Case BriefsHigh Courts

Punjab and Haryana High Court: Rajiv Narain Raina, J. allowed the petition to grant furlough to the petitioner and quashed the impugned order passed by the District Magistrate disallowing the same. 

The instant petition was made with the prayer that the petitioner be granted the benefit of furlough for a period of two weeks to enable him to meet his family members. The petitioner was convicted under Section 302 of the Penal Code.

The application of the petitioner for furlough was rejected on the grounds that the petitioner had recently availed parole period from 12.06.2019 to 28.06.2019. The District Magistrate, Karnal refused to recommend furlough to the petitioner to meet his family. The Divisional Commissioner, Karnal Division, Karnal by applying the provisions of Section 6 (1) of the amended Act of 2012 of the Haryana Temporary Good Conduct Prisoners (Temporary Release) Act, 1988 supported the stance of the District Magistrate.

The Court observed that there was no report in the impugned order stating that the release of the petitioner on furlough would involve a breach of the security of the State or he would pose a danger to society or create law and order problems. The court also noted that the petitioner had already undergone about 10 years and 5 months as under trial and after his conviction. Moreover, the petitioner had already availed the benefit of parole in the month of June, 2019 and he surrendered in time after the parole period was over.

After considering the aforementioned facts and taking into account the aforesaid relevant consideration, the court deemed it appropriate to grant the benefit of furlough to the petitioner for a period of two weeks.

In view of the above-noted facts, the instant petition was allowed with the direction that the District Magistrate concerned, would impose such conditions as may be required to secure the presence of the petitioner in jail after the period of furlough, is over and done with and the temporary release would not be misused. [Deepak Sharma v. State of Haryana, 2019 SCC OnLine P&H 2089, decided on 19-10-2019]

Case BriefsHigh Courts

Allahabad High Court: The Bench of Dinesh Kumar Singh, J., released the accused on probation by granting him the benefit of Section 4 of the Probation of Offenders Act, 1958.

The facts of the case were that the accused was booked under Sections 323, 452 and 326 IPC and was convicted by the Trial Court in this regard. Shiv Ganesh Singh, Advocate on behalf of the appellant, submitted that since the appellant was not convicted previously for any offence, the Trial Court ought to have invoked the provisions of the Probation of Offenders Act, 1958. It was further submitted that the Trial Court did neither invoke the provisions of the Act, 1958 nor the provisions of Section 360 CrPC while sentencing the accused-appellant. Neither did it give any special reason in the impugned judgment and order of conviction for not giving the benefit of provisions of Section 360 CrPC or the provisions of Act, 1958. Thus the order suffered from serious illegality being violative of provisions of Section 361 CrPC and, therefore, it cannot be sustained. Section 361 of the Code is required to be applied with or without the beneficial provisions i.e. Section 360 of the Code or provisions of the Act, 1958. It was further stated that if the Court chose not to apply either of these provisions, it was required to give special reasons for not applying the beneficial provision otherwise accused offender would be eligible for provisions of Section 360 of the Code or Section 3 or 4 of the Act, 1958. The accused-appellant had a statutory right for claiming the benefit of beneficial legislation.

The Court, in view of the facts and circumstances, held that the appeal should be dismissed by upholding the conviction of the accused-appellant. However, he was granted the benefit of Section 4 of the Act, 1958. He was released on probation. [Durgesh Chandra v. State of U.P, 2019 SCC OnLine All 2176, decided on 15-05-2019]

Case BriefsHigh Courts

Jharkhand High Court: The Bench of  Deepak Roshan, J. allowed a petition insofar as it modifies the sentenced to undergo the imprisonment for the period already undergone him. 

In the present case the petitioner was found guilty for the offence under Section 3(a) of Railway Property (Unlawful Possession) Act and was sentenced to undergo simple imprisonment for 2 years and also directed to pay a fine of Rs 2000 and in default of payment of fine, he was further directed to undergo simple imprisonment for six months. The learned counsel for the petitioner submitted that he remained in custody for nearly one year and eight months and he has already suffered much as such some leniency may be accorded to the petitioner.

