Criminal Procedure, India (including The Code of 1861/ 1973)
This is a collection of articles archived for the excellence of their content.
A: The Code of Criminal Procedure, 1861/ 1973
Police can’t seize immovable assets in probe: SC
Police can’t seize immovable assets in criminal case probe: SC, Sep 25, 2019: The Times of India
The Supreme Court ruled that police cannot attach immovable properties of an accused during investigation in a criminal case as seizure of such property would not facilitate probe though collection of evidence or material to be produced during trial.
Enumerating how empowering police to attach immovable property may lead to an absolutely chaotic situation, a bench of Chief Justice Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna said if there is a physical fight between the landlord and tenant over rented premises, police would be entitled to seize the property making a mockery of rent laws. “The power of a police officer under Section 102 of Criminal Procedure Code to seize any property would not include the power to attach, seize and seal an immovable property,” the bench said. The court, however, said this would not bar or prohibit police from seizing documents/ papers of title relating to immovable property.
“Section 102 of Criminal Procedure Code empowers a police officer to seize any property which may be alleged or suspected to have been stolen. Theft can take place only of movable property and not of immovable property. In my view, the word ‘seized’ has been used in the sense of taking actual physical custody of the property. Sub-section 3 of Section 102 provides that where it is difficult to conveniently transport the property to the court or there is difficulty in securing proper accommodation for the custody of the property, the property can be given to any person on his executing a bond. This per se indicates that the property must be capable of production in court and also be capable of being kept inside some accommodation. This obviously cannot be done with immovable property,” Justice Gupta said in his separate but concurrent judgment.
Sec. 125. Order for maintenance of wives, children and parents
(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,-
(a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;
(b) " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him.
(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
Father must maintain son only till he is 18: Gujarat HC
The Times of India, Mar 19, 2016
Gujarat high court ruled that a parent is liable to maintain a son till he turns 18 and starts earning. The HC made it clear that a parent is liable to maintain an unmarried daughter even after she attains an majority and is also liable to spend for her wedding. However, the same provision does not apply for a son. According to provisions of Section 125 of CrPC, a father or mother is not responsible to pay maintenance to a son once he turns 18 if he is not mentally or physically unfit.
The case in question is a divorce petition involving a doctor, Dinesh Oza, who practices in Visnagar and his wife Nita. The wife was driven out of the home in 2006 and she lodged an FIR with Satellite police in 2006. On the other hand, the doctor filed a divorce petition in Mehsana. The woman filed for maintenance in Ahmedabad's family court. The court ordered the doctor to pay his wife and son. In the second round of litigation, the court enhanced the amount and asked the doctor to continue to pay his son till he turned 18 years. The father stopped payments to his son when he turned 18 in October 2013. The wife moved the family court against this. The family court asked her to move the HC for clarification on whether the father should continue to pay after the boy turned 18. The court also asked the doctor to deposit arrears of Rs 78,000 with the court.
The woman moved the high court again, where her lawyer argued that the father is liable to maintain his son till he starts earning. The doctor's lawyer Dakshesh Mehta argued that the law is clear on this aspect that a son must be maintained only till he turns 18. After hearing the case, Justice JB Pardiwala concluded that he cannot accept the provisions made to maintain daughters for maintenance of a son. He cited an order passed by Karnataka high court, which said that it would be a moral and social obligation of every father to bring up his children by giving proper education, culture etc not only as his children, but also as the future citizens of the nation. But, there is no law that mandates a parent to give maintenance to a son once he turns 18. And hence the father can stop paying maintenance amount to the son.
History and reach
The British used it to quell protests
Section 144, or “prohibitory orders” as they are called were introduced into Indian law through the first ever CrPC in 1861. It was used frequently during the British Raj to clamp down on nationalist protests.
Gandhi famously defied it to launch the Champaran satyagraha. But not only did it survive Independence, it has thrived under various governments
What does it say?
Section 144 of the Code of Criminal Procedure, 1973 (the CrPC) provides wide discretion to the State to make prohibitory orders preventing “obstructions”, or “annoyances”, the definitions of which include riots and other forms of violence. They can be issued by a district magistrate, a sub-divisional magistrate or the police (in Delhi’s case)
What is the problem with it?
