Mandatory life sentence in UK

Criminal Justice Act 2003

SCHEDULE 21 

Determination of minimum term in relation to mandatory life sentence

Interpretation

  1. In this Schedule—
  • child” means a person under 18 years;

  • mandatory life sentence” means a life sentence passed in circumstances where the sentence is fixed by law;

  • minimum term”, in relation to a mandatory life sentence, means the part of the sentence to be specified in an order under section 269(2);

  • whole life order” means an order under subsection (4) of section 269.

Continue reading

Aggravating and mitigating factors in Criminal Offences

Aggravating factors

Factors indicating higher culpability:
  1. offence committed whilst on bail for other offences;
  2. failure to respond to previous sentences;
  3. offence was racially or religiously aggravated;
  4. offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation);
  5. offence motivated by, or demonstrating, hostility based on the victim’s disability (or presumed disability);
  6. previous conviction(s), particularly where a pattern of repeat offending is disclosed;
  7. planning of an offence;
  8. an intention to commit more serious harm than actually resulted from the offence;
  9. offenders operating in groups or gangs;
  10. ‘professional’ offending;
  11. commission of the offence for financial gain (where this is not inherent in the offence itself);
  12. high level of profit from the offence;
  13. an attempt to conceal or dispose of evidence;
  14. failure to respond to warnings or concerns expressed by others about the offender’s behaviour;
  15. offence committed whilst on licence;
  16. offence motivated by hostility towards a minority group, or a member or members of it;
  17. deliberate targeting of vulnerable victim(s);
  18. commission of an offence while under the influence of alcohol or drugs;
  19. use of a weapon to frighten or injure victim;
  20. deliberate and gratuitous violence or damage to property, over and above what is needed to carry out the offence;
  21. abuse of power;
  22. abuse of a position of trust.
Factors indicating a more than usually serious degree of harm:
  1. multiple victims;
  2. an especially serious physical or psychological effect on the victim, even if unintended;
  3. a sustained assault or repeated assaults on the same victim;
  4. victim is particularly vulnerable;
  5. location of the offence (for example, in an isolated place);
  6. offence is committed against those working in the public sector or providing a service to the public;
  7. presence of others for example, relatives, especially children or partner of the victim;
  8. additional degradation of the victim (for example, taking photographs of a victim as part of a sexual offence);
  9. in property offences, high value (including sentimental value) of property to the victim, or substantial consequential loss (for example, where the theft of equipment causes serious disruption to a victim’s life or business).

Mitigating factors

Factors indicating lower culpability:
  • a greater degree of provocation than normally expected;
  • mental illness or disability;
  • youth or age, where it affects the responsibility of the individual defendant;
  • the fact that the offender played only a minor role in the offence.

Offender mitigation

  • genuine remorse;
  • admissions to police in interview;
  • ready co-operation with authorities.

 

Nature of jurisdiction u/s 482 of the Cr.P.C for registration of a crime and investigation

20. The well-defined and demarcated functions in the field of crime detection by the police and its subsequent adjudication by the courts is so welt known and had been recognised way back in AIR 1945 18 (Privy Council) The Privy Council observed that just as it is essential that everyone accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. It is held: (AIR p. 22)

… In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as Their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and the order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervent in an appropriate case when moved u/s 491 Code of Criminal Procedure, to give directions in the nature of habeas corpus. In such a case as the present, however, the Court’s functions begin when a charge is preferred before it and not until then. It has sometimes been though that Section 561-A has given increased powers to the Court which it did not posses before that section was enacted. But this is not so. The section gives to new powers, it only provides that those which the Court already inherently possess shall be preserved and in inserted, as Their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Code of Criminal Procedure, and that no inherent power had survived the passing or that Act.

(Emphasis supplied)

21: In S.N. Sharma Vs. Bipen Kumar Tiwari and Others, this Court took the view that there is no mention of any power to stop an investigation by the police. The power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case, can the Magistrate intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquiry into the case. “The power of the police to investigate has been made independent of any control by the Magistrate.” It is further held: (SCC 657-58, para 11)

11…though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issues a writ of mandamus restraining the police officer, from misusing his legal powers.

22. This position has been further made clear by this Court in its authoritative pronouncement in State of Bihar and Another Vs. J.A.C. Saldanha and Others, hus: (SCC pp. 572-72, paras 25-26)

25. There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the Police Department the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the court requesting the court to take cognizance of the offence u/s 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the court, and to award adequate punishment according to law for the offence proved to the satisfaction of the court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. This has been recognised way back in Emperor v. Khwaja Nazir Ahmad….

26. This view of the Judicial Committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary.

(Emphasis supplied)

23. The observations of this Court in M.C. Abraham and Another, A.K. Dhote and J.F. Salve and Another Vs. State of Maharashtra and Others, in this regard deserve to be noticed. In the said case it was held; (SCC pp. 659-60, para 17)

17. The principle, therefore, is well settled that it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The investigating agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concerned to accept the report or to order further enquiry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report that is in accord with his views. Even in a case where a report is submitted by the investigating agency finding that no case is made out for prosecution, it is open to the Magistrate to disagree with the report and to take cognizance, but what he cannot do is to direct the investigating agency to submit a report to the effect that the allegations have been supported by the material collected during the course of investigation.

24. In State of West Bengal Vs. S.N. Basak, this Court reiterated the principle that the police has statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and that power of the police to investigate cannot be interfered with by the exercise of power under the inherent power of the High Court. In Hazari Lal Gupta Vs. Rameshwar Prasad and Another, etc., his Court while explaining the nature and purport of the inherent jurisdiction of the High Court observed that in exercising jurisdiction u/s 561-A of the Code of Criminal Procedure, 1898, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily enquiry as to whether the evidence is “reliable or not”. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Code of Criminal Procedure the High Court does not interfere with such investigation because it would then be the impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Code of Criminal Procedure.

25. In Nirmaljit Singh Hoon Vs. The State of West Bengal and Another, his Court held that: (SCC p. 767, para 35)

35….the police authorities have under Sections 154 and 156 of the Code a statutory right to investigate into a cognizable offence without requiring any sanction from a judicial authority, and even the High Court has no inherent power u/s 561-A of the Code to interfere with the exercise of that statutory power.

26. In State of West Bengal and Others Vs. Sujit Kumar Rana, this Court while dealing with the nature of inherent powers of the High Court held that the inherent power of the High Court is saved only where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceedings pending before a court amounts to abuse of the process of court. The power u/s 482 of the Code can be exercised by the High Court in relation to a matter pending before a criminal court or where a power is exercised by the Court under the Code of Criminal Procedure.

27. In our view, there is nothing like unlimited arbitrary jurisdiction conferred on the High Court u/s 482 of the Code. The power has to be exercised sparingly, carefully and with caution only where such exercise is justified by the tests laid down in the section itself. It is well settled that Section 482 does not confer any new power on the High Court but only saves the inherent power which the Court possessed before the enactment of the Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse’ of the process of court, and (iii) to otherwise secure the ends of justice.

28. Chandrachud, J. (as His Lordship then was), in Kurukshetra University and Another Vs. State of Haryana and Another, while considering the nature of jurisdiction conferred upon the High Court u/s 482 of the Code observed; (SCC p. 451, para 2).

2….It ought to be realised that inherent powers do not confer an arbitrary jurisdictional the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.


SOURCE :

SUPREME COURT OF INDIA

DIVINE RETREAT CENTRE   Vs.   STATE OF KERALA AND OTHERS [Decided on : 11-03-2008]

The importance of roster in High Court

67. It is clear from the record that the learned Judge was not dealing with any public interest litigation cases as on the date of entertaining anonymous petition. It is beyond pale of any doubt and controversy that the administrative control of the High Court vests in the Chief Justice is the master of the roster. He alone has the prerogative to constitute Benches of the Court and allocate cases to the Benches so constituted and the puisne judges can only do that work as is allotted to them by the Chief Justice or under his directions: that the Puisne Judges cannot “pick and choose” any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice. (See State of Rajasthan Vs. Prakash Chand and Others,

68. This Court in more than one case expressed its reservation about individual Judges entertaining the communications and petitions addressed to them to pass orders on judicial side. In Bandhua Mukti Morcha v. Union of India the Court in clear and unequivocal terms declared that communications and petitions addressed to a particular Judge are improper and violate the institutional personality of the court. They also embarrass the Judge to whom they are personally addressed.

54. …The fundamental conception of the court must be respected, that it is a single indivisible institution, of united purpose and existing solely for the high constitutional functions for which it has been created. The conception of the court as a loose aggregate of individual Judges, to one or more of whom judicial access may be particularly had, undermines its very existence and endangers its proper and effective functioning”. (Bandhua Mukti Morcha case, SCC p. 229, para 54)

(Emphasis supplied)

69. In our view, the learned Judge ought not to have entertained the anonymous petition, contends of which remain unverified and made it basis with the judicial duty of disposing of PIL matters.

70. Institution’s own reputation is a priceless treasure. History teaches us that the independence of the judiciary is jeopardised when courts become embroiled in the passions of the day and assume primary responsibility to resolve the issues which are otherwise not entrusted to them by adopting procedure which are otherwise not known.

71. There is heavy duty cast upon the constitutional courts to protect themselves from the onslaught unleashed by unscrupulous litigants masquerading as public interest litigants. The individual Judges ought not to entertain communications and letters personally addressed to them and intimate action on the judicial side based on such communication so as to avoid embarrassment; that all communication and petitions invoking the jurisdiction of the Court must be addressed to the entire Court, that is to say, the Chief Justice and his companion Judges. The individual letters, if any, addressed to a particular Judge are required to be placed before the Chief Justice for consideration as to the proposed action on such petitions. Each Judge cannot decide for himself as to what communication should be entertained for setting the law in motion be it in PIL or in any jurisdiction.

