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.
Tag Archives: crpc
The essential ingredients of criminal conspiracy are:
- An agreement between two or more persons.
- Agreement must relate to doing or causing to be done either (i) an illegal act; or (ii) an act which is not illegal in itself but is done by illegal means.
In Gulam Sarbar v. State of Bihar, (2014) 3 SCC 401, it was held that what is necessary for the prosecution to show is the meeting of minds of two or more persons for doing or causing to be done an illegal act, or an act by illegal means.
A criminal conspiracy is generally hatched in secrecy, and it is difficult, if not impossible, to obtain evidence. The manner and circumstances in which the offence has been committed and the level of involvement of the accused persons are relevant factors. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in the general conspiracy, to accomplish the common object.
Conspiracy is mostly proved by circumstantial evidence by taking into account the cumulative effect of the circumstances indicating the guilt of the accused, rather than adopting an approach by isolating the role played by each of the accused. The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution.
In Kehar Singh v. State, (1988) 3 SCC 609, the Hon’ble Apex Court held that the most important ingredient in the offence of conspiracy is an agreement between two or more persons to do an illegal act. The prosecution will have to rely upon circumstantial evidence. The court must enquire whether the persons are independently pursuing the same unlawful object or whether they have come together for the pursuit of the unlawful object. The offence of conspiracy requires some kind of physical manifestation of the agreement. However, the same need not be proved, nor is it necessary to prove the actual words of communication. It is sufficient if there is a tacit understanding between the conspirators for the execution of the common illegal object. In cases of criminal conspiracy, better evidence than acts and statements of the co-conspirators is hardly ever available. State v. Shiv Charan Bansal, (2020) 2 SCC 290.
The term “taking cognizance” actually means ‘become aware of’ , but in reference to a Court or a Judge, it means ‘to take notice of judicially’. The term has no mystic significance in criminal law. In practice ‘taking cognizance’ means taking notice of an offence for limitation of proceedings under Section 190 CrPC.
“cognizance’ refers to the point when the Court first takes judicial notice of an offence by not only applying its mind to the contents of the complaint/police report, but also proceeding further as provided further in Chapter XIV of CrPC.
Taking cognizance include either taking steps to see whether there is basis for initiating a judicial proceeding or initiating a judicial proceeding against an offender by the Magistrate. Smt. Dhanrawati Devi v. State of U.P., 2020 (1) ACC 529.
A “regular parole” may be given in the following cases:
(i) Serious illness of a family member;
(ii) Critical conditions in the family on account of accident or death of a family member;
(iii) Marriage of any member of the family of the convict;
(iv) Delivery of a child by the wife of the convict if there is no other family member to take care of the spouse at home;
(v) Serious damage to life or property of the family of the convict including damage caused by natural calamities;
(vi) To maintain family and social ties;
(vii) To pursue the filing of a special leave petition before the court against a judgment delivered by the High Court convicting or upholding the conviction, as the case may be.
Furlough on the other hand, is a brief release from the prison. It is conditional and is given in case of long term imprisonment. The period of sentence spent on furlough by the prisoners need not be undergone by him as is done in the case of parole. Furlough is granted as a good conduct remission.
The differences between parole and furlough are as under:
(i) Both parole and furlough are conditional release.
(ii) Parole can be granted in case of short-term imprisonment whereas in furlough it is granted in case of long-term imprisonment.
(iii) Duration of parole extends to one month whereas in the case of furlough it extends to fourteen days maximum.
(iv) Parole is granted by Divisional Commissioner and furlough is granted by the Deputy Inspector General of Prisons.
(v) For parole, specific reason is required, whereas furlough is meant for breaking the monotony of imprisonment.
(vi) The term of imprisonment is not included in the computation of the term of parole, whereas it is vice versa in furlough.
(vii) Parole can be granted number of times whereas there is limitation in the case of furlough.