Researchers at the Takshashila Institution and Vidhi Centre for Legal Policy Research note in a paper that the problem with Section 144 is that “it operates as a blanket prohibition which can be applied in an overly broad and discriminatory manner.” What’s more, non-compliance is a criminal offence.
What does the apex court say?
The Supreme Court has stated that anticipatory actions or restrictions on certain types of behaviour are sometimes needed to ensure that public order is maintained but it has also recognised the scope for misuse. In the 2012 case pertaining to the anti-corruption protests at Ramlila Maidan, the SC noted that “the perception of threat to public peace and tranquility should be real and not quandary, imaginary or a mere likely possibility.”
Prohibitory orders are usually put in place to prevent riots but they can often be used for strange reasons. For instance, in 2012, Delhi police imposed section 144 on liquor shops and vends to prevent people from drinking right outside the store. It has also been used to ban certain types of kite string or “manja” as it can lead to power cuts or electrocution of kite-flyers.
Supreme Court Guidelines in Lalita Kumari Case
Official Website of West Jaintia Hills District Police,Jowai
Mandatory Registration of FIR- Supreme Court Guidelines in Lalita Kumari Case
A Constitution Bench of the Supreme Court in Lalita Kumari v. Govt. of U.P [W.P.(Crl) No; 68/2008] held that registration of First Information Report is mandatory under Section 154 of the Code of Criminal Procedure , if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. The Supreme Court issued the following Guidelines regarding the registration of FIR.
(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
(iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who donot register the FIR if information received by him discloses a cognizable offence.
(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/ family disputes (b)Commercial offences
(c) Medical negligence cases (d)Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.
Sec 319: additional accused can be put on trial at any stage
Dec 6, 2022: The Times of India
New Delhi : The Supreme Court ruled that a trial court can summon additional accused and can put the person on trial along with the other accused or separately depending on the stage of hearing in a criminal case.
A five-judge Constitution bench issued guidelines on the procedure to be followed by the trial court. The bench said if the trial court finds evidence or if application under Section 319 of CrPC is filed regarding the involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage and thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon.
Abench of Justices S Abdul Nazeer, B R Gavai, A S Bopana, V Ramasubramanian and B V Nagarathna said if thetrial court decides on joint trial then fresh trial shall be commenced only after securing the presence of the summoned accused. If the decision is that the summoned accused can be tried separately, there will be no impediment for the court to continue and conclude the trial against the accused who were being proceeded with.
As per the guidelines, if Section 319 of CrPC to summon fresh accused is invoked by trial court after the judgment is reserved in the case then the appropriate course for the court is to set it down for re-hearing. “If the decision is to hold a separate trial in case of the summoned accused as indicated earlier; (a) The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against the summoned accused. (b) In the case of acquittal the order shall be passed to that effect in the main case and then proceed afresh against summoned accused,” it said.
Section 319 vs. Section 227: discharge of accused for insufficient evidence
The Times of India, Aug 05 2015
Even if not charged, summoned accused can't seek discharge: SC
Settling a longstanding conflict between two provisions of the CrPC, the Supreme Court ruled that a person not chargesheeted by the police, yet summoned as an accused by the trial court cannot seek discharge on the ground of insufficient evidence. The two conflicting provisions were Section 319, under which a trial court could summon a person not named in the chargesheet as an accused after examining the evidence, and Section 227, permitting an accused to seek discharge on the ground of insufficient evidence.