The Court held that the prosecution has proved its case beyond all shadow of reasonable doubts. But the fact that the petitioner remained in custody for more than one and a half years and the case is pending since 1994, has certainly made the petitioner suffer who remained in custody. Therefore, the Court found it “expedient in the interest of justice that the order of sentence already undergone will suffice for the ends of justice for the alleged offence”.[Fahim Khan v. State of Jharkhand, 2019 SCC OnLine Jhar 457, decided on 03-05-2019]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and R.G. Avachat, JJ., pronounced an order while extending the provisions of Section 335 CrPC to the appellant in order to detain him in Yerwada Mental Hospital and setting aside the impugned order of conviction and sentence under Section 302 IPC.

The present challenge was made to the judgment and order passed by learned Additional Sessions Judge, Udgir. Appellant had been convicted for the offence of murder, punishable under Section 302 IPC.

Factual matrix of the present case is that the deceased was a daily wage earner and at times used to sell Pepsi candies as a hocker in summer. On one such day, appellant asked the deceased for a Pepsi candy for free but the deceased refused for the same. Result of the said circumstances was that the appellant picked up a stone and lynched the deceased due to which on reaching the hospital the deceased lost his life.

Appellant was arrested after the above-said facts took place in the form of an FIR filed by deceased’s uncle. Trial Court framed charge and appellant pleaded not guilty and claimed to be tried. His defence was that of insanity.

Learned Counsel for the appellant stated that appellant did not have intention to kill the deceased and therefore it would at most be an offence of culpable homicide not amounting to murder, punishable under Section 304 Part-B of the Indian Penal Code. On appreciation of the evidence in the case, the trial court found the appellant to have caused culpable homicide and found it to be a case of murder. In the trial court’s view, appellant failed to make out defence of his insanity.

Conclusion & Analysis

The High being not in agreement with the trial court’s finding addressed the issue of legal insanity with an in-depth analysis of Section 299 IPC, Sections 105 and 101 Evidence Act and reference was taken from the case of Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563. 

Thus, in light of the above stated,  along with circumstances of the case, it was stated that there was no enmity between the deceased and the appellant and appellant had lynched the deceased for such a trivial issue. Further, as for representations regarding appellant’s mental health, PW-8 had testified that once appellant along with other villagers had visited a temple where he had hit his wife with a watermelon for no reason. Therefore in Court’s opinion, such acts could not be attributed to the person of sound mind.

Court stated that “the appellant may not have been found medically insane.  We, however, found him legally insane. The fact that none of the family members of the appellant stood by him during the proceeding before the trial court speaks in volume.”

Disagreeing with the decision of the trial court, the High Court held that the appellant did not know the nature of the act that would otherwise have constituted the offence of murder, and therefore impugned order is set aside by declaring the appellant legally insane and detaining him in Yerwada Mental Hospital as per the provisions of Section 335 CrPC. [Balaji Kishan Nagarwad v. State of Maharashtra, 2019 SCC OnLine Bom 116, decided on 30-01-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of Mukta Gupta, J. dismissed a petition for grant of furlough holding that convicts under Narcotic Drugs and Psychotropic Substances Act, 1985 are not entitled to the same.

The petitioner was convicted for an offence punishable under the NDPS Act and was undergoing a sentence of imprisonment. He applied before the Competent Authority for grant of furlough. However, his application was rejected. Aggrieved thereby, he filed the present petition seeking a grant of furlough.

The High Court noted that according to Rule 1224 of the Delhi Prison Rules, 2018 which came into force w.e.f 1-1-2019, persons convicted for sedition, terrorist activities and under NDPS Act will not be entitled to furlough. While holding that the petitioner was not entitled to the relief sought for, the Court observed that, “furlough is a kind of remission granted as a reward for good conduct, unlike parole which can be granted in exigencies of a situation as well.” Consequently, the petition was dismissed. [Deepender Kumar v. State, 2019 SCC OnLine Del 6773, decided on 23-01-2019]

Case BriefsHigh Courts

Bombay High Court: The Bench M.G. Giratkar, J. reversed the judgment of Chief Judicial Magistrate, Yavatmal whereby the criminal revision applicant was convicted for the offences under Section 7(i) read with Section 2 (ia)(a) punishable under Section 16(1)(a)(ii) of the Prevention of Food Adulteration Act, 1954.