(viii) Since furlough is not granted for any particular reason, it can be denied in the interest of the society. Asfaq v. State of Rajasthan, (2017) 15 SCC 55.
Cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceeding to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the CRPC very clearly indicates that once the case is committed to the court of Session by the Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 of the CRPC will, therefore, have to be understood as the Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there be any question of part cognizance being taken by the Magistrate and part cognizance being taken by the Sessions Judge. Balveer Singh v. State of Rajasthan, (2016) 6 SCC 680.
In Devarapali Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252, National Bank of Oman v. Barakara Abdul Aziz, (2013) 2 SCC 488, Madhao v. State of Maharashtra, (2013) 5 SCC 615, Rameshbhai Pandurao Hedau v. State of Gujarat, (2010) 4 SCC 185, the scheme of Sections 156 (3) and 202 has been discussed. It was observed that power under Section 156(3) can be invoked by the Magistrate before taking cognizance and was in the nature of pre-emptory reminder or intimation to the police to exercise its plenary power of investigation beginning with Section 156 and ending with report or charge sheet under Section 173. On the other hand, Section 202 applies at post cognizance stage and the direction for investigation was for the purpose of deciding whether there was sufficient ground to proceed. Ramdev Food Products (P) Ltd. v. State of Gujarat, (2015) 6 SCC 439.
The rule regarding issue estoppel relates to admissibility of evidence in subsequent proceedings which is designed to upset a finding of fact recorded on the previous occasion and mandates that the finding so rendered on earlier occasion must operate as issue estoppel in subsequent proceedings. It makes it impermissible to lead any such evidence at a subsequent stage or occasion. The law on the point was succinctly stated in Sangeetaben Mahendrabhai Patel v. State of Gujarat, (2012) 7 SCC 621:
“The court has time and again explained the principle of issue estoppel in a criminal trial observing that where an issue of fact has been tried by a competent court on an earlier occasion and a finding has been recorded in favour of the accused, such a finding would constitute an estoppels or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the acceptance/reception of evidence to disturb the finding of fact when the accused is tried subsequently for a different offence. This rule is distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence but only precludes the evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding has been recorded at an earlier criminal trial. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court in a previous trial on a factual issue. Ashwani Kumar v. State of Punjab, (2015) 6 SCC 308.
Section 156(3) applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the Learned Magistrate can verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. Such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. It becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
There has to be prior applications under section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart the veracity of the same can also be verified by the Learned Magistrate, regard being had to the nature of allegations in the case. As a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal cases, as are illustrated in Lalita Kumari v. State of U.P., (2014) 2 SCC 1 are being filed. That apart, the Learned Magistrate would also be aware of the delay in lodging of the FIR. Priyanka Srivastava v. State of Uttar Pradesh, (2015) 6 SCC 287.
In many judgments, the person giving the report under Section 154 of CRPC is described as the “complainant” or the “de facto complainant” instead of “informant”, assuming that the State is the complainant. These are not words of literature. In a case registered under Section 154 of the Code, the State is the prosecutor and the person whose information is the cause for lodging the report is the informant. This is obvious from sub-section (2) of Section 154 of the Code which, inter alia, provides for giving a copy of the information to the “informant” and not to the “complainant”. However the complainant is the person who lodges the complaint. The word “complaint” is defined under Section 2(d) of the Code to mean any allegation made orally or in writing to a Magistrate and the person who makes the allegation is the complainant, which would be evident from Section 200 of the Code, which provides for examination of the complainant in a complaint case. Therefore, these words carry different meanings and are not interchangeable. In short, the person giving information, which leads to lodging of the report under Section 154 of the Code is the informant and the person who files the complaint is the complainant. Ganesha v. Sharanappa and another, (2014) 1 SCC 87.
While cancelling the bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the Court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well-recognised principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing the accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this Court are much wider, this Court is equally guided by the above principles in the matter of grant or cancellation of bail. Kanwar Singh Meena v. State of Rajasthan and another, (2012) 12 SCC 180.