010) 12 SCC 190.
  97. We observe that it is clear from the use of the words "may take cognizance" in the context in which they occur, that the same cannot be equated with "must take cognizance". The word "may" gives discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and that the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter, which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself. It is settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, do not disclose the commission of an offence.
  98. However, an overt act is not always an inflexible requirement of rule of law to establish culpability of a member of an unlawful assembly. The crucial question is whether the assembly entertained a common unlawful object and whether the accused was one of the members of such an assembly by intentionally joining it or by continuing in it being aware of the facts which rendered the assembly unlawful. Without unlawful object no assembly becomes an unlawful assembly.
  99. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion?
  100. The aforesaid passage clearly shows that if legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention. We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of the IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission is covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC.
  101. Similarly, in the case of Kanhaiya Lal (supra), the Court observed that last seen together circumstance does not by itself necessarily lead to inference that it was accused who committed crime but there must be something more to connect the accused with the crime and to point out the guilt of the accused and none else.
  102. Learned Advocate is right in submitting that in certain cases this Court had granted benefit even to a non-appealing accused. In Bijoy Singh v . State of Bihar , this court observed that if on evaluation of the case, a conclusion is reached that no conviction of any accused was possible the benefit of that decision must be extended to the similarly situated co-accused even though he had not challenged the order by way of the appeal. To similar effect was the dictum of this court in 2002 (8) SCC 147 Suresh Chaudhary v. State of Bihar and in Pawan Kumar. State of Haryana and in Mohinder Singh and Anr.v. State of Punjab and Other.
  103. The seminal issue that arises for consideration in this appeal, by special leave, is whether the High Court while refusing to exercise inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) to interfere in an application for quashment of the investigation, can restrain the investigating agency not to arrest the accused persons during the course of investigation.
  104. Though the word “retrial” is used under Section 386(b)(i) Cr.P.C., the powers conferred by this clause is to be exercised only in exceptional cases, where the appellate court is satisfied that the omission or irregularity has occasioned in failure of justice. The circumstances that should exist for warranting a retrial must be such that where the trial was undertaken by the Court having no jurisdiction, or trial was vitiated by serious illegality or irregularity on account of the misconception of nature of proceedings. An order for retrial may be passed in cases where the original trial has not been satisfactory for some particular reasons such as wrong admission or wrong rejection of evidences or the Court refused to hear certain witnesses who were supposed to be heard.
  105. It is trite law that the common object of the unlawful assembly has to be inferred from the membership, the weapons used and the nature of the injuries as well as other surrounding circumstances. Intention of members of unlawful assembly can be gathered by nature, number and location of injuries inflicted.
  106. On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefore to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant / informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand.
  107. As per the law declared by this Court, Section 20A is mandatory and any violation of the procedure prescribed therein would vitiate the entire proceedings with respect to the TADA offences. This Court in Izharul Haq Abdul Hamid Shaikh v. State of Gujarat reported in (2009) 5 SCC 283 released the Appellant therein on bail on the ground that Section 20A (1) was violated.
  108. As is clear from the plain language, in order to attract the provision of the Section, following ingredients are to be essentially established.  (i)There must be an unlawful assembly. (ii) Commission of an offence by any member of an unlawful assembly. (iii)Such offence must have been committed in prosecution of the common object of the assembly; or must be such as the members of the assembly knew to be likely to be committed. If these three elements are satisfied, then only a conviction under Section 149, I.P.C., may be substantiated, and not otherwise. None of the Sections 147, 148 and 149 applies to a person who is merely present in any unlawful assembly, unless he actively participates in the rioting or does some overt act with the necessary criminal intention or shares the common object of the unlawful assembly.
  109. The scope of interference and exercise of jurisdiction under Section 397 of Cr.P.C. has been time and again explained by this Court. Further,the scope of interference under Section 397 Cr.P.C. at a stage, when charge had been framed,is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with scheme of Code of Criminal Procedure.
  110. It is no more res integra that a finding of the commission of the offence under Section 326 read with Section 149 can be recorded against members of an unlawful assembly even if it is established that the offence under Section 302 was committed by one member of such assembly. (See: Shambhu Nath Singh and Ors v. State of Bihar).
  111. It was underlined that the object of bail is neither punitive nor preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.
  112. Under Section 63 of IPC where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited, but should not be excessive. Having regard to the gravity of the offence and the illegal gains made by the accused, the fine imposed to the tune of Rs.60 crores is not excessive. However, there is no provision under the IPC for substitution of sentence by fine. The only provision is on default sentence under Section 65 of IPC. Hence, that part also requires correction.
  113. The approach to be adopted in appreciation of evidence in cases of circumstantial evidence is by now well settled. The facts in cases of circumstantial evidence should be consistent only with the hypothesis of guilt of the accused and the circumstances should be of conclusive nature and tendency. It has been held by this Court that the chain of evidence should be complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. ( See (1984) 4 SCC 116 ).
  114. The Trial Court held that even private individuals could be prosecuted for the offence under Section 109 of I.P.C. and we find that the Trial Court was right in coming to the conclusion relying on the decision of Nallammal (supra),wherein it was observed that acquisition and possession by a public servant was capable of being abetted, and observed that Under Section 3 of the 1988 Act, the Special Judge had the power to try offences punishing even abetment or conspiracy of the offences mentioned in the PC Act and in our opinion, the Trial Court correctly held in this matter that private individuals can be prosecuted by the Court on the ground that they have abetted the act of criminal misconduct falling under Section 13(1)(e) of the 1988 Act committed by the public servant.