72. It is needless to say that none of these aspects have been taken into consideration by the High Court before setting the criminal law in motion as against the Appellant. The sweeping directions issued by the Court are in the nature of ordering an inquisition against the Appellant and the persons connected with it to find out as to whether they have committed any cognizable offence. Such a course is impermissible in law.


SOURCE :

SUPREME COURT OF INDIA

DIVINE RETREAT CENTRE   Vs.   STATE OF KERALA AND OTHERS [Decided on : 11-03-2008]

Investigation under Money-Laundering Act and Final Report

The term ‘investigation’ has not been defined in the Money-Laundering Act but it has been defined in the Code. With reference to the said definition of the term ‘investigation’ appearing in the Code, it was contended on behalf of the Enforcement Directorate that the investigation as defined in the Code, only includes the proceedings for the purpose of collection of evidence conducted by the police officer and does not include submission of final report, which is provided u/s 173 of the Code.

13. It is true that the term ‘investigation’ has not been defined in the Money-Laundering Act, but the said term has been defined under the Code, as quoted below:

(h) “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;

14. The question as to whether the term ‘investigation’ shall include submission of Final Form or not, has been set at rest by the Supreme Court in the case of H.N. Rishbud and Inder Singh Vs. The State of Delhi, . The relevant finding of the Supreme Court in paragraph 5 of the judgment is quoted below:

Thus under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a chargesheet u/s 173.

15. Similar view has also been expressed by the learned Single Judge of Orissa High Court in the case of Smt. Sabita Praharaj Vs. Smt. Gitarani Praharaj and Others, .

16. Section 173 of the Code makes it obligatory on the part of the’ Officer in charge to submit the report of completion of investigation before the concerned Court. Section 173(2) of the Code provides that as soon as the investigation is completed, the Officer in charge of the police station, shall file a report in the form prescribed by the State Government giving certain information as indicated in the said provision including nature of the information and as to whether any offence appears to have been committed and if so, by whom. It will also include filing of the final report, if no material is found during investigation for submission of a charge-sheet. It will not be out of place to say that when an investigation is conducted in respect of scheduled offences and no material is found to support the allegations during the investigation, Final Form is also submitted u/s 173 of the Code. Therefore, there is no reason why the term ‘investigation’ shall not include submission of final report when in course of investigation no material is found against the accused for submission of the charge-sheet.

17. Apart from above, it can never be the intention of the Legislature while legislating the Money-Laundering Act to empower the Directorate of Enforcement to sit over the records when after investigation no material is found in respect of the offence alleged under the said Act against an accused keeping the public, the complainant and most importantly the Court in dark regarding nature and extent of investigation and outcome thereof. Lack of judicial scrutiny, coupled with lack of transparency would confer too excessive a power/discretion upon the Director of Enforcement. Judicial scrutiny under Article 226 would also not be of any help when the petitioner has no access to the nature, manner and extent of investigation by the Directorate. We cannot overlook the fact that generally persons engaged in money laundering are likely to be rich and powerful. This should not be seen as doubting the personnel presently serving in the directorate, but then there would be others who would occupy these positions in future.

18. For avoiding undesirable consequences it is open in statutory interpretation to read it down or read it wide. However, we are of the view that Section 65 of the Money-Laundering Act takes care of such a situation and the Enforcement Directorate is duty bound to submit final report or charge-sheet, as the case may be, before the Court which is designated as Special Court by the Central Government in consultation with the Chief Justice of the High Court u/s 43 of the Money-Laundering Act. In the present case, admittedly after completing investigation the Enforcement Directorate has not filed the final report on the ground that there is no provision for submission of the final report under the Money-Laundering Act. Since we hold that the term ‘investigation’ shall also include submission of final report as defined in the Code, we direct that if the process is issued by the Magistrate or upon a further investigation a charge-sheet is submitted in respect of any scheduled offence, the Enforcement Directorate will submit the Final Form before the designated Court so that the designated Court shall be in a position to examine the efforts made by way of investigation, the evidence collected during the investigation and find out as to whether the final report was justified or not. The complainant shall also get an opportunity to look into the report and submit a protest petition, if he desires. We therefore, dispose of this writ petition directing the Enforcement Directorate, in case of contingencies given above, to submit Final Form before the designated Court within 2 months from the date of knowledge of the same.


Source :

(2013) 6 ADJ 672 : (2013) 3 UPLBEC 2239

ALLAHABAD HIGH COURT

( Before : Sushil Harkauli, J; N.A. Moonis, J; L.K. Mohapatra, J )

SHIV KANT TRIPATHI  Vs. STATE OF U.P. AND OTHERS 

Criminal Misc. Writ Petition No. 4909 of 2010

Decided on : 01-08-2013

Defacto complainant can file revision once the application for Police Remand has been rejected-Madras HC

MADRAS HIGH COURT

SINGLE BENCH

( Before : P. Devadass, J )

G. PRIYADARSHINI   Vs.  STATE 

Crl. R.C. No. 491 of 2014

Decided on : 20-06-2014

Criminal Procedure Code, 1973 (CrPC) – Section 156, Section 157, Section 167, Section 167(1), Section 167(2), Section 167(3), Section 2(h), Section 397, Section 397(1), Section 397(2), Section 401, Section 482, Section 57

Grant of anticipatory bail. — Magistrate turned down the request of the Investigation Officer on the ground that it is belated, A-1 is not willing to go to police custody and for the non-production of cell phones police custody could not be given. — Whenever police remand beyond the expiry of first 15 days. — It is incumbent upon the party approaching this court by taking necessary steps for the disposal of the revision before the expiry of the first 15 days period of remand. This has not been done in this case. On account of that the court cannot overstep the mandate prescribed in section 167(2) Cr.P.C.

ORDER

P. Devadass, J.—This revision has been directed by the defacto complainant in Cr. No. 246 of 2012 registered as against the order of the learned XI Metropolitan Magistrate, Saidapet, Chennai rejecting C.M.P. No. 2097 of 2014 filed by the police (first respondent) seeking police custody of A-1 (2nd respondent) for 7 days.

2. Noticing the following factual matrix is suffice for the disposal of this revision.

(1) A-1 Varun Kumar(second respondent) is the son of A-2 and A-3 viz., Prof. Veerasekaran and Kalpana. A-1 was preparing for Civil Service examination. So also Priyadarshini (defacto complainant). They met at a Training Institute. Friendship developed between them. They become very close. They become lovers. It is expected that A-1 will marry her. A-1 alone became successful in the Civil Service examination. He was selected for I.P.S. (Indian Police Service) and was allotted to Tamilnadu cadre. He became a trainee I.P.S. Officer. There are allegations that he and his parents demanded dowry and harassed the defacto complainant. Thereafter, no love last between A-1 and Priyadarshini. She lodged complaint against A-1 and his parents. A case in Cr. No. 246 of 2012 for the offences u/s 406, 417, 420, 506(i) of I.P.C. and u/s 4 of the Tamil Nadu Prevention of Women Harassment Act and Section 66 of Information Technology Act has been registered. It is being investigated into.

(2) In this Court, in Crl. O.P. No. 11387 & 11108 of 2012, A-1 to A-3 have sought for anticipatory bail. On 4.6.2012, this Court directed A-1 to produce his cell phones and laptop to the Investigation Officer and the Investigation Officer to file his report and also directed the police not to arrest A1 to A3. On 20.7.2012, the Investigation Officer filed status report to the effect that A-2 produced two Cell phones, they did not tally with the I.M.E. number obtained from the service provider and thus, A-1 not obeyed the Court order. On 21.9.2012, after hearing both sides, this Court granted them anticipatory bail.

(3) The said order, dated 21.9.2012 was challenged by the defacto complainant before the Hon’ble Supreme Court in Crl. A. No. 416-417 of 2014. The Investigation Officer filed counter and additional counter before the Hon’ble Supreme Court reiterating the substance of her status report already filed before this Court and also stated that A-1 has not cooperated with the Investigation Officer.

(4) In the circumstances, on 14.2.2014, the Hon’ble Supreme Court set aside the anticipatory bail granted to A-1 and gave him liberty to approach the appropriate Court for regular bail.

(5) Under these circumstances, on 28.4.2014, A-1 surrendered before the learned XI Metropolitan Magistrate, Saidapet, Chennai. On the same day, the Investigation Officer filed C.M.P. No. 2097 of 2014 u/s 167(2) of Cr.P.C. seeking his police custody for 7 days. In the affidavit, the Investigation Officer stated that A-1 has not produced the case properties, namely cell phones, in view of its non-production investigation could not be completed and his custodial interrogation is very much required to complete the investigation. When enquired, A-1 told the Magistrate that as he had already appeared before the Investigation Officer for 45 days he is not willing to go to police custody.

(6) On 29.4.2014, the learned Magistrate turned down the request of the Investigation Officer on the ground that it is belated, A-1 is not willing to go to police custody and for the non-production of cell phones police custody could not be given.

(7) The said order was not challenged by the State. It was challenged by the defacto complainant in this revision.

3. According to the learned counsel for the revision petitioner, the revision petitioner is the defacto complainant in this case. She is interested in the collection of required evidence (investigation). A-1 is in possession of certain vital physical evidence. He knows very many things connected with this case. Thus, his custodial interrogation is very much essential. The Investigation officer filed police custody petition before the learned Magistrate well before the expiry of the first 15 days remand. However, it was misunderstood by the learned Magistrate as belated. Custodial interrogation is elicitation oriented. In the interest of investigation, it becomes necessary. Disinclination of the accused to go to police custody is not a ground to deny the genuine request of the police.

4. The learned Public Prosecutor supported the views of the revision petitioner.

5. The learned Public Prosecutor also submitted that the impugned order of the learned Magistrate, dated 29.4.2014 is not in accordance with law. It requires to be set aside. The need for custodial interrogation also has been stated by the Investigation Officer in the counter and additional counter filed before the Hon’ble Supreme Court in the SLP filed by the defacto complainant.