Applicant was the owner of a shop. The Food Inspector visited his shop and took samples of chilly powder. It was divided into three parts and sealed in bottles. One part was sent to Public Analyst and after receiving his report complaint was filed before the CJM. Charges were framed and after trial, the applicant was convicted by the CJM as mentioned above. Aggrieved thereby, he filed the present revision application.

The High Court noted that offences under PFA Act are to be proved strictly by following mandatory rules laid down in PFA Rules, 1955. Rule 14 deals with the manner of sending samples for analysis which is mandatory provision. In the present case, the Food Inspector neither personally cleaned the jars nor directed any other person to clean them when samples were taken. This resulted in non-compliance of Rule 14. Furthermore, Rule 22 which is also a mandatory provision was also not complied with. In case of chilly powder, the quantity of sample to be sent to Public Analyst must be 500 grams. However, in the present case, only 250 grams sample as sent. Also, the Public Analyst Report did not show that the powder was injurious to health. In such view of the matter, the court allowed the revision application and acquitted the applicant. [Santosh v. State of Maharashtra, 2019 SCC OnLine Bom 88, dated 22-01-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Sunil Gaur, J. disposed of a criminal revision petition by granting the benefit of probation to the petitioner while upholding his conviction.

The petitioner was convicted for offences punishable under Sections 323, 325 and 34 IPC. He was sentenced by the trial court to undergo simple imprisonment for 3 years along with fine of Rs 5000. Appellate Court maintained the conviction of the petitioner but reduced the sentence to rigorous imprisonment for 1 year with fine of Rs 1000. Aggrieved thereby, the petitioner preferred the present petition.

The petitioner was represented by Humza Islam, Khalid Akhtar and Mohd. Shadam, Advocates. They referred to lacunae evidence of complainant party and other evidence on record. Submissions were that the petitioner was a teenager at the time of the incident, he faced agony of trial for more than 10 years, there was no previous conviction to his discredit, etc.

The High Court, on considering the matter, found that there was no basis to interfere with the concurrent finding of the courts below regarding conviction of the petitioner. However, on aspect of the sentence, the Court was of the opinion that the appellate court ought to have considered petitioner’s case for grant of probation. In light of submissions made on behalf of the petitioners as aforesaid along with the fact that the petitioner was the sole bread-earner of his family, the Court set aside the sentence imposed on the petitioner while upholding the conviction. The petitioner was granted benefit of probation and was directed to be released forthwith if not wanted in any other case. [Nazim v. State, 2018 SCC OnLine Del 13187, Order dated 21-12-2018]

Case BriefsForeign Courts

South Africa High Court, Western Cape Division: Two matters came for review before a 2-Judge Bench comprising of DM Thulare AJ; MJ Dolamo J, where the proceedings were held considering the accused as major but they were found to be minor.

One of the accused pleaded guilty and thereby he was convicted under Section 112(1)(a) of the Criminal Procedures Act, 1977. While mitigation of sentences were being held it was brought before the court that the accused was minor as a consequence of which he was released and the matter was postponed for the determination of the correct age of the accused.  The second accused was found guilty and accordingly sentenced where his age was not determined.

The High Court viewed that terminology used in Section 12, 13 and 14 in Part 3 of Chapter 2 of the Child Justice Act, 2008 were not interpreted and applied in the best interests of children. Court with respect to Section 12 observed that police officer after arrest should have treated a youngster as child unless there were other reasons to the contrary. Further, Section 14 states that where the age of accused is uncertain, it is for the presiding officer to hold enquiry to determine same.  It was found that the presiding officer before whom the accused first appeared failed to determine the age of accused. Finding the Magistrate to be correct who said that the wrong determination of date caused prejudice to the accused conviction was liable to be set aside. Therefore, Court ordered the conviction of first accused and sentence on second accused to be set aside and the matter was remitted back to the magistrate for sentencing under Chapter 10 of Child Justice Act, 2008. [State v. B O, 2018 SCC OnLine ZAWCHC 3, dated 02-11-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Anu Malhotra, J. dismissed an appeal for reduction of sentence of the appellant awarded by trial court. The Court also gave directions essential for reformation of the convict (appellant) incarcerated in Tihar Jail.