  115. The fair trial which is constitutionally protected as a substantial right under Article 21 and also the statutory protection, does invite for consideration a sense of conflict with the interest of the victim(s) or the collective/interest of the society. When there is an intra-conflict in respect of the same fundamental right from the true perceptions, it is the obligation of the constitutional courts to weigh the balance in certain circumstances, the interest of the society as a whole, when it would promote and instill Rule of Law. A fair trial is not what the accused wants in the name of fair trial. Fair trial must soothe the ultimate justice which is sought individually, but is subservient and would not prevail when fair trial requires transfer of the criminal proceedings.
  116. The non-examination of the witnesses, who might have been there on the way to hospital or the hospital itself when deceased narrated the incident, would not make the prosecution case unacceptable. Similarly, evidence of any witness cannot be rejected merely on the ground that interested witnesses admittedly had enmity with the persons implicated in the case. The purpose of recoding of the evidence, in any case, shall always be to unearth the truth of the case. Conviction can even be based on the testimony of a sole eye-witness, if the same inspires confidence.
  117. The paramount principle that should be the guiding laser beam is that the punishment should be proportionate. It is the answer of law to the social conscience. In a way, it is an obligation to the society which has reposed faith in the court of law to curtail the evil. While imposing the sentence it is the court’s accountability to remind itself about its role and the reverence for the rule of law. It must evince the rationalised judicial discretion and not an individual perception or a moral propensity. The Court further held that if in the ultimate eventuate the proper sentence is not awarded, the fundamental grammar of sentencing is guillotined and law does not tolerate it; society does not withstand it; and sanctity of conscience abhors it. It was observed that the old saying “the law can hunt one’s past” cannot be allowed to be buried in an indecent manner and the rainbow of mercy, for no fathomable reason, should be allowed to rule. The conception of mercy has its own space but it cannot occupy the whole accommodation.
  118. In a different context, this Court in Gangabhavani vs. Rayapati Venkat Reddy and Ors3., observed that in case there is a contradiction between medical evidence and ocular evidence, the law is that though the ocular testimony of the eye witness has greater evidentiary value vis-à-vis medical evidence, where the medical evidence goes so far that it completely rules out all the possibility of the ocular evidence being true, the ocular evidence may be disbelieved. In the present case, the expert evidence to the effect that the empty cartridges which were found on the spot were not fired from the weapon that was recovered, does not really create a contradiction with the ocular evidence of P.W. 1 that the accused fired at the deceased with a gun and killed him. It so happens that the gun recovered by the police, turns out to be the gun that was not used. This creates no contradiction between the evidence of P.W. 1 and the ballistics report though broadly it may amount to a contradiction in the prosecution case.
  119. Learned senior counsel for the appellants further relied upon Sunil Bharti Mittal vs. Central Bureau of Investigation 2015 (1) SCALE 140 wherein it was held that a corporate entity is an artificial person which acts through its officers, directors, managing director, chairman etc. If such a Company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the Company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is a cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.
  120. This court in State of Punjab Vs. Karnail Singh (2003) 11 SCC 271 (Para 12), has held that the prosecution is not required to meet any and every hypothesis put forward by the accused. It must grow out of the evidence in the case. If a case is proved perfectly, it can be argued that it is artificial, and where the case has some flaws inevitable because human beings are prone to err, it is argued that it is a doubtful story. Proof beyond reasonable doubt is a guideline, not a fetish. A judge does not preside over a criminal trial merely to see that that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties.
  121. It is settled law that mere latches on the part of Investigating Officer itself cannot be a ground for acquitting the accused. If that is the basis, then every criminal case will depend upon the will and design of the Investigating Officer. The Courts have to independently deal with the case and should arrive at a just conclusion beyond reasonable doubt basing on the evidence on record.
  122. In Prasanta Kumar Sarkar vs. Ashis Chatterjee and another, ((2010) 14 SCC 496) it has been opined that while exercising the power for grant of bail, the court has to keep in mind certain circumstances and factors. We may usefully reproduce the said passage:- “9....among other circumstances, the factors which are to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to be believed that the accused had committed the offence. (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.”
  123. Apex court’s guidelines regarding inadequacies and deficiencies in criminal trials.
  124. Paragraph 102 which enumerates 7 categories of cases where power can be exercised under Section 482 Cr.P.C. are extracted as follows: “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
  125. It was held that in cases where negligence is alleged against professionals like doctors the court should be careful before instituting criminal proceedings. It is not possible for any doctor to assure or guarantee that the result of treatment would invariably be positive. The only assurance which a professional can give is that he is professionally competent, has requisite skill and has undertaken the task entrusted to him with reasonable care.
  126. The Law Commission of India has submitted its Report No.262 titled “The Death Penalty” after the reference was made from this Court to study the issue of Death Penalty in India to “allow for an up-to-date and informed discussion and debate on this subject”. We have noticed that the Law Commission of India has recommended the abolition of death penalty for all the crimes other than terrorism related offences and waging war (offences affecting National Security). Today when capital punishment has become a distinctive feature of death penalty apparatus in India which somehow breaches the reformative theory of punishment under criminal law, we are not inclined to award the same in the peculiar facts and circumstances of the present case.

Source: Official Website of WBJA, Last Updated on 20-01-2018

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