6. According to the learned Senior counsel for A-1 (second respondent), by the impugned order passed by the learned Magistrate, State is the aggrieved party. The defacto complainant has no locus standi to challenge the impugned order. Further, the impugned order is an interlocutory order. Section 397(2) of Cr.P.C. is a bar to prefer a revision as against such an order. When there is express bar in section 397(2) Cr.P.C., the defacto complainant cannot also invoke the inherent jurisdiction of this Court u/s 482 Cr.P.C.

7. The learned Senior Counsel for A-1 further contended that A-1 has nothing to offer. A-1 has nothing to say. He cannot be compelled to incriminate himself. He has fundamental to right keep silence. He cannot be compelled to break his silence. Otherwise, it would be testimonial compulsion. It will militate against his fundamental right. (See Article 20(3) Constitution of India).

8. The learned Senior Counsel for A-1 further contended that as per Section 167(2) Cr.P.C., there is an outer limit of first 15 days remand period within which police custody has to be asked for. Once that period is over, no Court including this Court can go against the said express provision of law and grant police custody. Now, that the said outer period of 15 days prescribed is over, it cannot be extended by the Court.

9. The learned Senior Counsel for A-1 further contended that police custody for recovery of incriminating materials cannot be given. It is against law. In this case, it is nothing but an attempt to humiliate A-1. Whatever he had, had already been produced by him to the Investigation Officer.

10. In support of his submissions, the learned Senior Counsel appearing A-1 cited the following decisions:

(i) Nandini Satpathy Vs. P.L. Dani and Another,

(ii) State Rep. by Inspector of Police and Others Vs. N.M.T. Joy Immaculate,

(iii) State by Deputy Supdt. of Police, ‘Q’ Branch CID Vs. Sundaramoorthy,

(iv) Devender Kumar and Another etc. Vs. State of Haryana and Others etc.,

(v) The Inspector of Police, D.C.B., Madurai Dist. vs. Thalapathy and 3 Others (2011(2) L.W. (Crl.) 603)

(vi) State Vs. B. Ranganathan and Another,

(vii) K.S. Palanichamy vs. Inspector of Police, Eow II, Dindigul (2012(2) MWN (Cr.) 395)

(viii) Inspector of Police, Town Police Station, Karaikkal vs. R. Vaithyanathan Iyappan Govindaraj (2013(3) MWN (Cr.) 473)

(ix) Kanagaraj vs. Inspector of Police, Kaliyakkavilai Police Station, K.K. Dist. (2013(2) MWN (Cr.) 296 (DB)

11. In reply, the learned counsel for the revision petitioner would submit that it is not that only police can go against the order rejecting police custody. The defacto complainant is victim as well affected in this case. As such she can also file revision as against the impugned order. She is very much interested in the successful prosecution of the accused. She is interested in police pursuing all tools of investigation including custodial interrogation. On the rejection of the police custody petition, she cannot be asked to keep mum. Since she felt that police custody petition has not been properly dealt with, she took up the matter to this Court. She cannot be estopped from doing so.

12. The learned counsel for the revision petitioner further contended that in the interest of justice, if the Court finds that the impugned order suffers from any illegality suo moto in exercise of its power of revision u/s 401 Cr.P.C., this court can deal with the matter. Besides that, u/s 482 Cr.P.C. this Court has inherent power to set right any illegality committed by a Subordinate Court. Further, in the interest of justice, at any time, this Court can direct the police to take steps for custodial interrogation of the accused.

13. The learned counsel for the revision petitioner further submitted that immediately, after the dismissal of the police custody petition, she has preferred the revision before this Court. Thereafter, the matter is subjudiced in this court. On account of delay, if any caused in the disposal of the petition, the revision petitioner cannot be penalised, blamed.

14. In support of his submissions, the learned counsel for the revision petitioner cited the following decisions:

(i) Nadir Khan Vs. The State (Delhi Administration),

(ii) Lingala Vijay Kumar and Others Vs. The Public Prosecutor,

(iii) Japani Sahoo Vs. Chandra Sekhar Mohanty,

(iv) Ram Jethmalani and Others Vs. Union of India (UOI) and Others,

(v) Dinubhai Boghabhai Solanki Vs. State of Gujarat and Others,

15. The learned Public Prosecutor submitted that on the dismissal of the police custody petition, a valuable tool of investigation available to police has been sealed. The request for police custody has been dealt with once for all. So far as the subject matter (police custody) is concerned, it has become final. So revision will lie. Further, by the effect of the impugned order, namely, refusing police custody, the ultimate sufferer is defacto complainant. She can also seek redress by filing a revision. Further, u/s 482 of Cr.P.C. this Court has got inherent power to set right any illegality. It can secure justice to parties.

16. The learned Public Prosecutor further submitted that the police custody petition has been filed in time and when it was not properly dealt with by the learned Magistrate, the revision petitioner approached this Court by way of revision. By the time when the 15 days outer limit u/s 167(2) Cr.P.C. is expired. The prosecution cannot be deprived of its opportunity to get police custody. In the facts and circumstances, prosecution cannot be blamed. By the act of a Court, a party should not be made to suffer.

17. The learned Public Prosecutor further submitted that in this case, before the Hon’ble Supreme Court, in the bail cancellation petition, prosecution submitted the need for custodial interrogation of A-1. A-1 has not produced the case-properties, namely, Cell phone as directed by this Court. Custodial interrogation will not be restricted to seizure of the case-properties alone. It will also be for eliciting answers from the accused on certain vital aspects of the case. Such an opportunity cannot be denied to the prosecution.

18. In support of his submissions, the learned Public Prosecutor cited the following decisions:

(i) Amar Nath and Others Vs. State of Haryana and Another,

(ii) Madhu Limaye Vs. The State of Maharashtra,

(iii) Raj Kapoor and Others Vs. State and Others,

(iv) Miss R. Shakuntala Vs. Roshanlal Agarwal and others

(v) Ambarish Rangshahi Patnigere and Others Vs. The State of Maharashtra,

(vi) State of Maharashtra vs. Miteshmajilal Lodhiya ( CDJ 2010 BHC 1056)

(vii) Kandhal Sarman Jadeja Vs. State of Gujarat,

19. I have given my anxious consideration to the rival submissions, perused the impugned order, dated 29.4.2014, materials on record and also the various decisions cited at the bar.

20. This revision has been filed u/s 397(1) Cr.P.C. as against the order of the learned XI Metropolitan Magistrate, Saidapet, Chennai, dated 29.4.2014 dismissing the police custody petition filed by the Investigation officer. Request for police custody has been turned down.

21. The revisional power u/s 397(1) Cr.P.C. is concurrent. This power can be exercised both by the High Court and by the Sessions Court. There is a bar u/s 397(2) Cr.P.C. to entertain revision as against interlocutory orders passed in any Appeal, inquiry, trial and other proceedings.

22. Referring to this bar in Section 397(2) Cr.P.C. lot of arguments has been advanced on behalf of A-1. It was contended that it is not maintainable, because it is an interlocutory order. However, it was repelled. It was contended that it is a final order.

23. Besides, the revision u/s 397 Cr.P.C., this Court also has extraordinary power to do justice and undo injustice and pass any orders to meet the ends of justice. Such a power of this Court has been saved in the New Code in Section 482 Cr.P.C. Further u/s 401 Cr.P.C., this Court has suo-moto power to set right any order which appears to be not in accordance with law. High Court is endowed with constitutional and statutory power to render justice.

24. Police custody is intended for custodial interrogation. It is provided in Section 167(2) Cr.P.C. Such a request has to be made by the Investigation Officer in the interest of investigation. Custodial interrogation is a tool of investigation. It is elicitation oriented. It is a method of investigation. It has been statutorily recognised. (See Sections 2(h), 156, 157 and 167(2) Cr.P.C., Assistant Director, Direct of Enforcement Vs. Hassan Ali Khan, and State Rep. by the C.B.I. Vs. Anil Sharma, .

25. If the request for police custody is turned down, it will affect a party, namely, prosecution. The subject matter covered under the present petition, namely, police custody by the dismissal of the petition is closed. It is over before the Magistrate.

26. Time and again, there was lot of discussion as to whether a particular type of order is a final order or interlocutory order for the purpose of Section 397(2) Cr.P.C. Generally, an interlocutory order is an order, which is not a final order and vice versa. This generalisation is not suffice. It will not serve the purpose. It cannot be an useful formula to decide the matter with regard to Section 397(1) and 397(2) of Cr.P.C.

27. Therefore, certain approach based on content, effect of the order also has been advocated in several cases. Notable among them are Amarnath and Others vs. State of Haryana and Others [(AIR 1997 SC 2185] and [ Madhu Limaye Vs. The State of Maharashtra, . An order which is in the nature of affecting a party to the proceedings is considered to be a final order. When the request for police custody is rejected that will affect the prosecution side. Thus, it becomes final for the purpose of exercise of revisional power u/s 397(1) Cr.P.C.

28. In State Rep. by Inspector of Police and Others Vs. N.M.T. Joy Immaculate, , question of filing a revision as against granting of police custody u/s 167(2) Cr.P.C. arose before the Hon’ble Apex Court. The Hon’ble Apex Court ruled that such an order is only interlocutory order and not a final order. JOY Immaculate (supra) laid down that there cannot be revision as against an order granting police custody. Because, the bar u/s 397(2) Cr.P.C. will bar filing a revision as against such orders. It is pertinent to note that in Joy Immaculate (supra) whether an order rejecting police remand is a final order or interlocutory order and whether the bar u/s 397(2) Cr.P.C. will operate as against such an order has not been considered. In fact, it did not arose and the Hon’ble Apex Court had no occasion to consider such a question.

29. In Miss R. Shakuntala Vs. Roshanlal Agarwal and others , a learned Single Judge of the Bombay High Court termed the order of the Magistrate rejecting the remand request made by the prosecution as a final order since in that order nothing survives. The learned Single Judge in arriving at such a conclusion based reliance on Amarnath (supra) and Madhu Limaye (supra).