A bench of Justices S A Bobde and R K Agrawal said, “The exercise of power under Section 319 of the CrPC must be placed on a higher pedestal.“ The bench said a trial court exercised the extraordinary power under Section 319 only if it found very strong and cogent evidence against a person from the evidence led before the court. It said on the other hand, as per Section 227, “If the judge is of the view that there are no sufficient grounds for the proceedings against the accused, he may be discharged and proceedings dropped.“
Drawing a comparison between the two sections having opposite effects on a person, Justice Bobde said, “It does not stand to reason that a person who is summoned as an accused to stand trial, and added as such to the proceedings on the basis of a stricter standard of proof, can be allowed to be discharged from the proceedings on the basis of a lesser standard of proof such as a prima facie connection with the offence necessary for charging the accused.“
The bench said, “Needless to say, the accused summoned under Section 319 are entitled to involve remedy under law against an illegal or improper exercise of power under Section 319 but cannot have the effect of the order undone by seeking discharge under Section 227. If allowed to, such an action of discharge would not be n accordance with the purpose of the CrPC in enacting Section 319 .“
The ruling came in a case from Bihar. Four persons were chargesheeted in April 2001, for a murder committed in 2000, and later, added another person. After the case was committed to trial, the sessions judge issued notices to the four and after hearing them, the trial judge summoned them as accused using Section 319. Then they moved an application seeking discharge under Section 227 citing insufficiency of evidence. They withdrew their petition from the HC after the district court discharged them from the case. The state then appealed and the HC allowed the petition, saying discharge under Section 227 could not nullify the summoning order under Section 319. The accused challenged the HC order before the SC, which dismissed their appeals.
Section 482/ Closure of trial
‘HC’s inherent powers no licence for accused to seek closure of trial’
TIMES NEWS NETWORK
From the archives of The Times of India 2007, 2009
New Delhi: When framed in a criminal case or fighting an FIR lodged to harass, an accused moves high court requesting it to exercise its inherent powers under Section 482 of Criminal Procedure Code to quash the proceedings or the FIR.
The Supreme Court realised the importance of the provision in CrPC but also felt that accused persons cannot treat this extraordinary power vested in HCs as a ticket to seek closure of cases without trial and HCs should not accept the plea to decide whether there should be a trial or not merely on prima facie view of the allegations in FIR.
This important ruling came on Thursday from a Bench comprising Justices P Sathasivam and Anil R Dave allowing an appeal filed by Andhra Pradesh government challenging an HC decision to quash trial proceedings in an excise case.
Writing the judgment for the Bench, Justice Sathasivam said while exercising jurisdiction under Section 482, it would be improper for the HC to assume the role of a trial court and start scrutinising the reliability of evidence to determine whether the charges were sustainable against the accused.
While advising HCs to be extremely circumspect while exercising powers under Section 482, the Bench said this provision was not an “instrument handed over to an accused to short-circuit a prosecution and bring about its closure without an inquiry”.
The HCs could step in when it was amply clear that criminal proceedings were initiated with an ulterior motive to wreak vengeance on the accused due to personal grudge, the Bench said.
Rights of accused, rights of witnesses
The Times of India, Aug 31 2015
1985 TADA Act was the 1st to provide witness security in terrorism cases
Does an accused or the public have the right to know the witnesses?
In most countries, including India, it is the right of accused person to have an open public trial in their presence.The accused also has the right to examine the witnesses. These rights to open trial are designed for the benefit of the accused as well as the public, as both have a right to know how the trial was conducted. These rights, however, are not treated as absolute and can be restricted in the interest of fair administration of justice.
Doesn't this contradict the rights of witnesses?
Witnesses can be classified in three broad categories victim witnesses known to the accused, victim witnesses not known to the accused (cases of indiscriminate firing and so on) and witnesses whose identity is not known to the accused. The right of the accused to examine the witnesses (who could be victims) runs counter to the desire of victims to give their testimony in the absence of the accused as his or her physical presence could cause trauma and fear. In case of witnesses unknown to the accused too, there is a possibility that their testimony could cause danger to their lives or property or that of their close relatives. In this case, focusing solely on the rights of the accused could hamper the fair administration of justice.
What are the witness protection laws in other countries?
In many countries, including the United Kingdom, US, Australia, New Zealand and several European Union countries, courts have the power to pass orders of ano nymity in the larger interest of the administration of justice. The European Convention permits protection of a witness's identity as an exception to the laws dealing with the rights of the accused.In a 1979 case, the House of Lords in UK clarified that there can be exceptions to the rule of open trail when protection of the identity of the witness is in the interest of administration of justice. In the US, a 1968 court ruling stated that it is appropriate to excuse a witness from answering questions about his or her identity if the witness's personal safety was endangered. These rulings over time became the laws in these countries.
