Calcutta High Court Judgments on Criminal Matters

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  1. A Court of Sessions under Section 9 of the Code comprises of a principle Judge, namely, the Sessions Judge, as well as such number of Additional Sessions Judges and Assistant Sessions Judges, as may be appointed by the High Court. Therefore, an appeal against an order of conviction and sentence under Sub-Section 3 of Section 374 Cr.P.C. filed before an Additional Session Judge who is a constituent of the Court of Sessions in terms of the impugned notification cannot be said to be contrary to the provisions of the Code of Criminal Procedure particularly Section 374(3) thereof (Also available at [2016(1)CLJ (Cal) 131])
  2. Bail once granted can be cancelled if and when it is found that the accused after being released on bail abuses the liberties given to him. In other words, the conduct of the accused subsequent to the granting of bail is an important factor while considering any application for cancellation of bail (Also available at [2016(1) CLJ(Cal)123])
  3. The remand order passed by the jurisdiction Magistrate alone has to be legally considered as first remand for all the practical purposes. In the case of CBI v. Anupam J. Kulkarni (supra) the Hon’ble Supreme Court has clearly laid down that the period of 90 days or 60 days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the police. Consequently the first period of fifteen days mentioned in Section 167(2) has to be computed from the date of such detention and after the expiry of the period of first fifteen days it should be only judicial custody [ Also available at 2016(1)CLJ (CAL) 366]
  4. Apart from balancing aggravating circumstances and mitigating circumstances for arriving at the conclusion whether the case falls within the category of rarest of the rare warranting death penalty, the Supreme Court has formulated “crime test”, “criminal test” and “R-R test” for awarding death sentence in “Shankar Kisanrao Khade V. State of Maharashtra” reported in (2013) 5 SCC 546
  5. It is not necessary that the inquest report must record the name of the assailant. The inquest report is mainly about the manner in which the body of the victim was found which assists in the investigation of the crime [Also available at 2015 (1) CLJ (Cal) 313]
  6. A sentence of imprisonment relates to a person’s right to personal liberty which is one of the most important rights available to an individual and, therefore, the Court should be very reluctant to shut out a consideration of the case on merits on grounds of limitation or any other similar technicality [Also available at 2015 (1) CLJ (Cal) 598]
  7. Defects in investigation cannot be a ground for acquittal of the accused. So, failure to send the seized weapon of offence to Forensic Science Laboratory in the circumstances of the case is no more than a deficiency in the investigation and such deficiency does not lead to the conclusion that prosecution case is unworthy of credence [Also available at 2016(2) CLJ (Cal) 190]
  8. Once the prosecution is able to prove that victim was last seen alive together with the accused and the time gap is too short, between the time, “found alive” and “dead”, the provisions of Section 106 of the Evidence Act, at once attracted and the onus automatically shifts on the accused to explain as to how and under what circumstances the victim suffered a homicidal death and to prove their innocence, since such fact is especially within their knowledge. In absence thereof, it is the accused who should own the liability of murder [Also available at 2016(2) CLJ (Cal) 223]
  9. The Supreme Court has held in “Hasanbhai Valibhai Qureshi V. State of Gujarat” reported in 2004 C Cr LR (SC) 865 that the police can carry out further investigation without seeking any permission from the court, even when the court has taken cognizance of the offence on the basis of the police report submitted earlier on completion of investigation [Also available at 2016 (2) CLJ (Cal) 26]
  10. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence [Also available at 2015(2) CLJ(Cal) 141]
  11. A careful scrutiny of the oral testimony of the ocular witnesses overwhelmingly established that the appellant committed such offence on the spur of the moment. From such a momentary impulse on the part of the appellant, it cannot be held that the appellant committed that offence of murder within the meaning of Section 300 of the Indian Penal Code rather it can be construed that the appellant committed the offence with the intention of causing such bodily injury as was likely to cause death, within the meaning of Section 299 of the Indian Penal Code [Also available at 2015 (2) CLJ (Cal)  383]
  12. In the context of Section 439 of the Code, the 1988 amendment to the Code in the State implies without any ambiguity that the expression “Court of Session” in, inter alia, Section 439 of the Code includes a court presided over by the Additional Sessions Judge in a sub-division. The 1988 amendment, and particularly the first proviso to Section 9(3) of the Code, covers not only appeals and applications as referred to in the impugned notification of September 22, 2011 and the letter of September 6, 2014, but also takes within its fold “cases and proceedings in the Criminal Courts in that sub-division. …” The width of the authority vested in Additional Sessions Judges by the first proviso to Section 9(3) of the Code has to be viewed in the light of Section 209(a) of the Code also being covered thereby [Also available at 2015 (2) CLJ (Cal) 554]
  13. If the accused is unable to furnish the bail as directed by the Magistrate, then on a conjoint reading of Explanation I and the proviso to sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period in Para (a) will not be unauthorized, and therefore, if during that period the investigation is complete and the charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished [Also available at 2015 (3) CLJ (Cal) 488]
  14. Since the husband of the opposite party no.1 is a co-sharer of the undivided dwelling house in question, the ratio of “S.R. Batra and another V. Smt. Taruna Batra” reported in AIR 2007 SC 1118 is not applicable in the facts of the present case [Also available at 2016 (2) CLJ (Cal) 670].
  15. The very process of penning through His Lordship’s own signature by the Hon’ble Companion Judge was effected when His Lordship had become functus officio. It is apparent from the facts available before us that such “penning through” was not a spontaneous corrective measure occasioned by an inadvertent error. If that was the case, there ought to have been recordal of that factor in the subsequent opinion in the form of an order dated 7th June 2016. And the matter ought to have been listed on that date. It is impermissible for an order to be passed on a day the matter is not listed, and the parties having no alert over a fresh order going to be passed in petitions already disposed of. In any event, there cannot be two orders of two different Judges of a Division Bench in the same set of matters on two different dates. Such a course defeats the very objective of having a Division Bench. In exceptional cases, if such a course is to be adopted, the reason should be disclosed in open Court for withholding the order, and such reason ought to be incorporated in the Court records. This did not happen in the two petitions from which this reference originates. Legally impermissible course was adopted by the Hon’ble Companion Judge to revive jurisdiction over matters which was already lost [Also available at 2016(3) CLJ (Cal) 436].

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