30. In Ambarish Rangshahi Patnigere and Others Vs. The State of Maharashtra, , a learned Single Judge of the Bombay High Court while dealing with a revision filed against the rejection of the application for police custody reviewed the entire case law on the point and noted that once police remand petition has been dismissed by the Magistrate, again and again it cannot be repeated before the learned Magistrate. Thus, the order rejecting police remand becomes final. Thus, it is a final order and not an interlocutory order.

31. A Division Bench of the Gujarat High Court in Kandhal Sarman Jadeja Vs. State of Gujarat, , specifically gone into the question whether an order refusing to grant police remand is an interlocutory order or intermediate order or a final order. The Division Bench referred to all the prior decisions on the subject. The Division Bench was also of the view that once police remand request is rejected, that subject matter before the Magistrate, namely, police custody is finally disposed of. The Division Bench ruled that an order rejecting request for police custody is a final order, so a revision will lie. We are not to deviate from the Bombay and Gujarat view, because, they are also based on Hon’ble Apex Court’s view. (See Amarnath (supra) and Madhu Limaye (supra).

32. There is one more aspect of the matter. Apart from the revisional power, this Court has got inherent power u/s 482 Cr.P.C. to do justice. It is ‘ex debito justitiae’. In the said decisions, the Hon’ble Apex Court also held that the inherent power u/s 482 Cr.P.C. can also be invoked to challenge the order of the Subordinate Court rejecting police remand.

33. Looking from any angle, I am not accepting the view of the learned Senior Counsel for A-1 that the revision as against the order of the learned Magistrate refusing police custody will not lie.

34. This revision has been preferred not by the State, but by the defacto complainant. A criminal act is a reprehensible act. An offence is committed against a member of the society. The society takes up the case. Society is the State. The actual sufferer is individual. He is the victim of the offence. In fact, he is the aggrieved person (defacto complainant). State launches prosecution as against the wrong doers (de jure complainant) on behalf of the victim. Victim is in the rear side. The State is in the forefront. It is not that the real victim is a forgotten element in the administration of criminal justice. The victim is interested in appropriately punishing the wrong doer. The victim cannot be a silent spectator. He is interested in full fledged, unbiased and fair investigation. Investigation is nothing but collection of evidence. (See Section 2(h) Cr.P.C.). Prosecution employs many tools to collect evidence. There are several methods of investigation. One of them is custodial interrogation. It can be done by obtaining police custody of the accused. In a case, effective investigation may demand custodial interrogation and police has to resort to it by invoking Section 167(2) Cr.P.C.

35. As stated already the victim is not a disinterested person for a successful investigation. When the request for police remand/custodial interrogation is rejected, naturally the victim of the offence will be aggrieved. He will be unhappy. Unhappy person can seek redress. Therefore, when the Magistrate rejects the request for police custody, as an aggrieved person, the victim of the offence, who is the defacto complainant in the case can take next step in the higher forum. Thus, the arguments of the learned Senior Counsel appearing for A-1 that this revision by the defacto complainant cannot be sustained is unsustainable.

36. A-1 took up a stand before the learned Magistrate that he has nothing to offer, he is willing to keep silent, he is constitutionally entitled to do so. (See Article 20(3), Constitution of India) and he is disinterested in going to police custody and already 45 times he has appeared before the Investigation Officer. This was accepted by the learned Magistrate. Again, the above views were projected before us by the learned Senior Counsel appearing for A-1.

37. Any enquiry, investigation conducted prior to the arrest/custody of the accused is not custodial interrogation. Custodial interrogation is a technic. It is intended to elicit certain information, explanation, clarification as to certain grey areas in the case from the accused. Sometimes it is also beneficial to the accused to clear the doubts. It will be more useful to the investigation officer to pursue correct line of investigation and avoid wrong tips, clues obtained in the course of investigation.

38. Article 20(3), Constitution of India incorporates ‘Rule Against Testimonial Compulsion’. Every person including an accused has been guaranteed freedom of speech and expression under Article 19(i)(a) of the Constitution of India. Accused is entitled to keep mum. The said constitutional right is subject to custodial interrogation permitted u/s 167(2) Cr.P.C. But the right guaranteed under Article 20(3) of Constitution of India is subject to Section 167 Cr.P.C. Wilfull refusal to the question posed by the investigation officer is punishable. Mere questioning of an accused by an investigation officer during investigation will not amount to testimonial compulsion. (See Nandini Satpathy Vs. P.L. Dani and Another, . Accused cannot claim absolute right to keep silence. He is bound to truly answer all the relevant questions put to him. But, he can refuse to answer the questions if answering them is likely to incriminate him, because, there cannot be testimonial compulsion. [ The State of Bombay Vs. Kathi Kalu Oghad and Others, and The Inspector of Police, P. Saravanan, Inspector of Police, Vangal Police Station, Karur District Vs. K.C. Palanisamy Chettiar . Therefore, the refusal of accused to go to police custody cannot be a ground to refuse police remand.

39. As per Section 167(1) Cr.P.C. when the investigation officer could not complete the investigation within 24 hours, he has to seek remand of the accused by producing him before the nearest Magistrate. (See Section 57 of Cr.P.C.). As per Section 167(2) Cr.P.C., initially the Magistrate can remand the accused upto 15 days. It is not necessary that he should remand him for the whole 15 days. As per Section 167(2) Cr.P.C., the Magistrate can also remand the accused to police custody for custodial interrogation. As per Section 167(3) Cr.P.C., while granting police custody, the learned Magistrate should record his reasons for so doing. Police custody should have been asked for or granted within first 15 days period of remand. After the expiry of the said period, namely, first 15 days, there cannot be police remand/custody. Thereafter, only judicial remand/judicial custody.

40. On this aspect, Central Bureau of Investigation, Special Investigation Cell-I, New Delhi Vs. Anupam J. Kulkarni, , is a leading authority. The Hon’ble Apex Court ruled that after the expiry of 15 days initial period of remand, police custody cannot be granted for any reason and if it is for a distinct offence, it would be different. The Hon’ble Apex Court declared the law as it contained in Section 167(2) Cr.P.C.

41. Whenever police remand beyond the expiry of first 15 days was sought for by the police, Courts have negatived it. (See State by Deputy Supdt. of Police, ‘Q’ Branch CID Vs. Sundaramoorthy, ]., K.S. Palanichamy vs. Inspector of Police, Eow-II, Dindigul ( 2012(2) MWN (Cr.) 395) and Kanagaraj vs. Inspector of Police, Kaliyakkavilai Police Station, K.K. Dist. [2013(2) MWN (Cr.) 296 (DB)].

42. Article 21, Constitution of India guarantees that no one shall be deprived of his life and liberty except by procedure established by law. It guarantees personal freedom. It is the darling of the Indian Constitution. It is the bedrock of the civil liberties. It is more than British ‘Magna Carta’ and American ‘Due Process of Law’. The valuable fundamental right guaranteed in Article 21, Constitution of India cannot be allowed to be abridged. If it is to be done, it must be only by a procedure established by law. But, the procedure must be ‘fair, reasonable and equitable’. (See Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, .

43. Police custody amounts to infringement of right of an individual, more particularly fundamental right guaranteed under Article 21, Constitution of India. (See State Vs. B. Ranganathan and Another, .

44. In D.S.P. ‘Q’ Branch CID, Dharmapuri vs. Sundaramorrthy, [2007(2) MWN (Cr) 414], a Division Bench of this Court held that any application for grant of police custody must be strictly considered on materials as it involves the fundamental right and personal liberty of an individual and the provisions are to be strictly understood and complied with.

45. Thus, there can be police remand only if it is necessary. The Magistrate should be satisfied with the need and necessity for the same by looking into the materials produced, affidavit of the investigation officer and also referring to the case-diary. There shall be no mechanical police remand. No police custody for the mere asking of the police or for their record purpose or for any stage managed show or for giving any legal sanctity or authorisation to any planted recovery.’ (See Section 27 Evidence Act).

46. Police custody must be strictly in accordance with law. There is inbuilt limitation in Section 167(2) Cr.P.C. itself. The Magistrate can exercise his power to grant police remand only before the expiry of the first 15 days of remand. In other words, from the first date of remand before the expiry of 15 days, police custody can be asked for.

47. In this case, A-1 surrendered before the learned XI Metropolitan Magistrate, Saidapet, Chennai on 28.4.2014. On the same day, the investigation Officer filed petition u/s 167(2) of Cr.P.C. seeking 7 days police custody. On the next day, after hearing both sides, the learned Magistrate refused to grant police custody. The State did not take any further action. The defacto complainant filed revision before this Court on 30.4.2014. It was pending before a learned Single Judge. On 3.6.2014, on the orders of the Hon’ble Acting Chief Justice, this revision was allotted to this Court for disposal. By this time, the 15 days period calculated from 28.4.2014 expired on 12.5.2014.

48. The learned Senior Counsel for A-1 submitted that once the said outer limit of 15 days is over, no Court can grant police custody. It is a valuable safety, safeguard provided to the accused u/s 167(2) Cr.P.C. Going beyond the said 15 days will militate against the constitutional guarantee contained in Article 21, Constitution of India.

49. But the learned counsel for the revision petitioner as well as the learned Public Prosecutor would submit that the revision has been filed well before the expiry of the first 15 days of remand, all these days, the revision is pending in this Court and thus the matter is subjudiced. By the act of Court, a party should not suffer. In such circumstances, expiry of 15 days period for grant of police custody prescribed in section 167(2) Cr.P.C. will not apply.

50. In reply, the learned Senior counsel for A-1 submitted that for any reason whatsoever, a Court cannot extend the period prescribed in section 167(2) Cr.P.C. It is the look out of the revision petitioner to see that the matter has been taken up before the expiry of the first 15 days of remand. She should have taken necessary steps. She cannot blame the court. She cannot ask the Court to break the law. There cannot be judicial legislation. Justice should be administered only as provided, prescribed in the statute.