The appellant was convicted under Section 6 read with Section 5(m) of POCSO Act along with Section 323 IPC. He was sentenced imprisonment for a period of 14 years under all the sections combined. He had undergone a period of 5 years, 4 months and 2 days. The convict filed the present appeal for seeking reduction of sentence. He was convicted for sexual assault on a two and a half years old victim child.

The High Court, considering all the facts, was of the view that no reduction in period of sentence as awarded by the trial court could be granted to the convict. However, following the precedent, the Court held that carcerial period should be such which reforms the convict. Therefore, the Court thought it essential to issue directions for reformation of the appellant-convict who was incarcerated in Tihar Jail. The Court directed the Superintendent at the Tihar Jail to consider an appropriate program for the appellant ensuring:

  • meditational therapy;
  • educational opportunity, vocational training, developmental program to enable livelihood options;
  • post-release rehabilitation program;
  • protection from being associated with anti-social groups as per Model Prison Manuel, 2016;
  • adequate counseling for sensitising him to understand why he is in prison;
  • conducting psychometric tests;
  • contact with family members as per jail rules.

The appeal was disposed of in the terms above. [Randhir v. State (NCT of Delhi),2018 SCC OnLine Del 10906, decided on 28-08-2018]

Case BriefsHigh Courts

Gauhati High Court: A Division Bench comprising of Suman Shyam and Achintya Malla Bujor Barua, JJ., decided a criminal appeal wherein the conviction of the appellant-wife under Section 302 IPC for the murder of her husband was altered to culpable homicide not amounting to murder under Section 304(II).

The appellant was alleged to have committed murder by attacking her husband with an axe. Before the trial court, the appellant took a defence that her husband mistakenly fell on the axe which resulted in his death. However, considering all the evidence available, the trial court held her guilty. Further, under Section 106 Evidence Act it was the duty of the accused to prove any fact which was exclusively within her knowledge. The appellant herein did not discharge the onus, and accordingly, she was convicted under Section 302. The appellant challenged the order in appeal.

The High Court perused the record and found that the fact-finding by the trial court did not suffer from any infirmity. The appellant, who was alone with the deceased at the time of the incident, was not able to discharge the burden of proving the fact exclusively within her knowledge. Moreover, nature of injuries suffered by the deceased, as shown in the post-mortem report, made the theory of the deceased falling on the axe, improbable. However, as per appellant’s statement and also statements of prosecution witnesses, the deceased was a drunkard who took up fights with the appellant. On the day of the incident also there was a fight between the appellant wife and her husband. The Court held that the incident was an outcome of the fight which gave grave and sudden provocation to the appellant that resulted in commision of the act. Considering the facts, the Court held that the appellant was a victim of circumstances and deserved the benefit of Exception 1 to Section 300. Accordingly, her conviction was altered from that under Section 302 to Section 304(II) IPC. Appeal was disposed of accordingly. [Suljina Dhan v. State of Assam, 2018 SCC OnLine Gau 645, dated 25-6-2018]

 

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench comprising of Tashi Rabstan, J. allowed the application filed by the applicant-convict for travelling USA for medical check-up and meeting his children.

The applicant was convicted and sentenced under Section 471 of Ranbir Penal Code. In an appeal preferred by the applicant herein against his conviction and sentence awarded by the learned Additional Sessions Judge, the High Court had suspended the sentence awarded to him and also admitted him to bail. The applicant had moved an application before the High Court for grant of permission to travel the United States of America.

The High Court perused the record and noted that even during his trial, the applicant was permitted, on several occasions, to travel abroad for a medical check-up. He never flouted any such permission granted by the trial court. In fact, each time, the applicant had returned before the stipulated time as granted by the courts below. The Court held the reason put forth by the applicant for travelling abroad, i.e. getting a medical check-up and meeting his children, as genuine. In such circumstances, the High Court allowed the application and permitted the applicant to travel USA subject to the conditions imposed. [Rajinder Nath Raina v. State of J&K,2018 SCC OnLine J&K 329, dated 01-06-2018]