The statutory text indicates that Section 7(c) of the Muslim Women (Protection of Rights on Marriage) Act, 2019 does not impose an absolute bar on grant of bail. On the contrary, the Magistrate may grant bail, if satisfied that “there are reasonable grounds for granting bail to such person” and upon complying with the requirement of hearing the married Muslim woman upon whom talaq is pronounced. Hence, though Section 7 begins with a non obstante clause which operates in relation to the CrPC, a plain construction of Section 7(c) of the Muslim Women (Protection of Rights on Marriage) Act, 2019 would indicate that it does not impose a fetter on the power of the Magistrate to grant bail, save and except, for the stipulation that before doing so, the married Muslim Woman, upon whom talaq is pronounced, must be heard and there should be a satisfaction of the Magistrate of the existence of reasonable grounds for granting bail to the person. This implies that even while entertaining an application for grant of anticipatory bail for an offence under the Act, the competent court must hear the married muslim woman who has made the complaint, as prescribed under Section 7(c) of the Act. Only after giving the married Muslim woman a hearing, can the competent court grant bail to the accused. Rahna Jalal v. State of Kerala, (2021) 1 SCC 733.
Tag Archives: criminal law
There is an acquittal and therefore, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured acquittal, the presumption of their innocence is further reinforced, reaffirmed and strengthened by the Trial Court. For acquitting accused, the Trial Court observed that the prosecution had failed to prove its case. State of Maharashtra v. Chandrakant Bhagwan Katkar, Cri. Appeal No. 677 of 2003 decided on 16.12.2019
The principle in criminal jurisprudence requires a fair and truthful investigation. If an investigating agency which has been conferred the power to investigate on the basis of an FIR, if a second FIR as regards the same transaction is introduced, it is likely to be abused i.e. keeping in mind the interest of the accused. From the point of view of the victim when such information comes within the knowledge of the investigating officer, he can treat it as a part of continuing investigation under the Code and eventually file the charge-sheet or an additional charge-sheet as contemplated under Section 173 of the Code. The interests of both are involved. A fair investigation, conceptually speaking, is an acceptable facet of criminal jurisprudence, similarly it is also the duty of the courts to see whether the investigation carried out really causes prejudice to the accused requiring the court to exercise the power under Section 482 or Article 226 of the Constitution to quash the same, or it has looked into the interest of both the accused and the victim and, therefore, it should be left for the trial court to see the veracity of the truth of allegations that has come out in investigation. Manoj Kumar v. State of Uttarakhand, (2019) 5 SCC 667
The expression “honourable acquitta” was considered by the Hon’ble Supreme Court in Deputy Inspector General of Police v. S. Samuthiram, (2013) 1 SCC 598. In that case the Hon’ble Court was concerned with a situation where disciplinary proceedings were initiated against a police officer. Criminal case was pending against him under Section 509 IPC and Section 4 of the Eve Teasing Act. He was acquitted in that case because of the non-examination of key witnesses. There was a serious flaw in the conduct of the criminal case. Two material witnesses turned hostile. Referring to the judgment of the Hon’ble Supreme Court in RBI v. Bhopal Singh Panchal, (1994) 1 SCC 541, wherein in somewhat similar fact situation, the Hon’ble Court upheld a bank’s action of refusing to reinstate an employee in service on the ground that in the criminal case he was acquitted by giving him benefit of doubt and, therefore, it was not an honourable acquittal. It was further held that the High Court was not justified in setting aside the punishment imposed in the departmental proceedings. It was observed that the expressions “honourable acquittal”, “acquitted of blame” and “fully exonerated” are unknown to the Criminal Procedure Code or the Indian Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression “honourably acquitted”. The Hon’ble Court expressed that when the accused is acquitted after full consideration of the prosecution case and the prosecution miserably fails to prove the charges leveled against the accused, it can possibly be said that the accused was honorably accused.” State of Madhya Pradesh v. Abhijit Singh Pawar, 2018 (4) ESC 782.
In the case of Anil Kumar v. State of Punjab(2017) 5 SCC 53, it was held by the Hon’ble court that “in terms of sub-section (1) of Section 427 of CrPC, if a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such subsequent term of imprisonment would normally commence at the expiration of the imprisonment to which he was previously sentenced. Only in appropriate cases, considering the facts of the case, the court can make the sentence run concurrently with an earlier sentence imposed. The investiture of such discretion, presupposes that such discretion be exercised by the court on sound judicial principles and not in a mechanical manner. Whether or not the discretion is to be exercised in directing sentences to run concurrently would depend upon the nature of the offence/offences and the facts and circumstances of each case.” Vickyalias Vikas v. State, Cri. Appeal No. 208 of 2020 (Arising out of SLP (cri) No. 4201 of 2019.
Economic Offences constitute a class apart and need to be visited with different approach in the matter of bail. In Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439, it was held as under:
“Economic Offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.” P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24.
It is clearly well settled that normal punishment for the offence under Section 302 IPC is life imprisonment but in a case where the incident is of “rarest of rare cases”, death sentence is to be imposed. It is equally well settled that only special facts and circumstances will warrant passing of death sentence and a just balance has to be struck between aggravating and mitigating circumstances, before the option is exercised. While referring to the earlier cases in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and Machhi Singh v. State of Punjab, (1983) 3 SCC 470, further guidelines are summarised in the judgment in Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338 as under:
“The following guidelines which emerge from Bachan Singh v. State of Punjab, (1980) 2 SCC 684 will have to be applied to the facts of each individual case where the question of imposition of death sentence arises:
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the “offender” also require to be taken into consideration along with the circumstances of the “crime”.
(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
In rarest of rare cases when the collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:
(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness e.g. murder by a hired assassin for money or reward or a cold-blooded murder for gains of a person vis-à-vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course of betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of “bride-burning” or “dowry deaths” or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5) When the victim of the murder is an innocent child, or a helpless woman or an old or infirm person or a person vis-à-vis whom the murderer is in a dominating position or a public figure generally loved and respected by the community.” Ishwari Lal Yadav v. State of Chhatisgarh, (2019) 10 SCC 423.
Sentencing for crimes has to be analysed on the touchstone of three tests, viz., crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defence, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a Judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list). Under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support or amenity; (iii) extent of humiliation; and (iv) privacy breach. State of Madhya Pradesh v. Udham, (2019) 10 SCC 300.
The Magistrate should not shirk their legal responsibility to pass an order for registration of the FIR and its investigation by the police on the applications under Section 156(3) CrPC in the cases where on the basis of the averments made therein and the material, if any, brought on record in support thereof, prima facie cognizable offence of serious nature requiring police investigation is made out and in such cases the aggrieved person should not be compelled to collect and produce the evidence at his cost to bring home the charges to the accused by passing an order to treat the application under Section 156(3) as complaint thereby forcing the aggrieved person to proceed in the matter provided by Chapter XV CrPC. Hari Shankar v. State of U.P., 2020 (110) ACC 535.
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.