51. In Union of India and others, Vs. Chowgule and Co. Pvt. Ltd., etc. etc., the Hon’ble Supreme Court in clear cut terms declared the law relating to section 167(2) Cr.P.C. specifically with reference to the period within which the Court can grant police remand, namely, before the expiry of the first 15 days of remand. Thereafter, with reference to the same offence, the learned Magistrate has no power to grant police custody. This will be the law applicable to all the courts.

52. In Budh Singh Vs. State of Punjab, accused surrendered before the learned Magistrate on 20.01.1999 and on 2.1.2000, police custody of the accused was sought for. He was remanded. On 4.1.2000, the investigation officer asked for further police remand. The learned Magistrate rejected it. Because by that time, the first 15 days of remand period was over. The State filed revision as against the refusal to grant police custody. It was dismissed on 17.1.2000 by the learned Sessions Judge, Ludhiana. However, a learned Judge of the Punjab & Haryana High Court set aside the order of dismissal passed by the learned Sessions Judge and directed the Magistrate to grant 7 days police custody. This was challenged by the accused before the Hon’ble Supreme Court.

The Hon’ble Apex Court set aside the High Court’s order as under:-

5. In the face of facts, as noticed above, the order of the learned Judicial Magistrate, dated 4.1.2000, in our opinion, did not require any interference. The man date of Section 167 Criminal Procedure Code, 1973 postulates that there cannot be any detention in police custody, after the expiry of the first 15 days, so far as an accused is concerned. That period of 15 days had in this case admittedly expired on 4.1.2000. The impugned order of the High Court violates the statutory provisions contained in Section 167 Cr.P.C. Since it authorises police remand for a period of seven days after the expiry of the first fifteen days period. In Central Bureau of Investigation, Special Investigation Cell-I, New Delhi Vs. Anupam J. Kulkarni, this Court considered the ambit and scope of Section 167 Cr.P.C. and held that there cannot be any detention in police custody after the expiry of the first 15 days even in a case where some more offences, either serious or other wise committed by an accused in the same transaction come to light at a later stage. The Bench, however clarified that the bar did not apply if the same arrested accused was involved in some other or different case arising out of a different transaction, in which event the period of remand needs to be considered in respect to each of such cases. The impugned order of the High Court under the circumstances, cannot be sustained. The direction to grant police remand for a period of seven days by the High Court is, accordingly, set aside. The appeal, therefore, succeeds and is allowed to the extent indicated above.’

53. In Devender Kumar and Another etc. Vs. State of Haryana and Others etc., the accused was produced before the learned Judicial Magistrate, Palwal on 8.10.2008. The application for police custody filed by the Assistant Sub Inspector was rejected on 8.10.2008 as it was not filed by the S.I. of Police and the accused was remanded to judicial custody till 22.10.2008. On 9.10.2008, police custody petition filed by the Station House Officer, Hodal was dismissed on 10.10.2008 and the accused was granted bail on the same day. The defacto complainant filed petition in the High Court of Punjab & Haryana for cancellation of the bail and also quash the order dated 10.10.2008 whereunder the request of police remand has been rejected. On 19.3.2010, the High Court set aside the order of the Magistrate and also granted police custody. The accused aggrieved by the said order, appealed to the Hon’ble Supreme Court. It was argued before the Hon’ble Supreme Court that the order of the High Court as against the provisions of Section 167(1) Cr.P.C.

The Hon’ble Apex Court accepted the arguments and held as under:

15. With regard to the second point which was urged by Mr. Luthra, the same was considered in depth and was settled in Union of India and others, Vs. Chowgule and Co. Pvt. Ltd., etc. etc., referred to hereinabove. What is clear is the fact that police remand can only be made during the first period of remand after arrest and production before the Magistrate, but not after the expiry of the said period.

54. In Inspector of Police, Town Police Station, Karaikkal vs. R. Vaithyanathan Iyappan Govindaraj (2013(3) MWN (Cr.) 473), it was held that police custody cannot be granted under any circumstances beyond the first remand period of 15 days.

55. It is incumbent upon the party approaching this court by taking necessary steps for the disposal of the revision before the expiry of the first 15 days period of remand. This has not been done in this case. On account of that the court cannot overstep the mandate prescribed in section 167(2) Cr.P.C.

56. It has been contended by the learned counsel for the petitioner that in the interest of investigation as and when required, custodial interrogation could be considered and for doing justice section 167(2) Cr.P.C. cannot stand in the way.

57. In the presence of Article 21, Constitution of India guaranteeing personal freedom and deprivation of a person’s personal liberty only by a procedure established by law, namely, section 167(2) Cr.P.C. prescribing first 15 days period this argument of the learned counsel for the revision petitioner cannot be accepted and it will also be an affront to constitutional mandate, statutory prohibition and human right of the accused.

58. Now, in this case, A-1 has surrendered before the learned XI Metropolitan Magistrate, Saidapet, Chennai on 28.4.2014. The police custody petition was filed on the same day. It was dismissed by the learned Magistrate on 29.4.2014. Thereafter, revision has been filed before this court on 30.4.2014. The 15 days initial period prescribed in Section 167(2) Cr.P.C. was already over. In the circumstances, question of granting police custody will not arise. In such view of the matter, consideration of the merit aspect as to whether police custody could be granted has become unnecessary.

59. In view of the foregoings, this revision petition is dismissed.


(2014) 2 LW(Cri) 120 : (2014) 3 MLJ(Criminal) 108 : (2014) 21 RCR(Criminal) 50

Cases ReferredMadras High Court

State Vs. B. Ranganathan and Another, (2012) MLJ(Cri) 567
The Inspector of Police, P. Saravanan, Inspector of Police, Vangal Police Station, Karur District Vs. K.C. Palanisamy Chettiar
State by Deputy Supdt. of Police, ‘Q’ Branch CID Vs. Sundaramoorthy, (2008) CriLJ 898
State Rep. by the C.B.I. Vs. Anil Sharma, AIR 1997 SC 3806 : (1997) CriLJ 4414 : (1997) 3 Crimes 252 : (1997) 3 CTC 60 : (1997) 7 JT 651 : (1997) 5 SCALE 689 : (1997) 7 SCC 187 : (1997) 3 SCR 737 Supp : (1997) AIRSCW 3722 : (1997) 7 Supreme 670
Budh Singh Vs. State of Punjab, (2001) CriLJ 2942 : (2000) 8 JT 511 : (2000) 9 SCC 266
Japani Sahoo Vs. Chandra Sekhar Mohanty, AIR 2007 SC 2762 : (2007) CriLJ 4068 : (2007) 4 CTC 740 : (2007) 9 JT 471 : (2007) 9 SCALE 400 : (2007) 8 SCR 582 : (2007) 2 UJ 941 : (2007) AIRSCW 4998 : (2007) 5 Supreme 604
Ram Jethmalani and Others Vs. Union of India (UOI) and Others, (2011) 10 SCALE 753 : (2011) 9 SCC 751 : (2011) 11 SCR 63 : (2011) 202 TAXMAN 115
Union of India and others, Vs. Chowgule and Co. Pvt. Ltd., etc. etc., AIR 1992 SC 1376 : (1992) 3 JT 169 : (1992) 1 SCALE 989 : (1992) 3 SCC 141 Supp : (1992) 2 SCR 992 : (1992) 2 UJ 370
Lingala Vijay Kumar and Others Vs. The Public Prosecutor, AIR 1978 SC 1485 : (1978) CriLJ 1527 : (1978) 4 SCC 196 : (1978) SCC(Cri) 579 : (1979) 1 SCR 2 : (1978) 10 UJ 788
Assistant Director, Direct of Enforcement Vs. Hassan Ali Khan, (2011) 4 SCALE 53 : (2011) 12 SCC 682
Central Bureau of Investigation, Special Investigation Cell-I, New Delhi Vs. Anupam J. Kulkarni, AIR 1992 SC 1768 : (1992) CriLJ 2768 : (1992) 2 Crimes 310 : (1992) 3 JT 366 : (1992) 1 SCALE 1024 : (1992) 3 SCC 141 : (1992) 3 SCR 158
Nadir Khan Vs. The State (Delhi Administration), AIR 1976 SC 2205 : (1976) CriLJ 1721 : (1975) 2 SCC 406 : (1975) SCR 489 Supp : (1975) 7 UJ 549
Dinubhai Boghabhai Solanki Vs. State of Gujarat and Others, (2014) AIRSCW 1722 : (2014) CriLJ 1886 : (2014) 3 JT 313 : (2014) 2 RCR(Criminal) 19 : (2014) 2 SCALE 629 : (2014) 4 SCC 626
The State of Bombay Vs. Kathi Kalu Oghad and Others, AIR 1961 SC 1808 : (1961) CriLJ 856 : (1962) 3 SCR 10
Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, AIR 1978 SC 597 : (1978) 1 SCC 248 : (1978) 2 SCR 621
Madhu Limaye Vs. The State of Maharashtra, AIR 1978 SC 47 : (1978) CriLJ 165 : (1977) 4 SCC 551 : (1978) SCC(Cri) 10 : (1978) 1 SCR 749 : (1977) 9 UJ 733
Amar Nath and Others Vs. State of Haryana and Another, AIR 1977 SC 2185 : (1977) CriLJ 1891 : (1977) 79 PLR 695 : (1977) 4 SCC 137 : (1978) 1 SCR 222
Nandini Satpathy Vs. P.L. Dani and Another, AIR 1978 SC 1025 : (1978) CriLJ 968 : (1978) 2 SCC 424 : (1978) SCC(Cri) 236 : (1978) 3 SCR 608
State Rep. by Inspector of Police and Others Vs. N.M.T. Joy Immaculate, AIR 2004 SC 2282 : (2004) CriLJ 2515 : (2004) 3 CTC 138 : (2004) 5 SCALE 330 : (2004) 5 SCC 729 : (2004) 3 SCR 71 Supp : (2004) AIRSCW 2828 : (2004) 4 Supreme 460
Raj Kapoor and Others Vs. State and Others, AIR 1980 SC 258 : (1980) CriLJ 202 : (1980) 1 SCC 43 : (1980) SCC(Cri) 72 : (1980) 1 SCR 1081
Devender Kumar and Another etc. Vs. State of Haryana and Others etc., (2010) CriLJ 3849 : (2010) 2 DMC 224 : (2010) 4 JT 595 : (2010) 5 SCALE 325 : (2010) 6 SCC 753
Ambarish Rangshahi Patnigere and Others Vs. The State of Maharashtra, (2010) 112 BOMLR 3144 : (2011) CriLJ 515 : (2012) 1 MhLj 900
Miss R. Shakuntala Vs. Roshanlal Agarwal and others
Kandhal Sarman Jadeja Vs. State of Gujarat, (2012) CriLJ 4165 : (2012) 2 GLH 678 : (2012) 2 GLR 1656

Whether the inherent powers vested in High Court U/S 482 of Criminal Procedure could be exercised to quash non-compoundable offenses

The inherent powers of the High Court under Section 482 Code of Criminal Procedure. are not for that purpose controlled by Section 320 Code of Criminal Procedure. Having said so, we must hasten to add that the plenitude of the power under Section 482 Code of Criminal Procedure. by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under Section 482 may be justified.