Do Indian courts have inherent powers to protect the identity of witnesses?
Section 482 of the criminal procedure code (CrPC), 1973 says that nothing in the code shall be deemed to limit the inherent powers of the high courts. It, however, doesn't talk about the positions of other criminal courts ma gistrate, session s and so on. The ab sence of such a provision for lower courts led the Supreme Court to conclude that subor dinate courts do not have these inherent powers. The position was made clear in a 1977 judgement. Based on these facts, the 198th report of the law commission states that subordinate courts in the country cannot pass orders for anonymity of witnesses under inherent powers and hence legislation is required to confer powers to these courts to pass anonymity orders during trials.
Are identities protected in some cases?
In the pre-constitutional era, Sec 31 of the Bengal Suppression of Terrorist Outrages Act 1932 empowered a special magistrate to exclude some witnesses from presence in court premises during the trial. The TADA Act of 1985 was the first to provide protection of identity and address of the witness. The protection however was only valid for witnesses of terrorism cases and didn't apply to all criminal cases. There are laws about protection of privacy of victims who are also witnesses in sexual offences but no law to cover other serious crimes like murder, riots and so on.
B: COURT JUDGEMENTS
Arrest/ custody after chargesheet
SC: Not obligatory to send accused to custody after chargesheet
AmitAnand Choudhary, Sep 3, 2021: The Times of India
A fortnight after ruling that each and every accused need not be arrested in a routine manner at the time of filing of chargesheet, the Supreme Court passed another important verdict and held that it was not mandatory that an accused be sent to custody by the trial court after filing of chargesheet, particularly when the accused was out on bail and had cooperated in the probe.
A bench of Justices Sanjay Kishan Kaul and M M Sundresh said custody of an accused may not be necessary in all cases after filing of chargesheet and the trial court should not send accused to judicial custody in all cases in a routine manner that would unnecessarily curtail liberty of a person . It said that chargesheet being filed and cognisance being taken cannot be a ground to arrest an accused who has not been arrested throughout the probe by the investigating agency.
The court passed the order on a plea of Amanpreet Singh who is an accused in a chit fund scam and was issued non-bailable warrants for not personally appearing before a trial court in Odisha.
Senior advocate Maninder Singh along with lawyer Prabhas Bajaj, appearing for Amanpreet, contended that the accused had cooperated with the CBI throughout the probe and the agency also never sought his arrest and the trial court and the HC had wrongly rejected his regular bail plea.
Referring to a Delhi high court verdict passed in 2004, the former additional solicitor general told the bench that in case court or magistrate exercises the discretion of issuing warrant of arrest at any stage, including the stage while taking cognisance of the chargesheet, he or it shall have to record the reasons in writing that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him.
He said that the general principles of law laid down by the Delhi high court deserve to receive the imprimatur of the Supreme Court.
Agreeing with his submission, the bench said some principle needed to be laid down to ensure that liberty of a person is not curtailed and passed a detailed order and also granted relief to Amanpreet.
A bench led by Justice Kaul had in August held that arrests should not be done in a routine manner when accused is cooperating in probe and there is no reason to believe he/she will abscond or influence the investigation. While interpreting Section 170 of CrPC under which trial courts insist on arrest of accused, the SC said it does not impose an obligation on the Officer-in-charge to arrest each and every accused at the time of filing of the chargesheet.
Caste, mentioning it in cause titles
A backgrounder, as in 2023
Khadija Khan, March 20, 2023: The Indian Express
The Supreme Court on Tuesday (March 14) observed that the caste of parties involved in a case should not be mentioned in the cause title of judgments. In simpler terms, it said the caste of the people involved in the matter need not be mentioned in the name of the case file.
