Tag Archives: accused

Unlawful Assembly – Ingredients Of

The basic principles remain that the important ingredients of an unlawful assembly are the number of persons forming it, i.e. five, and their common object. Common object of the persons composing that assembly could be formed on the spur of the moment and does not require prior deliberations. The course of conduct adopted by the members of such assembly; their behavior before, during, and after the incident; and the arms carried by them are a few basic and relevant factors to determine the common object. Manjit Singh v. State of Punjab, (2019) 8 SCC 529.

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Protest Petition – Consideration of

It is undoubtedly trues that before a Magistrate proceeds to accept a final report under Section 173 CrPC and exonerates the accused, it is incumbent upon the Magistrate to apply his mind to the contents of the protest petition and arrive at a conclusion thereafter. While the investigating officer may rest content by producing the final report, which, according to him, is the culmination of his efforts, the duty of the Magistrate is not one limited to readily accepting the final report. It is incumbent upon him to go through the materials, and after hearing the complainant and considering the contents of the protest petition, final decide the future course of action to be, whether to continue with the matter or to bring the curtains down.

If a protest petition fulfills the requirements of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required under Section 200 read with Section 202 of the Criminal Procedure Code.  Vishnu Kumar Tiwari v. State of U.P., (2019) 8 SCC 27.

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Breach of Trust – With Mens Rea

Though the contract is of a civil nature, if there is an element of cheating and fraud, it is always open for a party in a contract, to prosecute the other side for the offences alleged. In S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241 it was held that every breach of contract may not result in a penal offence, but in the very same judgments, it was further held that breach of trust with mens rea gives rise to a criminal prosecution as well. In a given case, whether there is any mens rea on the part of the accused or not is a matter which is required to be considered having regard to the facts and circumstances of the case and contents of the complaint etc.         In Anil Mahajan v. Bhor Industries Ltd., (2005) 10 SCC 228, it has been held that where there exists a fraudulent and dishonest intention at the time of the commission of the offence, law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating. D R Lakshman v. State of Karnataka, (2019) 9 SCC 677.

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Accused – Has No Right to Choose the Investigating Agency

In Narmada Rai v. State of Gujarat, (2011) 5 SCC 79, it was held as under:

        “It is trite law that accused persons do not have a say in the matter of appointment of an Investigation Agency. The accused persons cannot choose as to which Investigation Agency must investigate the alleged offence committed by them.”

        Further in the case of Rajendra Bhatt v. Union of India, (2016) 1 SCC 1 it was held as under:

        “The accused has no right with reference to the manner of investigation or mode of prosecution.”

        The Hon’ble Apex Court in Romila Thapar v. Union of India, (2018) 10 SCC 753, has held as under:         “It is clear that the consistent view of this Court is that the accused cannot ask for changing the Investigating Agency or to do investigation in a particular manner including for Court monitored investigation.” Silpa Devi Patel v. State of U.P., 2020 (110) ACC 514.

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Criminal Prosecution Can Proceed – Only When Prima Facie Offence is Disclosed

In Vineet Kumar v. State of U.P.¸(2017) 13 SCC 369, it was observed as under:

        “Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of court is sought to be abused by a person with some oblique motive, the court has to thwart the attempt at the very threshold. The court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding under category (7) as enumerated in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335:

        “(7) When 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.”

        The criminal prosecution can be allowed to proceed only when a prima facie offence is disclosed. Judicial Process is a solemn proceeding which cannot be allowed to be converted into an instrument of oppression or harassment. Rashmi Chopra v. State of U.P., (2019) 15 SCC 357.

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Related Witness and Interested Witness

In Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549 it was held as under:

        “Related is not equivalent to interested. A witness may be called “interested” only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be “interested”.

        In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labeling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made in Dalip Singh v. State of Punjab, AIR 1953 SC 364:

        “A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person.”

In the case of a related witness, the Court may not treat his or her testimony as inherently tainted and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. In Jayabalan v. State (U.T. of Pondicherry), (2010) 1 SCC 199, it was held as under:         “In cases where the Court is called upon to deal with the evidence of the interested witneses, the approach of the Court while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavor of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.” Laltu Ghosh v. State of W.B., (2019) 15 SCC 344.