SUPREME COURT OF INDIA

Shiji @ Pappu and Others  Versus  Radhika and Another

(Before : Cyriac Joseph and T.S. Thakur, JJ.)

Criminal Appeal No. 2094 of 2011 (Arising out of SLP (Crl.) No. 9919 of 2010) : Decided On: 14-11-2011

JUDGMENT

T.S. Thakur, J—Leave granted.

2. This appeal arises out of an order passed by the High Court of Kerala at Ernakulam, whereby Criminal M.C. No. 3715 of 2010 filed under Section 482 of the Code of Criminal Procedure, 1973, with a prayer for quashing criminal proceedings in FIR No. 6/2010 alleging commission of offences punishable under Sections 354 and 394 of the IPC, has been dismissed. The High Court has taken the view that the offences with which the Appellants stand charged, are not ‘personal in nature’ so as to justify quashing the pending criminal proceedings on the basis of a compromise arrived at between the first informant-complainant and the Appellants. The only question that, therefore, arises for consideration is whether the criminal proceedings in question could be quashed in the facts and circumstances of the case having regard to the settlement that the parties had arrived at.

3. Respondent-Radhika filed an oral complaint in the Police Station at Nemom in the State of Kerala, stating that she had accompanied her husband to see a site which the latter had acquired at Punjakari. Upon arrival at the site, her husband and brother Rajesh went inside the plot while she waited for them near the car parked close by. Three youngsters at this stage appeared on a motorbike, one of whom snatched the purse and mobile phone from her hands while the other hit her on the cheek and hand. She raised an alarm that brought her husband and brother rushing to the car by which time the offenders escaped towards Karumam on a motorcycle. The complainant gave the registration number of the motorbike to the police and sought action against the Appellants who were named by her in the statement made before the Additional Police Sub-Inspector attached to the Nemom Police Station. FIR No. 6/2010 was, on the basis of that statement, registered in the police station and investigation started. A charge sheet was, in due course, filed against the Appellants before the Judicial Magistrate First Class, Neyyattinkara, eventually numbered CC 183/2010.

4. During the pendency of the criminal proceedings aforementioned, the parties appear to have amicably settled the matter among themselves. Criminal M.C. No. 3715 of 2010 under Section 482 Code of Criminal Procedure. was on that basis filed before the High Court of Kerala at Ernakulam for quashing of the complaint pending before the Judicial Magistrate First Class, Neyyattinkara. That prayer was made primarily on the premise that Appellant No. 1 Shiji @ Pappu who also owns a parcel of land adjacent to the property purchased by the Respondent-Radhika, had some dispute in regard to the road leading to the two properties. An altercation had in that connection taken place between the Appellants on the one hand and the husband and brother of the Respondent on the other, culminating in the registration of the FIR mentioned above. The petition further stated that all disputes civil and criminal between the parties had been settled amicably and that the Respondent had no grievance against the Appellants in relation to the access to the plots in question and that the Respondent had no objection to the criminal proceedings against the Appellants being quashed by the High Court in exercise of its power under Section 482 Code of Criminal Procedure. The petition further stated that the disputes between the parties being personal in nature the same could be taken as settled and the proceedings put to an end relying upon the decision of this Court in Madan Mohan Abbot v. State of Punjab, (2008) 4 SCC 582. An affidavit sworn by the Respondent stating that the matter stood settled between the parties was also filed by the Appellants before the High Court. The High Court has upon consideration declined the prayer made by the Appellants holding that the offences committed by the Appellants were not of a personal nature so as to justify quashing of the proceedings in exercise of its extra-ordinary jurisdiction under Section 482 Code of Criminal Procedure.

5. We have heard learned Counsel for the parties and perused the impugned order. Section 320 of the Code of Criminal Procedure. enlists offences that are compoundable with the permission of the Court before whom the prosecution is pending and those that can be compounded even without such permission. An offence punishable under Section 354 of the IPC is in terms of Section 320(2) of the Code compoundable at the instance of the woman against whom the offence is committed. To that extent, therefore, there is no difficulty in either quashing the proceedings or compounding the offence under Section 354, of which the Appellants are accused, having regard to the fact that the alleged victim of the offence has settled the matter with the alleged assailants. An offence punishable under Section 394 IPC is not, however, compoundable with or without the permission of the Court concerned. The question is whether the High Court could and ought to have exercised its power under Section 482 Code of Criminal Procedure. for quashing the prosecution under the said provision in the light of the compromise that the parties have arrived at.

6. Learned Counsel for the Appellants submitted that the first informant-complainant had, in the affidavit filed before this Court, clearly admitted that the complaint in question was lodged by her on account of a misunderstanding and misconception about the facts and that the offences of which the Appellants stand accused are purely personal in nature arising out of personal disputes between the parties. It was also evident that the complainant was no longer supporting the version on which the prosecution rested its case against the Appellants. According to the learned Counsel there was no question of the Trial Court recording a conviction against the Appellants in the light of what the complainant had stated on affidavit. That was all the more so, when the other two prosecution witnesses were none other than the husband and the brother of the complainant who too were not supporting the charges against the Appellants. Such being the case, continuance of criminal trial against the Appellants was nothing but an abuse of the process of law and waste of valuable time of the Courts below. Exercise of power by the High Court under Section 482 Code of Criminal Procedure. to prevent such abuse is perfectly justified, contended the Learned Counsel. Reliance in support was placed by the learned Counsel upon the decision of this Court in Madan Mohan Abbot’s case (supra).

7. This Court has, in several decisions, declared that offences under Section 320 Code of Criminal Procedure. which are not compoundable with or without the permission of the Court cannot be allowed to be compounded. In Ram Lal and Anr. v. State of J and K, (1999) 2 SCC 213, this Court referred to Section 320(9) of the Code of Criminal Procedure. to declare that such offences as are made compoundable under Section 320 can alone be compounded and none else. This Court declared two earlier decisions rendered in Y. Suresh Babu v. State of Andhra Pradesh, JT 1987 (2) SC 361 and Mahesh Chand v. State of Rajasthan, (1990) Suppl. SCC 681, to be per incuriam in as much as the same permitted composition of offences not otherwise compoundable under Section 320 of the Code of Criminal Procedure. What is important, however, is that in Ram Lal’s case (supra) the parties had settled the dispute among themselves after the Appellants stood convicted under Section 326 IPC. The mutual settlement was then sought to be made a basis for compounding of the offence in appeal arising out of the order of conviction and sentence imposed upon the accused. This Court observed that since the offence was non-compoundable, the court could not permit the same to be compounded, in the teeth of Section 320. Even so, the compromise was taken as an extenuating circumstance which the court took into consideration to reduce the punishment awarded to the Appellant to the period already undergone. To the same effect is the decision of this Court in Ishwar Singh v. State of Madhya Pradesh, (2008) 15 SCC 667; where this Court said:

14. In our considered opinion, it would not be appropriate to order compounding of an offence not compoundable under the Code ignoring and keeping aside statutory provisions. In our judgment, however, limited submission of the learned Counsel for the Appellant deserves consideration that while imposing substantive sentence, the factum of compromise between the parties is indeed a relevant circumstance which the Court may keep in mind.

8. There is another line of decisions in which this Court has taken note of the compromise arrived at between the parties and quashed the prosecution in exercise of powers vested in the High Court under Section 482 Code of Criminal Procedure. In State of Karnataka v. L. Muniswamy and Ors., (1977) 2 SCC 699 this Court held that the High Court was entitled to quash the proceedings if it came to the conclusion that the ends of justice so required. This Court observed:

…Section 482 of the new Code, which corresponds to Section 561-A o the Code of 1898, provides that:

Nothing in this Code shall be deemed to limit, or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court’s inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction.

9. In Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors., (1988) 1 SCC 692, this Court held that the High Court should take into account any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue or quash the prosecution where in its opinion the chances of an ultimate conviction are bleak. This Court observed:

7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.

10. In B.S Joshi and Ors. v. State of Haryana, (2003) 4 SCC 675, the question that fell for consideration before this Court was whether the inherent powers vested in the High Court under Section 482 Code of Criminal Procedure. could be exercised to quash non-compoundable offences. The High Court had, in that case relying upon the decision of this Court in Madhu Limaye v. The State of Maharashtra (1977) 4 SC 551, held that since offences under Sections 498A and 406 IPC were not compoundable, it was not permissible in law to quash the FIR on the ground that there has been a settlement between the parties. This Court declared that the decisions in Madhu Limaye’s case (supra) had been misread and misapplied by the High Court and that the judgment of this Court in Madhu Limaye’s case (supra) clearly supported the view that nothing contained in Section 320(2) can limit or affect the exercise of inherent power of the High Court if interference by the High Court was considered necessary for the parties to secure the ends of justice. This Court observed:

8. It is, thus, clear that Madhu Limaye case, (1977) 4 SCC 551 does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in Section 482 of the Code or extraordinary power under Article 226 of the Constitution of India. We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power.

15. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.

11. That brings to the decision of this Court in Madan Mohan Abbot’ case (supra) whereby the High Court had declined the prayer for quashing of the prosecution for offences punishable under Sections 379, 406, 409, 418, 506/34 IPC despite a compromise entered into between the complainant and the accused. The High Court had taken the view that since the offence punishable under Section 406 was not compoundable the settlement between the parties could not be recognized nor the pending proceedings quashed. This Court summed up the approach to be adopted in such cases in the following words:

6. We need to emphasise that it is perhaps advisable that in disputes where the question involved is of a purely personal nature, the court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilised in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law.

7. We see from the impugned order that the learned Judge has confused compounding of an offence with the quashing of proceedings. The outer limit of Rs 250 which has led to the dismissal of the application is an irrelevant factor in the later case. We, accordingly, allow the appeal and in the peculiar facts of the case direct that FIR No. 155 dated 17-11-2001 PS Kotwali, Amritsar and all proceedings connected therewith shall be deemed to be quashed.

12. To the same effect is the decision of this Court in Nikhil Merchant v. CBI, (2008) 9 SCC 677 where relying upon the decision in B.S. Joshi (supra), this Court took note of the settlement arrived at between the parties and quashed the criminal proceedings for offences punishable under Sections 420, 467, 468 and 471 read with Section 120B of IPC and held that since the criminal proceedings had the overtone of a civil dispute which had been amicably settled between the parties it was a fit case where technicality should not be allowed to stand in the way of quashing of the criminal proceedings since the continuance of the same after the compromise arrived at between the parties would be a futile exercise. We may also at this stage refer to the decision of this Court in Manoj Sharma v. State and Ors. (2008) 16 SCC 1. This Court observed:

8. In our view, the High Court’s refusal to exercise its jurisdiction under Article 226 of the Constitution for quashing the criminal proceedings cannot be supported. The first information report, which had been lodged by the complainant indicates a dispute between the complainant and the accused which is of a private nature. It is no doubt true that the first information report was the basis of the investigation by the police authorities, but the dispute between the parties remained one of a personal nature. Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter.

**********

9. As we have indicated hereinbefore, the exercise of power under Section 482 Code of Criminal Procedure of Article 226 of the Constitution is discretionary to be exercised in the facts of each case. In the facts of this case we are of the view that continuing with the criminal proceedings would be an exercise in futility….

13. It is manifest that simply because an offence is not compoundable under Section 320 IPC is by itself no reason for the High Court to refuse exercise of its power under Section 482 Code of Criminal Procedure. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial Court or in appeal on one hand and the exercise of power by the High Court to quash the prosecution under Section 482 Code of Criminal Procedure. on the other. While a Court trying an accused or Hearing an appeal against conviction, may not be competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under Section 320, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non-compoundable. The inherent powers of the High Court under Section 482 Code of Criminal Procedure. are not for that purpose controlled by Section 320 Code of Criminal Procedure. Having said so, we must hasten to add that the plenitude of the power under Section 482 Code of Criminal Procedure. by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under Section 482 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. The High court may be justified in declining interference if it is called upon to appreciate evidence for it cannot assume the role of an appellate court while dealing with a petition under Section 482 of the Code of Criminal Procedure. Subject to the above, the High Court will have to consider the facts and circumstances of each case to determine whether it is a fit case in which the inherent powers may be invoked.

14. Coming to the case at hand we are of the view that the incident in question had its genesis in a dispute relating to the access to the two plots which are adjacent to each other. It was not a case of broad day light robbery for gain. It was a case which has its origin in the civil dispute between the parties, which dispute has, it appears, been resolved by them. That being so, continuance of the prosecution where the complainant is not ready to support the allegations which are now described by her as arising out of some “misunderstanding and misconception” will be a futile exercise that will serve no purpose. It is noteworthy that the two alleged eyewitnesses, who are closely related to the complainant, are also no longer supportive of the prosecution version. The continuance of the proceedings is thus nothing but an empty formality. Section 482 Code of Criminal Procedure. could, in such circumstances, be justifiably invoked by the High Court to prevent abuse of the process of law and thereby preventing a wasteful exercise by the Courts below.

15. We accordingly allow this appeal, set aside the impugned order passed by the High Court and quash the prosecution in CC 183/2010 pending in the Court of Judicial Magistrate, First Class, Neyyattinkara.


JT 2011 (13) SC 180 : (2011) 12 SCALE 588

Murder Case: The principle of proportion between crime and punishment

cropped-library.jpg

Section 302 IPC prescribes death or life imprisonment as the penalty for murder. While doing so, the Code instructs the court as to its application. The changes which the Code has undergone in the last three decades clearly indicate that Parliament is taking note of contemporary criminological thought and movement. It is not difficult to discern that in the Code, there is a definite swing towards life imprisonment. Death sentence is ordinarily ruled out and can only be imposed for “special reasons”, as provided in Section 354(3). There is another provision in the Code which also uses the significant expression “special reason”. It is Section 361. Section 360 of the 1973 Code re-enacts, in substance, Section 562 of the Criminal Procedure Code, 1898 (in short “the old Code”). Section 361 which is a new provision in the Code makes it mandatory for the court to record “special reasons” for not applying the provisions of Section 360. Section 361 thus casts a duty upon the court to apply the provisions of Section 360 wherever it is possible to do so and to state “special reasons” if it does not do so. In the context of Section 360, the “special reasons” contemplated by Section 361 must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the statute-book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors, Criminal justice deals with complex human problems and diverse human beings. A Judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed.

It should be borne in mind that before the amendment of Section 367(5) of the old Code, by the Criminal Procedure Code (Amendment) Act, 1955 (26 of 1955) which came into force on 1.1.1956, on a conviction for an offence punishable with death, if the court sentenced the accused to any punishment other than death, the reason why sentence of death was not passed had to be stated in the judgment. After the amendment of Section 367(5) of the old Code by Act 26 of 1955, it is not correct to hold that the normal penalty of imprisonment for life cannot be awarded in the absence of extenuating circumstances which reduce the gravity of the offence. The matter is left, after the amendment, to the discretion of the court. The court must, however, take into account all the circumstances, and state its reasons for whichever of the two sentences it imposes in its discretion. Therefore, the former rule that the normal punishment for murder is death is no longer operative and it is now within the discretion of the court to pass either of the two sentences prescribed in this section; but whichever of the two sentences he passes, the Judge must give his reasons for imposing a particular sentence. The amendment of Section 367(5) of the old Code does not affect the law regulating punishment under IPC. This amendment relates to procedure and now courts are no longer required to elaborate the reasons for not awarding the death penalty; but they cannot depart from sound judicial considerations preferring the lesser punishment.

Section 354(3) of the Code marks a significant shift in the legislative policy underlying the old Code as in force immediately before 1.4.1974, according to which both the alternative sentences of death or imprisonment for life provided for murder were normal sentences. Now, under Section 354(3) of the Code the normal punishment for murder is imprisonment for life and death penalty is an exception. The court is required to state the reasons for the sentence awarded and in the case of death sentence “special reasons” are required to be stated, that is to say, only special facts and circumstances will warrant the passing of the death sentence. It is in the light of these successive legislative changes in the Code that the judicial decisions prior to the amendment made by Act 26 of 1955 and again Act 2 of 1974 have to be understood.

Supreme Court in Ediga Anamma v. State of A.P. (1974) 4 SCC 443) has observed (SCC pp. 453-54, para 26) :

“26. Let us crystallize the positive indicators against death sentence under Indian law currently. Where the murderer is too young or too old, the clemency or penal justice helps him. Where the offender suffers from socio-economic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one, judicial commutation is permissible. Other general social pressures, warranting judicial notice, with an extenuating impact may, in special cases, induce the lesser penalty. Extraordinary features in the judicial process, such as that the death sentence has hung over the head of the culprit excruciatingly long, may persuade the court to be compassionate. Likewise, if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive, being under Section 302, read with Section 149, or again the accused has acted suddenly under another’s instigation, without premeditation, perhaps the court may humanely opt for life, even like where a just cause or real suspicion of wife’s infidelity pushed the criminal into the crime. On the other hand, the weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim, and the like, steel the heart of the law for a sterner sentence. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accenting the trend against the extreme and irrevocable penalty of putting out of life.”

In Bachan Singh’s case (supra) it has been observed that (SCC p. 751, para 209) :

“A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

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 order to apply these guidelines, inter alia, the following questions may be asked and answered, (a) is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?; and (b) are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

Another decision which illuminatingly deals with the question of death sentence is Machhi Singh’s case (supra).

In Machhi Singh (supra) and Bachan Singh (supra) cases the guidelines which are to be kept in view when considering the question whether the case belongs to the rarest of the rare category were indicated.

 In Machhi Singh case (supra) it was observed (SCC p. 489, para 39) :

The following questions may be asked and answered as a test to determine the ‘rarest of the rare’ case in which death sentence can be inflicted:-

(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

The following guidelines which emerge from Bachan Singh’s case (supra) will have to be applied to the facts of each individual case where the question of imposition of death sentence arises (SCC p. 489, para 38):-

(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 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 hired assassin for money or reward or a cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course for 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 murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position or a public figure generally loved and respected by the community.

If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.