The apex court’s advice came while it was hearing a case — ‘State of Rajasthan vs Gautam Harijan’ — against the reduction of a rape convict’s sentence. The state government had challenged a Rajasthan High Court ruling, which upheld the conviction of a rape convict but reduced his sentence owing to factors like his age, incarceration period, and being a first-time offender. The man had been convicted by a trial court under sections of the Protection of Children from Sexual Offences Act (POCSO), 2012 Act.
A division bench of Justices Abhay Oka and Rajesh Bindal directed the Registrar General of the Rajasthan High Court to provide a copy of the order to all principal, district, and sessions judges in the state.
“We may note here that in the cause title of the judgment delivered by the ld. Special Judge under the POCSO Act, Kota, in the State of Rajasthan. In the cause title, the caste of the accused has been mentioned. We are of the view that such practice should never be followed and that the trial courts are well advised to not mention caste in the cause title of judgments,” the bench was quoted as saying by Live Law.
During the hearing, the advocate appearing for the state said that in Rajasthan, even FIRs sometimes contain the accused’s caste details, and that HC rules require it. The court asked the counsel to show this rule while adjourning the matter, LiveLaw had reported.
Various High Courts have repeatedly frowned upon this practice, terming it a “colonial legacy”.
The Rajasthan High Court has previously disallowed this practice.
On April 25, 2020, Advocate on Record Amit Pai wrote to the then Chief Justice of India S A Bobde, raising concerns over the “regressive practice” of mentioning the caste of parties in affidavits, case titles and memos of parties in court filings, in the aftermath of a widely publicised virtual hearing before the Jaipur Bench of the Rajasthan High Court in the case of ‘Lala Ram S/o Shyoji Ram, By Caste Gurjar vs State of Rajasthan’.
Two days later, on April 27, 2020, the Rajasthan High Court issued a “Standing Order” disallowing this practice, signed by its Registrar General. “It has been observed that the caste of accused and other persons is being incorporated by the officers/officials of Registry of this Court and Presiding Officers of Subordinate Courts/Special Courts/Tribunals in judicial and administrative matters, which is against the spirit of Constitution of India,” the order said.
The order laid down that the caste of any person, including the accused, should not be incorporated in any “judicial or administrative matter”, while relying on a Rajasthan High Court order dated July 4, 2018, in ‘Bishan vs State of Rajasthan’. In Bishan’s case, the Rajasthan High Court ordered that “the police shall not mention the caste of an individual in the arrest memo as identifying a person by caste is neither provided under the Code of Criminal Procedure (CrPC) nor is provided under any law under the Constitution, while exempting cases under Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Other High Courts have also frowned upon it.
The Himachal Pradesh High Court on September 16, 2016, in the case of ‘Kishan Kumar vs State of Himachal Pradesh’, said the practice of mentioning one’s caste separately in criminal proceedings must be stopped. “We should, as a public policy, shun the caste system,” the court said in its judgment while directing the state’s Principal Secretary to issue directions to all Investigating Officers to refrain from mentioning the caste of the accused, witnesses, or victims in recovery or seizure memos, FIRs or inquest papers and other forms, as prescribed in the CrPC and the Punjab Police Rules.
A few years later, on March 25, 2019, the Punjab & Haryana High Court in ‘Rakesh Sharma & Others vs State of Haryana’ observed that the police had “used” the caste of the parties, and said, “This is not permissible. Mentioning of caste/status separately in the criminal proceedings is a colonial legacy and requires to be stopped forthwith.”
The court also referred to the Constitution and its guarantee of a casteless and classless society. “Segmentation of the society into groups can not be determined by birth,” the court said in its judgment while issuing instructions to all judicial officers to refrain from the practice of mentioning caste names in FIRs, memos, inquest papers, etc.
Only relatives of the victim have right to file appeal: SC
Dhananjay Mahapatra, Bofors ruling may affect Loya case, January 17, 2018: The Times of India
Can A Person Unrelated To A Criminal Case File An Appeal, Asks SC
Thirteen years after entertaining an appeal challenging quashing of cases against the Hinduja brothers in the 30-year-old Bofors scam case, the Supreme Court on Tuesday asked whether an advocate, unconnected with the matter, had the locus standi to file an appeal in a criminal matter.
