Tag Archives: Criminal Procedure Code

Acquittal – Double Presumption in Favour of Accused

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

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Criminal Jurisprudence – Requires a Fair and Truthful Investigation

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

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Honourable Acquittal

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.

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Concurrent Sentence

 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.

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Negotiable Instruments Act – Deposit of 20% of Fine

Amended Section 148 of the Negotiable Instruments Act confers power upon the appellate court to pass an order pending appeal to direct the appellant-accused to deposit the sum which shall not be less than 20% of the fine or compensation either on an application filed by the original complainant or even on the application filed by the appellant-accused under Section 389 Criminal Procedure Code to suspend the sentence. The aforesaid is required to be construed considering the fact that as per the amended Section 148 of the Negotiable Instruments Act, a minimum of 20% of the fine or compensation awarded by the trial court is directed to be deposited and that such amount is to be deposited within a period of 60 days from the date of the order, or within such further period not exceeding 30 days as may be directed by the appellate court for sufficient cause shown by the appellant. Therefore, if amended Section 148 of the Negotiable Instruments Act is purposively interpreted in such a manner it would serve the Objects and Reasons of not only amendment in Section 148 of the Negotiable Instruments Act, but also Section 138 of the Negotiable Instruments Act. The Negotiable Instruments Act has been amended from time to time so as to provide, inter alia, speedy disposal of cases relating to the offence of the dishonour of cheques. So as to see that due to delay tactics by the unscrupulous drawers of the dishonoured cheques due to easy filing of the appeals and obtaining stay in the proceedings, an injustice was caused to the payee of a dishonoured cheque who has to spend considerable time and resources in the court proceedings to realise the value of the cheque and having observed that such delay has compromised the sanctity of the cheque transactions, Parliament has thought it fit to amend Section 148 of the Negotiable Instruments Act. Therefore, such a purposive interpretation would be in furtherance of the Objects and Reasons of the amendment in Section 148 of the Negotiable Instruments Act and also Section 138 of the Negotiable Instruments Act. Surinder Singh Deswal v. Virender Gandhi, (2019) 11 SCC 341

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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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Bail – In Case of Economic Offences

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.

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Imposition of Death Sentence – Circumstances Therefor

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.

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Sentencing for Crimes – Tests for

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.

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