A convict hovers between life and death when the question of gravity of the offence and award of adequate sentence comes up for consideration. Mankind has shifted from the state of nature towards a civilized society and it is no longer the physical opinion of the majority that takes away the liberty of a citizen by convicting him and making him suffer a sentence of imprisonment. Award of punishment following conviction at a trial in a system wedded to the rule of law is the outcome of cool deliberation in the court room after adequate hearing is afforded to the parties, accusations are brought against the accused, the prosecuted is given an opportunity of meeting the accusations by establishing his innocence. It is the outcome of cool deliberations and the screening of the material by the informed man i.e. the Judge that leads to determination of the lis.

The principle of proportion between crime and punishment is a principle of just desert that serves as the foundation of every criminal sentence that is justifiable. As a principle of criminal justice it is hardly less familiar or less important than the principle that only the guilty ought to be punished. Indeed, the requirement that punishment not be disproportionately great, which is a corollary of just desert, is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt.

The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the traffic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread.

Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now a single grave infraction that is thought to call for uniformly drastic measures. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.

Red

Law does not prohibit registration and investigation of two FIRs in respect of same incident in case versions are different.

FIR CASE

Registration of two FIRs in respect of the same incident is not permissible in law, for the simple reason that law does not prohibit registration and investigation of two FIRs in respect of the same incident in case the versions are different. The test of sameness has to be applied otherwise there would not be cross cases and counter cases. Thus, filing another FIR in respect of the same incident having a different version of events is permissible. (Vide: Ram Lal Narang v. State (Delhi Admn.), AIR 1979 SC 1791; Sudhir and Ors., v. State of M.P. AIR 2001 SC 826; T.T. Antony v. State of Kerala and Ors., AIR 2001 SC 2637; Upkar Singh v. Ved Prakash and Ors., AIR 2004 SC 4320; and Babubhai v. State of Gujarat and Ors., (2010) 12 SCC 254).

COMPLAINT CASE

In Bhagwant Singh v. Commissioner of Police and Anr., AIR 1985 SC 1285, this Court dealt with an issue elaborately entertaining the writ petition and accepting the submission in regard to acceptance of the Final Report to the extent that if no case was made out by the Magistrate, it would be violative of principles of natural justice of the complainant and therefore before the Magistrate drops the proceedings the informant is required to be given hearing as the informant must know what is the result of the investigation initiated on the basis of first FIR. He is the person interested in the result of the investigation. Thus, in case the Magistrate takes a view that there is no sufficient ground for proceeding further and drops the proceedings, the informant would certainly be prejudiced and therefore, he has a right to be heard.

10. In Bindeshwari Prasad Singh v. Kali Singh, AIR 1977 SC 2432, this Court held that the second complaint lies if there are some new facts or even on the previous facts if the special case is made out.

Similarly, in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876, this Court has held as under:

An order of dismissal under Section 203 of the code of Criminal Procedure, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances e.g. where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into.

11. After considering the aforesaid judgment along with various other judgments of this Court, in Mahesh Chand v. B. Janardhan Reddy and Anr., AIR 2003 SC 702, this Court held as under:

..It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Section 204 code of Criminal Procedure may take cognizance of an offence and issue process if there is sufficient ground for proceeding.

In Poonam Chand Jain and Anr. v. Fazru AIR 2005 SC 38, a similar view has been re-iterated by this Court.

12. In Jatinder Singh and Ors. v. Ranjit Kaur, AIR 2001 SC 784, this Court held that dismissal of a complaint on the ground of default was no bar for a fresh Complaint being filed on the same facts.

Similarly in Ranvir Singh v. State of Haryana, (2009) 9 SCC 642, this Court examined the issue in the backdrop of facts that the complaint had been dismissed for the failure of the complainant to put in the process fees for effecting service and held that in such a factsituation second complaint was maintainable.

13. Thus, it is evident that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit.

14. The Protest Petition can always be treated as a complaint and proceeded with in terms of Chapter XV of code of Criminal Procedure. Therefore, in case there is no bar to entertain a second complaint on the same facts, in exceptional circumstances, the second Protest Petition can also similarly be entertained only under exceptional circumstances. In case the first Protest Petition has been filed without furnishing the full facts/particulars necessary to decide the case, and prior to its entertainment by the court, a fresh Protest Petition is filed giving full details, we fail to understand as to why it should not be maintainable.


SOURCE: Shiv Shankar Singh Versus State of Bihar and Another

An appeal against acquittal has been differentiated from a normal appeal against conviction-SC

The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for. We may refer to a recent judgment of this Court in the case of State of Rajasthan, through Secretary, Home Department v. Abdul Mannan, (2011) 8 SCC 65, wherein this Court discussed the limitation upon the powers of the appellate court to interfere with the judgment of acquittal and reverse the same.

11. This Court referred to its various judgments and held as under:

12. As is evident from the above recorded findings, the judgment of conviction was converted to a judgment of acquittal by the High Court. Thus, the first and foremost question that we need to consider is, in what circumstances this Court should interfere with the judgment of acquittal. Against an order of acquittal, an appeal by the State is maintainable to this Court only with the leave of the Court. On the contrary, if the judgment of acquittal passed by the trial court is set aside by the High Court, and the accused is sentenced to death, or life imprisonment or imprisonment for more than 10 years, then the right of appeal of the accused is treated as an absolute right subject to the provisions of Articles 134(1)(a) and 134(1)(b) of the Constitution of India and Section 379 of the code of Criminal Procedure, 1973. In light of this, it is obvious that an appeal against acquittal is considered on slightly different parameters compared to an ordinary appeal preferred to this Court.

13. When an accused is acquitted of a criminal charge, a right vests in him to be a free citizen and this Court is very cautious in taking away that right. The presumption of innocence of the accused is further strengthened by the fact of acquittal of the accused under our criminal jurisprudence. The courts have held that if two views are possible on the evidence adduced in the case, then the one favourable to the accused, may be adopted by the court. However, this principle must be applied keeping in view the facts and circumstances of a case and the thumb rule is that whether the prosecution has proved its case beyond reasonable doubt. If the prosecution has succeeded in discharging its onus, and the error in appreciation of evidence is apparent on the face of the record then the court can interfere in the judgment of acquittal to ensure that the ends of justice are met. This is the linchpin around which the administration of criminal justice revolves.

14. It is a settled principle of criminal jurisprudence that the burden of proof lies on the prosecution and it has to prove a charge beyond reasonable doubt. The presumption of innocence and the right to fair trial are twin safeguards available to the accused under our criminal justice system but once the prosecution has proved its case and the evidence led by the prosecution, in conjunction with the chain of events as are stated to have occurred, if, points irresistibly to the conclusion that the accused is guilty then the court can interfere even with the judgment of acquittal. The judgment of acquittal might be based upon misappreciation of evidence or apparent violation of settled canons of criminal jurisprudence.

15. We may now refer to some judgments of this Court on this issue. In State of M.P. v. Bacchudas, the Court was concerned with a case where the accused had been found guilty of an offence punishable under Section 304 Part II read with Section 34 Indian penal code by the trial court; but had been acquitted by the High Court of Madhya Pradesh. The appeal was dismissed by this Court, stating that the Supreme Court’s interference was called for only when there were substantial and compelling reasons for doing so. After referring to earlier judgments, this Court held as under: (SCC pp. 138-39, paras 9-10)

9. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. (See Bhagwan Singh v. State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, Ramesh Babulal Doshi v. State of Gujarat, Jaswant Singh v. State of Haryana, Raj Kishore Jha v. State of Bihar, State of Punjab v. Karnail Singh, State of Punjab v. Phola Singh, Suchand Pal v. Phani Pal and Sachchey Lal Tiwari v. State of U.P.

10. When the conclusions of the High Court in the background of the evidence on record are tested on the touchstone of the principles set out above, the inevitable conclusion is that the High Court’s judgment does not suffer from any infirmity to warrant interference.

16. In a very recent judgment, a Bench of this Court in State of Kerala v. C.P. Rao decided on 16-5-2011, discussed the scope of interference by this Court in an order of acquittal and while reiterating the view of a three-Judge Bench of this Court in Sanwat Singh v. State of Rajasthan, the Court held as under:

13. In coming to this conclusion, we are reminded of the well-settled principle that when the court has to exercise its discretion in an appeal arising against an order of acquittal, the court must remember that the innocence of the accused is further re-established by the judgment of acquittal rendered by the High Court. Against such decision of the High Court, the scope of interference by this Court in an order of acquittal has been very succinctly laid down by a three-Judge Bench of this Court in Sanwat Singh v. State of Rajasthan 212. At SCR p. 129, Subba Rao, J. (as His Lordship then was) culled out the principles as follows:

‘9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case afford a correct guide for the appellate court’s approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as (i) “substantial and compelling reasons”, (ii) “good and sufficiently cogent reasons”, and (iii) “strong reasons”, are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified’.

17. Reference can also be usefully made to the judgment of this Court in Suman Sood v. State of Rajasthan, where this Court reiterated with approval the principles stated by the Court in earlier cases, particularly, Chandrappa v. State of Karnataka. Emphasising that expressions like “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal, the Court stated that such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with the acquittal. Thus, where it is possible to take only one view i.e. the prosecution evidence points to the guilt of the accused and the judgment is on the face of it perverse, then the Court may interfere with an order of acquittal.

12. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience.

13. Also, this Court had the occasion to state the principles which may be taken into consideration by the appellate court while dealing with an appeal against acquittal. There is no absolute restriction in law to review and re-look the entire evidence on which the order of acquittal is founded. If, upon scrutiny, the appellate court finds that the lower court’s decision is based on erroneous views and against the settled position of law then the said order of acquittal should be set aside. {See State (Delhi Administration) v. Laxman Kumar and Ors., (1985) 4 SCC 476, Raj Kishore Jha v. State of Bihar and Ors., AIR 2003 SC 4664, Inspector of Police, Tamil Nadu v. John David, JT 2011 (5) SC 1


Source:- State of Rajasthan Versus Shera Ram @ Vishnu Dutta-(SUPREME COURT OF INDIA) (2011) 13 SCALE 140