“A bystander cannot file an appeal in a criminal case. This will be dangerous criminal law jurisprudence. If a bystander is allowed to file appeal in a criminal case, then any citizen can file an appeal in acquittal in any criminal case anywhere in the country. That is why criminal jurisprudence limits the right to file appeal to only relatives of the victim,” a bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said.
The appeal was filed by advocate Ajay Agrawal, a BJP member who had challenged the Delhi high court’s 2005 decision to quash the Bofors case, which broke in 1987 and shook the Rajiv Gandhi government.
However, senior advocate Kapil Sibal, who was sitting in the front row, suggested to the bench that it examine the locus standi of the petitioner, who was an advocate and had nothing to do with the case either as a complainant or otherwise. Agrawal tried to defend his locus by saying this was a case of political corruption and that the HC had erred in ignoring evidence to quash the case.
The bench appeared to appreciate Sibal’s stand and was about to dismiss the appeal when Agrawal sought time to find judgments which permitted a third party to file appeals in criminal cases. Additional solicitor general Maninder Singh too cited a few judgments to support Agrawal’s locus standi.
The bench said, “Near relatives of the victim can surely come to the court seeking revision of a judgment. But how can a bystander come to the court in a criminal case? How can persons unrelated to a criminal case file appeal? This is troubling us. Earlier, PIL jurisdiction was created to give relief to the poor and illiterate. But it is now used for personal interest, commercial interest and political interest.” The court adjourned hearing to February 2.
The court’s stand, if it translates into a judgment, could hurt PILs seeking filing of a criminal case and investigation by an independent agency into the death of special CBI judge B H Loya, who died when he was conducting trial into Sohrabuddin Sheikh’s fake encounter case in which BJP chief Amit Shah was an accused. A month after Loya’s death, Shah and others were acquitted.
All the PILs in Loya case have been filed by advocate associations or individuals who had no connection with the judge. Their locus standi would be questioned, especially with Loya’s near relatives saying they suspected no foul play in the death.
In 2005, the SC had entertained the appeal and issued notices to Srichand and Gopichand Hinduja. The CBI did not file an appeal in 2005 and has now claimed that the then UPA government did not permit it to do so despite the agency having decided to appeal against the high court judgment. Assistant solicitor general Maninder Singh had a difficult time explaining why the CBI did not file an appeal.
Separate trials essential
Dhananjay Mahapatra, Nov 3, 2021: The Times of India
The Supreme Court has ruled that separate trials must be conducted for cross-cases lodged by two parties involved in an offence, even if the prosecution witnesses are the same for both sides, as law prohibits taking into consideration evidence in one case for the cross-case.
Faulting the Madras HC for deciding two appeals arising from one incident and deciding it on the basis of evidence recorded in one case, a bench of Justices DY Chandrachud, Vikram Nath and BV Nagarathna said, “So far as the law for trial of the cross cases is concerned, each case has to be decided on its own merit and the evidence recorded in one case can’t be used in its cross case.”
Justice Nath said, “Whatever evidence is available on the record of the case only that has to be considered. The only caution is that both trials should be conducted simultaneously or in case of the appeal, they should be heard simultaneously.” In a customs seizure case, there were two sets of accused and the trial court had tried them separately and acquitted the accused. However, when the revenue department filed appeals against acquittal, the HC had considered both appeals simultaneously and convicted the accused persons in both the cases based on the evidence in one of the two cases.
Additional solicitor general Vikramjit Banerjee argued that as the evidence is the same in both the cases, no prejudice can be alleged by the accused. Rejecting the argument and staying firm that each case has to be heard separately, the bench said, “Whether prejudice or not, the fact remains that the HC committed an error of law in dealing with the evidence of one trial for deciding both the appeals arising out of two separate trials.”
The SC said, merely because the seven prosecution witnesses were the same in both the cases, it doesn’t mean that the evidence was identical and similar because in the oral testimony, the examination-in-chief and the cross examination are equally important and relevant.
“The same witnesses could have deposed differently in different trials against different accused differently depending upon the complicity or/and culpability of such accused,” the SC said while remanding both the appeals to the HC for fresh consideration.
