Tag Archives: offence

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.

Leave a comment

Filed under bail, Economic Offence

No Bar To Trial – Under Two Different Enactments

In State of Maharashtra v. Sayyed Hassan, the accused was prosecuted under Sections 26 and 30 of the Food Safety and Standards Act, 2006 as well as Sections 188,272,273 and 328 IPC for transportation and sale of prohibited gutka/pan masala. The Hon’ble Bombay High Court in Ganesh Pandurang Jadho v. State of Maharashtra, 2016 CrLJ 2401 held that Section 55 of the Food Safety and Standards Act, 2006 being a specific provision made in a special enactment, Section 188 IPC was inapplicable. The Hon’ble Supreme Court remanded the matter to the High Court and held as under:

        “There is no bar to a trial or conviction of an offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under Indian Penal Code and at the same time, an offence under any other law.”         In State of Rajasthan v. Hat Singh, (2003) 2 SCC 152, the Hon’ble Supreme Court discussed the doctrine of double jeopardy and Section 26 of the General Clauses Act to observe that prosecution under two different Acts is permissible if the ingredients of the provisions are satisfied on the same facts. State of Arunachal Pradesh v. Ramchandra Rabidas, (2019) 10 SCC 75.

Leave a comment

Filed under Trial Under Two Different Enactments

Non-compoundable Offences – Quashing Of

Non-compoundable offences can be quashed under Article 226 of Constitution of India/482 CrPC, which are overwhelmingly and predominantly of civil character arising out of commercial transactions, matrimonial/family disputes and parties have resolved their disputes amicably, as such offences are private in nature having no impact on the society. But heinous and serious offences involving mental depravity or offences like murder, rape, dacoity etc. and the offences under the special statutes like prevention of corruption Act or offences committed by public servants while working in that capacity cannot be quashed on the basis of settlement/compromise. However, where the High Court finds that these offences are merely incorporated without any material to support, it can quash the proceedings relating to such offences. For this purpose, it would be open for the High Court to examine whether the materials collected, if proved, would lead to framing of charge. This exercise is only permissible, when a charge sheet is filed or a charge is framed and/or during the trial, not when the matter is under investigation. Ram Kailash Tripathi v. State of U.P., 2020 (110) ACC 476.

Leave a comment

Filed under Quashing of Non-Compoundable Offences

Factories Act – Extension of Period of Limitation

The Factories Act is a special statute dealing with a specific field and provides taking cognizance of certain offences related to violation of the Act as well as Rules made thereunder and specific period of limitation has been provided under Section 106 of the Act for taking cognizance of the offences. Explanation thereto also describes manner in which limitation shall be calculated in continuing offence. However, there is no specific provision with regard to extension of period of limitation as provided under Section 473 of the Code of Criminal Procedure. Cr.P.C. is a statute general in nature and Section 4(2) of Cr.P.C., provides  that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to provisions of Cr.P.C., but subject to any enactment for the time being in force regulating manner or place of investigation, inquiring into, trying or otherwise dealing with such offence. In the Factories Act, there is specific provision  providing limitation for taking cognizance of commission of offence, including continuing offence, but there is no provision of extension of time of period of limitation, corresponding to Section 473 Cr.PC. Saugata Gupta v. State of H.P., 2020 (164) FLR 589.

Leave a comment

Filed under Extension of Period of Limitation, Factories Act

Act Committed – In State of Intoxication

Section 86 Indian Penal Code, enunciates presumption that despite intoxication which is not covered by the last limb of the provision, the accused person cannot ward of the consequences of his act. A dimension however about intoxication may be noted. Section 86 begins by referring to an act which is not an offence unless done with a particular knowledge or intent. Thereafter, the law giver refers to a person committing the act in a state of intoxication. It finally attributes to him knowledge as he would have if he were not under the state of intoxication except undoubtedly, in cases where the intoxicant was administered to him against his will or without his knowledge. What about an act which becomes an offence if it is done with a specific intention by a person who is under the state of intoxication? Section 86 does not attribute intention as such to an intoxicated man committing an act which amounts to an offence when the act is done by a person harbouring a particular intention. Paul v. State of Kerala, (2020) 3 SCC 115.

Leave a comment

Filed under State of Intoxication

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.

Leave a comment

Filed under Criminal Proceeding

Term “Taking Cognizance” – Meaning of

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.

Leave a comment

Filed under Cognizance, Criminal Law

Further Investigation – Powers of

From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of Police Report under sub-section (2) on completion of investigation, the police has a right to “further” investigation under sub-section (8) of Section 173 but not “fresh investigation” or “re investigation”. The meaning of “further” is additional; more; or supplemental. “Further” investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. Arun Kumar v. State of U.P., 2016 (95) ACC 823.

Leave a comment

Filed under Uncategorized

Cognizance of an offence – Can be taken only once

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.

1 Comment

Filed under Cognizance of an offence, Criminal Law

Criminal Trial – Principle of Issue Estoppel

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.

Leave a comment

Filed under Criminal Law, Principle of Issue Estoppel