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Dishonour of Cheque – Company to be Arraigned As Accused

In N. Harihara Krishnan v. J. Thomas [N. Harihara Krishnan v. J. Thomas, (2018) 13 SCC 663 adverting to the ingredients of Section 138 of the Negotiable Instruments Act, the Hon’ble Apex Court observed as follows:

“Obviously such complaints must contain the factual allegations constituting each of the ingredients of the offence under Section 138. Those ingredients are: (1) that a person drew a cheque on an account maintained by him with the banker; (2) that such a cheque when presented to the bank is returned by the bank unpaid; (3) that such a cheque was presented to the bank within a period of six months from the date it was drawn or within the period of its validity whichever is earlier; (4) that the payee demanded in writing from the drawer of the cheque the payment of the amount of money due under the cheque to payee; and (5) such a notice of payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return of the cheque as unpaid.”

The provisions of Section 141 postulate that if the person committing an offence under Section 138 is a company, every person, who at the time when the offence was committed was in charge of or was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished.

In the absence of the company being arraigned as an accused, a complaint against the appellant was therefore not maintainable. The appellant had signed the cheque as a Director of the company and for and on its behalf. Moreover, in the absence of a notice of demand being served on the company and without compliance with the proviso to Section 138, the High Court was in error in holding that the company could now be arraigned as an accused. Himanshu v. B. Shivamurthy, (2019) 3 SCC 797.

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Stop Payment Instructions – Burden of Proof

In MMTC Ltd. v. Medchl Chemicals and Pharma (P) Ltd., (2002) 1 SCC 234, it was held as under:
“Even when the cheque is dishonoured by reason of stop-payment instructions by virtue of Section 139 of the Negotiable Instruments Act, the court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the “stop-payment” instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. A court cannot quash the complaint on this ground.” Pulsive Technologies Private Limited v. State of Gujarat, (2014) 13 SCC 18.

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Registration of a case – Reasonableness and Credibility of Information

The reasonableness and credibility of the information is not a condition precedent to the registration of a case. The import of casting a mandatory obligation on the Officer-in-Charge of a police station to record information relating to the commission of a cognizable offence and to register a case thereon, has been emphasized in the decisions of the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal, 1991 (28) ACC 111 (SC) and in Prakash Singh Badal v. State of Punjab, (2007) 1 SCC 1. At the same time arrest of an accused immediately on the registration of an FIR has been held not to be mandatory. The Criminal Procedure code confers a power upon the police to close a matter both before and after the investigation. A police officer can foreclose an FIR before an investigation under Section 157, if appears to him that there is no sufficient ground to investigate it. The police officer is empowered also to investigate the matter and file a final report under Section 173. In Lalita Kumari v.Government of Uttar Pradesh, 2014 (84) ACC 719 (SC), it was held that the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to the commission of a cognizable offence. The scheme of the Code not only ensures that the time of the police should not be wasted on false and frivolous information but also that the police should not intentionally refrain from doing its duty of investigating cognizable offences. Jagannath Verma v. State of U.P., 2015 (88) ACC 1 (FB).

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Murder – Aggravating Circumstances and Mitigating Circumstances

In Bachan Singh v. State of Punjab, (1980) 2 SCC 684, the court referred to the decision in Furman v. Georgia, 33 L Ed 2d 346 : 408 US 238 and noted the suggestion about the aggravating and mitigating circumstances as under:
Aggravating Circumstances.— A court may, however, in the following cases impose the penalty of death in its discretion:
(a) If the murder has been committed after previous planning and involves extreme brutality; or
(b) If the murder involves exceptional depravity; or
(c) If the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed—
(i) While such member or public servant was on duty; or
(ii) In consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) If the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the Code of Criminal Procedure.”

Mitigating Circumstances.—In the exercise of its discretion, the court shall take into account the following circumstances:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance.
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(d) The probability that the accused can be reformed and rehabilitated.
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(f) That the accused acted under the duress or domination of another person.
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.” Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253.

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