K. Venkataramanan, July 19, 2020: The Hindu
The story so far: Many members of the Tablighi Jamaat belonging to different countries have obtained release from court cases in recent days by means of plea bargaining. Accused of violating visa conditions by attending a religious congregation in Delhi, these foreign nationals have walked free after pleading guilty to minor offences and paying the fines imposed by the court. These cases have brought the focus on plea bargaining as a practice by which time consuming trials can be avoided. Even though plea bargaining is available to those accused of criminal offences in India for over a decade, it is not yet common.
When was it introduced in India?
Plea bargaining refers to a person charged with a criminal offence negotiating with the prosecution for a lesser punishment than what is provided in law by pleading guilty to a less serious offence. It is common in the United States, and has been a successful method of avoiding protracted and complicated trials. As a result, conviction rates are significantly high there. It primarily involves pre-trial negotiations between the accused and the prosecutor. It may involve bargaining on the charge or in the quantum of sentence.
In India, the concept was not part of law until 2006. There has always been a provision in the Code of Criminal Procedure for an accused to plead ‘guilty’ instead of claiming the right to a full trial, but it is not the same as plea bargaining.
The Law Commission of India, in its 142nd Report, mooted the idea of “concessional treatment” of those who plead guilty on their own volition, but was careful to underscore that it would not involve any plea bargaining or “haggling” with the prosecution.
Plea bargaining was introduced in 2006 as part of a set of amendments to the CrPC as Chapter XXI-A, containing Sections 265A to 265L.
In what circumstances is it allowed? How does it work?
Unlike in the U.S. and other countries, where the prosecutor plays a key role in bargaining with the suspected offender, the Indian code makes plea bargaining a process that can be initiated only by the accused; further, the accused will have to apply to the court for invoking the benefit of bargaining.
Cases for which the practice is allowed are limited. Only someone who has been charge sheeted for an offence that does not attract the death sentence, life sentence or a prison term above seven years can make use of the scheme under Chapter XXI-A. It is also applicable to private complaints of which a criminal court has taken cognisance. Other categories of cases that cannot be disposed of through plea bargaining are those that involve offences affecting the “socio-economic conditions” of the country, or committed against a woman or a child below the age of 14.
The applicant should approach the court with a petition and affidavit stating that it is a voluntary preference and that he has understood the nature and extent of punishment provided in law for the offence. The court would then issue notice to the prosecutor and the complainant or victim, if any, for a hearing. The voluntary nature of the application must be ascertained by the judge in an in-camera hearing at which the other side should not be present. Thereafter, the court may permit the prosecutor, the investigating officer and the victim to hold a meeting for a “satisfactory disposition of the case”. The outcome may involve payment of compensation and other expenses to the victim by the accused.
Once mutual satisfaction is reached, the court shall formalise the arrangement by way of a report signed by all the parties and the presiding officer. The accused may be sentenced to a prison term that is half the minimum period fixed for the offence. If there is no minimum term prescribed, the sentence should run up to one-fourth of the maximum sentence stipulated in law.
What is the rationale for the scheme? What are its benefits?
The Justice Malimath Committee on reforms of the criminal justice system endorsed the various recommendations of the Law Commission with regard to plea bargaining. Some of the advantages it culled out from earlier reports are that the practice would ensure speedy trial, end uncertainty over the outcome of criminal cases, save litigation costs and relieve the parties of anxiety. It would also have a dramatic impact on conviction rates. Prolonged incarceration of undertrials without any progress in the case for years and overcrowding of prisons were also other factors that may be cited in support of reducing pendency of cases and decongesting prisons through plea bargaining. Moreover, it may help offenders make a fresh start in life.
Do courts have reservations?
Case law after the introduction of plea bargaining has not developed much as the provision is possibly not used adequately. However, earlier judgments of various courts in cases in which the accused enter a ‘guilty’ plea with a view to getting lesser sentences indicate that the judiciary may have reservations. Some verdicts disapprove of bargaining with offenders, and point out that lenient sentences could be considered as part of the circumstances of the case after a regular trial. Courts are also very particular about the voluntary nature of the exercise, as poverty, ignorance and prosecution pressure should not lead to someone pleading guilty of offences that may not have been committed.
Kerala HC frames norms/2021
June 9, 2021: The Times of India
The Kerala HC has issued seven-point guidelines to ensure that when an accused pleads guilty, it is voluntary and done after understanding the consequences.
According to the guidelines framed by Justice VG Arun, a magistrate considering an acceptance of guilt in any case should specify the alleged offence while framing the charge, read it over and explain it properly to the accused. The accused should be asked whether she or he pleads guilty of the offences charged, the guidelines state. This is to ensure there is no ambiguity and the accused has understood the implications of pleading guilty.
The magistrate should record the admission of guilt in the words of the accused to the extent possible and exercise discretion while deciding whether to accept the plea after considering all relevant factors. If the plea is accepted, the accused can be convicted and suitable punishment meted out, the guidelines say.
The high court issued the guidelines after observing that court proceedings pertaining to an accused pleading guilty of an offence were being recorded casually, often leading to omission of crucial portions of the accused’s admission of guilt in his or her own words.
The guidelines were issued in response to a petition filed by one Raseen Babu K M through advocate D Anil Kumar.
The HC issued the guidelines after observing that court proceedings pertaining to an accused pleading guilty of an offence were being recorded casually, often leading to omission of crucial portions of the accused’s admission of guilt in his or her own words.
Grounds of detention in language one understands: HC
February 20, 2022: The Times of India
New Delhi: A detenu has a fundamental right to know the grounds of his detention in a language that he understands, the Delhi high court has recently held.
Abench of Justices Siddharth Mridul and Anup J Bhambhani clarified that the arresting agency has to ensure if a detenu has “sufficient working knowledge” in each case. Merely because a detenu is able to sign or write a few words in English or any other language, would not mean that he is “conversant with the language,” the HC said. It would “always be the safer course to furnish translations of the grounds of detention and the documents that are relied upon in the language that a detenu understands”, it said. The HC was dealing with a habeas corpus plea by a man who claimed his son was under illegal preventive detention.
Misuse of criminal procedure/ frivolous cases
SC: Discharge accused even before trial in frivolous cases
AmitAnand Choudhary, March 9, 2021: The Times of India
Expressing concern over misuse of criminal procedure to harass people for personal vendetta by filing frivolous cases, the Supreme Court on Monday asked the trial courts “to nip in the bud” such cases by discharging the accused even before trial.
Holding that a litigant, caught in a frivolous case, loses a self of himself in the legal battle to protect himself and his reputation, a bench of Justices M M Shantanagoudar and R Subhash Reddy said it is the duty of the trial court, being the first line of defence of the criminal justice system, to protect people from vexatious litigation.
“We are of the considered opinion that the trial courts have the power to not merely decide on acquittal or conviction of the accused person after the trial, but also the duty to nip frivolous litigations in the bud even before they reach the stage of trial by discharging the accused in fit cases. This would not only save judicial time that comes at the cost of public money, but would also protect the right to liberty that every person is entitled to under Article 21 of the Constitution,” Justice Shantanagoudar, who wrote the judgement, said.
The bench said a significant factor in this backlog is the vast “mass of frivolous litigation” instituted year after year by litigants with an intent to use the courts of justice for their own mischievous ends. “Curtailing such vexatious litigation is, thus, a crucial step towards a more effective justice system — a step that cannot be taken without the active involvement of the lower judiciary, especially in criminal proceedings,” it said.
The court passed the order while quashing proceedings against four members of a family, including one 84-year old man and a person of unsound mind, against whom complaints were filed six years after an alleged case of assault, Holding that a trial judge is duty-bound under the Constitution and CrPC to identify and dispose of frivolous litigation at an early stage, the bench said, “A falsely accused person not only suffers monetary damages but is exposed to disrepute and stigma from society. While running from pillar to post to find a lawyer to represent his case and arranging finances to defend himself before the court of law, he loses a part of himself.”